Opinion
No. 02-19-00150-CR
11-12-2020
CEDRIC EDWARD SIBALUCA JR., APPELLANT v. THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1 Tarrant County, Texas
Trial Court No. 1541041R Before Gabriel, Kerr, and Wallach, JJ.
MEMORANDUM OPINION
A jury convicted Appellant Cedric Edward Sibaluca Jr. of unlawful possession of a firearm by a felon and assessed his punishment at three-and-one-half years' confinement, and the trial court sentenced him accordingly. Sibaluca raises three points, all of which relate to evidence of his predicate felony from Michigan (the Michigan felony). In his first point, he contends that the trial court abused its discretion by denying a mistrial after the State failed to timely disclose State's Exhibit 30, his Michigan criminal history, fingerprints, and book-in photographs, under Code of Criminal Procedure Article 39.14. In his second point, Sibaluca contends that the trial court abused its discretion by admitting the expert testimony of a fingerprint expert whom the State failed to timely disclose as an expert under Article 39.14 and by holding that defense counsel opened the door to his expert testimony through her cross-examination of the witness. In Sibaluca's third point, he contends that the trial court abused its discretion by admitting State's Exhibit 34, a redacted copy of sealed records of the Michigan felony, including the judgment and sentence but no fingerprints, because the exhibit was not properly authenticated. Because we hold that any error was harmless, we affirm the trial court's judgment.
Article 39.14, which governs discovery in criminal trials, was expanded in 2013 by the Michael Morton Act. Hallman v. State, 603 S.W.3d 178, 190 (Tex. App.—Fort Worth 2020, pet. granted). We decline Sibaluca's invitation to reinterpret Article 39.14's materiality provision. See generally id. at 193-94, 199 & n.19.
I. Brief Facts
Because sufficiency of the evidence is not at issue in this appeal, we omit a detailed recitation of the evidence.
On a September 2017 evening, Sibaluca left an Arlington bar with some women he did not know, accompanied them to one of their homes, and drank with a group of men he did not know in the backyard.
While Sibaluca was waiting on his uncle to arrive to take him home, he pulled out his unloaded gun and a handful of bullets and laid them on a patio table. One of the other men examined the gun to ensure that it was not loaded. Sibaluca told the men that he had a concealed handgun license and that he carried the gun for protection. After Sibaluca put the gun and bullets back in his pocket, the other men gradually moved with him to the front yard, trying to get him to leave. He refused their offers to drive him to a gas station or to call him a cab. Finally, the men threatened to call the police if Sibaluca did not leave.
Sibaluca got upset, refused to leave, took out his gun, and tried to load it. The homeowner swatted at the gun, and then the group of men left Sibaluca in the front yard, went inside the house, locked the doors, and called the police. One of the men saw Sibaluca in the backyard during the call. When the police arrived, they arrested Sibaluca in the backyard and later found the gun and a bullet lying one to two feet apart in the grass outside the backyard fence.
A grand jury indicted Sibaluca, charging that he
intentionally or knowingly possess[ed] a firearm away from the premises where [he] lived[,] and prior to said possession [he] was convicted of the felony offense of pol. off.—fleeing and eluding—3rd offense, namely on the 9th day of June 2016, in the Third Judicial Circuit Court of Wayne County, Michigan, in Cause Number 16-002223-01-FH.See Tex. Penal Code Ann. § 46.04(a), (f)-(g).
Sibaluca's appellate points focus on some of the evidence admitted to prove his conviction of the Michigan felony. At a hearing outside the jury's presence, the prosecutor announced her intention (1) to call Tarrant County Deputy Homero Carnero to testify about Sibaluca's fingerprints and identifying information and (2) to offer several related exhibits either for the record or as evidence:
| State's Exhibit 29 | Tarrant County 10-print fingerprint card taken by DeputyCarnero the day before he testified (Tarrant Countyfingerprint card); |
| State's Exhibit 30 | Michigan criminal history, fingerprints, and photographs; |
| State's Exhibit 31 | City of Arlington Police Department (PD) fingerprint andpalmprint cards taken when Sibaluca was arrested for theinstant offense (Arlington fingerprint card); |
| State's Exhibit 32 | Redacted copy of State's Exhibit 33 (redacted Michiganjudgment and sentence); and |
| State's Exhibit 33 | Sealed Michigan records of the Michigan felony, includingthe judgment and sentence but no fingerprints (Michiganjudgment and sentence). |
Defense counsel stated:
• She "need[ed] to examine all of those. [She] believed [she] received them[]but [was] not sure if they[ were] the correct cop[ies]."
