ACCEPTED
06-15-00011-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/30/2015 9:48:09 PM
No. 06-15-00011-CR DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
6th COURT OF APPEALS
AT TEXARKANA, TEXAS TEXARKANA, TEXAS
10/1/2015 8:56:00 AM
Terrence Lavon Davis, DEBBIE AUTREY
Appellant
Clerk
v.
The State of Texas, State
Appealed from the 202nd Judicial District Court
Bowie County, Texas
BRIEF FOR THE STATE
The State Does Not Request Oral Argument
Respectfully submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
By: Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Texas Bar No. 24079421
Attorneys for the State
In The Court of Appeals
For the Sixth Supreme Judicial District
At Texarkana, Texas
Terrence Lavon Davis, § Nos. 06-15-00011-CR
Appellant §
§
v. §
§
The State of Texas, §
State § BRIEF FOR THE STATE
§
Identity of the Parties
The following is a complete list of all the parties to the trial court’s judgment
as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate
Procedure:
1. Defendant and Appellant:
Terrence Lavon Davis
2. Attorneys for Appellant on appeal:
Alwin A. Smith
602 Pine Street
Texarkana, Texas 75503
3. Attorneys for Appellant at trial:
Rick Shumaker
Public Defender’s Office
i
4. Attorney for the State of Texas at trial:
Michael Shepherd
Lauren Sutton
Assistant District Attorneys
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
5. Attorney for the State of Texas on appeal:
Lauren N. Richards
Assistant District Attorney
Texas Bar No. 24079421
601 Main Street
Texarkana, Texas 75501
Lauren.sutton@txkusa.org
6. Presiding Judge at trial:
The Honorable Leon F. Pesek, Jr.
District Court Judge
202nd Judicial District
Bowie County, Texas
Bi-State Justice Building
100 North State Line Avenue
Texarkana, Texas 75501
ii
Table of Contents
Identity of the Parties and Counsel ......................................................................... i-ii
Table of Contents ..................................................................................................... iii
Index of Authorities .............................................................................................. iv-v
Statement of the Case................................................................................................. 1
Reply to Points of Error ............................................................................................. 2
Argument.............................................................................................................. 3-18
Reply to Point of Error Number One ................................................ 3-7
The accomplice witness testimony was sufficiently corroborated
by other testimony and evidence.
Reply to Point of Error Number Two ............................................. 7-14
The jury was properly instructed on accomplice witness
testimony, but any error in the charge did not egregiously harm
the Appellant
Reply to Point of Error Number Three ......................................... 15-18
The trial court did not abuse its discretion in denying the
Appellant’s motion for continuance.
Prayer for Relief ....................................................................................................... 19
Certificate of Compliance ........................................................................................ 20
Certificate of Service ............................................................................................... 21
iii
Index of Authorities
Cases
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1984)..............................8,10,11
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g)8,10,11,12,13
Bailey v. State, 867 S.W.2d 42 (Tex.Crim.App.1993) ............................................ 11
Boones v. State, 170 S.W.3d 653 (Tex. App.—Texarkana 2005, no pet. ............... 11
Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ....................................... 8
Dowhitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)....................................... 4
Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) ........................................ 15
Gill v. State, 873 S.W.2d 45 (Tex. Crim. App. 1994) ............................................ 3,4
Hall v. State, 161 S.W.3d 142 (Tex. App.—Texarkana 2005, pet. ref’d) ................. 4
Hamann v. State, 428 S.W.3d 221 (Tex. App.–Houston [1st Dist.] 2014, pet. ref d)17
Holladay v. State, 709 S.W.2d 194 (Tex.Crim.App.1986)...................................... 10
Hutch v. State, 922 S.W.2d 116 (Tex. Crim. App. 1996) ...................................12,13
Munoz v. State, 853 S.W.2d 558 (Tex. Crim. App. 1993)......................................... 4
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ............................................. 8
Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988)............................................ 4
Rudd v. State, 921 S.W.2d 370 (Tex. App. – Texarkana 1996, pet. ref’d) .............. 11
Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991)................................... 11
iv
Texas Code of Criminal Procedure
Tex. Code Crim. Proc. art. 38.14 ............................................................................... 3
v
Statement of the Case
Appellant, Terrence Lavon Davis was found guilty by a jury of aggravated
robbery, a first degree felony. The jury assessed punishment at fifty-five (55) years
to be served consecutively in the Texas Department of Criminal Justice-
Institutional Division, and a $10,000 fine. The Judge sentenced the Appellant
accordingly. Appellant then perfected appeal to this Honorable Court. He now
appeals the punishment verdict of the trial court on three points of error.
