Opinion
No. 01–11–01019–CR.
04-18-2013
Tracy Blaine FRANCIS, Appellant v. The STATE of Texas, Appellee.
Joshua S. Hill, Houston, TX, for Appellant. Lisa G. Porter, Assistant District Attorney, Houston, TX, for State.
Joshua S. Hill, Houston, TX, for Appellant.
Lisa G. Porter, Assistant District Attorney, Houston, TX, for State.
Panel consists of Justices KEYES, MASSENGALE, and BROWN.
OPINION
HARVEY BROWN, Justice.
A jury convicted Tracy Blaine Francis of the felony offense of aggravated robbery and, finding one enhancement paragraph true, sentenced him to seventy-five years' confinement.See Tex. Penal Code Ann. § 29.03 (West 2011). In five issues on appeal, Francis contends that (1) the trial court erred with respect to the admission of certain evidence during the guilt and punishment phases of trial, (2) a mistrial was required, and (3) the evidence was legally insufficient to sustain his conviction. We affirm the trial court's judgment.
Background
A grand jury indicted Francis for the felony offense of aggravated robbery, alleging that Francis “unlawfully, while in the course of committing theft of property owned by DEBORAH THOMAS, and with intent to obtain and maintain control of the property, INTENTIONALLY AND KNOWINGLY threaten[ed] and place[d] DEBORAH THOMAS in fear of imminent bodily injury and death, and [Francis] did then and there use and exhibit a deadly weapon, namely, A KNIFE.”
After a jury was selected but before any testimony was presented, defense counsel had an opportunity to view the State's physical evidence. He observed a machete among the State's exhibits. Defense counsel objected that he was unaware of the machete's existence and that it was not produced by the State in compliance with the trial court's discovery order, which directed the State “to furnish the items ordered for inspection and copying on or before ten (10) days prior to trial.” Those items included, among other things, “all physical objects to be introduced as part of the State's case” and “all contraband, weapons, implements of criminal activity seized or acquired by the State or its agents in the investigation of the alleged offense.” The trial court recessed the trial to allow defense counsel to inspect the machete and to discuss it with Francis, but the trial court ultimately permitted Deborah Thomas, the complainant in this case, to testify regarding its use during the commission of the aggravated robbery.During the guilt phase of trial, Thomas testified that she lived with Francis at the time of the robbery. When Thomas came home on the day of the robbery, she noticed that Francis, who had a history of drug abuse, was visibly upset. She described Francis as being “edgy” and “lit up like a Christmas tree.” As Thomas went into her bedroom to go to sleep, Francis walked into the room behind her and struck her with his fists twice on the back of her head. Francis threw Thomas onto the bed, climbed on top of her, and repeatedly struck her in the face with his fists. According to Thomas, she lost and regained consciousness several times as Francis beat her.
With respect to the machete, Thomas testified that she kept it, along with a pocketknife, in her bedroom for safety reasons. Francis placed both knives on the bed next to Thomas. Thomas stated that Francis picked up the machete and told her that he would “cut [her] up into a thousand pieces and no one would ever, ever find [her] body.” Francis also threatened Thomas with the pocketknife by sliding it down her body from her neck to her vagina, telling her that he could cause her harm. Francis eventually left Thomas alone after reaching into her brassiere and removing $1,000. After the robbery, Thomas walked to a neighbor's house and called the police. Thomas testified that she feared for her life during the incident and that, as a result of the beating she endured from Francis, she suffered severe swelling in her face, injuries to her hand and leg, and the loss of four teeth.
The State also presented testimony from a family violence counselor who met with Thomas after the incident and two law enforcement officers, one of whom responded to Thomas's call for police assistance and the other who investigated the incident. Officer C. Porter, the investigating officer from HPD's family violence unit, was asked whether he found Thomas credible. He responded, “Yes, and looking at the criminal history of the defendant....” Francis objected to Porter's testimony, on the ground that it constituted inadmissible extraneous offense evidence, and moved for a mistrial. The trial court instructed the jury to disregard Porter's statement, but denied a mistrial. During cross-examination of Thomas, defense counsel elicited testimony that Thomas had not mentioned Francis's use of knives during the robbery to any of the State's other witnesses.
After the close of evidence and the presentation of closing arguments, the jury found Francis guilty of aggravated robbery. Before the punishment phase of trial began, Francis pleaded true to one enhancement paragraph alleging a prior conviction for murder. During punishment, the State introduced evidence of Francis's full criminal history, including the murder conviction and other convictions for evading arrest, driving with a suspended license, and possession of less than one gram of cocaine.
The State also recalled Thomas as a punishment witness, at which time she gave further testimony regarding the reasons Francis was upset on the day of the robbery. She explained that Francis was upset because his car had been towed from their apartment complex. Francis told Thomas that he had threatened to kill the employees working in the apartment management office if his car was not returned. After Francis spoke with the employees in the apartment management office, Thomas saw Francis retrieve the machete from her bedroom and begin to sharpen it.
Thomas further testified that while Francis was in custody awaiting trial on the aggravated robbery charge, he threatened her over the telephone. Thomas testified that Francis told her that if he was convicted, two people would die. Thomas took this to be a threat against her life.
Francis objected to Thomas's testimony regarding the threatening phone call on the ground that the State had produced “voluminous” audio-recordings of all of the calls Francis made from jail on three days before trial. Francis alleged that the State's belated production of the recordings constituted unreasonable notice of its intent to use the threatening phone call as extraneous offense evidence during punishment. In response to Francis's objection, the prosecutor stated that she did not produce the recordings until shortly before trial because she had not heard the recordings until then. That is, she produced the recordings to defense counsel on the same day she heard them. The prosecutor further stated that she informed defense counsel that the phone call about which she intended to introduce evidence was one of the first phone calls on the recordings, occurring within the first twenty minutes of the tapes. The trial court overruled Francis's objection and permitted Thomas's testimony.
At the close of all the punishment evidence, the jury returned a sentence of seventy-five years' confinement. Francis appeals.
Admissibility of Evidence
Three of Francis's issues on appeal concern the trial court's rulings on the admissibility of evidence. Francis's first and second issues challenge the admission of the machete during the guilt phase of trial. His third issue relates to evidence admitted during the punishment phase of trial, namely the evidence of the threatening phone call he made to Thomas while in custody awaiting trial.
A. Standard of review
We review the trial court's evidentiary rulings for an abuse of discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App.2006) ; Walker v. State, 321 S.W.3d 18, 22 (Tex.App.-Houston [1st Dist.] 2009, pet. dism'd). Unless the trial judge's decision was outside the “zone of reasonable disagreement,” we will uphold the ruling. Oprean, 201 S.W.3d at 726 ; Walker, 321 S.W.3d at 22. When a trial judge makes findings of fact “based on an evaluation of credibility and demeanor,” we defer to those findings. Oprean, 201 S.W.3d at 726 ; Walker, 321 S.W.3d at 22. If the trial judge does not enter written or oral findings of fact, we “view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000) ; Walker, 321 S.W.3d at 22.