• "Your Honor, I need a chance to review these. There's one document I don't recognize. So could I have a few minutes to . . . review these?"Defense counsel did not then clarify which page or pages of which exhibit or exhibits she was referencing. The prosecutor assured the trial court that the documents had been available on TSP (the electronic discovery system) since February 2018. After making her preliminary objections to the exhibits, defense counsel again asked to review "these for a minute." The trial court allowed it.
• "I don't recognize that. Although it might be in the 100 pages that I received, so I need to look through it. This is not a cover page, Your Honor, on anything I received. It may be in there, but I've got 250 pages I uploaded last Thursday and Friday."
In the jury's presence, the prosecutor questioned Carnero about Tarrant County's booking, identification, and error resolution process and his role in those functions. The prosecutor also asked Carnero about his education, training, experience, and history of testifying. Defense counsel objected that the prosecutor had not qualified Carnero as an expert, and the trial court overruled the objection.
When the prosecutor began asking Carnero about his ability to compare one set of fingerprints to another, defense counsel objected that the prosecution did not timely disclose Carnero as an expert under Article 39.14(b)—he was disclosed nine days before his testimony, but the statute requires twenty days' notice before jury selection. See Tex. Code Crim. Proc. Ann. art. 39.14(b). The trial court ruled that Carnero could not give any expert testimony about fingerprint comparison but could testify about taking Sibaluca's fingerprints, about other identifiers, and about linking the Michigan felony to Sibaluca via non-fingerprint identifiers.
Carnero proved up the Tarrant County fingerprint card (State's Exhibit 29). He testified that on the previous day, he had obtained Sibaluca's name, birthdate, gender, race, driver's license number, eye color, weight, and height; had written the information on the Tarrant County fingerprint card; and had taken Sibaluca's fingerprints seen on the card. Carnero also identified Sibaluca at trial. The trial court admitted the Tarrant County fingerprint card over defense counsel's objections, but Sibaluca does not challenge its admission on appeal.
Carnero also connected Sibaluca to the Michigan felony. Carnero testified that the Michigan judgment and sentence (State's Exhibit 33) included the cause number, Sibaluca's full name, his driver's license number, his birthdate, and his Michigan state identification number. Carnero also testified that the redacted Michigan judgment and sentence (State's Exhibit 32) appeared the same as State's Exhibit 33 with a few redactions.
Sibaluca objected to both versions of the Michigan judgment and sentence. When the prosecutor offered the original version for the record only and the redacted version for all purposes, defense counsel objected that the redacted version (State's Exhibit 32) was not sufficiently redacted. After the prosecutor agreed to further redact the exhibit and did, defense counsel complained that she had not had a chance to look at the "updated redacted copy," and the trial court took a ten-minute recess.
Following the recess and outside the jury's presence, the trial court confirmed on the record that defense counsel had reviewed the final redacted Michigan judgment and sentence (State's Exhibit 34) during the break and that the prosecutor would offer it for all purposes and would offer the original version (State's Exhibit 33) for the record. Defense counsel then objected to State's Exhibit 34 on the basis that it contained pages not relevant to a judgment and sentence that were highly prejudicial under Rule of Evidence 404(b), and the trial court overruled the objection.