1
Reply to Points of Error
REPLY TO POINT OF ERROR NUMBER ONE:
The accomplice witness testimony was sufficiently corroborated by
other testimony and evidence.
REPLY TO POINT OF ERROR NUMBER TWO:
The jury was properly instructed on accomplice witness testimony,
but any error in the charge did not egregiously harm the Appellant.
REPLY TO POINT OF ERROR NUMBER THREE:
The trial court did not abuse its discretion in denying the Appellant’s
motion for continuance.
2
Argument
Reply to Point of Error One
The accomplice witness testimony was sufficiently corroborated by
other testimony and evidence.
In point of error number one, the Appellant argues that the State failed to
corroborate the testimony of the accomplice with sufficient evidence. However,
viewing the evidence presented at trial in a light most favorable to the jury verdict
and eliminating the accomplice’s testimony, the corroboration of the accomplice
testimony is sufficient. The non-accomplice evidence tends to connect the
Appellant to the commission of the aggravated robbery.
Argument and Authorities
A. Standard of Review
Under the accomplice witness rule, one cannot be convicted on the
testimony of an accomplice unless that testimony is corroborated by other evidence
tending to connect the defendant with the offense committed.1 To determine the
sufficiency of corroboration, the reviewing court must view the corroborating
evidence in the light most favorable to the jury’s verdict.2 The test for weighing the
sufficiency of corroborating evidence is to eliminate from consideration the
accomplice’s testimony, and then examine the remaining testimony and evidence
1
Texas Code Crim. Proc. art. 38.14.
2
Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).
3
to determine if there is evidence that tends to connect the defendant with the
commission of the offense.3 The nonaccomplice evidence does not have to directly
link the accused to the crime, does not have to establish guilt beyond a reasonable
doubt, and need not prove all the elements of the alleged offense.4 Such evidence
may be either direct or circumstantial.5
Article 38.14 requires the corroboration of an accomplice’s testimony, but it
does not define the quality or quantity of evidence required to satisfy the
corroboration requirement.6 Texas courts have ultimately concluded that all that is
required is “some non-accomplice evidence which tends to connect the accused to
the commission of the offense alleged in the indictment.”7
B. Application of Law to Facts
Viewing the evidence presented at trial in a light most favorable to the jury
verdict and eliminating the accomplice’s testimony, the corroboration of the
accomplice testimony was sufficient.
At trial, Calvin Whaley testified that he and the Appellant committed an
armed robbery of the convenience store together. (R.R. Vol. 3, p. 60). Whaley
stated that he and the Appellant went to “hit a lick,” or commit a robbery. (R.R.
3
Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Hall v. State, 161 S.W.3d 142,
149 (Tex. App.—Texarkana 2005, pet. ref’d).
4
Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559.
5
Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).
6
Dowhitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
7
Gill, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).
4
Vol. 3, p. 75). The two men travelled to the E-Z Mart convenience store. (R.R.
Vol. 3, p. 77). Then, once inside the store, the Appellant went to the counter and
purchased some candy, then pulled out a firearm and pointed it at the clerk. (R.R.
Vol. 3, p. 77-78). The surveillance video from the convenience store introduced
into evidence, depicting two men robbing the store, in the manner which Whaley
testified to. (R.R. Vol. 5, State’s Exhibit 3).
As non-accomplice evidence tending to connect the Appellant to the offense,
the State presented the testimony of the Appellant’s girlfriend, Toni Rutledge. The
State also introduced into evidence the pants the Appellant was wearing when he
was arrested for the jury to view and make any comparisons with the pants worn
by the man depicted in the surveillance video. (R.R. Vol. 5, State’s Exhibits 10-13;
15). Still photographs from the surveillance video were also introduced into
evidence for comparison with the defendant. (R.R. Vol. 5, State’s Exhibit 14).
