COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00025-CR
ANTHONY LEE HARDEMAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Anthony Lee Hardeman appeals his sentence of sixty years’
incarceration stemming from a jury’s verdict finding him guilty of murder. Asking
this court to remand for a new punishment phase of trial and citing violations of
due process, in one point Hardeman asserts that the State committed multiple
1
See Tex. R. App. P. 47.4.
Brady violations; that the prosecutor committed prosecutorial misconduct; and
that the trial court erred by excluding testimony. We will affirm.
II. BACKGROUND
This appeal involves only the punishment phase of Hardeman’s trial. After
a jury returned a verdict of guilty for murder, Hardeman’s trial proceeded to the
punishment phase. At the punishment hearing and before a jury, the State
introduced testimony from David Yonts, a detention officer for the Wichita County
Jail, where Hardeman was held after he was arrested for the charges underlying
this case. Yonts testified about an alleged fight between Hardeman and a fellow
inmate and events that resulted in Hardeman having kicked Yonts in the head as
Yonts attempted to break up the fight. During this line of questioning, defense
counsel objected and asked that the trial court conduct a bench hearing outside
the presence of the jury to determine whether the State could prove beyond a
reasonable doubt that Hardeman had in fact assaulted Yonts. After a brief bench
conference, defense counsel stated, ―Judge, that’s fine. We can bring the Jury
back in.‖
The State also introduced the testimony of Andrew Tucker, another
detention officer for the Wichita County Jail. Tucker testified to the contents of a
videotape that allegedly showed the fight between Hardeman and his fellow
inmate. As Tucker testified, defense counsel objected:
Judge, I’d object to this witness testifying about what’s on a video
that he -- that he didn’t personally see them, so he can’t say that the
video accurately recorded them. Secondly, the video is gone, it’s the
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best evidence and what he’s trying to say is something -- Judge,
without the video, it also violates our 6th Amendment right to
confront and cross-examine this witness, so I would object on all of
those grounds to him testifying about what he saw on the video.
The trial court overruled the objection, and Tucker testified to what he
remembered seeing on the video.
Hardeman also testified at the punishment hearing. During cross-
examination, the State asked him questions about his involvement in an
Oklahoma drive-by shooting that occurred when he was a juvenile. During the
State’s cross-examination, the trial court called for a recess until the next day.
When the State began to cross-examine Hardeman again, the State once more
asked Hardeman about the drive-by shooting. The State then tried to impeach
Hardeman using a police report related to the Oklahoma drive-by shooting.
Defense counsel objected that he had not been given a copy of the police report
before trial. The trial court sustained the objection and instructed the jury to
disregard ―the last line of questioning.‖ The jury sentenced Hardeman to sixty
years’ incarceration. This appeal followed.
III. DISCUSSION
A. Alleged Brady Violations
In part of his sole point, Hardeman alleges that his due process rights were
violated because the State committed Brady violations whenever it introduced
evidence at the punishment phase regarding Hardeman having allegedly fought
with a fellow inmate and having allegedly assaulted a detention officer. Brady v.
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Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Hardeman further argues that the
State committed a Brady violation when it allegedly did not disclose prior to the
punishment phase that the videotape of the alleged fight had been deleted.2 We
will assume without deciding that these alleged failures constitute Brady
violations. We conclude, however, that Hardeman has failed to preserve these
complaints for our review.
The State has an affirmative duty under the due process clause to disclose
exculpatory or impeachment evidence that is material to guilt or punishment.
See generally United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3379
(1985); see also Brady, 373 U.S. at 87, 83 S. Ct. at 1196–97; Thomas v. State,
841 S.W.2d 399, 407 (Tex. Crim. App. 1992). Favorable evidence is ―material‖ if
there is a reasonable probability (i.e., a probability sufficient to undermine
confidence in the outcome) that had the evidence been disclosed to the defense,
the result of the proceeding would have been different. Thomas, 841 S.W.2d at
404. When the evidence is disclosed during trial, however, the materiality
question turns on whether the defendant was prejudiced by the delayed
disclosure. Williams v. State, 995 S.W.2d 754, 761–62 (Tex. App.—San Antonio
2
At the punishment phase of trial, Hardeman objected to Tucker testifying
to the contents of the video by raising confrontation and best evidence rule
complaints. On appeal, although citing these objections in his brief, Hardeman
does not argue these same issues nor does he cite to any authority pertaining to
the confrontation clause or the best evidence rule. Hardeman’s complaint on
appeal is that the State not disclosing to him the unavailability of the video was a
Brady violation: ―Again the State did not comply with its [Brady] obligation and
notify [Hardeman] that it did not have the videotape.‖
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1999, no pet.). Furthermore, when previously withheld evidence is disclosed at
trial, the defendant has an opportunity to request a continuance. Id. As a
general rule, the failure to request a continuance waives any Brady violation.
Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App—Austin 2002, pet. ref’d);
Williams, 995 S.W.2d at 761–62.
In the instant case, Hardeman failed to request a continuance at any time
after the State introduced testimony regarding the alleged fight between
Hardeman and a fellow inmate or when the State put on evidence regarding the
alleged assault on the detention officer. Furthermore, Hardeman did not request
a continuance whenever the State introduced testimony regarding the contents of
the videotape. Therefore, assuming arguendo that the State failed to disclose
evidence in violation of Brady, Hardeman waived any potential Brady violation by
failing to request a continuance. See State v. Fury, 186 S.W.3d 67, 73–4 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d) (holding that defendant’s failure to
request a continuance indicates that tardy disclosure of withheld evidence was
not prejudicial for purposes of claim of Brady violation.) We overrule this portion
of Hardeman’s sole point.
B. Threshold Determination of Extraneous Offenses
In part of his sole point, Hardeman argues that the trial court erred by
failing to conduct a preliminary hearing to determine whether the State could
prove beyond a reasonable doubt the extraneous offenses that he engaged in a
fight with a fellow inmate and that he assaulted a detention officer.
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We review a trial court’s decision to admit an extraneous offense during
the punishment phase under the abuse of discretion standard. Mitchell v. State,
931 S.W.2d 950, 953 (Tex. Crim. App. 1996). During the punishment phase, the
State may offer evidence as to any matter the court deems relevant to
sentencing, including evidence of an extraneous crime or bad act that is shown
beyond a reasonable doubt to have been committed by the defendant or for
which he could be held criminally responsible. Tex. Code Crim. Proc. Ann. art.
37.07, § 3(a)(1) (Vernon Supp. 2010). When presented with an appropriate
objection, the trial court has the responsibility to determine the threshold issue of
whether an extraneous offense is relevant. See Mitchell, 931 S.W.2d at 953–54;
Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—Austin 2000), aff’d, 58 S.W.3d 132
(Tex. Crim. App. 2001). Then the jury, as the exclusive judge of the facts, is to
determine whether or not the State has proved the extraneous offenses beyond a
reasonable doubt, and they should be so instructed when requested. Mitchell,
931 S.W.2d at 954.
The trial court satisfies its responsibility by making an initial determination
that a jury could reasonably find beyond a reasonable doubt that the defendant
committed the extraneous offense. Mann, 13 S.W.3d at 94; see Mitchell, 931
S.W.2d at 954. This threshold determination is not a finding by the court that the
State has proved an extraneous bad act beyond a reasonable doubt, but it is
instead a finding that sufficient evidence exists from which a jury could
reasonably so find. See Mann, 13 S.W.3d at 94.
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Hardeman did not object to the State’s introduction of evidence concerning
the alleged fight with his fellow inmate. Thus, he failed to inform the trial court
that he desired the trial court to determine the threshold issue of relevancy to this
alleged offense and failed to preserve for appeal any alleged error. See Mitchell,
931 S.W.2d at 953–54. But Hardeman did request a bench conference
regarding the admissibility of evidence concerning his alleged assault on the
detention officer. Significant to this preserved issue and counter to Hardeman’s
assertion, there is no requirement that the initial determination be made by the
court following a hearing as opposed to some other form of preliminary review.
Mann, 13 S.W.3d at 94. The trial court may determine through an oral or written
proffer of evidence, motions, pretrial hearings, and the trial, including any bench
conferences, whether there is sufficient evidence. See Mann, 13 S.W.3d at 93–
95 (holding that the prosecutor’s statement that he intended to offer extraneous
offense evidence through defendant’s ex-wife, who would testify as to some
physical abuse by defendant, was sufficient for purposes of making a threshold
determination of relevance); Welch v. State, 993 S.W.2d 690, 697 (Tex. App—
San Antonio 1999, no pet.) (holding that the State’s written proffer of how it would
prove the defendant sexually assaulted four other victims was sufficient for
purposes of trial court’s threshold determination of relevance).
Here, the prosecutor’s oral statement to the trial judge, outside the
presence of the jury, that he intended to prove the assault through testimony by
the detention officer was sufficient for the trial court to make an initial
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determination of relevance. See Mann, 13 S.W.3d at 93–95. Accordingly,
Hardeman’s complaints concerning the trial court’s not having held a hearing
regarding the extraneous offenses are without merit. We overrule this portion of
Hardeman’s sole point.
C. Exclusion of Portions of Hardeman’s Testimony
In part of his sole point, Hardeman next asserts that the trial court erred by
excluding his own testimony whereby Hardeman attempted to state what the
victim had told him throughout the events leading up to the murder. We
disagree.
We review a trial court’s decision to exclude evidence under an abuse of
discretion standard, and we must therefore affirm the trial court’s decision unless
it is beyond the ―zone of reasonable disagreement.‖ Green v. State, 934 S.W.2d
92, 101–02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200, 117 S. Ct. 1561
(1997).