At that point, defense counsel also complained about Sibaluca's Michigan criminal history, fingerprints, and photographs (State's Exhibit 30), which had not yet been admitted. Defense counsel moved for a mistrial on the basis that the prosecution had not given timely notice of State's Exhibit 30 because the exhibit had not been in the State's "open file." Defense counsel then asserted that State's Exhibit 30 had been the exhibit that she had earlier claimed not to have ever seen. Defense counsel contended that the exhibit would have changed how she advised Sibaluca and that "perhaps it would have substantially changed [Sibaluca's] thinking on this case, on whether to accept or reject a plea offer."
The prosecutor replied that she did not realize that defense counsel had not had access to State's Exhibit 30 until that point, that she "was never going to offer it in for all purposes in the first place," and that she was not going to rely on State's Exhibit 30 to link Sibaluca to the Michigan felony. The trial court denied the motion for mistrial.
Defense counsel and the trial court then engaged in the following dialogue:
[DEF. COUNSEL]: Your Honor, I'd like to preserve for the record, though, that the State has just offered to the Court that she wasn't referring to this document when she indicated that I had received everything. But this document was in my hand at the time, and I said—The trial court again denied the motion for mistrial.
THE COURT: Let me stop you.
[DEF. COUNSEL]: —I've never seen this.
THE COURT: For the record, you can't keep saying "this document."
[DEF. COUNSEL]: Oh—
THE COURT: That doesn't clarify for the record what—
[DEF. COUNSEL]: Thank you, Your Honor.
THE COURT: —you're talking about.
[DEF. COUNSEL]: . . . State's proposed Exhibit 30 was in my hand. And this is—this element of surprise when we were at the bench, I had never seen this before. I wanted to make very sure that I hadn't overlooked it before I went further with this and made an allegation that they are representing to the Court that I have received something that I have not. This was in my hand at the time, and I was—I was interrupting the prosecutor when I attempted to go further with this.
But . . . I persist in my motion . . . for a mistrial because this is important evidence that should have been disclosed under the Code of Criminal Procedure 39.14 . . . .
The prosecutor offered the final redacted Michigan judgment and sentence (State's Exhibit 34) for all purposes and the original and first redacted versions (State's Exhibits 32 and 33) for the record. Defense counsel again objected to the exhibits on the bases of relevance and Rule 404(b), and she raised new hearsay and authentication objections. Her authentication objection was that "the underlying document appear[ed] to have seals but no signature, no certification from . . . a—whoever pressed the seal, there's no signature on here of the clerk." The trial court received confirmation from the prosecutor that she was offering State's Exhibit 33 for the record, that it was self-authenticating because it was a "signed and sealed" domestic public document, and that State's Exhibit 34 was a redacted copy of State's Exhibit 33. The trial court then overruled the objections and admitted the exhibits as offered.
Carnero again proved up the Michigan felony by linking Sibaluca to the final redacted Michigan judgment and sentence (State's Exhibit 34) through his name, birthdate, driver's license number, and Michigan state identification number. After Carnero's direct examination, the trial court admitted State's Exhibit 30 for the record only to show which document had been unavailable to the defense.
On cross-examination, defense counsel qualified Carnero as a fingerprint expert. Through her questioning, she emphasized the importance of fingerprints as a unique identifier and the significance of their absence from the final redacted Michigan judgment and sentence (State's Exhibit 34). Carnero testified that without fingerprints, he could not absolutely conclude that the person referenced in the exhibit was Sibaluca.
After defense counsel's cross-examination, the prosecutor complained about defense counsel's questioning. The prosecutor argued that defense counsel had made it seem like Carnero had not compared fingerprints, which was not the truth. The prosecutor requested that she be allowed to ask Carnero whether he compared Sibaluca's Michigan, Arlington, and Tarrant County fingerprints to link him to the Michigan felony. Defense counsel again objected to Sibaluca's Michigan criminal history, fingerprints, and photographs (State's Exhibit 30) and to Carnero's testifying as an expert:
Your Honor, I'm going to persist in my objection. I was not provided a copy of this. If I had been provided a copy of this, I think my client may have had a different point of view. I may have advised him differently. And the State has already made it clear that they will not use this for any purpose other than it's already in the record. And so I object to it being referenced to in any capacity.