Toni Rutledge testified that she was in a relationship with the Appellant for
nine years and is the father of her two children. (R.R. Vol. 3, p. 110-11). After
being shown the surveillance video in open court, Ms. Rutledge testified that she
recognized Terrance’s voice to be the man holding the gun and threatening the
clerk. (R.R. Vol. 3, p. 115). She further testified that Terrance is left-handed and
the man with the gun held it in his left hand. (R.R. Vol. 3, p. 116). Ms. Rutledge
also stated that she recognized the clothing that the Appellant was wearing in the
5
video and that the pants were distinctive because of their back pockets. (R.R. Vol.
3, p. 116-18). She also stated she recognized the Appellant in the video by the way
he walks. (R.R. Vol. 3, p. 120-21). Ms. Rutledge was positive that it was the
Appellant in the video. (R.R. Vol. 3, p. 121). Detective Brad Thacker testified that
the pants the Appellant was wearing when he was arrested were similar and
consistent with the pants worn by the suspect with the gun in the surveillance
video. (R.R. Vol. 3, p. 141). During Thacker’s testimony, a video was played
which included a portion of the Appellant’s interview after he was arrested and
then an audio clip taken from the surveillance video. (R.R. Vol. 3, p. 153-54).
During the interview with Appellant, Detective Thacker has asked him to repeat a
specific phrase used by the suspect with the gun in the surveillance video. (R.R.
Vol. 3, p. 154). From this testimony and evidence, the jury was able to make a
comparison on their own and come to a determination as to whether or not the
voice of the suspect in the video was the Appellant’s voice. Detective Thacker also
testified that after conducting the interview with Appellant and hearing the
Appellant repeat the specific phrase, it was Thacker’s opinion that the Appellant’s
voice matched that of the suspect on the video. (R.R. Vol. 3, p. 156).
Eliminating the testimony of the accomplice, Calvin Whaley, and examining
the remaining testimony and evidence, there is some evidence which tends to
connect the Appellant to the commission of the crime.
6
C. Conclusion
While the nonaccomplice evidence may not establish guilt beyond a
reasonable doubt, or may not prove all of the elements of the alleged offense by
itself, it does tend to connect the Appellant with the commission of the offense as
required. Therefore, the nonaccomplice evidence is sufficient to corroborate the
accomplice testimony.
For these reasons, Appellant’s first point of error should be overruled.
Reply to Point of Error Two
The jury was properly instructed on accomplice witness testimony, but
any error in the charge did not egregiously harm the Appellant
In point of error number two, Appellant argues the trial court’s instructions
to the jury on accomplice testimony was insufficient. However, the court’s
instruction was sufficient and the Appellant made no objections to the jury charge
as submitted. Taking into account the charge itself, the state of the evidence
including contested issues and the weight of the probative evidence, arguments of
counsel, and any other relevant information revealed by the record of the trial as a
whole, the Appellant did not suffer egregious harm.
7
Argument and Authorities
A. Standard of Review
Appellate review of a purported error in the jury charge involves a two-step
process. 8 First, the reviewing court must determine whether the jury instruction is
erroneous.9 Second, if error occurred, then an appellate court must analyze that
error for harm.10 In examining the charge for possible error, reviewing courts
“must examine the charge as a whole instead of a series of isolated and unrelated
statements.”11
When jury instruction errors occur, review of the charge is under the
Almanza standard.12 An erroneous jury charge does not result in automatic
reversal of the conviction or punishment.13 Instead, sufficient harm must have
resulted from the error to require reversal.14
B. Application of Law to Facts
A jury instruction on corroboration of accomplice witness testimony was
given to the jury in the court’s charge:
8
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), overruled on
other grounds by Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988).
9
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
10
Id. at 744.
11
Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).
12
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
13
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1984).
14
Id. at 731-32; Almanza, 686 S.W.2d at 171.
8
“The witness, Calvin Whaley, is an accomplice, if an offense was
committed, and you cannot convict the defendant upon his testimony unless you
first believe that his testimony is true and shows that the defendant is guilty as
charged, and then you cannot convict the defendant upon said testimony unless you
further believe that there is other testimony in the case, outside the evidence of
Calvin Whaley tending to connect the defendant with the offense committed, if you
find that an offense was committed, and the corroboration is not sufficient if it
merely shows the commission of the offense, but it must also tend to connect the
defendant with its commission, and then from all of the evidence you must believe
beyond a reasonable doubt that the defendant is guilty of the offense charged
against him. (C.R. p. 71).