B. Admissibility of machete during guilt phase of trial
In his first and second issues, Francis argues that the trial court erred by admitting the machete into evidence during the guilt phase of trial because the State willfully withheld the machete's existence in violation of the trial court's discovery order and failed to give notice under Rule of Evidence 404(b). The State defends the trial court's admissibility ruling on the grounds that (1) the record does not show a willful violation of the discovery order; (2) the trial court cured any harm resulting from the violation by granting Francis a recess for the purpose of inspecting the machete and preparing for cross-examination, after which Francis did not request additional time to examine the machete or prepare; and (3) the machete was used in the commission of the charged offense and was therefore not inadmissible extraneous offense evidence.
See Tex.R. Evid.404(b) (providing that “evidence of other crimes, wrongs or acts” may be admissible for purposes other than to “prove the character of a person in order to show action in conformity therewith” only if, “upon timely request by an accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction”).
1. Discovery order violation
The trial judge signed a pretrial order requiring that, at least ten days before trial, the State give defense counsel “all physical objects to be introduced as part of the State's case” and “all contraband, weapons, implements of criminal activity seized or acquired by the State or its agents in the investigation of the alleged offense” for inspection and copying. The State does not dispute that it failed to disclose the machete's existence until after the jury was sworn but before the presentation of any evidence. The trial court admitted the machete into evidence over Francis's objection that the State's violation of the discovery order made the machete inadmissible. The other weapon used during the robbery—the pocketknife—was not recovered by police or presented as evidence at trial.
When the trial court admits evidence offered by the State that was not produced in compliance with a discovery order, the relevant inquiry is whether the prosecutor acted with specific intent to willfully disobey the discovery order by failing to turn over the evidence. Oprean, 201 S.W.3d at 726 ; see Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App.1978) ( “[E]vidence willfully withheld from disclosure under a discovery order should be excluded from evidence.”). A prosecutor's actions may be extremely negligent or even reckless, but her conduct must rise to the level of willfulness to require exclusion of the evidence. See State v. LaRue, 152 S.W.3d 95, 97 (Tex.Crim.App.2004).
Whether the prosecutor intended to willfully disobey the discovery order may be inferred from the prosecutor's actions and words.See Oprean, 201 S.W.3d at 728. “[W]e consider whether the record indicates that (1) the prosecutor intended to harm the defense, (2) the prosecutor's actions were a strategic and purposeful effort to thwart the defense's preparation of its case, or (3) the prosecutor consciously decided to violate the plain directive of the discovery order.” Walker, 321 S.W.3d at 22 ; see Oprean, 201 S.W.3d at 727–28. We also consider the validity of the prosecutor's rationale and explanation for violating the discovery order, as well as whether the prosecutor suddenly discovered the evidence such that compliance with the terms of the discovery order was impossible. Oprean, 201 S.W.3d at 727–28.
As evidence of willfulness in this case, Francis points to the following circumstances: (1) the machete was not mentioned in any discovery, including the offense report, witness statements, or Thomas's medical records related to the robbery; (2) the machete's existence came to light only after defense counsel observed the machete among the State's exhibits at trial, not as a result of any voluntary act by the prosecutor; (3) the prosecutor had possession of the machete for one month before trial; and (4) the State failed to disclose other evidence—the threatening telephone calls Francis made to Thomas while in custody—in violation of the discovery order. Francis argues that these circumstances are akin to the circumstances in Oprean, which the Court of Criminal Appeals determined required the exclusion of evidence. Id. at 727.In Oprean, the Court of Criminal Appeals considered whether the prosecutor acted with the specific intent to willfully disobey a discovery order when she failed to produce a videotape of the defendant's prior DWI conviction. Id. After examining the prosecutor's actions and statements, the Court found two things “particularly unacceptable.” Id. First, the Court observed that on the night before the punishment phase began, the prosecutor, who had signed the original discovery order and thus knew its requirements, made an affirmative statement to defense counsel that she intended to introduce only the judgments and sentences from the defendant's prior DWI convictions. Id. Yet, the next morning, she introduced a video recording of one of the DWI offenses. Id. Second, the Court found that the prosecutor's explanation for not producing the videotape—there was no article 37.07 charge in the discovery order—was meritless. Id. at 728. Because the prosecutor knew about the discovery order and attempted to circumvent its requirements, she made a conscious decision to violate the order's plain directive. Id. Concluding that the prosecutor's conduct was a “calculated effort to frustrate the defense,” the Court held the trial court had abused its discretion by allowing the videotape into evidence. Id.
We find Oprean distinguishable from the instant case. Having taken possession of the machete from Thomas one month before trial, the State undoubtedly should have produced the machete in a more timely fashion. The record, however, does not support a finding that the prosecutor intentionally disobeyed the discovery order or acted strategically to harm the defense. Unlike the prosecutor who had possession of the challenged evidence in Oprean, the prosecutor here had been involved in the case only for a short period of time. Also unlike the prosecutor in Oprean, she did not intentionally mislead defense counsel about the evidence or its anticipated use during trial. Once she realized that the machete had not been disclosed to the defense before trial, the prosecutor provided the defense with all of the information she had regarding the machete and its alleged use during the robbery. The prosecutor explained that she had seen the machete referenced in the prior prosecutor's notes, and, although she acknowledged that those notes could have been privileged work product not subject to the defense's review, she incorrectly assumed the defense knew about the machete and thus did not produce the machete when she took possession of it before trial.
Although these statements may demonstrate negligence, the trial court could reasonably conclude that the prosecutor's statements did not establish that she intended to circumvent the trial court's discovery order or thwart the defense by her omission. LaRue, 152 S.W.3d at 97 (concluding that although inaction of prosecutor was “ ‘willful’ ... with respect to the conduct itself,” there was “no evidence in the record that, by his choice, he intended to violate the order or harm the defense”). We are required to “view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling.” Ross, 32 S.W.3d at 855 ; Walker, 321 S.W.3d at 22. Because the trial court could reasonably conclude from the prosecutor's statements that the State did not willfully withhold the machete in violation of the discovery order, we hold that the trial court did not err in admitting the machete into evidence over Francis's objection to the discovery order violation.