Also if he's testifying for the fingerprints and he's testifying in an expert capacity, which the State did not give me proper notice of in violation of the law.
The trial court held that the defense had opened the door to Carnero's expert opinion and allowed him to testify regarding Sibaluca's fingerprints. Carnero then testified that he had compared the Tarrant County, Arlington, and Michigan fingerprints and the other identifiers; that the Tarrant County fingerprints and the Michigan fingerprints matched; and that the Tarrant County fingerprints and Arlington fingerprints were of the same person. Carnero also testified that the Michigan fingerprints and the final redacted Michigan judgment and sentence showed the same state identification number and that the information about name, race, sex, height, weight, eye color, and date of birth from the Arlington fingerprint card matched the identifiers on the Tarrant County fingerprint card, except the weight was off by two pounds and the height was off by an inch.
After its redirect examination, the prosecution re-offered the Michigan criminal history, fingerprints, and photographs (State's Exhibit 30) and the Arlington fingerprint card (State's Exhibit 31) for all purposes. Defense counsel had no objection to the Arlington fingerprint card, but she again objected to the admission of the Michigan exhibit:
Your Honor, we object to this, State's Exhibit 30, for all the reasons previously stated, including the State has not previously provided this document to the Defense in any way, shape, form or manner. The Defense—I mean the prosecution . . . represented to the Court in the beginning of the trial that . . . they've given the Defense everything they have. That was not a true statement.
This document is not a complete and certified document. There are two pages in the beginning that don't have—that I object to for hearsay, because they're being offered for the truth of the matter purported, but they're neither a public record that's self-authenticating, nor are they kept in the normal course of the witness' job. Therefore, at least pages one and two should be excluded for all purposes—
. . . .
—except for just the record.
The trial court admitted the Michigan criminal history, fingerprints, and photographs (State's Exhibit 30) for all purposes as a self-authenticating document. Defense counsel reiterated her objection to Carnero's testifying as an expert after the untimely notice and also objected to his testifying about "any portions of those documents that [were] not certified." The trial court overruled those objections. Defense counsel next moved for a recess to obtain a fingerprint expert for the defense. The trial court denied the request but stated that it would again entertain the request after the State rested its case and that the defense "still ha[d] several days to prepare."
Defense counsel did not again request a continuance to retain a fingerprint expert.
Before beginning her re-cross-examination, defense counsel additionally objected to the first two pages of the Michigan criminal history, fingerprints, and photographs (State's Exhibit 30)—the criminal history portion—because they contained information about extraneous offenses that the court had ordered redacted. The trial court sustained the objection, modified State's Exhibit 30's admission status to be for the record only, and admitted the redacted version of the exhibit, State's Exhibit 35, over defense counsel's objections. Even though State's Exhibit 30 had been shown to the jury, the trial court stated for the record that "the jury had had approximately four seconds to look through" it and ruled that the two excluded pages had "not, in fact, been, quote, published to the jury." State's Exhibit 35 contains seven different fingerprint cards and four book-in photographs.
Sibaluca's probation officer in the Michigan felony case later testified, identifying Sibaluca as the person she had supervised. She also confirmed that the cause number of the case on which she had supervised Sibaluca was 16-002223-01-FH, that the offense associated with that particular case was "P-o-l, dot, o-f-f, dot, slash, fleeing and eluding, slash, third offense," that Sibaluca had been convicted of the offense, that he was sentenced June 9, 2016, that the trial court was the 3rd Judicial Circuit Court in Wayne County, and that the offense was a felony. Defense counsel did not object to the probation officer's testimony but did object to the publication of the final redacted Michigan judgment and sentence (State's Exhibit 34) during that testimony.