The Appellant complains on appeal that the instruction was erroneous
because it limited the jury’s inquiry as to the corroboration required to “other
testimony” instead of to “other evidence.” Appellant asserts that the instruction
focused on whether there was other “testimony,” and therefore, in effect, the trial
court in told the jury that it must find the Appellant guilty because of the testimony
of Toni Rutledge. However, as previously discussed in point of error number one,
there was also testimony presented from Detective Brad Thacker that it was his
opinion the voice of the Appellant matched that of the suspect in the video.
9
The Texas Court of Criminal Appeals has held an accomplice witness
instruction is sufficient if it instructs the jury that, “before it could find the
appellant guilty of the offense ..., it had to find (1) that the offense itself had been
committed; (2) that the accomplice witness['s] testimony was truthful; (3) that [the
accomplice witness's] testimony itself showed that the appellant was guilty of the
offense ...; (4) that there was other evidence, outside of [the accomplice witness's]
testimony, that tended to connect the appellant to the commission of the offense ...;
and (5) from all of the evidence, including the accomplice witness' testimony, it
believed that the appellant was guilty beyond a reasonable doubt of committing the
offense....”15 This test is met by the trial court's instruction in this case. Therefore,
there was no error in the jury charge.
C. Harm Analysis
However, assuming arguendo, this Court finds there was a jury charge error,
review of the charge is under the Almanza standard.16 An erroneous jury charge
does not result in automatic reversal of the conviction or punishment.17 Instead,
sufficient harm must have resulted from the error to require reversal.18
The level of harm an appellant must demonstrate as having resulted from the
erroneous jury instruction depends on whether the appellant properly objected to
15
Holladay v. State, 709 S.W.2d 194, 201-02 (Tex. Crim. App. 1986).
16
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
17
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1984).
18
Id. at 731-32; Almanza, 686 S.W.2d at 171.
10
the error.19 When a proper objection is made at trial, reversal is required if the error
is “calculated to injure the rights of defendant”—the appellant need only
demonstrate “some harm” on appeal.20 In the case of unpreserved error, reversal is
required only when “the error is so egregious and created such harm that he ‘has
not had a fair and impartial trial’—in short ‘egregious harm.’”21 “Egregious harm”
results from errors affecting the very basis of the case or that deprive the defendant
of a valuable right, vitally affect a defensive theory, or make the case for
conviction or punishment clearly and significantly more persuasive.22
In either event, when conducting a harm analysis the reviewing court may
consider the following four factors: 1) the charge itself; 2) the state of the evidence
including contested issues and the weight of the probative evidence; 3) arguments
of counsel; and, 4) any other relevant information revealed by the record of the
trial as a whole.23
At trial, when asked if the defense had any objections to the charge,
Appellant’s counsel stated, “The only objection we would have, Judge, is that
there’s no evidence to warrant the submission of this case to the jury again, that
there’s no evidence to warrant the submission of an accomplice corroboration
19
Abdnor, 871 S.W.2d at 732.
20
Id.; see also Almanza, 686 S.W.2d at 171.
21
Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana
1996, pet. ref’d).
22
Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991); Boones v. State, 170 S.W.3d
653, 660 (Tex. App.—Texarkana 2005, no pet.).
23
Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App.1993) (citing Almanza).
11
instructions.” (R.R. Vol. 4, p. 6). The objection was not that the accomplice
instruction was insufficient or lacking in any way, but rather that the State had not
presented sufficient evidence to warrant submission of the case to the jury.
Therefore, the defendant did not properly object to the jury charge.
Appellant argues that he properly objected to the jury charge error. The
Appellant’s argument on appeal is that the jury charge misstated the law. However,
at trial, the Appellant’s objection was not that the charge misstated the law. In fact,
the Appellant was objecting because she felt the evidence was insufficient to
warrant submission of the case to the jury. Appellant also failed to object during
the court’s reading of the charge the jury that it was a misstatement of the law.
