ACCEPTED
06-14-00192-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/23/2015 2:09:23 PM
No. 06-14-00192-CR DEBBIE AUTREY
Trial Court No. 11F0746-202 CLERK
IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
6th COURT OF APPEALS
AT TEXARKANA, TEXAS TEXARKANA, TEXAS
6/23/2015 2:09:23 PM
Reginald Reece, 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
Reginald Reece, §
Appellant §
§ No. 06-14-00192-CR
v. §
§
The State of Texas, § BRIEF FOR THE STATE
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:
Reginald Reece
2. Attorneys for Appellant on appeal:
Alwin A. Smith
Attorney at Law
Texas Bar No. 18532200
602 Pine Street
Texarkana, Texas 75501
3. Attorneys for Appellant at trial:
Rick Shumaker
4. Attorney for the State of Texas at trial:
i
Michael Shepherd
Lauren N. Richards
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
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
Summary of the Argument......................................................................................... 3
Argument.............................................................................................................. 4-11
Reply to Point of Error Number One ................................................ 4-8
The trial court did not abuse its discretion in preventing
Appellant from introducing facts and sentences from other
cases in front of the jury panel during voir dire.
Reply to Point of Error Number Two ............................................. 8-11
The trial court did not abuse its discretion in allowing
testimony from the assistant manager of the victim business.
Prayer for Relief ....................................................................................................... 12
Certificate of Compliance ........................................................................................ 13
Certificate of Service ............................................................................................... 14
iii
Index of Authorities
Cases
Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) ...................................10,11
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)................................. 10
Dewalt v. State, 307 S.W.3d 437 (Tex. App.—Austin 2010, pet. ref’d) ................... 4
Goodwin v. State, 91 S.W.3d 912 (Tex. App—Fort Worth 2002, no pet.) ............. 10
Hart v. State, 173 S.W.3d 131 (Tex. App.—Texarkana 2005, no pet.) .................... 6
Lincicome v. State, 3 S.W.3d 644 (Tex. App.—Amarillo 1999, no pet.).................. 9
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) ..................................... 9
Martinez v. State, 588 S.W.2d 954 (Tex. Crim. App. [Panel Op.] 1979).................. 6
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ............................... 9
Phelps v. State, 999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d) ................ 9
Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) ........................................ 9
Robinson v. State, 35 S.W.3d 257 (Tex. App.—Texarkana 2000, pet. ref’d) ........... 9
Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003) ............................................ 4
Taylor v. State, 93 S.W.3d 487 (Tex. App—Texarkana 2002, pet. ref’d.) ............. 10
Thompson v. State, 267 S.W.3d 514 (Tex. App.—Austin 2008, pet. ref’d).............. 6
Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)................................... 9
Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) ...................................... 10
Wilder v. State, 111 S.W.3d 249 (Tex. App.—Texarkana 2003, pet. ref’d) ............. 9
iv
Rules of Appellate Procedure
Tex. R. App. Proc. 33.1(a)(1) .................................................................................... 8
v
Statement of the Case
Appellant, Reginald Reece, was convicted by a jury of Theft of property
with two prior theft convictions in the 202nd Judicial District Court of Bowie
County, Texas, the Honorable Leon F. Pesek, Jr. presiding. The jury assessed
punishment at twenty (20) years in the Institutional Division of the Department of
Criminal Justice, and the Judge sentenced the Appellant accordingly. Appellant
then perfected appeal to this Honorable Court and this court and Appellant’s trial
was revered as to punishment in Reece v. State, No. 06-13-0082-CR, 2014 WL
1851322. Appellant was re-tried on punishment only on October 15, 2014. A
second jury again assessed his punishment at twenty (20) years in the Institutional
Division of the Department of Criminal Justice, and the Judge sentenced the
Appellant accordingly. He now appeals the punishment verdict of the trial court
on two points of error.
1
Reply to Points of Error
REPLY TO POINT OF ERROR NUMBER ONE:
The trial court did not abuse its discretion in preventing Appellant
from introducing facts and sentences from other cases in front of the
jury panel during voir dire.
REPLY TO POINT OF ERROR NUMBER TWO:
The trial court did not abuse its discretion in allowing testimony from
the assistant manager of the victim business.
2
Summary of the Argument
REPLY TO POINT OF ERROR NUMBER ONE:
The trial court did not abuse its discretion in preventing Appellant
from introducing facts and sentences from other cases in front of the
jury panel during voir dire.
The trial court did not allow the Appellant to get into specific cases and their
sentences during voir dire. The Appellant was allowed to properly question the
jury as to whether or not they could consider the full range of punishment.
Therefore, the trial court did not abuse its discretion in limiting the Appellant’s
voir dire.