We overrule Francis's first issue. 2. Extraneous offense evidence
Before trial, Francis requested notice under rule 404(b) of the State's intention to use evidence of extraneous offenses at trial. The notice given by the State in response to Francis's request did not include notice of the State's intention to offer evidence that a machete was used during the commission of the robbery. Regarding any use of a knife by Francis, the State's notice stated only that, “on the same day as this offense [the robbery], [Francis] threatened multiple people who worked in the leasing office with a knife.” Francis argues in his second issue that the evidence of the machete's use during the robbery constituted extraneous offense evidence because (1) section 46.02 of the Penal Code makes it a crime for a person to intentionally, knowingly, or recklessly carry an illegal knife on his person; (2) the Penal Code defines an “illegal knife” as a “knife with a blade over five and one-half inches”; and (3) the machete blade was longer than five and one-half inches. Tex. Penal Code Ann. §§ 46.01(6)(A), 46.02(a) (West 2011). Francis asserts that, because the State did not give timely notice of its intent to offer evidence of his use of the machete during the robbery, the trial court should have excluded the machete.
Evidence of extraneous offenses is not admissible at the guilt phase of trial to prove that a defendant committed the charged offense in conformity with a bad character. See Tex.R. Evid. 404(b) ; Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App.2011). Extraneous offense evidence may be admissible, however, when it has relevance apart from character conformity.
Rule of Evidence 404(b) conditions the admissibility of extraneous offense evidence on the State's compliance with the rule's notice provision. Hernandez v. State, 176 S.W.3d 821, 824 (Tex.Crim.App.2005) ; see Tex. R Evid. 404(b). The notice provision provides, in relevant part, that extraneous offense evidence may be admissible for limited, non-character conformity purposes provided that, “upon a timely request” by the defendant, the State gives the defendant reasonable notice in advance of trial of its intent to use the evidence during its case-in-chief.See Tex.R. Evid. 404(b). Because rule 404(b)'s notice requirement is a rule of evidence admissibility, it is error to admit extraneous offense evidence when the State has not complied with the notice provision of Rule 404(b). Hernandez, 176 S.W.3d at 824.
Francis's complaint here is not that the machete evidence was unreliable, irrelevant, or otherwise substantively inadmissible; his complaint is that the machete was improperly admitted because of the State's failure to provide rule 404(b) notice. Accordingly, we begin our analysis by considering whether the State was required to provide rule 404(b) notice because, as Francis contends, the use of the machete during the robbery constituted an extraneous offense.
Section 46.02 of the Penal Code criminalizes the carrying of certain types of weapons outside of certain designated places. Tex. Penal Code Ann. § 46.02. Pertinent here, subsection (a) provides that “[a] person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not ... on the person's own premises or premises under the person's control.” Id. § 46.02(a). “Premises” includes “real property ... that is being used as living quarters, regardless of whether that use is temporary or permanent.” Id. § 46.02(a–2). A knife with a blade “over five and one-half inches” is an “illegal knife.” Id. § 46.01(6)(A).
We construe the Penal Code according to the plain meaning of its terms unless the terms are ambiguous or the plain meaning leads to absurd results. See Clinton v. State, 354 S.W.3d 795, 800 (Tex.Crim.App.2011). A plain reading of section 46.02, subsection (a) establishes that whether Francis committed an extraneous offense by carrying the machete—a knife with a blade exceeding five and one-half inches—on his person depends on where Francis was at the time he carried the weapon. The evidence presented at trial established that the robbery occurred in Thomas's apartment and that Francis was living with Thomas in the apartment at the time of the robbery. The apartment is a “premises” under section 46.02, and Francis did not commit on offense under section 46.02 because he was on his “own premises or premises under [his] control.” See Tex. Penal Code Ann. §§ 46.02(a)(1), (a–2). The record therefore does not establish that the evidence of the machete's use during the robbery constitutes extraneous offense evidence of which the State was required to provide notice under rule 404(b) ; rather, the machete evidence was evidence of the offense of aggravated robbery.
Even assuming for the sake of argument that the trial court erred by admitting the machete evidence, Francis must still prove harm. See Tex.R.App. P. 44.2(b) (requiring appellate court to disregard any error “that does not affect substantial rights”). No constitutional error is involved when evidence of extraneous offenses are admitted without notice; consequently, we must disregard any error that did not affect Francis's substantial rights. See Hernandez, 176 S.W.3d at 824–26.
The rule 404(b) notice requirement serves to prevent surprise to the defendant and to apprise him of the offenses the State plans to introduce at trial. Hernandez, 176 S.W.3d at 823. Recognizing this purpose, the Court of Criminal Appeals has approved the reasoning of the Austin Court of Appeals regarding the application of the harm standard in rule 404(b) notice cases:
[W]e must assess harm from the violation of [a notice provision similar to Rule 404(b)'s] against its intended purpose. Although the violation of the notice provision resulted in the improper admission of evidence, we cannot employ the harm analysis used for violations of the rules of evidence concerning relevancy because the purpose of those rules differs from the purpose of the [Rule 404(b) notice provision]. The rules of evidence governing relevancy limit the use of evidence that may be unfairly prejudicial or misleading; for instance, evidence of other crimes, wrongs, or acts is inadmissible to prove the character of a person to show that the commission of the crime at issue is consistent with the defendant's character, but is admissible for other purposes. When evidence of an extraneous offense is admitted to prove such character conformity, we examine the record to determine how the admission of this substantively inadmissible evidence affected the jury's verdict. That test is appropriate because the erroneous admission of the evidence thwarts the rule's purpose of shielding the jury from evidence used for improper reasons. The notice requirement found in [the Rule 404(b) ], however, does not relate to the substantive admissibility of the evidence. The lack of notice does not render the evidence inherently unreliable, but instead raises a question about the effect of procedural noncompliance. The purpose of the notice requirement is to enable the defendant to prepare to meet the extraneous offense evidence. Thus, we must analyze how the deficiency of the notice
affected [the defendant's] ability to prepare for the evidence.
Hernandez, 176 S.W.3d at 824–25 (quoting Roethel v. State, 80 S.W.3d 276, 281–82 (Tex.App.-Austin 2002, no pet.) (citations omitted)). Thus, because Francis did not object to the admissibility of the machete itself, we look only at the harm that may have been caused by the lack of notice and the effect the lack of notice had on his ability to mount an adequate defense. See McDonald v. State, 179 S.W.3d 571, 578 (Tex.Crim.App.2005).
The State does not dispute that the machete evidence was not disclosed to Francis until the day of trial and that he may have been surprised to learn of its existence. Francis argues the machete evidence “eviscerated [his] defensive theory that since no knife was recovered, and that since no physical evidence of a knife would be presented at trial, there would be insufficient evidence to convict him.” But we cannot conclude that the admission of the machete evidence had an injurious effect in this case.
The indictment alleged that Francis used and exhibited a deadly weapon—“namely, A KNIFE”—in the commission of the robbery. Thus, Francis was aware that the State would offer some evidence that he used a knife even if there was no physical evidence. Thomas's testimony was the only testimony regarding the machete. Thomas did not testify until the second day of trial. Defense counsel became aware of the machete on the first day of trial, and no other evidence of the machete was offered in the time between when defense counsel became aware of its existence and when Thomas testified regarding its use. Thus, defense counsel knew of the machete's existence for one day before evidence of it was introduced at trial. And, Francis does not argue that he was unprepared to cross-examine Thomas regarding Francis's use of a knife as alleged in the indictment. When the State disclosed the machete's existed, the State informed defense counsel of all the testimony it anticipated that Thomas would give regarding the machete.