The final scorecard of State's Exhibits 29 through 35, then, was as follows:
| Exhibit Number | Description of Exhibit | Scope of Admission |
| State's Exhibit 29 | Tarrant County fingerprintcard | All purposes |
| State's Exhibit 30 | Michigan criminal history,fingerprints, and photos | Record purposes |
| State's Exhibit 31 | Arlington fingerprint card | All purposes |
| State's Exhibit 32 | First redacted State'sExhibit 33 | Record purposes |
| State's Exhibit 33 | Sealed records of Michiganfelony, including judgmentand sentence, but nofingerprints | Record purposes |
| State's Exhibit 34 | Final redacted State'sExhibit 33 | All purposes |
| State's Exhibit 35 | Redacted State's Exhibit30 (Michigan fingerprintsand photos) | All purposes |
II. Discussion
A. Michigan Fingerprints and Photographs
In his first point, Sibaluca contends that the trial court abused its discretion by denying his motion for mistrial based on the State's failure to disclose State's Exhibit 30 (Sibaluca's Michigan criminal history, fingerprints, and photographs) until after the trial began. Because the trial court ultimately admitted State's Exhibit 30 for the record only and ruled that the exhibit was not published to the jury, we liberally construe this complaint to challenge the untimely disclosure and admission of State's Exhibit 35, the redacted version of the Michigan fingerprints and photographs. The State argues that any error was harmless and that the trial court properly denied the mistrial.
We review the denial of a motion for mistrial for an abuse of discretion, upholding the trial court's ruling unless it was outside the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007); Marchbanks v. State, 341 S.W.3d 559, 561 (Tex. App.—Fort Worth 2011, no pet.). Only in extreme cases, when the prejudice is incurable, will a mistrial be required. Marchbanks, 341 S.W.3d at 561, 563 (reviewing denials of mistrial motions based on alleged use of perjured testimony and Brady violations).
Sibaluca contends that his Michigan fingerprints and photographs were essential to connect him to the Michigan felony. Sibaluca misstates the law. To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant was the person convicted of the prior offense. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). Although the easiest way to do this is by comparing the defendant's fingerprints to the fingerprints on the prior judgment, no specific document or mode of proof is required. Id. at 921-22; see Collins v. State, No. 06-13-00214-CR, 2014 WL 2447599, at *3-6 (Tex. App.—Texarkana May 30, 2014, pet. ref'd) (mem. op., not designated for publication) (applying Flowers to offense-enhancing prior convictions); Coward v. State, No. 12-13-00114-CR, 2013 WL 3788162, at *3-4 (Tex. App.—Tyler July 17, 2013, no pet.) (mem. op., not designated for publication) (same); Alvarez v. State, No. 08-11-00063-CR, 2013 WL 2285862, at *14-15 (Tex. App.—El Paso May 22, 2013, pet. ref'd) (not designated for publication) (same).
For ease of analysis, we address Sibaluca's point in three parts: a complaint about the admission of evidence; a complaint about a discovery violation that hampered the defense at trial; and a complaint about a discovery violation that affected his pretrial decisions. None of his complaints have merit.
To the extent Sibaluca complains of the admission of the Michigan fingerprints and photographs, any error is harmless. A trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) ("Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove."). Sibaluca's Michigan probation officer identified him at trial as the person she had supervised for the Michigan felony described in the indictment as well as in the final redacted Michigan judgment and sentence (State's Exhibit 34). We therefore hold that the Michigan probation officer sufficiently identified Sibaluca and connected him to the Michigan felony; the State did not need State's Exhibit 35, his Michigan fingerprints and photographs, to prove the Michigan felony.
Sibaluca did not request a continuance to investigate the Michigan fingerprints and photographs. To the extent Sibaluca complains that the State's failure to timely disclose the Michigan fingerprints and photographs deprived him of the "opportunity to properly investigate [the exhibit] or its validity in order to effectively provide an objection or test its reliability," a continuance would have allowed him to address those concerns. See, e.g., Byrd v. State, No. 02-15-00288-CR, 2017 WL 817147, at *4 (Tex. App.—Fort Worth Mar. 2, 2017, pet. ref'd) (per curiam) (mem. op., not designated for publication). Thus, his failure to request a continuance based on the late disclosure of the exhibit rendered any trial error based on that late disclosure harmless. Branum v. State, 535 S.W.3d 217, 226-27 (Tex. App.—Fort Worth 2017, no pet.).
