ACCEPTED
06-14-00192-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/20/2015 2:37:40 PM
DEBBIE AUTREY
CLERK
06-14-00192-CR
FILED IN
6th COURT
IN THE COURT OF APPEALS FOR THETEXARKANA, OF APPEALS
TEXAS
4/21/2015 8:47:00 AM
SIXTH APPELLATE DISTRICT OF TEXAS DEBBIE AUTREY
Clerk
TEXARKANA, TEXAS
___________________________________
REGINALD REECE,
APPELLANT
V.
STATE OF TEXAS,
APPELLEE
__________________________________
TRIAL CAUSE NO. 11 F 0746 202
___________________________________
APPEAL FROM THE 202ND DISTRICT COURT
BOWIE COUNTY, TEXAS
BRIEF FOR APPELLANT
ORAL ARGUMENT IS NOT REQUESTED
Alwin A. Smith
SBN: 18532200
602 Pine Street
Texarkana, Texas 75501
903-792-1608
903-792-0899 Fax
al@alwinsmith.com
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a) (2005), the parties to this suit are as
follows:
1. Reginald Reece, is the Appellant and was the Defendant in trial court.
2. The State of Texas, by and through the Bowie County Criminal
District Attorney’s Office, 601 Main Street, Texarkana, Texas, is the
Appellee and prosecuted this case in the trial court.
The trial attorneys were as follows:
1. Reginald Reece was represented by Rick Shumaker .
2. The State of Texas was represented by Jerry D. Rochelle, District
Attorney and Michael Shepherd, Assistant District Attorney.
The appellate attorney is as follows:
1. Reginald Reece is represented by Alwin A. Smith, 602 Pine Street,
Texarkana, Texas 75501.
2. The State of Texas is represented by Jerry D. Rochelle, District
Attorney and Michael Shepherd, Assistant District Attorney, 601
Main Street, Texarkana, Texas 75501.
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TABLE OF CONTENTS
Pa ge
Identity of Parties and Counsel ...............i
Table of Contents . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . iii
Statement of the Case ...............1
Issues Presented ...............2
Statement of Facts ...............3
Summary of the Argument ...............4
Argument and Authorities
Issue No. 1: ...............5
Issue No. 2: ...............8
Conclusion . . . . . . . . . . . . . . . 15
Certificate of Service . . . . . . . . . . . . . . . 16
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INDEX OF AUTHORITIES
Cases Page
Campbell v. State, 667 S.W.2e 221, 222 (Tex. App. -
Dallas 1983) ................ 6
Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim.
App. 1997) . . . . . . . . . . . . . . . 11
Ellison v. State, 201 S.W.3d 714, 718 (Tex. Crim.
App. 2006) . . . . . . . . . . . . . . . 10
Haley v. State, 173 S.W.3d 510, 517 (Tex. Crim.
App. 2005) . . . . . . . . . . . . 10, 11
Hill v. State, 426 S.W.3d 868, 877 (Tex.App. - Eastland
2014) ................ 7
Lindsey v. State, 102 S.W.3d 223, 228 (Tex. App.-
Houston [14th Dist.] 2003, pet. ref’d) . . . . . . . . . . . . . . . 11
Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim.
App. 2006) . . . . . . . . . . . . . . . 10
Statutes/Rules
Rule 44.2(a), Tex.R.App. Proc. (Vernon’s 2015).. . . . . . . . . . . . 7, 11
Rule 401, Tex. R. Evid. . . . . . . . . . . . . . . . 11
iii
STATEMENT OF THE CASE
This is a criminal case wherein the Appellant was indicted by the
Bowie County Grand Jury for theft of property with a value of less than
$1,500.00, with two previous convictions, on September 22, 2011. C.R. pg. 16.
The Appellant ‘s original trial was reversed as to punishment by this Court in
Reece v. State, No. 06-13-00082-CR, 2014 WL 1851322, on January 23, 2014.
The Appellant’s punishment was enhanced to that of a second degree felony
because of his previous convictions. C.R. pg. 40. On October 14, 2014, the
Appellant’s retrial began and on October 15, 2014, the jury assessed the
Appellant’s punishment at twenty years in the Institutional Division of the
Texas Department of Criminal Justice and assessed a fine in the amount of
$10,000.00.
