COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-377-CR
MARVIN OWENS DANCER APPELLANT
A/K/A MARVIN DANCER
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Marvin Owens Dancer a/k/a Marvin Dancer appeals his two
convictions for aggravated robbery with a deadly weapon. We affirm.
In the early morning hours of November 13, 2005, Javier Sanchez and
five friends (altogether, three men and three women) were socializing in
Sanchez’s Fort Worth apartment when there was a knock at the door and two
1
… See T EX. R. A PP. P. 47.4.
or three intruders forced their way inside. One of the intruders, who had a
loaded gun, demanded money and hit Sanchez and one of his male friends with
the gun. Sanchez’s group eventually disarmed their assailant, and the other
intruder(s) fled. When Officer John Lucas responded to Sanchez’s apartment,
he found appellant lying injured on the floor.
Following a three-day trial, a jury convicted appellant of two counts of
aggravated robbery with a deadly weapon. The trial court sentenced appellant
to two forty-year sentences, to be served concurrently.
In his first point, appellant contends that the trial court improperly refused
to strike the testimony of two witnesses and grant a mistrial because the State
failed to produce the witnesses’ written statements after their direct
examinations.
Texas Rule of Evidence 615 requires a trial court to order the production,
after a witness has testified on direct examination, of the witness’s written
statement relating to the matter testified and provides sanctions if the party so
ordered fails to comply:
(a) Motion for Production. After a witness other than the
defendant has testified on direct examination, the court, on motion
of a party who did not call the witness, shall order the attorney for
the state or the defendant and defendant’s attorney, as the case
may be, to produce, for the examination and use of the moving
party, any statement of the witness that is in their possession and
2
that relates to the subject matter concerning which the witness has
testified.
....
(e) Sanction for Failure to Produce Statement. If the other party
elects not to comply with an order to deliver a statement to the
moving party, the court shall order that the testimony of the
witness be stricken from the record and that the trial proceed, or,
if it is the attorney for the state who elects not to comply, shall
declare a mistrial if required by the interest of justice.2
The purpose of this rule is to assist the defendant to cross-examine and
possibly impeach a witness.3
All six witnesses who were in Sanchez’s apartment gave Officer Lucas
written statements shortly after the offense occurred. After Sanchez testified
on direct examination, appellant requested Sanchez’s written statement under
Rule 615. The prosecutor responded that he had never received the witness’s
written statement and that four of the six statements were missing and
believed to have been lost by the police. Appellant moved for production of the
2
… T EX. R. E VID. 615.
3
… See Enos v. State, 909 S.W .2d 293, 295 (Tex. App.—Fort Worth
1995) (referring to Gaskin rule), pet. dism’d, improvidently granted, 959
S.W.2d 620 (Tex. Crim. App. 1997). Texas Rule of Criminal Evidence Rule
614(a) expanded and codified the Gaskin rule and was recodified in 1998 as
Texas Rule of Evidence 615. See, e.g., T EX. R. E VID. 615 cmt.; Enos v. State,
889 S.W.2d 303, 304 n.2 (Tex. Crim. App. 1994).
3
statements under Rule 615(a) and for sanctions under Rule 615(e).4 The trial
court denied both motions. Later, following the direct examination of Daniel
Ceron—another eyewitness—appellant made similar requests, and the trial court
again denied relief.5
Near the end of the trial, appellant called Detective Darren Darracq.
Detective Darracq responded to the scene approximately two and a half hours
after the offenses and received the six written statements from Officer Lucas.
Detective Darracq acknowledged to the jury that he had lost four of the
statements and, although he had looked for them, had no idea where they
were.6
By its plain language, Rule 615(a) only requires a party to produce
witness statements that are in “their possession.” 7 The State argues that it did
4
… At trial, the grounds for appellant’s objections and motions were Rule
615, confrontation, and cross-examination. On appeal, however, he limits his
argument to Rule 615.
5
… Sanchez and Ceron also gave lengthy audio-taped statements on the
night of the aggravated robberies, albeit several hours after making the written
statements. Appellant was provided with these statements.
6
… In the trial court and on appeal, appellant has disclaimed any
suggestion of prosecutorial misconduct and has not challenged the detective’s
testimony that he lost the statements accidentally and never gave them to the
prosecution.
7
… T EX. R. E VID. 615(a).
4
not “possess” the statements and, therefore, did not “elect” not to produce
them. We agree.