To the extent Sibaluca complains that the State's failure to disclose the Michigan fingerprints and photographs adversely affected his pretrial evaluation of the case and his decision to reject the State's plea offers and opt for trial and denied him effective assistance of counsel at trial, a continuance during the trial would have arrived too late to help him. See, e.g., Hallman, 603 S.W.3d at 189. Assuming without deciding that a continuance request would not be necessary to preserve this portion of his mistrial complaint, we address its merits. See id.
Article 39.14(a) imposes a duty on the State to produce "material" evidence to the defense if the defense timely requests it and the State has it. Tex. Code Crim. Proc. Ann. art. 39.14(a); Branum, 535 S.W.3d at 224. A defendant bears the burden to show that the evidence is material. Branum, 535 S.W.3d at 225. To establish materiality, a defendant must provide more than a possibility that the evidence would help him or affect the trial. Id. at 224. Evidence must be "indispensable to the State's case" or there must be a reasonable probability that its disclosure would result in a different outcome for the evidence to be considered material and subject to mandatory disclosure under Article 39.14(a). Id. at 224-25; see Ehrke v. State, 459 S.W.3d 606, 611 (Tex. Crim. App. 2015). As noted above, we decline Sibaluca's invitation to reconsider this standard. See Watkins v. State, 554 S.W.3d 819, 824 n.1 (Tex. App.—Waco 2018, pet. granted) (op. on reh'g). Sibaluca has not met his burden to show that the Michigan fingerprints and photographs were material.
First, the exhibit was not indispensable to the State's case. The prosecution had not intended to offer it for all purposes during the guilt-innocence phase. As we explained above, the Michigan probation officer's testimony alone was enough to prove that Sibaluca was convicted of the Michigan felony.
Second, Sibaluca did not prove that there was a reasonable probability that the Michigan fingerprints and photographs' timely disclosure would have resulted in a different outcome. Although defense counsel stated on the record that timely disclosure of the exhibit "would have substantially changed [Sibaluca's] thinking on this case, on whether to accept or reject a plea offer," the record does not disclose that the State's failure to timely disclose the exhibit was the sole basis or even a basis for his rejection of the plea offers. Moreover, such a basis for his rejection of the plea offers would not have been reasonable. The indictment put Sibaluca on notice that the State intended to prove the Michigan felony, and the law does not require fingerprints or photographs to prove a prior conviction. See Watkins, 554 S.W.3d at 822 (holding exhibits of prior convictions alleged in sentence-enhancement notice were not material when other evidence was admitted to support the allegations); Brown v. State, No. 09-17-00403-CR, 2019 WL 1547968, at *2 (Tex. App.—Beaumont Apr. 10, 2019, no pet.) (mem. op., not designated for publication) ("The indictment charged Brown with having incurred two prior convictions on charges of driving while intoxicated; thus, defense counsel was on notice that the State would be seeking to prove that he had incurred the previous convictions when the case went to trial.").
Third, Sibaluca "knew of . . . the existence" of his fingerprints and book-in photographs, "as a matter of simple logic, because he was there when" his fingerprints and photographs were taken. Havard v. State, 800 S.W.2d 195, 204 (Tex. Crim. App. 1989); cf. Hallman, 603 S.W.3d at 199 n.21 (holding the State's failure to timely disclose Hallman's written statement harmless because Hallman made the statement). We therefore hold that Sibaluca did not show that the Michigan fingerprints and photographs were material.
We have held that any error in the admission of Sibaluca's Michigan fingerprints and photographs was rendered harmless when the Michigan probation officer testified. We have also held that Sibaluca's failure to seek a continuance rendered any untimely delay in producing his Michigan fingerprints and photographs harmless as to the trial. We have further held that Sibaluca failed to prove that his Michigan fingerprints and photographs were material to his pretrial decisions. Accordingly, the trial court did not abuse its discretion by denying Sibaluca's motion for mistrial. We overrule his first point.