STATEMENT REGARDING ORAL ARGUMENT
Counsel for Appellant does not believe that oral argument is necessary
for the Court to make a ruling in this matter.
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ISSUES PRESENTED
First Issue on Appeal: The Trial Court erred in Limiting the Defendant’s
Right to Voir Dire the Jury Panel on Punishment
Second Issue on Appeal: The Trial Court Erred in Allowing the State to
Put on Inadmissible Evidence of Victim Impact
2
STATEMENT OF FACTS
On June 7, 2011, the Appellant was stopped by the Texarkana Police
Department, because his vehicle matched the description of a vehicle used in
a misdemeanor shoplifting at the Wal-Mart store. Vol. 3, pg. 69. Upon
discovering what were believed to be stolen items in the vehicle the Appellant
was arrested. Vol. 3, pg. 76.
The investigation revealed that employees of the Wal-Mart, noticed the
Appellant to be putting items into his pants and leaving the store. Vol. 3, pg.
32-3. After noticing the Appellant, the manager of the store followed the
Appellant out of the store and was able to retrieve from the Appellant some of
the items allegedly taken. Vol. 3, pg. 64.
The total amount alleged to have been taken by the Appellant was
approximately $1,100.00.
3
SUMMARY OF ARGUMENT
First Issue on Appeal: The Trial Court erred in Limiting the Defendant’s
Right to Voir Dire the Jury Panel on Punishment
The trial court prevented the Appellant from being able to voir dire the
jury panel as to their beliefs about punishment so as to intelligently be able to
exercise his peremptory challenges or to be able to challenge a juror for cause.
Second Issue on Appeal: The Trial Court Erred in Allowing the State to
Put on Admissible Evidence of Victim Impact
Over the objection of the Appellant, the trial court allowed the State
to introduce “victim impact” testimony that did not involve the victim
alleged in the indictment, nor was it limited to the Appellant’s behavior.
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ARGUMENT
First Issue on Appeal
The Trial Court erred in Limiting the Defendant’s Right to Voir
Dire the Jury Panel on Punishment
Prior to the beginning of voir dire, the Assistant District Attorney
removed from the Appellant’s counsel’s possession certain power point pages
of his presentation for the jury. Vol. 2, pg. 4. After the Appellant’s counsel
objected to the trial court about the removal by the assistant district attorney,
the trial court then allowed the State to use the pilfered items to lodge an
objection as to several of the items contained therein. Vol. 2, pgs. 4-9. The
State then objected to two slides from the presentation that were admitted as
State’s Exhibit 2 and 3. Vol. 4, pgs. 89-90. State’s exhibit number 2 was of a
power point page that inquired about potential juror’s knowledge of criminal
proceedings in Bowie County, and about a case that had received considerable
press. State’s exhibit number 3 was a like page that inquired about an
additional case and the punishment. Appellant’s counsel argued to the trial
court that these exhibits were designed to inquire into the potential jurors
attitudes with regard to punishment. Vol. 2, pgs. 11-2. The trial court then
sustained the State’s objection, stating that he felt that the inquiry would
5
“open up issues involved in other cases”. Vol. 2, pg. 12. The trial court also
stated that it felt that the question would be an improper commitment
question. Vol. 2, pg. 12.
The Appellant was being tried by the jury for punishment only. His
previous record subjected him to a second degree punishment for the
commission of a Class A misdemeanor offense of shoplifting. CR. Pg. 16. It was
paramount that that the Appellant be able to exercise his peremptory
challenges and challenges for cause against any juror who could not or would
not consider the full range of punishment in this case.
The trial court may control voir dire examination of the panel of
perspective jurors, but that ability is an abuse of the trial court’s discretion
when, as here, it limits the Appellant with regard to a proper area of inquiry.
Campbell v. State, 667 S.W.2d 221, 222 (Tex.App.—Dallas 1983). By refusing
to allow Appellant’s counsel to inquire into the venire members’ beliefs on
punishment he was effectively prohibited from being able to fully explore their
ability to fully consider the full range of punishment. “Defense counsel is
entitled to ask the venire members the question of whether they could
consider the full range of punishment, and if the trial court prevents counsel
from doing that, then defense counsel may not be able to discern if a juror
6
should be struck for cause because he is unqualified.” Hill v. State, 426 S.W.3d
868, 877 (Tex.App.—Eastland 2014).