REPLY TO POINT OF ERROR NUMBER TWO:
The trial court did not abuse its discretion in allowing testimony from
the assistant manager of the victim business.
The trial court did err in overruling the Appellant’s objection to the
testimony of Wal-Mart Assistant Manager Mark Harrison. The testimony was
proper victim-impact and was relevant for the jury to assess punishment. The trial
court did not abuse its discretion in allowing his testimony.
3
Argument
Reply to Point of Error One
The trial court did not abuse its discretion in preventing Appellant
from introducing facts and sentences from other cases in front of the
jury panel during voir dire.
Argument and Authorities
A. Preservation of Error
“If an appellant does not actually frame a question to the trial court, nothing
is preserved for review.”1 In addition, there is not preservation of error where the
Appellant merely informs the court of the general subject area from which he seeks
to propound questions.2 To preserve error, the Appellant “must show that he was
prevented from asking particular questions that were proper”3
Appellant has not preserved his voir dire complaint for review. There is
nothing in the record to reveal what particular questions Reece’s counsel was
prevented from asking the panel.
Prior to voir dire, the State objected to certain slides of the Appellant’s voir
dire power point. (R.R. Vol. 2, p. 6). The objection was that the slides sought to
introduce to the jury panel facts from other cases and the sentences the individuals
1
Dewalt v. State, 307 S.W.3d 437, 457 (Tex. App.—Austin 2010, pet. ref’d).
2
Id.
3
Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003).
4
in those cases received. (R.R. Vol. 2, p. 10; Record Exhibit No. 2, R.R. Vol. 4).
The Appellant’s response was that they were “entitled to voir dire to be able to
exercise our peremptory challenges on different offenses that these people may
have realized occurred in Bowie County and how they – attitudes towards
punishment in those offense.” (R.R. Vol. 2, p. 11). The trial court sustained the
State’s objection. (R.R. Vol. 2, p. 11).
For clarification, on appeal, Reece references State’s Record Exhibits 2 and
3. However, a review of the record indicates that both slides which were excluded
by the trial court were actually both part of State’s Record Exhibit 2. The State also
objected to the portion of Appellant’s slide show that stated “We punish the person
because we do not like them,” which is contained in State’s Record Exhibit 3 (R.R.
Vol. 4). However, the trial court stated it would allow the question. (R.R. Vol. 2, p.
14).
The crux of Appellant’s complaint is that he was unable to question the jury
panel related to State’s Record Exhibit 2. While the slides contain questions about
whether there is agreement regarding whether appropriate sentences were received
by the individuals in other cases, the Appellant did not actually frame a question to
the trial court. For this reason, the Appellant has failed to preserve this point of
error for review.
5
B. Standard of Review
Should this court determine the Appellant preserved this point of error for
review, it was not an abuse of discretion for the trial court to limit Appellant’s voir
dire. A trial court may impose reasonable restrictions on voir dire examination. 4 A
trial court’s decision to limit voir dire should be reviewed under an abuse of
discretion standard.5 The trial court abuses its discretion when it limits a proper
question concerning a proper area of inquiry.6
B. Application of Law to Facts
Appellant argues the trial court committed error by limiting his right to voir
dire the jury panel on punishment. Appellant argues that because the trial court
sustained the State’s objections to two slides of his voir dire, that it amounted to an
impermissible limitation on his voir dire.
Both the State and the defense have the right to inform the jury of the range
of punishment applicable to an offense and to quality the panel on the fully
possible range of punishment applicable to the case.7 Jurors must be able to
consider the full range of punishment for an offense.
4
Thompson v. State, 267 S.W.3d 514, 517 (Tex. App.—Austin 2008, pet. ref’d) (citing Boyd v.
State, 811 S.W.2d 105, 115 (Tex. Crim. App. 1991)).
5
Id.
6
Id.
7
Martinez v. State, 588 S.W.2d 954, 956 (Tex. Crim. App. [Panel Op.] 1979); Hart v. State, 173
S.W.3d 131 (Tex. App.—Texarkana 2005, no pet.).
6
The trial court sustained the State’s objection to the power point slide which
contained facts of other cases and the sentences received in those cases stating:
“The court is going to sustain the State’s objection on the basis that these
questions open up issues that involve other cases. The jury was not available
to hear all the evidence in those particular cases to understand what may
have been an appropriate or inappropriate sentence in any particular case.
The Court does agree that that could lead to confusion or would cause a jury
to be committed as to a particular line of sentencing, and the Court finds that
to be improper.” (R.R. Vol. 2, p. 12).
The question on the slide boiled down to, do you agree that twenty-years is
an adequate punishment for intoxicated manslaughter and ‘do you agree life is an
adequate punishment for capital murder.’ These questions are essentially
commitment questions and totally unrelated to the case at bar. The panel had no
facts in front of them to make such a determination about what is adequate
punishment. It was proper for the trial court to limit this line of questioning.