Moreover, Francis did not file his written motion for a continuance until the second day of trial. The trial court recessed the trial so that defense counsel could inspect the machete and discuss it with Francis before the State presented it to the jury. When the trial court inquired whether defense counsel had “plenty of time to look at [the machete], examine it and talk to [his] client about it and prepare for cross-examination or whatever may occur at trial,” defense counsel responded affirmatively. Defense counsel did not request another continuance or any additional time for further inspection of the machete or discussion with Francis. Nothing in the record indicates that the machete had any unique characteristics requiring further inspection or testing or that Francis had a different defensive theory to present had he known of the machete's existence at an earlier time. Any error in the admission of the machete was harmless under these circumstances.
We note that defense counsel renewed his objection after the continuance was granted.
We overrule Francis's second issue.
C. Threatening Phone Calls during Punishment Phase of Trial
In his third issue, Francis argues that “[t]he trial court erred in admitting audio recorded telephone conversations of [him] while in custody at the Harris County Jail in violation of article 37.07 § 3(g) of the Texas Code of Criminal Procedure.” We note that the audio-recordings of the threatening phone calls were not actually offered or admitted into evidence at any point during the trial. Francis's article 37.07 objection went to Thomas's punishment-phase testimony that Francis called her from jail and stated that “if he [was] found guilty, ... two people [would] not walk out of here that day” and that she worried the statement was a threat against her life. We thus consider whether the trial court erred by overruling Francis's objection to Thomas's testimony because the State failed to provide notice under article 37.07 of what constituted another bad act by Francis.
Article 37.07(3)(g) of the Code of Criminal Procedure —rather than rule 404(b) —governs the admissibility extraneous offense evidence during the punishment phase of trial. See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g) (West Supp.2012) (relating to evidence of extraneous offenses introduced during punishment phase of trial); Tex.R. Evid. 404(b) (relating to evidence of extraneous offenses introduced during guilt phase of trial); see also Ramirez v. State, 967 S.W.2d 919, 923 (Tex.App.-Beaumont 1998, no pet.) (acknowledging that, although notice requirements of article 37.07(3)(g) and rule 404(b) are similar, rule 404(b) request does not apply to evidence that State intends to introduce only during punishment). Under article 37.07(3)(g), the State must give notice in the same manner as under rule 404(b), which requires “reasonable notice” in advance of trial. See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g) ; see also Tex.R. Evid. 404(b). Neither article 37.07(3)(g) nor rule 404(b), however, defines “reasonable notice.” Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g) ; Tex.R. Evid. 404(b). Thus, courts determine whether notice is reasonable based on the facts and circumstances of each individual case. See Sebalt v. State, 28 S.W.3d 819, 822 (Tex.App.-Corpus Christi 2000, no pet.) ; Patton v. State, 25 S.W.3d 387, 392 (Tex.App.-Austin 2000, pet. ref'd).
Because the notice requirements of article 37.07(3)(g) and rule 404(b) are similar, case law regarding the notice requirements of rule 404(b) is persuasive for the resolution of article 37.07(3)(g) issues. See President v. State, 926 S.W.2d 805, 808 (Tex.App.-Austin 1996, pet. ref'd).
Here, it is undisputed that the State gave Francis notice of its intent to use evidence of the threatening calls at 4:30 p.m. on a Friday. The guilt phase of trial began the following Monday, the jury returned its verdict on Tuesday, and the punishment phase began on Wednesday. Thus, the State gave notice of the threatening phone calls only three days before the commencement of trial and five days before punishment. It is also undisputed that the audio-recordings turned over to defense counsel were “voluminous.” The prosecutor, however, stated that she told defense counsel which phone call the State intended to present evidence about during punishment and that the phone call was one of Francis's first phone calls from jail, occurring within the first twenty minutes of the recordings. The prosecutor also stated that she had produced the recordings to the defense on the same day she heard them.
Although at least one court of appeals has determined that the filing of a rule 404(b) response on a Friday is not reasonable notice for a trial that begins the following Monday, there is no per se rule of unreasonableness. Compare Hernandez v. State, 914 S.W.2d 226, 234 (Tex.App.-Waco 1996, no pet.) (trial court did not abuse its discretion by finding that three days was not reasonable notice), with Ramirez, 967 S.W.2d at 923 (trial court did not abuse its discretion by finding that three days was reasonable notice), and Patton, 25 S.W.3d at 394 (trial court did not abuse its discretion by finding that notice given by fax on Sunday evening, but not received until Monday morning, was reasonable for Tuesday trial). And we do not find the notice given by the State in this case to be unreasonable under the circumstances—the prosecutor turned the recordings over to defense counsel immediately after she heard them, she specified for defense counsel which phone call she intended to offer evidence of at punishment, and she informed defense counsel that the phone conversation could be found within the first twenty minutes of the recordings.
Moreover, because no constitutional error is involved when evidence of uncharged misconduct is admitted without notice, we must disregard any error that did not affect Francis's substantial rights. See Tex.R.App. P. 44.2(b). Defense counsel had the opportunity to, and did, cross-examine Thomas regarding the phone call. If the evidence of the threatening phone call was a legitimate surprise that required a re-evaluation of Francis's strategy at the punishment phase, he could have requested a continuance. His failure to do so precludes us from holding that, even if there was error in the admission of the phone call evidence, the error was harmful. See Lindley v. State, 635 S.W.2d 541, 544 (Tex.Crim.App. [Panel Op.] 1982) (“The failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise.”); see also McDonald, 179 S.W.3d at 578 (considering defendant's failure to request continuance as factor weighing against finding of harm when State failed to give timely rule 404(b) notice); Martin v. State, 176 S.W.3d 887, 900 (Tex.App.-Fort Worth 2005, no pet.) (defendant waived any complaint that he was surprised by State's untimely notice by failing to request continuance).
For these reasons, we overrule Francis's third issue.
Denial of Mistrial
The State asked its final witness, Officer C. Porter with HPD's family violence unit, whether he believed Thomas was credible. Porter responded, “Yes, and looking at the criminal history of the defendant....” Francis objected under rule 404(b) that the witness had impermissibly disclosed Francis's criminal history and requested a mistrial. The State conceded error, and the trial court instructed that it could consider Porter's “yes” answer but it could not consider “any other part of his answer for any purpose whatsoever.” The trial court denied Francis any additional relief. Francis contends in his fourth issue that the trial court should have granted a mistrial.
Francis's objection in the trial court was only to Porter's answer. Francis did not object to the State's inquiry into Porter's opinion of Thomas's credibility in the trial court, and he has not complained about that inquiry on appeal.