In Jenkins v. State, the Texas Court of Criminal Appeals held that Rule
615 only requires a prosecutor to produce witness statements that are “in the
prosecutor’s possession” or in the possession of the “prosecutorial arm of the
government.” 8 When interpreting Rule 615 in the past, we have stated that a
party possesses a statement “if it is within [the party’s] control or readily
accessible,” 9 or in the party’s “actual or constructive possession.” 10
The evidence shows that at the time of trial the statements were not in
the possession of the State. The prosecutor affirmatively represented to the
trial court that he was never given Sanchez’s or Ceron’s written statement.
Detective Darracq’s testimony that he lost the statements and could not find
them corroborated the prosecutor’s representations. The undisputed evidence
8
… 912 S.W.2d 793, 819 (Tex. Crim. App. 1995) (op. on reh’g); see also
Olivas v. State, No. 08-99-00442-CR, 2000 WL 1867971, at *5 (Tex.
App.—El Paso Dec. 21, 2000, no pet.) (not designated for publication)
(concluding based on Jenkins that “possession” refers only to statements in the
prosecutor’s possession).
9
… Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995,
pet. ref’d & pet. dism’d).
10
… Williams v. State, 940 S.W.2d 802, 805 (Tex. App.—Fort Worth
1997, pet. ref’d); Jordan v. State, 897 S.W.2d 909, 918 (Tex. App.—Fort
Worth 1995, no pet.).
5
showed that neither he nor the prosecutor physically possessed the statements
at the time they were requested, nor were the statements within their control
or readily accessible.11 We, therefore, hold that Sanchez’s and Ceron’s written
statements were not in the State’s possession for purposes of Rule 615.12
Section (e) of the rule requires sanctions “[i]f the other party elects not
to comply with an order to deliver a statement to the moving party.” 13 The trial
court, however, found that the State did not possess the statements and thus
the court never ordered the State to deliver them to appellant. Because the trial
11
… Additionally, the trial court found that the recorded statements were
made contemporaneously with the written statements and speculated that they
were probably more detailed than the written statements. No one disputed the
trial court’s recitation of the facts.
12
… See Amunson v. State, 928 S.W.2d 601, 608 (Tex. App.—San
Antonio 1996, pet. ref’d) (holding that rule was not violated where officer
stated he made a report but was “unable to find it” because there was no
report to tender to counsel); see also Olivas, 2000 WL 1867971, at *5 (holding
officers’ handwritten statements and evidence forms that were kept at drug
task force office and had never been provided to the prosecutor were not in the
prosecutor’s possession); Baker v. State, No. 05-97-00986-CR, 1999 WL
418314, at *6 (Tex. App.—Dallas June 24, 1999, pet. ref’d) (not designated
for publication) (holding that State was not required to produce statements that
were not in its possession at the time of request because they had been
destroyed pursuant to document retention policies).
13
… T EX. R. E VID. 615(e).
6
court never ordered the State to deliver the statements, the State did not elect
not to comply with an order to deliver the statements to appellant.14
For these reasons, we hold that the trial court properly denied appellant’s
Rule 615 motions for production and for sanctions. We overrule appellant’s
first point.15
In his second point, appellant argues that the trial court improperly
allowed the State to bind a juror in voir dire. The allegedly objectionable
question dealt with whether the State would be required to produce in evidence
a weapon in order to establish aggravated robbery:
[The State]: . . . if there’s been testimony that there’s a weapon and
you believe that testimony beyond a reasonable doubt,
does that mean, in fact, that the State would have to
produce the weapon?
[Appellant]: I’m going to again object to the attempt to bind this
particular juror.
....
14
… See Marquez v. State, 757 S.W.2d 101, 103 (Tex. App.—San
Antonio 1988, pet. ref’d).
15
… Although appellant understandably wanted the missing statements
to assist him in cross-examining and possibly impeaching Sanchez and Ceron,
there is no indication that the statements were exculpatory, and appellant did
not advance a Brady objection in the trial court. We express no opinion as to
the outcome of a Brady analysis under these facts.
7
[The State]: . . . Is there anyone here that would require the State
to have the weapon? Anyone on this panel?
[Appellant]: Judge, again, I’m going to object to asking that
question. Still an attempt to bind now the entire panel.
THE COURT: And I’ll sustain it as phrased of would they require.
That would all depend on the facts and the
circumstances of an individual case.
[Appellant]: Your Honor, we’d ask for an instruction to disregard.
THE COURT: Well, no one answered the question, so I’ve ruled on
the question as phrased. No one can ask
you—disregard the way he phrased it, just as a
precaution. No one can ask you what you will do until
you hear the evidence. It’s what you can keep an
open mind to do in an appropriate case based upon
what the facts show. Does everyone understand that
distinction?
SEVERAL PANEL MEMBERS: Yes.