Since error was not preserved, reversal is not required unless “the error is so
egregious and created such harm that [the defendant] ‘has not had a fair and
impartial trial’ – in short ‘egregious harm.’”24 “Errors which result in egregious
harm are those which affect ‘the very basis of the case,’ deprive the defendant of a
‘valuable right,’ or ‘vitally affect a defensive theory’.” 25 Egregious harm is a
difficult standard to prove and such a determination must be done on a case-by-
case basis.26
24
Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App. – Texarkana
1996, pet. ref’d).
25
Hutch v. State, 922 S.W.2d 116, 171 (Tex. Crim. App. 1996)(quoting Almanza)
26
Id.
12
The charge itself laid out the properly applicable law and required the jury
to find all of the elements of the crime were proven beyond a reasonable doubt. As
previously addressed in point of error number one, the State presented testimony of
Toni Rutledge, Detective Brad Thacker, and also introduced exhibits into evidence
which enabled the jury to make its own determination of identity.
The State emphasized during closing argument what was required to corroborate
accomplice testimony:
“The law does not require that, absent Calvin’s testimony, the other evidence
we present prove to you beyond a reasonable doubt. That’s not what the law is.
The law says that if you believe Calvin’s testimony and that there is other
evidence, any evidence, which we’ve presented to you, then you consider all the
evidence, and using all of the evidence, if you’re convinced beyond a reasonable
doubt of his guilt, then a conviction can stand.” (R.R. Vol. 4, p. 19).
The defense counsel addressed accomplice testimony in his closing
argument in the following way:
“This evidence that tends to connect him to the commission of the offense
has still got to be competent, credible and believable. They just ccan’t get Calvin
Whaley and say, okay, he did it, and then bring somebody in here that’s not
competent, credible and worthy of believing and say, oh, yeah, that’s his voice on
tape. You still have to believe it, and you have to find it competent and credible.”
13
(R.R. Vol. 4, p. 23). The defense counsel further stated, “They must have other
evidence that tends to connect Mr. Davis with the commission of this offense.”
(R.R. Vol. 4, p .25).
Evaluating the charge itself. the state of the evidence including contested
issues and the weight of the probative evidence, arguments of counsel; and any
other relevant information revealed by the record of the trial as a whole, this Court
can be assured any error in the jury charge did not result in egregious harm to the
Appellant.
C. Conclusion
The accomplice witness instruction given to the jury was sufficient. Because
the Appellant failed to object to the jury charge, if there was any error in the
charge, he must have suffered egregious harm as a result to warrant reversal.
However, a review of the record and evidence presented at trial demonstrates the
Appellant was not egregiously harmed.
For these reasons, Appellant’s second point of error should be overruled.
14
Reply to Point of Error Three
The trial court did not abuse its discretion in denying the Appellant’s
motion for continuance.
In point of error number three, Appellant argues the trial court erred in
denying his motion for continuance. Appellant alleges prosecutorial misconduct in
the form of misleading defense counsel regarding the testimony of the witness
Toni Rutledge. However, the State gave notice to the defense counsel that Ms.
Rutledge was a witness. Because the defense has failed to show he was actually
prejudiced by the trial court’s ruling, it was not an abuse of discretion for the court
to deny the motion for continuance.
Argument and Authorities
A. Standard of Review
A trial court’s decision to deny a motion for continuance is reviewed under
an abuse of discretion standard.27 To establish an abuse of discretion when the trial
court denies a motion for continuance, there must be a showing that the defendant
was actually prejudiced by the denial of his motion.28
B. Application of Law to Facts
At trial, Defense counsel stated they received the State’s witness list on
November 20, 2014, which listed Toni Rutledge as the defendant’s girlfriend.
27
Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007).
28
Id.
15
(R.R. Vol. 3, p. 7; R.R. Vol. 5, p. 64-Defense Exhibit 1). Likewise, defense
counsel said they had previously made attempts to contact Ms. Rutledge to speak
with her, but that she had refused to speak to them. (R.R. Vol. 3, p. 53).