A. Standard of Review
We review the trial court's ruling on the motion for mistrial for abuse of discretion. See Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007). To constitute an abuse of discretion, the trial court's ruling must fall outside of the zone of reasonable disagreement. See Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004).
B. The jury instruction cured the error
“A mistrial is the trial court's remedy for improper conduct that is ‘so prejudicial that expenditure of further time and expense would be wasteful and futile.’ ” Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex.Crim.App.2004) (quoting Ladd
v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999) ); see Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App.2000) (explaining that “[m]istrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors”). Thus, the determination of whether the trial court properly denied Francis's motion for mistrial involves most, if not all, of the same considerations as a harm analysis. Hawkins, 135 S.W.3d at 77. “Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer [.]” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000) (instruction to disregard cured harm from improper impeachment of witness on subject of defendant's prior convictions); Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App.1999) (instruction to disregard cured admission of irrelevant and potentially prejudicial witness testimony). The jury is presumed to follow the trial court's instruction to disregard unless the evidence is so prejudicial or extreme that the instruction was incapable of removing the harm. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.1987) (observing, “In the vast majority of cases in which argument is made or testimony comes in, deliberately or inadvertently, which has no relevance to any material issue in the case and carries with it some definite potential for prejudice to the accused, this Court has relied upon what amounts to an appellate presumption that an instruction to disregard the evidence will be obeyed by the jury.”). Mistrials should be granted only when the error is “highly prejudicial and incurable.” Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003).
Francis asserts that this case is not like most cases because Officer Porter's reference to Francis's “criminal history” was so inflammatory that it could not be cured by the trial court's instruction to disregard and required a mistrial. In support of this assertion, Francis cites to an eighty-five-year-old opinion from the Court of Criminal Appeals. See Ulmer v. State, 106 Tex.Crim. 349, 292 S.W. 245, 245 (Tex.Crim.App.1927). In Ulmer, the defendant was charged with raping his daughter. At trial another of the defendant's daughters was allowed to testify, unresponsively, both that her father had been to the penitentiary and that he had fathered her illegitimate baby. The Court observed that the error in admitting both statements was “one that cannot be cured.” Id. at 246.
Ulmer does not dictate a conclusion that the harm from Officer Porter's statement in this case was incurable. The nature of the answers in Ulmer was far different from the nature of Porter's answer. In Ulmer, the extraneous matter—a sexual offense committed against the complainant's sister—went directly to the heart of the offense for which the defendant was charged. That a reference was made to the defendant's time in the penitentiary only compounded the harm. Here, Porter testified only that Francis had a “criminal history.” He did not specify what that history entailed, whether Francis had been imprisoned, or otherwise reference any matter that went to the heart of the aggravated robbery for which Francis was on trial. After Porter made the objectionable statement, the trial court quickly instructed the jury to disregard it and the State concluded Porter's examination; thus, unlike in Ulmer, there was no aggravating circumstance that compounded any harm to Francis.
Porter's reference to Francis's “criminal history,” without any further detail, was not so inflammatory that the trial court's instruction to disregard could not cure the harm. See Gardner, 730 S.W.2d at 679 (concluding that evidence that defendant had been incarcerated, unembellished, was not so inflammatory as to undermine efficacy of trial court's instruction to disregard). We therefore hold that the trial court did not abuse its discretion in denying Francis's motion for mistrial after the jury was instructed to disregard Porter's testimony about Francis's criminal history.
We overrule Francis's fourth issue.
Sufficiency of the Evidence
In his fifth issue, Francis contends that the evidence is legally insufficient to sustain the aggravated robbery conviction because Thomas's testimony was not credible.
A. Standard of Review
We assess the legal sufficiency of the evidence by determining whether, based on all of the evidence viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979) ; Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010). In applying this standard, we must defer to the responsibility of the fact finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 ; Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). We may not reevaluate the weight and credibility of the record evidence and thereby substitute our own judgment for that of the fact finder. Williams, 235 S.W.3d at 750.
B. Thomas's testimony supports the conviction
The State was required to prove that Francis committed aggravated robbery by committing robbery and using or exhibiting a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). Relevant here, Francis committed robbery if, in the course of committing theft with the intent to obtain or maintain control of the property, he intentionally or knowingly threatened or placed Deborah Thomas in fear of imminent bodily injury or death. Id. § 29.02(a)(2). Theft was committed if Francis unlawfully appropriated property with the intent to deprive Thomas of property. Id. § 31.03(a) (West Supp.2011).
Here, the State presented evidence of all of the elements of aggravated robbery. Through Thomas's testimony, the State established a robbery and the use or exhibition of a knife. Thomas stated that Francis beat her with his hands, threatened her with both a pocketknife and a machete, and took $1,000 from her person. As a result of the robbery, Thomas suffered swelling in her face, injuries to her hand and leg, and the loss of four teeth. And through Officer Porter's testimony, the State established that a knife can be a deadly weapon.
Francis nevertheless argues that the evidence is legally insufficient because Thomas's testimony was not credible. To support this argument, Francis relies on the evidence that Thomas did not tell the responding police officer, the emergency medical personnel, or the domestic violence counselor that Francis had threatened her with knives and stolen her money. Thomas explained, however, that on the night of the offense she had difficulty speaking due to her broken teeth and the swelling in her face. She further explained that when she spoke with the domestic violence counselor two days later, she was on medication and was “still dazed.”
From the guilty verdict, we can infer that the jury found Thomas's explanation for her failure to tell others about the knives used during the robbery credible. It was the jury's sole province to believe all, some, or none of Thomas's testimony and to resolve any conflicts or inconsistencies in the evidence. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 ; Williams, 235 S.W.3d at 750. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Francis committed aggravated robbery.
We overrule Francis's fifth issue.
Conclusion
Having overruled each of Francis's issues on appeal, we affirm the judgment of the trial court.
Justice KEYES, dissenting.
EVELYN V. KEYES, Justice, dissenting.
I respectfully dissent. The majority affirms the conviction of appellant, Tracy Blaine Francis, for the felony offense of aggravated robbery and his seventy-five-year sentence. See Tex. Penal Code Ann. § 29.03(a)(2), (3) (Vernon 2011). I would reverse the conviction and remand for a new trial on the ground that the State willfully violated a discovery order by withholding a machete offered as used during the commission of the charged offense—but actually used in the commission of an uncharged extraneous offense—with the intent of thwarting the defense's preparation for trial, in violation of Code of Criminal Procedure article 39.14. See Tex.Code Crim. Proc. Ann. art. 39.14(a) (Vernon Supp.2012). I agree with Francis that the trial court erred with respect to the admission of this evidence during the guilt phase of trial and that the error was harmful. Therefore, Francis's conviction should be reversed and the case remanded for a new trial.