Having established error, the Appellant urges this Court to consider the
error pursuant to a Rule 44.2(a) analysis, that being, whether this error did
not, beyond a reasonable doubt, contribute to the punishment as assessed by
the jury and was, therefore, harmless. Rule 44.2(a) Tex.R.App.Proc.,Vernon’s
2015).
The Appellant in this case was tried as to punishment only for the
offense of Class A misdemeanor theft, which was enhanced to a State Jail
Felony because of two prior theft convictions, which was enhanced to a second
degree felony because of two prior felony convictions. The jury assessed his
punishment at the maximum number of years and assessed the maximum
fine. CR. pg. 72. It could not be clearer that the jury in this matter did not
consider the full range of punishment.
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Second Issue on Appeal
The Trial Court Erred in Allowing the State to Put on Admissible
Evidence of Victim Impact
During the punishment trial of the Appellant, the State offered the
testimony of Mark Harrison, the store manager of the Wal-Mart from which
the Appellant had committed the misdemeanor theft. Vol. 3, pg. 57. During his
testimony, the following exchange took place between the witness and the
assistant district attorney:
“Question: And in your current capacity as an assistant manager,
do you have a significant desire to have an impact on
being able to control the merchandise that is taken
from the store? Do you have a reason as to why you
want to protect the store merchandise?
Answer: Yes, sir. If we can protect our assets, it helps keep
costs down.”
Vol. 3, pg. 58. Counsel for Appellant objected to the testimony as being
irrelevant. Vol. 3, pg. 58. The State responded that as a 20 year employee of
Wal-Mart, the witness could testify to the impact of shoplifting on the
corporation. Vol. 3, pg. 58-9. The trial court overruled the Appellant’s
8
objection and allowed the State to continue. Vol. 3, pg. 59. The witness was
then allowed to testify to the following:
“Question: (Mr. Shepherd) You may continue.
Answer: Yes. The amount of shoplifting that we get, it’s very
extensive and it causes the prices to go up. We have to
pay for asset protection associates in the store, the
cameras. It’s just a very expensive part of the job.
Question: And basically what you’re saying is that as it relates to
Walmart, that’s a multi-billion dollar corporation. Is
that correct, sir?
Answer: Yes, sir.
Question: And a corporation of that size, if property is taken
from the store, for them to maintain a profit margin,
they have to raise prices when property is stolen at a
significant margin. Is that correct, sir?
Answer: That is correct.
Question: Therefore, would that process affect normal shoppers
as it relates to their prices being increased due to
thefts that occur at a particular store?
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Answer: Yes, sir. The costs are distributed to all of us that shop
at Walmart.”
Vol. 3, pg. 59.
It is clear that this testimony was victim impact testimony, and that it
was not limited to the Appellant nor of the effect of his crime on a particular
store, but was testimony of the impact on every shopper of all shoplifting done
at all Wal-Marts throughout the world.
“We review a trial court's ruling on the admissibility of evidence under
an abuse of discretion standard.” Rodriguez v. State, 203 S.W.3d 837, 841
(Tex.Crim.App.2006). “We will uphold the trial court's decision as long as it
falls within the zone of reasonable disagreement.” Id. “We may not reverse the
court's decision solely because we disagree with it.” Id.
“In determining admissibility of punishment evidence, “a trial judge
must operate within the bounds of Rules 401, 402, and 403". Ellison v. State,
201 S.W.3d 714, 718 (Tex.Crim.App.2006).
“Victim-impact evidence is admissible during the punishment phase
when the evidence has some bearing on the defendant's personal
responsibility and moral culpability.” Haley v. State, 173 S.W.3d 510, 517
(Tex.Crim.App. 2005). “Extraneous victim impact evidence by people not
10
named in the indictment is inadmissible because such evidence runs the risk
of extreme prejudice and can lead to an unfair punishment hearing.” Cantu v.
State, 939 S.W.2d 627, 637 (Tex.Crim.App.1997); Lindsay v. State, 102
S.W.3d 223, 228 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Such
evidence is irrelevant under Rule 401 of the Texas Rules of Evidence. Cantu,
939 S.W.2d at 637.
“Pursuant to Texas Rule of Appellate Procedure 44.2(b), any non-
constitutional error that does not affect appellant's substantial rights must be
disregarded. A substantial right is affected when the error had a substantial
and injurious effect or influence in determining the jury's verdict. In assessing
the likelihood that the jury's decision was adversely affected by the error, an
appellate court should consider everything in the record, including any
testimony or physical evidence admitted for the jury's consideration, the
nature of the evidence supporting the verdict, the character of the alleged
error and how it might be considered in connection with other evidence in the
case. The reviewing court may also consider the jury instructions, the State's
theory and any defensive theories, closing arguments, voir dire and whether
the State emphasized the error.” Haley, at 518-9.