However, the Appellant was allowed to voir dire the jury panel as to the full
range of punishment. (R.R. Vol. 2, p. 63, 64). The Appellant additionally was
allowed to ask the following question: “[b]ut you would agree that a misdemeanor
shoplifting case is not akin to murder in punishment for murder.. [t]hat those
punishments ought to be different.” (R.R. Vol. 2, p. 45).
The trial court allowed the Appellant to ask the jury panel proper questions
related to whether they could consider the full range of punishment.
7
For these reasons, Appellant’s first point of error should be overruled.
Reply to Point of Error Two
The trial court did not abuse its discretion in allowing testimony from
the assistant manager of the victim business.
Argument and Authorities
A. Preservation of Error
To present a complaint for appellate review, the record must show that the
complaint was made to the trial court by a timely request, objection or motion.8
Appellant’s second point of error is that the trial court erroneously allowed the
State to elicit inadmissible evidence of victim impact.
At trial the Appellant objected that Assistant Manager Mark Harrison’s
testimony was not relevant. Mr. Harrison testified that as assistant manager of
Wal-Mart, if they can protect their assets it helps keep costs down. (R.R. Vol. 3, p.
58). The trial court overruled the Appellant’s objection. The State continued it’s
line of questioning and the Appellant did not object. (R.R. Vol. 3, p. 59). The
Appellant also did not request a running objection at any time. Because the
Appellant did not make a timely objection to the trial court related to the rest of the
testimony, Appellant has not preserved a complaint for appellate review related to
8
Tex. R. App. Proc. 33.1(a)(1).
8
the further questioning of Mr. Harrison regarding the impact shoplifting has on his
store.
B. Standard of Review
The trial court has wide discretion in deciding whether to admit or exclude
evidence.9 When considering whether a trial court’s decision to admit or exclude
evidence is error, an appellate court must determine whether the trial court abused
that discretion.10 This inquiry depends on the facts of each case.11
When reviewing a trial court’s decision to admit or exclude evidence, an
appellate court must afford great deference to the trial court’s balancing
determination and should reverse a trial court “rarely and only after a clear abuse
of discretion.”12 An abuse of discretion occurs only when the trial court acts
arbitrarily or unreasonably without reference to any guiding rules or principles.13
Even if the reviewing court might have reached a different result, the court must
uphold the trial court’s decision to admit or exclude evidence if it was within the
9
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Wilder v. State, 111
S.W.3d 249, 255 (Tex. App.—Texarkana 2003, pet. ref’d).
10
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
11
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
12
Robbins v. State, 88 S.W.3d 256, 262 (Tex. Crim. App. 2002).
13
Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372.
9
“zone of reasonable disagreement.”14 A trial court’s evidentiary ruling must be
upheld if it was correct under any theory of law applicable to the case.15
C. Application of Law to Facts
Appellant objected to the following testimony being irrelevant,
STATE: 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?
WITNESS: Yes, sir. If we can protect our assets, it helps keep costs down.
…
(R.R. Vol. 3, p. 58).
Appellant claims that this testimony was irrelevant because it improper
victim impact evidence. Appellant cites Cantu v. State16 for the proposition that the
evidence is inadmissible. However, in Cantu, the Texas Court of Criminal Appeals
found it was improper to admit testimony from a victim’s mother during the
punishment phase as to the daughter’s good character, activities she enjoyed and
14
Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810
S.W.2d at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex.
App—Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort
Worth 2002, no pet.).
15
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
16
Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997).
10
the impact of her on her family.17 However, her daughter was not the victim named
in the indictment and the Defendant was actually standing trial for capital murder
of another, different individual.18
Here, the witness Mark Harrison was an assistant manager of the victim,
Wal-Mart, and had been employed by the corporation for 20 years. (R.R. Vol. 3, p.
57-58). His testimony was relevant and admissible during punishment as he served
as a spokesperson for the victim business and had knowledge of the impact stealing
has on the store. Appellant has not cited any case law, and the State has failed to
find any, which would prevent a representative of the victim with personal
knowledge from testifying as to the impact the offense has on the store.
The trial court did not abuse its discretion in allowing Mark Harrison to
testify during the punishment phase as to the impact theft has on the victim.
For these reasons, Appellant’s second point of error should be overruled.
17
Id. at 637.
18
Id.
11
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
12
Certificate of Compliance
I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of
Appellate Procedure, Appellee’s Brief contains 5,827 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
13
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 23rd day of June, 2015.
__/s/Lauren N. Sutton___________
Lauren N. Sutton
14