Background
As the majority states, Francis was indicted for the felony offense of aggravated robbery on October 14, 2010, based on the allegation that he “unlawfully, while in the course of committing theft of property owned by DEBORAH THOMAS, and with intent to obtain and maintain control of the property, INTENTIONALLY AND KNOWINGLY threaten[ed] and place[d] DEBORAH THOMAS in fear of imminent bodily injury and death, and [Francis] did then and there use and exhibit a deadly weapon, namely, A KNIFE.” Thomas had been Francis's girlfriend a number of years before and was the mother of his child. At the time of the assault, Thomas and Francis had renewed their relationship, and Francis had moved in with Thomas.
On June 21, 2011, approximately five months prior to the November 16, 2011 trial, Francis's counsel filed “Defendant's Request for Notice of State's Intention to Use Evidence of Extraneous Offenses at Trial.” On July 16, 2011, the trial court entered a discovery order that ordered the State to furnish to the defense “[a]ll physical objects to be introduced as part of the State's case” as well as “[a]ll contraband, weapons, [and] implements of criminal activity seized or acquired by the State or its agents in the investigation of the alleged offense.” The order specified that “the State is ordered to furnish the above for inspection and copying 10 working days before trial, or as soon as reasonably practicable after any such information comes to their knowledge, whichever is earlier.”
In response to the court's discovery order, on September 6, 2011, two months prior to trial, the State filed its “Notice of Intention to use Evidence Pursuant to Texas Rules of Criminal Evidence 404, 609, and 37.07(g).” The State gave no notice of its intent to introduce evidence of the use of a machete in the assault or in any capacity. It did, however, state, “ON THE SAME DAY AS THIS OFFENSE, THE DEFENDANT THREATENED MULTIPLE PEOPLE WHO WORKED IN THE LEASING OFFICE WITH A KNIFE.”
The trial, before a visiting judge, began on November 14, 2011. At trial, after the jury was sworn, but prior to the presentation of evidence, Francis's counsel conferred with the State about the evidence the State intended to present. For the first time, Francis became aware that the State had a machete in its possession and had marked it as an exhibit. The machete was distinctly different and separate from the knife alleged to have been used in the case and described in the official offense report. The police had been unable to recover that knife, and it did not appear among the exhibits. No machete was mentioned in any reports, witness statements, or documents produced to the defense prior to trial.
Citing his timely request for notice under Rule 404, Francis objected to the machete's “introduction in any way.” In reply to the court's remonstrance that a machete is “just a big knife,” Francis announced his understanding that the machete was not the knife alleged in the indictment. The prosecution affirmed for the first time that “two knives ... were used that night, this one and another one.” The court replied, “Well, possession of a machete in itself is not necessarily an extraneous offense.” The court granted a continuance with respect to the machete to allow Francis's counsel time to inspect the machete and confer with his client in preparation for trial. The court also granted a motion in limine protecting the Francis's right to object should the machete be brought into the trial.
The first witness, Officer M. Scott, who had responded to Thomas's 911 call, testified that he thought he was responding to an unarmed assault. He did not recall Thomas mentioning a knife, only a beating. He testified that no knife was found at the scene, mentioned by the other responding officers, or mentioned in the police report. He saw no evidence of a knife wound on Thomas.
The next witness, Susan Myers, a counselor in the family violence unit of the Houston Police Department, interviewed Thomas when she came to the department on October 16, 2010, to pursue charges. She testified that Thomas had been badly beaten. On cross-examination, Myers admitted that her report of the interview did not mention a knife but rather recorded that Thomas was beaten with fists. On re-direct, however, she admitted that a knife was mentioned in Thomas's statement.
The next morning, before the jury was brought in, the trial court agreed to take up the motion in limine and stated, “It appears as though from my conversation with [defense counsel], he's had a chance to inspect the machete in question and has had ample opportunity to speak to his client about it and prepare for cross-examination.” Defense counsel replied, “That is correct, Judge. Although it doesn't eliminate the objections that will be made.” The judge replied, “Certainly,” and stated that he would address the objections as they arose.
The State then called Thomas, who began to testify about the events leading up to the charged crime. After Thomas had described the beating and the theft of money from her bra, the State asked, “During the time that he was beating you, did he ever make any threats to you?” In response to Thomas's answer, “Yes,” the State asked, “Okay. Can you tell us about that?” She replied, “In the process of him beating me—there's a machete that was laying right beside me.”
The court called a bench conference and excused the jury. Francis objected “initially” on Rule 404(b) grounds that there was no evidence that the machete was used in the offense in any way and that it was his understanding that “the State is contending that it was simply there and it was not used to threaten the complainant. And additionally, the police reports indicate that if there was a knife used, it was a kitchen knife.” He stated that the defense's first indication “that a machete was going to be talked about or introduced into evidence was yesterday after the jury had already been impaneled.” During the lunch break, defense counsel observed the machete, asked about it, “and was then told it was going to be introduced into evidence.”
Francis also objected that introduction of the machete violated the discovery order signed by the original judge on July 16, 2011, which specifically required that the State turn over any weapons or other contraband involved in the offense ten days ahead of trial. The State replied that, earlier that day she had explained to the court “that [Thomas] was threatened with this machete, that [Francis] said he was going to chop her up into little pieces and using the machete. And he had it laying by her threatening her with it.” She further stated that she “brought the machete as evidence”; that she intended to offer it at trial; that defense counsel told her he had not seen it; that “[she] did receive the machete from [the complainant] when [she] went to interview her in preparation for trial ... before the last trial setting”; and that it had been in her possession since that time; but that she “honestly didn't know that the defense didn't know about the machete. [She] thought that it was in the offense report, but it wasn't.”
The trial court stated on the record that he had granted “a short continuance to give the defense time to inspect to see if there was something unique about the machete or something else that needed to be done that would enable [defense counsel] to properly represent [his] client” and that the court's “understanding was that [defense counsel] had plenty of time to look at it, to examine it and to talk to [his] client about it and prepare for cross-examination or whatever may occur in trial.”
Francis re-urged his objection that he had not been told about the machete until the day before and that he had not had the opportunity to do any further investigation beyond talking to Francis. He further objected that “if this machete was found in September and the [discovery] order was granted in July and we just found out about it yesterday, then this is a violation of that discovery order under 39.14” and, therefore, the machete was “inadmissible because of that.”
When the trial court asked the State to proffer Thomas's testimony, the prosecutor replied:
I anticipate that her testimony is going to be that the defendant had the machete as well as a kitchen knife. That he put the machete next to her and told her that he was going to cut her up into little pieces as he threatened her with the knife. He held the knife to her. He moved the knife down her body. Put the knife into her vagina and told something along the lines of I could really fuck you up. And then after that, then took the money and left.
I anticipate that she's going to say that she doesn't—she doesn't—she hasn't seen the knife since that night, which would indicate that he took the
knife with him. But he did leave the machete. And so, the machete was there. The police did not take it.
