Reynolds v. State

Full title: RICO ANTONIO REYNOLDS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 5, 2007

Nos. 05-06-00328-CR, 05-06-00329-CR (Tex. App. Jan. 5, 2007)

Opinion

Nos. 05-06-00328-CR, 05-06-00329-CR.

January 5, 2007. DO NOT PUBLISH.

On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F04-58995-V and F04-58996-V.

Before Justices WRIGHT, BRIDGES, and MAZZANT.

OPINION

Opinion By Justice MAZZANT.

Rico Antonio Reynolds appeals his convictions for aggravated robbery. In three issues, he claims the trial court abused its discretion by allowing undisclosed witnesses to testify; his guilty pleas were involuntary because no written election for the jury to assess punishment was filed in the trial court; and his sentences of twenty-five years are void because no written election was filed. We affirm the trial court's judgments.

Discussion

Undisclosed Witnesses In his first issue, appellant claims the trial court abused its discretion by allowing prosecution witnesses to testify who were not on the witness list provided by the State. Appellant claims allowing these witnesses to testify as to extraneous offenses harmed him "because his counsel did not have enough time to investigate any of the witnesses or their allegations due to her surprise at these witnesses being called as State's witnesses in this trial without the required prior notice to Defense." He also claims allowing these witnesses to testify resulted in ineffective assistance of counsel.¹ Background Appellant pleaded guilty to two offenses of aggravated robbery and was sentenced by the jury to twenty-five years in prison in each case. Prior to trial, the State filed a notice of extraneous offenses informing defense counsel of its intent to offer evidence concerning four additional aggravated robberies committed by appellant. The motion alleged:

On or about the summer months of 2004, as part of a continuing course of conduct, defendant committed the offenses of Aggravated Robbery in Dallas, Texas. The specific locations of these offenses are Dickie's Barbeque on Skillman Ave., TGI Friday's in North Dallas, Family Dollar on Audelia and Royal in Dallas, and Picasso's Pizza in Dallas.

During the punishment phase, outside the presence of the jury, defense counsel objected to the State calling witnesses who were not on the witness list:

It's come to the defense's attention that since the district attorney in this case wants to bring into the trial a few witnesses that were not on the witness list. And I'm going to object to those witnesses based on the fact that the State knew that there was a possibility they may need those witnesses, they didn't just realize they did. . . .

The prosecutor replied:

I didn't know about these witnesses until this morning and I informed [defense counsel] immediately upon finding out about them. And I should also note that a notice of extraneous [sic] regarding these particular offenses was filed, so [defense counsel] was aware of my intent to prove up these extraneous offenses.

The trial court overruled defense counsel's objection. Standard of Review Upon request by the defense, notice of the State's witnesses should be given. Stoker v. State, 788 S.W.2d 1, 15 (Tex.Crim.App. 1989), abrogated on other grounds, Leday v. State, 983 S.W.2d 713 (Tex.Crim.App. 1998). If the trial court allows an undisclosed witness to testify, we review the decision under an abuse of discretion standard of review. See Patterson v. State, 138 S.W.3d 643, 650 (Tex.App.-Dallas 2004, no pet.); Castaneda v. State, 28 S.W.3d 216, 223 (Tex.App.-El Paso 2000, pet. ref'd); Horner v. State, 129 S.W.3d 210, 214 (Tex.App.-Corpus Christi 2004, pet. ref'd). In determining whether the trial court abused its discretion, we consider whether (1) the prosecutor acted in bad faith in failing to provide the defense with the name of the witness and (2) the defendant could reasonably anticipate that the witness would testify despite the State's failure to disclose the witness's name. See Wood v. State, 18 S.W.3d 642, 649 (Tex.Crim.App. 2000); Stoker, 788 S.W.2d at 15; Horner, 129 S.W.3d at 214; Castaneda, 28 S.W.3d at 223. In determining whether the State acted in bad faith in failing to provide the name of the witness, we consider whether the State intended to deceive, whether the State's notice left adequate time to prepare, and whether the State freely provided the defense with information. Horner, 129 S.W.3d at 214; Hardin v. State, 20 S.W.3d 84, 88 (Tex.App.-Texarkana 2000, pet. ref'd). Analysis According to the record, the State presented testimony from five witnesses who testified about four armed robberies appellant allegedly committed in the summer and early fall of 2004 at Napoli's Restaurant,² TGI Friday's, Dickey's Barbeque, and a Family Dollar store. Because appellant does not identify the witnesses about whom he complains and there is no list of potential witnesses in the record, we have no way of determining how many witnesses were truly undisclosed. Assuming for the sake of argument that appellant is complaining about all of the extraneous offense witnesses, the trial court did not abuse its discretion by overruling defense counsel's objection. First, there is no indication the prosecutor acted in bad faith. Defense counsel did not claim the State acted in bad faith in failing to disclose the witnesses; rather, he claimed the State had not shown "due diligence" in putting them on the witness list. The prosecutor told the trial court she informed defense counsel "immediately upon finding out about" the witnesses. Defense counsel did not dispute this assertion. Although trial proceeded immediately following the trial court's ruling, defense counsel did not ask for a continuance in order to prepare for cross-examination. Furthermore, in evaluating what appellant could have anticipated, we note the prosecutor filed the notice of extraneous offenses prior to trial. Having been informed the State would seek to offer extraneous offense or bad acts evidence during the punishment phase of the trial, appellant could not reasonably claim surprise when the prosecutor called witnesses to provide such evidence. Indeed, defense counsel did not even argue surprise. Based upon this record, we cannot say the trial court abused its discretion in admitting the witnesses' testimony. We overrule appellant's first issue.

Jury Election

In two related issues, appellant claims the jury improperly assessed punishment because he did not file a written election of punishment pursuant to article 37.07, section 2(b) of the Texas Code of Criminal Procedure.³ In his second issue, appellant claims his plea was involuntary because the jury assessed punishment even though no written election was filed. In the third issue, he claims the twenty-five year prison sentences are void because of the absence of a written election. The State claims these allegations are not preserved for appellant review. We agree. Where the defendant files no election, the trial court has the duty to assess punishment. Toney v. State, 586 S.W.2d 856, 858 (Tex.Crim.App. 1979). A defendant, however, can waive statutory rights concerning the assessment of punishment. Dickson v. State, 492 S.W.2d 267, 270 (Tex.Crim.App. 1973). We agree no written election appears in the record. Appellant, however, did not object to the jury assessing punishment. We therefore conclude he failed to preserve the issues for appellate review by failing to object.⁴ See Tex. R. App. P. 33.1(a); Dickson, 492 S.W.2d at 270-71. Issues two and three are overruled. We affirm the trial court's judgments. AMOS L. MAZZANT