To preserve error in a trial court’s exclusion of evidence, the substance of
the excluded evidence must be shown by an offer of proof unless it is apparent
from the context of the questions asked. Tex. R. Evid. 103(a)(2); Tex. R. App. P.
33.2; Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993), cert. denied,
511 U.S. 1100, 114 S. Ct. 1871 (1994); Fairow v. State, 943 S.W.2d 895, 897 n.2
(Tex. Crim. App. 1997). The purpose of the offer of proof is to show what the
witness’s testimony would have been—otherwise, there is nothing before the
appellate court to show reversible error in the trial court’s ruling. Stewart v.
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State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866,
106 S. Ct. 190 (1985); see Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App.
1999), cert. denied, 531 U.S. 837, 121 S Ct. 98 (2000). Error may be preserved
by an offer of proof in question-and-answer form or in the form of a concise
statement by counsel. Tex. R. Evid. 103(b); Love v. State, 861 S.W.2d 899, 901
(Tex. Crim. App. 1993). Counsel’s concise statement must include a summary of
the proposed testimony. Love, 861 S.W.2d at 901. Error is not preserved if the
offer of proof is inadequate. Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App.
1998).
At the punishment phase of trial, a lengthy exchange took place between
defense counsel and Hardeman regarding Hardeman’s relationship with the
victim. During this exchange, the State, citing hearsay, objected to several
portions of Hardeman’s testimony. Defense counsel contended that the
statements were important to show Hardeman’s state of mind at the time of the
murder. Each time the trial court sustained the State’s hearsay objection. But
Hardeman never submitted a formal offer of proof indicating what Hardeman
intended to testify to. Because nothing in the record indicates the contents of
Hardeman’s intended testimony, the substance of the excluded testimony cannot
be determined. Therefore, Hardeman failed to preserve error. See Stewart, 686
S.W.2d at 122. We therefore overrule this portion of Hardeman’s sole point.
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D. State’s Use of Allegedly Undisclosed Police Report
In the remainder of his sole point, Hardeman argues that the ―State
engaged in prosecutorial misconduct by violating its open file policy, by failing to
disclose that they had obtained a copy of an Oklahoma police report in the
middle of the trial[,] and by using a document for cross-examination that it could
have obtained and disclosed to the defense well prior to trial.‖ Hardeman’s
complaint is based upon the State’s attempt to impeach Hardeman’s own
testimony regarding his alleged involvement in a drive-by shooting that occurred
in Oklahoma a few years prior to trial. After the State attempted to question
Hardeman about the contents of the Oklahoma police report, Hardeman
objected, the trial court sustained the objection, and the trial court instructed the
jury: ―The Jury is instructed to disregard the last line of questioning. It will be
about the last six or seven questions, I believe.‖ Hardeman then moved for a
mistrial, and the trial court denied his motion.
The State counters, among other arguments, that the trial court sustained
Hardeman’s objection to the introduction of the police report and any questioning
regarding it, and that the trial court instructed the jury to disregard the line of
questioning pertaining to the drive-by. Thus, the State argues that we as a
reviewing court are to presume that the jury followed the trial court’s instruction
and that the trial court did not abuse its discretion by denying Hardeman’s motion
for mistrial.
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We review the trial court’s denial of a motion for mistrial under an abuse of
discretion standard. Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App.
2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2982 (2006); Ladd v. State,
3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070, 120
S. Ct. 1680 (2000). The determination of whether a given error necessitates a
mistrial must be made by examining the particular facts of the case. Ladd, 3
S.W.3d at 567; Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App.
1990), cert. denied, 500 U.S. 960, 111 S. Ct. 2275 (1991).
A motion for mistrial will be granted only in ―extreme circumstances, where
the prejudice is incurable.‖ Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.
App. 2004); see Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).
Generally, a prompt instruction to disregard will cure error associated with an
improper question and answer. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim.
App. 2000). Further, we are to presume the jury will follow the court’s
instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). In
considering whether an instruction is sufficient to cure error, courts consider
whether the reference was direct or implied, intentional or inadvertent, detailed or
vague, and whether the topic was pursued once the instruction was given. Kipp
v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994); Waldo v. State, 746
S.W.2d 750, 752 (Tex. Crim. App. 1988).
In this case, the trial court promptly instructed the jury to disregard the
complained-of line of questioning, and we presume that the jury followed that
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instruction. See Colburn, 966 S.W.2d at 520. After the trial court instructed the
jury to disregard the line of questioning, the State did not refer to it again, did not
attempt to highlight this testimony, and did not make any use of it at all. We
conclude that the trial court’s instruction to the jury cured any potential error.
Thus, we overrule this remaining portion of Hardeman’s sole issue.
IV. CONCLUSION
Having overruled Hardeman’s sole point in its entirety, we affirm the trial
court’s judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
WALKER, J. concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 19, 2011
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