When she talked to Ms. Logan, who was the prosecutor in the court before me, she told Ms. Logan about the machete as well, which was in Ms. Logan's notes, which was in the file that was open to defense counsel....
The court asked if the notes were work product or notes that were available to Francis's counsel, and the State replied, “It was her notes. I don't know if she had them in a work product folder or not. I don't know that. But there were notes in the file.” Francis's counsel volunteered that he seen notes about Francis's sharpening a machete in connection with Francis's sharpening knives fourteen hours prior to the event, but he stated that he did not know the machete was present during the offense, and he had no way to know that it was in the State's possession “because they went and got it” and it was not in the police report. He stated that the intended use of the machete at trial as evidence of the event was a surprise that affected his trial strategy. The trial court expressly overruled Francis's Rule 404(b), Rule 402, and article 39.14 objections. The State then questioned Thomas extensively about the details of the attack with the machete, which was introduced into evidence, in addition to testifying in detail about Francis's attack on her with the knife and with his fists.
Rule 402 provides that irrelevant evidence is inadmissible. Tex.R. Evid.402.
Violation of Discovery Order
In his first issue, Francis argues that the trial court erred by admitting the machete into evidence during the guilt phase of trial because the State willfully withheld the machete's existence contrary to the trial court's discovery order, violating Code of Criminal Procedure article 39.14.
1. Willful Violation of Discovery Order
In reviewing the trial court's decision to admit or exclude evidence, the appellate court must determine whether the court's decision was an abuse of discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App.2006). Unless it was “outside the ‘zone of reasonable disagreement,’ ” the decision must be upheld. Id. When the trial court makes findings of fact based on an evaluation of credibility and demeanor, we should show almost total deference to those findings. Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) ). If the trial court does not enter findings of fact, we view the evidence in the light most favorable to the ruling and assume the trial court made implicit findings of fact that support the ruling as long as those findings are supported by the record. Id. (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000) ).
Texas Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” but it may be admissible for other purposes, “provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.”Tex.R. Evid. 404(b).
Texas Code of Criminal Procedure article 39.14 provides that, upon the defendant's motion, the court shall order the State, pretrial, “to produce and permit the inspection ... of ... objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies.” Tex.Code Crim. Proc. Ann. art. 39.14(a). “Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence.” Oprean, 201 S.W.3d at 726 (quoting Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App.1978) ).
To determine a violation of a discovery order under article 39.14, the appellate court must determine whether the State acted voluntarily and with the specific intent to willfully disobey the order. Id. The State's intent to willfully disobey the discovery order may be inferred from its actions and words. Id. at 728. We consider “whether the record indicates that (1) the prosecutor intended to harm the defense, (2) the prosecutor's actions were a strategic and purposeful effort to thwart the defense's preparation of its case, or (3) the prosecutor consciously decided to violate the plain directive of the discovery order.” Walker v. State, 321 S.W.3d 18, 22 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd, untimely filed); see Oprean, 201 S.W.3d at 727–28. The appellate court also considers the validity of the State's rationale and explanation for violating the discovery order, as well as whether it suddenly discovered the evidence such that compliance with the terms of the discovery order was impossible. See Oprean, 201 S.W.3d at 727–28.
In Oprean, the trial court signed a discovery order requiring the State to furnish, at least ten days before trial, “[a]ll video and tape recordings that contain the defendant's voice.” Id. at 725. After a jury found Oprean guilty of felony DWI, defense counsel asked the State what evidence she intended to present at the punishment phase the next morning. Id. The prosecutor stated that she intended to present only the judgments and sentences from Oprean's prior DWI convictions. Id. Right before the punishment phase began, defense counsel learned, when he asked the prosecutor about the presence of a police officer in the courtroom, that she intended to offer a videotape depicting one of Oprean's prior convictions. Id. Defense counsel objected to admission of the videotape on the ground that the State violated the discovery order. Id. The trial court overruled this objection and denied defense counsel's request for a recess to inspect the videotape and prepare a strategy. Id.
In concluding that the State acted with the specific intent to willfully disobey the discovery order, the Court of Criminal Appeals found two things “particularly unacceptable about the prosecutor's conduct.” Id. at 727. First, she specifically told defense counsel the night before the punishment phase that she intended to offer only the judgments and sentences, and there was no indication that she did not discover the existence of videotape until after that conversation. Id. Second, the prosecutor's explanation for her conduct—that “there was no [37.07] charge in [the] court's discovery order”—was invalid, which is a factor that should be considered when determining willfulness. Id. at 727–28. The court concluded that “[b]ecause the prosecutor knew about the discovery order and chose to invoke Article 37.07 after counsel called her attention to the order, she made a conscious decision to violate the plain directive of the discovery order.” Id. at 728. The court held that the prosecutor's conduct was a “calculated effort to frustrate the defense” and remanded the case to this Court to determine the harm, if any, caused by admission of the videotape. Id.; cf. State v. LaRue, 152 S.W.3d 95, 96–97 (Tex.Crim.App.2004) (finding no evidence of willful withholding of DNA evidence where prosecutor stated he was involved in other matters at time of evidence production request and thought someone else would be appointed to handle case; nothing indicated that prosecutor's fax of discovery material to defense counsel three days after deadline was purposeful effort to thwart defense, and there was no evidence that prosecutor's request to proceed with trial despite failure to timely produce DNA evidence was calculated to deny defendant's right to speedy trial).
Code of Criminal Procedure article 31.01, section 3(g), which applies to the punishment phase, provides, “On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence.” Tex.Code Crim. Proc. Ann.art. 37.07 § 3(g) (Vernon Supp.2012). In Oprean v. State, after defense counsel objected to the introduction of the videotape on the ground that the prosecutor violated the discovery order, the prosecutor stated, “[T]here was no [Article 37.07(g) ] charge in this Court's discovery order and no [37.07] request was ever made by defense counsel, which is required to be made to me to give him this evidence.” 201 S.W.3d 724, 725 (Tex.Crim.App.2006). Although Oprean involved the admission of evidence wrongfully withheld in violation of a discovery order in the punishment phase of trial, this Court has applied Oprean in situations in which the trial court admits evidence withheld in violation of a discovery order in the guilt-innocence phase of trial. See Walker v. State, 321 S.W.3d 18, 22–23 (Tex.App.-Houston [1st Dist.] 2009, pet. dism'd, untimely filed); see also Hall v. State, 283 S.W.3d 137, 163–69 (Tex.App.-Austin 2009, pet. ref'd) (applying Oprean analysis when State offered evidence in guilt-innocence phase of trial that was withheld in violation of discovery order).