The State began Appellant’s punishment trial by asking in voir dire:
11
MR. SHEPHERD: In regard to a shoplifting case, do you
understand, or what are your feelings in regard to how many
people in the community are affected when it comes to
shoplifting? Do you think that, you know, only the big corporation
of Walmart is affected, or do you think potentially everyone can be
affected?
PANEL MEMBER OTWELL: Everyone is affected.
MR. SHEPHERD: Okay. And how and why do you feel that way,
ma’am?
PANEL MEMBER OTWELL: The workers in Walmart, some of
their pay is taken away for extra security that shouldn’t have to be
there because people should be honest. I am watched when I am
not a thief. I even feel like I’m being watched and even have some
unfounded guilt sometimes, just because I feel that I’m being
watched for no apparent reason. I just believe that it affects
society as a whole. We should be honest, we should go in and we
should pay for goods, and we should work hard.
Vol. 2, pg. 33. After this exchange with Panel Member Otwell, the Assistant
District Attorney went on to state:
12
“MR. SHEPHERD: All right. Thank you very much. I think you
were very well spoken in regard to that. And I think we all
understand that, just as Ms. Otwell pointed out, when it comes to
shoplifting, you know, some individuals might think why are we
here, that’s such a minor crime. A lot of people think that. A lot of
people think that -- well, in this case at bar, I believe the total
amount stolen on that day was about $1,100 worth of
merchandise, okay? A lot of people think that, or some people
think, well, Walmart is a big multi-billion dollar corporation, they
can make that up in no time, it doesn’t affect me, I’m not going to
worry about it. Some people think that. However, the reality is,
just as Ms. Otwell pointed out, that additional security,
surveillance cameras, all of that is tacked onto the price of goods
that we all have to pay for. Absolutely nothing is going to come out
of Walmart’s pocket. It’s going to come out of our pockets. If the
Texarkana Walmart loses $10,000 a month in merchandise that’s
stolen out of the store, you can rest assured that when we go in
there to buy something --.”
Vol. 2, pg. 34. At this point Appellant’s counsel objected, and the trial court
13
instructed the State to “ask questions” without ruling on the objection. Vol. 2,
pg. 34.
In closing, the State reminded the jury “And remember, we all pay for
what he does. It doesn’t just affect Walmart. It doesn’t just affect the people
there. It affects all of us.” Vol. 3, pg. 106. It cannot be reasonably disputed that
the repeated reference to the effect on all shoppers at all Wal-Marts with
regards to the offense of shoplifting in general, didn’t have a substantial effect
and influence on the jury's punishment assessment.
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CONCLUSION
It is for the reasons stated herein that the Appellant, requests that this
Court reverse the punishment assessed by the jury in this case and remand
this matter to the trial court for a proper punishment trial.
Respectfully submitted,
/s/Alwin A. Smith
Alwin A. Smith
TBN: 18532200
al@alwinsmith.com
602 Pine Street
Texarkana, Texas 75501
903/792-1608
903/792-0899 Fax
Certificate of Compliance
Pursuant to the Tex. R. App. P. 9.4(i)(3), I hereby certify that this brief
contains 1997 words (excluding the caption, table of contents, table of
authorities, signature of proof of service, certification and certificate of
compliance). This is a computer-generated document created in Wordperfect,
using 14 point typeface for all text. In making this certificate of compliance,
I am relying on the word count provided by the software used to prepare the
document.
/s/Alwin A. Smith
15
Certificate of Service
This is to certify that a true and correct copy of Appellant’s Brief has
been forwarded to the Appellant, Reginald Reece, #1857130, Gurney Unit,
1385 FM 3328, Palestine, Texas 75803 and Michael Shepherd, Attorney for
the State, 601 Main Street, Texarkana, Texas 75501, on this the _____ day
of April 2015, by placing the same in the U.S. Mail or private courier service.
/s/Alwin A. Smith
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