B. Fingerprint Expert
In his second point, Sibaluca complains that the trial court abused its discretion (1) by allowing Carnero to testify when the State did not timely disclose him as an expert under Article 39.14(b) and (2) by concluding that Sibaluca opened the door to Carnero's testimony comparing Sibaluca's Michigan, Arlington, and Tarrant County fingerprints. Sibaluca also asks this court to reconsider the standard of review that should be applied to violations under Article 39.14(b). The State responds that the record does not contain a proper request from Sibaluca triggering its duty to provide a timely expert witness list and that any error in the trial court's allowing Carnero to testify was harmless.
We do not consider documents attached to Sibaluca's brief that are not in the appellate record. See Booth v. State, 499 S.W.2d 129, 135 (Tex. Crim. App. 1973).
Article 39.14(b) requires that when a party timely requests it, the opposing party must disclose the name and address of each expert witness it intends to call at trial no later than the twentieth day before the date jury selection is scheduled to begin. Tex. Code Crim. Proc. Ann. art. 39.14(b). We review a trial court's rulings under Article 39.14(b) for an abuse of discretion. Branum, 535 S.W.3d at 224. In determining whether the trial court abused its discretion, we consider any bad faith shown by the prosecutor in the late designation and whether the defendant could have reasonably anticipated that the witness would testify although his name was not previously disclosed. Nobles v. State, 843 S.W.2d 503, 514-15 (Tex. Crim. App. 1992); Branum, 535 S.W.3d at 226.
The State did not disclose Carnero's name as a potential witness until eight days before trial. On the day of jury selection, when defense counsel asked the trial court to exclude all the State's expert witnesses because of the late notice, the prosecutor stated, "Your Honor, we don't have any expert witnesses." Assuming without deciding that Sibaluca timely requested notice of the State's experts and that the trial court abused its discretion by allowing Carnero to testify as an expert, any error was harmless.
Because we resolve this point on the issue of harm, we decline to address Sibaluca's contention that we should apply a "bright-line rule" instead of the abuse-of-discretion standard in determining error. See Tex. R. App. P. 47.1.
A trial court's erroneous admission of evidence is not reversible when the same or similar evidence was admitted without objection. Leday, 983 S.W.2d at 718; Anderson, 717 S.W.2d at 628. Sibaluca's Michigan probation officer identified him at trial as the person she had supervised for the Michigan felony described in both the indictment and the final redacted Michigan judgment and sentence. The Arlington homeowners identified Sibaluca at trial as the person arrested at their home, and Arlington PD Officer Ahmed identified Sibaluca at trial as the person he had arrested at the Arlington residence for the instant offense. Because other evidence sufficiently tied Sibaluca to the Michigan felony and to the instant offense, any error in the admission of Carnero's testimony was harmless. See Tex. R. App. P. 44.2(b); Leday, 983 S.W.2d at 718; Anderson, 717 S.W.2d at 628.
Sibaluca also complains that the State's failure to timely disclose Carnero adversely affected Sibaluca's pretrial evaluation of the case and his decision to reject the State's plea offers and opt for trial and therefore denied him effective assistance of counsel. The record is devoid of evidence supporting that assertion.
First, the indictment alone put the defense on notice that the State planned to offer evidence identifying Sibaluca as the person arrested for the instant offense and as the person convicted of the Michigan felony. See, e.g., Brown, 2019 WL 1547968, at *2. The law does not limit the proof of those elements to expert testimony. See Flowers, 220 S.W.3d at 921-22; Collins, 2014 WL 2447599, at *3-6; Coward, 2013 WL 3788162, at *3-4; Alvarez, 2013 WL 2285862, at *14-15.