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As evidence of willfulness in this case, Francis points to the following circumstances: (1) the machete was not mentioned in any discovery, including the offense report, witness statements, or Thomas's medical records related to the robbery; (2) the machete's existence came to light only after defense counsel observed the machete among the State's exhibits at trial, not as a result of any voluntary act by the prosecutor; (3) the State had possession of the machete for more than one month prior to trial; and (4) the State failed to disclose other evidence it introduced—threatening telephone calls Francis made to Thomas while in custody—in violation of the discovery order. Francis argues that these circumstances are akin to the circumstances in Oprean, which the Court of Criminal Appeals determined required the exclusion of evidence. See 201 S.W.3d at 728. I agree. I would hold that in failing to disclose the existence of the machete in its possession and Thomas's statement about its use in the course of Francis's assault on her, the State acted voluntarily and with the specific intent to violate the trial court's discovery order. See id. at 727–28.
Four months after the trial court entered the discovery order, Francis first learned, after the trial had already begun, that the machete was in the State's possession and that the State intended to question Thomas about Francis's threats to “cut [Thomas] up into little pieces” with the machete that he laid beside her as he was drawing a kitchen knife up and down her body. The police report and initial witness statements did not mention either a knife or a machete. The officers who responded to Thomas's 911 call saw no evidence that a knife was used in the commission of the offense. Thomas later described being threatened with a pocketknife or kitchen knife, however, and there was evidence that Francis had threatened others with a kitchen knife earlier. Francis was indicted for threatening Thomas with a knife, not with a knife and a machete. Therefore, Francis's act of threatening Thomas with a machete was an extraneous offense.No mention whatsoever was made of a machete in any report, in any files turned over by the State to the defense, or in the State's response to Francis's request for notice of intent to use extraneous-offense evidence. The State's report of its intent to use extraneous-offense evidence referenced the intent to use evidence that Francis had made threats to others with a kitchen knife, but it did not mention anything about a machete. Yet the State had obtained the machete in an interview with Thomas in September 2011, well over a month before the trial began on November 14, 2011, and it had determined that Francis used the machete to threaten Thomas with death, in addition to threatening her with a kitchen or pocketknife, beating her, and robbing her. The State retained the machete in its possession, intending to introduce it at Francis's trial for assault with a knife that was never recovered, and it included the machete among the exhibits it intended to offer at trial. It is uncontested that the defense became aware of the machete only when it discovered it among the State's trial exhibits—after the jury had been seated.
Francis's counsel objected repeatedly to the trial court that he had predicated Francis's defense preparation on insufficiency of the evidence to prove his guilt for assault with a knife, rather than an assault with fists, and not on assault with both a knife and a machete. At or near the time of the crime, Thomas reported only an assault with a knife; the police report contained no reference to a knife; and no evidence of the use of a knife in the assault was found or reported at the time of the crime—only evidence that Francis had beaten Thomas with his fists.
It is beyond question, to my mind, that Thomas's testimony that Francis threatened to cut her into little pieces could only refer to the machete that he laid beside her as he was drawing the kitchen knife or pocketknife up and down her body and threatening to “fuck [her] up” with it. During Thomas's testimony, the machete—but no knife—lay in full view of the jury. Had the machete not been offered into evidence and had Thomas not been allowed to testify about it, the jury would have had before it only Thomas's testimony about a knife that was never recovered or reported by the responding officers and which left no wounds on Thomas.
I can only infer, on the basis of the record in this case, that the prosecutor willfully withheld from the defense both the machete itself, which was in the State's possession, and notice of Thomas's statement to the prosecutor a month before trial that Francis laid the machete beside her and threatened to cut her into little pieces, knowing that this evidence was not in the police report or in any files turned over or made available to the defense. The prosecutor also knew that she intended to introduce the machete and Thomas's testimony about it at trial. And she knew that the defense had prepared for trial in the belief that only a pocketknife or kitchen knife had allegedly been used during the course of Francis's assault on and robbery of Thomas and that no knife had been found, no wound had been made, and no machete had been mentioned.
I would hold, on the basis of this record, that the State acted willfully and with the specific intent to violate the trial court's discovery order and that the prosecutor's actions were a strategic and purposeful effort to thwart the defense's preparation of its case. See Walker, 321 S.W.3d at 22. I note specifically that the prosecutor did not suddenly discover the evidence such that compliance with the terms of the discovery order was impossible. See Oprean, 201 S.W.3d at 727–28. Moreover, the prosecutor's rationale and explanation for violating the discovery order—that she thought the machete was in the police report and that she “honestly didn't know that the defense didn't know about the machete”—are, to my mind, entirely implausible and self-serving. See id. Because I would hold that the State's withholding of the machete was a willful violation of the discovery order requiring exclusion of the evidence, I would turn to whether the admission of the machete was harmful error.
2. Harm
In determining the harm that was caused by the trial court's admission of evidence that was willfully withheld by the State in violation of a discovery order, we disregard the error unless it affects the defendant's substantial rights. Oprean v. State, 238 S.W.3d 412, 415 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd); Tex.R.App. P. 44.2(b) (providing that we must disregard non-constitutional errors that do not “affect substantial rights”). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Oprean, 238 S.W.3d at 415 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) ). Here, the harm that the court reviews is the harm caused by the State's violation of the discovery order. Id. (citing McDonald v. State, 179 S.W.3d 571, 578 (Tex.Crim.App.2005) ). The court must consider the intended purpose of the discovery order: to prevent surprise and to permit Francis to prepare an adequate defense. See id. (citing Hernandez v. State, 176 S.W.3d 821, 825 (Tex.Crim.App.2005) and Ford v. State, 73 S.W.3d 923, 926 (Tex.Crim.App.2002) ). The court must, therefore, analyze how the State's willful failure to comply with the discovery order affected Francis's ability to prepare for introduction of the machete into evidence and Thomas's testimony about its use and to formulate his defensive strategy. See id.
As both the State and the defense knew, assault with a deadly weapon, such as a knife, is a more serious crime than assault without such a weapon. And if the State had had no evidence or insufficient evidence that a knife was used in the crime, Francis would have been subject to conviction on a lesser offense. Instead, the State produced a machete—an intrinsically more deadly weapon than a pocketknife or most kitchen knives—at trial and based its arguments on its use during the assault in addition to the use of the knife. I would conclude that the State's withholding of evidence about the machete was calculated to prevent Francis's preparation for the introduction of this evidence that the State knew would make an indelible impression on the jury and would have a strong influence on its verdict and its assessment of his sentence.
For the reasons set forth above, I would conclude that the prosecutor's willful violation of the trial court's discovery order by withholding both the machete and Thomas's intended testimony about its use was calculated to and did surprise defense counsel and affect his ability to formulate a trial strategy. Therefore, I would find the error harmful. See Oprean, 201 S.W.3d at 726–28 ; Oprean, 238 S.W.3d at 415–16 (finding that admission of videotape had “substantial and injurious effect or influence in determining the jury's verdict”).
Conclusion
I would sustain Francis's first issue, reverse his conviction, and remand the case for a new trial.