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Shelby v. State

Court of Appeals of Texas, Fourteenth District, Houston
Aug 12, 2004
No. 14-02-01091-CR (Tex. App. Aug. 12, 2004)

Opinion

No. 14-02-01091-CR

Memorandum Opinion filed August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 12th District Court, Walker County, Texas, Trial Court Cause No. 21,054. Affirmed.

Panel consists of Justices FOWLER, EDELMAN, and ELLIOTT.

Hon. Brady G. Elliott, Judge of the 268th District Court of Fort Bend County, sitting by assignment. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon Supp. 2004).


MEMORANDUM OPINION


Ronald Shelby appeals a conviction for possession of a deadly weapon in a penal institution on various grounds. We affirm.

See TEX. PEN. CODE ANN. § 46.10(a)(2) (Vernon 2003). A jury found appellant guilty and sentenced him to ten years confinement.

Sufficiency of the Evidence

Appellant's first and second issues challenge the legal and factual insufficiency of the evidence to prove that the piece of metal found in his cell was either manifestly designed, or intended to be used, to cause death or serious bodily injury, so as to constitute a deadly weapon. See TEX. PEN. CODE ANN. § 1.07(a)(17) (Vernon Supp. 2004). In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim. App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Ross, 133 S.W.3d at 620. In this case, the alleged deadly weapon was a slender metal welding rod with a sharpened point, described during the trial as a "shank." Lieutenant Roberts, an eighteen-year correctional officer, testified that he had seen 50 to 200 such objects that inmates had fabricated in the preceding two years. He opined without objection that, in his experience, the shank was manifestly designed or adapted to cause serious bodily injury or death and that in the manner of its use or intended use was capable of causing serious bodily injury or death. He further stated that he had seen inmates use such weapons on three different occasions and had also seen someone killed with an instrument like this one. This evidence is legally sufficient to prove that the shank was a deadly weapon. Appellant claims that the evidence showed he used the shank to get a prison officer in trouble and thus refutes that its purpose was to cause injury or death. However, to whatever extent any evidence supports this contention, the fact that appellant's possession of a shank could get an officer in trouble would, if anything, support its character as a deadly weapon. Moreover, any such evidence does not rebut the abundant undisputed evidence that appellant was in possession of an object commonly made and used by prison inmates to cause injury and death. Therefore, his first two points of error fail to show that the evidence was legally or factually insufficient to prove that the shank was a deadly weapon and are overruled.

Motion to Exclude Witness

Appellant's third, fourth, and fifth issues contend that the trial court erred by denying his motion to exclude the testimony of Daniel Davis, a key State witness, because the State's untimely disclosure of Davis violated the trial court's discovery order, denied appellant adequate time to prepare for cross-examination, and violated appellant's right to confrontation. Although evidence willfully withheld from disclosure under a discovery order should be excluded at trial, exclusion is not warranted where there is no evidence of willfulness or the requested information was revealed in time for the defendant to use it on cross-examination of the State's witness. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). In this case, the trial court's discovery order did not impose a deadline on the State to designate its witnesses. The State supplemented its witness list to name Davis immediately upon realizing his existence and four days before trial. The record reflects that appellant's counsel cross-examined Davis effectively concerning his potential bias and motivation to testify for the State. Appellant did not develop a record of why the available time was not adequate or how additional time would have enabled him to impeach Davis more effectively. Under these circumstances, it was within the trial court's discretion to deny appellant's motion to exclude Davis's testimony, and appellant's third, fourth, and fifth issues are overruled.

Motion for Continuance

Appellant's sixth and seventh issues assert that the trial court abused its discretion by denying his oral motion for continuance to investigate and impeach Davis after he had already testified. However, such a motion for continuance, that is not in writing and sworn, preserves nothing for our review. See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.08 (Vernon 1989); Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex.Crim.App. 1999). Accordingly, appellant's sixth and seventh issues are overruled.

Exclusion of Evidence

Appellant's eighth, ninth, and tenth issues argue that the trial court abused its discretion by not allowing him to testify about the use of force and injuries he suffered in prison in 1999 to support his defensive theory that the shank was planted in his cell by guards to discredit him as a witness in a civil rights action brought by another inmate or in the event he asserted such a lawsuit himself. Evidentiary rulings are reviewed for abuse of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. TEX. R. EVID. 401. In this case, appellant admitted that none of the guards involved in the present facts, including the one who allegedly planted the shank, were involved in the civil rights action. Moreover, appellant has not shown that any of the guards involved in this case had anything to do with the alleged incident in 1999. Under these circumstances, it was within the trial court's discretion to conclude that the excluded evidence was not relevant in this case. Accordingly, we overrule appellant's eighth, ninth, and tenth issues and affirm the judgment of the trial court.


Summaries of

Shelby v. State

Court of Appeals of Texas, Fourteenth District, Houston
Aug 12, 2004
No. 14-02-01091-CR (Tex. App. Aug. 12, 2004)
Case details for

Shelby v. State

Case Details

Full title:RONALD SHELBY, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fourteenth District, Houston

Date published: Aug 12, 2004

Citations

No. 14-02-01091-CR (Tex. App. Aug. 12, 2004)