Second, the only plea offer made after the prosecutor should have disclosed Carnero as an expert witness was that in exchange for Sibaluca's guilty plea, he would be convicted of the misdemeanor offense of unlawful carrying of a weapon and be sentenced to time served. Sibaluca had turned down an offer to receive that same misdemeanor conviction and a sentence of 180 days in jail in exchange for his guilty plea on June 13, 2018, long before the State's expert list was due. See Tex. Code Crim. Proc. Ann. art. 39.14(b). Proof of a predicate felony is not an element of that misdemeanor offense. See Tex. Penal Code Ann. § 46.02. Therefore, we fail to see how the prosecution's untimely disclose of Carnero as an expert witness could have harmed Sibaluca's pretrial evaluation of the case, caused him to reject the State's plea offers, or denied him effective assistance of counsel at trial. We overrule Sibaluca's second point.
C. Michigan Judgment and Sentence
In his third point, Sibaluca contends that the trial court abused its discretion by admitting the final redacted Michigan judgment and sentence (State's Exhibit 34) over his authentication objection because it lacked an officer's attesting signature. See Tex. R. Evid. 902(1); see also Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (applying abuse-of-discretion standard of review). As long as the trial court's ruling falls within the zone of reasonable disagreement, we will not disturb it. Martinez, 327 S.W.3d at 736; Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Only relevant evidence is admissible. Tex. R. Evid. 402. Evidence has no relevance if it is not authentic; that is, if it is not what its proponent claims it is. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Generally, "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Tex. R. Evid. 901(a). Rule 902 allows certain evidence to be self-authenticated. Tex. R. Evid. 902. A document may be authenticated under Rule 901 or Rule 902 of the Rules of Evidence. Tex. R. Evid. 901, 902. The law does not require authentication under both rules. Bruton v. State, 428 S.W.3d 865, 874 (Tex. Crim. App. 2014); Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991).
In a jury trial, it is the jury who ultimately decides whether an item of evidence is really what its proponent claims. The trial court makes only a preliminary decision that the proponent has provided enough facts to support a jury's later determination that the item of evidence is authentic. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015); see also Hunsaker v. State, No. 02-16-00331-CR, 2017 WL 4053897, at *4 (Tex. App.—Fort Worth Sept. 14, 2017, pet. ref'd) (per curiam) (mem. op., not designated for publication).
Rule 901 provides that a proponent sufficiently authenticates an item of evidence by producing evidence sufficient to support a finding that it is what the proponent claims it is. Tex. R. Evid. 901(a). The Michigan probation officer's testimony sufficiently authenticated the final redacted Michigan judgment and sentence by showing that it was just that. See Tex. R. Evid. 901(b). She testified that she had been Sibaluca's probation officer in cause number 16-002223-01-FH—the same cause number shown on the final redacted Michigan judgment and sentence, that the offense she supervised him for was "P-o-l, dot, o-f-f, dot, slash, fleeing and eluding, slash, third offense," which is the same wording found in the final redacted Michigan judgment and sentence, and that the judgment and sentence reflected a felony conviction for Sibaluca. She also identified him at trial. Sibaluca did not object to this testimony. Accordingly, without addressing whether the exhibit was otherwise authenticated under Rule 902(1), we hold that the State satisfied its burden to authenticate the exhibit through the Michigan probation officer's testimony, and the trial court therefore did not abuse its discretion by admitting the exhibit. See, e.g., White v. State, No. 2-04-350-CR, 2005 WL 2100463, at *4-5 (Tex. App.—Fort Worth Aug. 31, 2005, no pet.) (per curiam) (mem. op., not designated for publication).
Further, even if the trial court had abused its discretion by admitting the exhibit, any error would have been harmless. As discussed in the first two points above, the Michigan probation officer's testimony alone sufficiently proved up the Michigan felony and sufficiently linked Sibaluca to that Michigan felony. See Leday, 983 S.W.2d at 718; Anderson, 717 S.W.2d at 628. We overrule his third point.
III. Conclusion
Having overruled Sibaluca's three points, we affirm the trial court's judgment.
/s/ Mike Wallach
Mike Wallach
Justice Do Not Publish
Tex. R. App. P. 47.2(b) Delivered: November 12, 2020