THE COURT: Because if the lawyers can sit here and say these are
the facts, will you do this, if those are the facts, would
you do that, well, the lawyers would be here for three
days asking those questions, as they should, if you
could give them answers and then try the case here in
voir dire instead of try the case through testimony. On
the other hand, there are rules that both sides are
entitled to rely on you to follow which is to evaluate the
testimony, render a true verdict based on the evidence
and decide if there’s proof or not—proof of any or all
elements of the offense. And if proved beyond a
reasonable doubt, the State’s entitled to a guilty verdict.
If not proven beyond a reasonable doubt as to any or
all elements, the Defense is entitled to a not guilty.
Does everyone understand that basic premise?
8
SEVERAL PANEL MEMBERS: Yes, sir.
[Appellant]: To perfect the record, we move for mistrial.
THE COURT: That will be denied.
When the trial court sustains an objection and instructs the jury to
disregard 16 but denies a defendant’s motion for a mistrial, the issue is whether
the trial court abused its discretion in denying the mistrial.17 In determining
whether the trial court abused its discretion in denying the mistrial, we balance
three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative
measures, and (3) the certainty of conviction absent the misconduct.18 Only
in extreme circumstances, when the prejudice is incurable or the comment is
“so prejudicial that expenditure of further time and expense would be wasteful
and futile,” will a mistrial be required.19 Generally, a prompt instruction to
16
… Appellant claims that an instruction to disregard was requested but
not given. Based on the exchange quoted above, however, we conclude that
the trial court did instruct the jury to disregard the prosecutor’s question.
17
… Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
18
… Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)
(op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
19
… Hawkins, 135 S.W.3d at 77; see also Simpson v. State, 119 S.W.3d
262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).
9
disregard will cure error associated with an improper question or comment,
including a question posed at voir dire. 20
To begin with, we note that none of the jurors responded to the allegedly
improper commitment question. Further, nothing in the record suggests that
this is an “extreme circumstance” where the prejudice, if any, was incurable,
and appellant does not argue that this is such a case. Accordingly, we hold
that the instruction to disregard cured the error, if any, and the trial court did
not abuse its discretion in denying appellant’s motion for mistrial.21 We overrule
appellant’s second point.
In his third point, appellant argues that the trial court improperly failed to
grant a mistrial to cure the State’s improper jury argument which constituted
an attack upon appellant over the shoulders of his counsel.
During the State’s rebuttal closing argument at the guilt-innocence phase,
the prosecutor denied that identity of the assailant was an issue, arguing, “He
[the defense attorney] knows who it was. He knows who was carried out on
20
… Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000);
Hamilton v. State, No. 02-04-00435-CR, 2005 W L 3008449, at *2 (Tex.
App.—Fort Worth Nov. 10, 2005, pet. ref’d) (mem. op., not designated for
publication); Calderon v. State, 847 S.W.2d 377, 380 (Tex. App.—El Paso
1993, pet. ref’d).
21
… See Calderon, 847 S.W.2d at 380–81 (holding that instruction to
disregard cured error from prosecutor’s improper comment during voir dire).
10
that stretcher. It was the Defendant.” The trial court sustained appellant’s
objection and instructed the jury to disregard the argument but denied
appellant’s motion for mistrial.
Applying the law discussed above, we conclude that the trial court did
not abuse its discretion in refusing to grant a mistrial. The prosecutor’s
objectionable argument was not so extreme or manifestly improper that an
instruction to disregard could not cure any possible prejudicial effect.22 Further,
the trial court instructed the jury to disregard the argument and explained that
“what the lawyers say about each other or about the evidence is not evidence.”
The jurors indicated that they understood the trial court’s instruction by nodding
and answering “[y]es, sir.” The prosecutor then restated the argument without
objection. Finally, the evidence of guilt was strong. The three testifying
witnesses’ accounts of the aggravated robberies were consistent, and they
identified the man who had assaulted them with a gun as the man who was
lying on the floor of the apartment when Officer Lucas arrived. 23
22
… See Orona v. State, 791 S.W.2d 125, 127–30 (Tex. Crim. App.
1990) (concluding beyond a reasonable doubt that error in prosecutor’s
accusation that defendant’s attorneys “know how to argue to get people off”
was harmless in that statement was not so prejudicial, under facts of the case,
as to call for reversal).
23
… Although the witnesses did not identify appellant in the courtroom as
their assailant, Officer Lucas identified appellant as the man he found on the
11
For these reasons, we conclude that the trial court did not abuse its
discretion in refusing to grant a mistrial, and we overrule appellant’s third point.
Having overruled all of appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
PUBLISH
DELIVERED: April 3, 2008
floor of the apartment.
12
Marvin Owens Dancer A/K/A Marvin Dancer v. State
Combined Opinion