On December 3, 2014, Appellant filed a “Formal Request for Compliance
with Article 39.14 of the Texas Code of Criminal Procedure.” (C.R. p. 47). The
following day, on December 4, 2014, the Appellant filed an Amended request,
with the only addition being a item “J”- a request for the disclosure of the “name,
address and telephone number of any person or persons who may attempt to testify
to an in-court or out of court identification of the Defendant and the basis for
such.” (C.R. p. 49). On December 9, 2014, prior to jury selection, the trial counsel
took up the defense’s motion in limine (R.R. Vol. 2, p. 5). In that motion, the
defense sought to prohibit the State from calling any witness in an attempt to
identify any voiced on the audio tape from the E-Z Mart surveillance video. (R.R.
Vol. 2, p. 5).
The defendant was clearly aware witnesses would be making identifications
of the Defendant, as evidenced by the addition of the additional request. The State
did provide the defendant with the name, address and phone number of Ms.
Rutledge. The witness list also indicated Ms. Rutledge was the Appellant’s
girlfriend. It is reasonable to conclude that a woman in a relationship with the
Appellant would have a sufficient, personal knowledge basis for identifying him.
16
The State did not intentionally deceive the defense counsel as to the testimony of
Ms. Rutledge. Simply because the Appellant claims he did not receive sufficient
notice of the substance of Ms. Rutledge’s testimony, does not mean he could not
have anticipated such. Additionally, even when an Appellant argues he could not
anticipate the witnesses' testimony, that factor is not, by itself, determinative of
whether the trial court abused its discretion.
In examining whether the defense reasonably could have anticipated the
witness's testimony, the reviewing court will generally consider the degrees of
surprise to the defendant, disadvantage inherent in that surprise, and the trial
court's ability to remedy the issue, such as by granting a recess or postponement.29
The Appellant was not surprised that Ms. Rutledge was to be called as a
witness as she was listed on the State’s witness list. The Appellant is arguing that
he was surprised by the content of her testimony. However, as previously
discussed, based on the filings of defense counsel and arguments made at trial, it is
evident there was awareness that witnesses would be identifying the Appellant.
Appellant argues that the State intentionally misinformed the Appellant what
Ms. Rutledge would only be testifying for a limited purpose. This is simply
incorrect. Ms. Rutledge is listed on the witness list, along with all of the other
State’s witnesses. Ms. Rutledge is listed as a witness to an extraneous offense in
29
Hamann v. State, 428 S.W.3d 221, 228 (Tex. App.–Houston [1st Dist.] 2014, pet. ref d).
17
the State’s notice of intention to use extraneous offenses at trial. But there is
nothing in the record or on file which indicates that Ms. Rutledge would only be
testifying to the singular extraneous offense. Appellant claims that had the State
not misinformed defense counsel as to Ms. Rutledge’s testimony, he would have
pursued an interview with the witness. The defense counsel did pursue an
interview with the witness, and the witness chose not to speak with defense
counsel. (R.R. Vol. 2, p. 53). Additionally, the Appellant was given the
opportunity to cross-examine Ms. Rutledge on the sufficiency of her identification
of the Appellant and her credibility. (R.R. Vol. 4, p. 122-29).
C. Conclusion
Upon a review of the record, this Court can conclude that the trial court did
not abuse its discretion in denying appellant's motion for continuance. Appellant's
contention that he was harmed due to alleged prosecutorial misconduct related to
disclosure of witness testimony is without merit.
For these reasons, Appellant’s third point of error should be overruled.
18
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, there being legal and
competent evidence sufficient to justify the conviction and punishment assessed in
this case and no reversible error appearing in the record of the trial of the case, the
State of Texas respectfully prays that this Honorable Court affirm the judgment
and sentence of the trial court below.
Respectfully Submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
__/s/Lauren N. Sutton____________
By: Lauren N. Sutton
Assistant District Attorney
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
Attorneys for the State
19
Certificate of Compliance
I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of
Appellate Procedure, Appellee’s Brief contains 3,702 words, exclusive of the
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
__/s/Lauren N. Sutton__________________
Lauren N. Sutton
20
Certificate of Service
I, Lauren N. Sutton, certify that I have served a true and correct copy of the
foregoing Brief for the State upon Mr. Al Smith, Attorney for Appellant, on this
the 30th day of September, 2015.
__/s/Lauren N. Sutton___________
Lauren N. Sutton
21