Wade v. State

Full title: JOHN THOMAS WADE, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jul 28, 2004

No. 04-03-00390-CR (Tex. App. Jul. 28, 2004)

Opinion

No. 04-03-00390-CR

Delivered and Filed: July 28, 2004. DO NOT PUBLISH.

Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-5930, Honorable Mary Roman, Judge Presiding¹ Affirmed.

1 Retired Judge Robert Barton presided over the trial, but Judge Mary Roman signed the judgment.

Sitting: Paul W. GREEN, Justice, Sandee Bryan MARION, Justice Phylis J. SPEEDLIN, Justice.

MEMORANDUM OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

A jury found defendant, John Thomas Wade, guilty of indecency with a child by sexual contact, and assessed his punishment at two years' confinement and ten years' probation. Defendant challenges the trial court's judgment in three issues on appeal. Finding no error, we affirm.

EXTRANEOUS CONDUCT EVIDENCE

In his first and second issues on appeal, defendant contends the trial court erred in admitting evidence of his extraneous conduct because the evidence was not relevant and highly prejudicial. During the guilt/innocense phase of the trial, four of the State's five witnesses testified as to defendant's alleged physical abuse of the complainant M.M. and his brother, S.M. In addition, three of the five witnesses testified as to defendant's alleged stalking of M.M. and his mother. The State offered evidence revealing that defendant would "head butt" M.M. or slam his head into the wall or railings for punishment. In addition, S.M. testified that, as a form of discipline, defendant would hit him with a belt, which caused welts and bleeding. S.M. also testified the defendant would "head butt" him and bite his nose. After defendant moved out of the house, witnesses testified seeing him taking pictures of M.M. from his car while M.M. was playing outside. Defendant contends the probative value of the evidence was outweighed by its prejudicial effect because of the "sheer volume of the testimony given on the issues." The State argues that the extraneous acts are admissible under article 38.37 of the Texas Code of Criminal Procedure. We review the trial court's decision to admit or exclude evidence using an abuse of discretion standard. Robbins v. State, 88 S.W.3d 256, 259-60 (Tex.Crim.App. 2002). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. See Tex. R. Evid. 404(b). This evidence, however, is admissible for other purposes, such as proof of motive, opportunity, intent, or plan. Id. However:

[n]otwithstanding Rule 404 . . . evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2004). The State argued that defendant's physical abuse towards both M.M. and S.M. and defendant's stalking of M.M. and his mother explained why M.M. feared defendant and the actions defendant might have taken if M.M. had told someone that defendant was sexually abusing him. We agree. The evidence of defendant's physical abuse and stalking were relevant to explain M.M.'s fear of defendant and why M.M. did not speak up earlier about the sexual abuse. See McCulloch v. State, 39 S.W.3d 678, 681 (Tex. App.-Beaumont 2001, pet. ref'd); Walker v. State, 4 S.W.3d 98, 103 (Tex. App.-Waco 1999, pet. ref'd). Further, such evidence is relevant to explain how a person in a position of authority, custody, or care of a young child has developed an unnatural attitude and relationship toward that child. See Poole v. State, 974 S.W.2d 892, 898 (Tex. App.-Austin 1998, pet. ref'd). However, even if evidence of an extraneous offense is relevant, a trial court must exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The relevant criteria in determining whether the prejudice of an extraneous offense outweighs its probative value includes: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim. App. 2000). We have already concluded the extraneous acts are probative of both M.M. and defendant's state of mind. Further, the State required this evidence to establish that M.M. feared defendant and why M.M. did not speak up sooner about the incidents of sexual abuse. While we recognize the potential this type of evidence has to impress the jury in some irrational, yet indelible, way and that four of the five State witnesses testified as to defendant's extraneous conduct, we cannot say the trial court's decision to admit the evidence was outside the "zone of reasonable disagreement." See Robbins, 88 S.W.3d at 260. Accordingly, we conclude the trial court did not err in admitting evidence of defendant's extraneous conduct.

UNDISCLOSED WITNESS

In his third issue on appeal, defendant contends the trial court abused its discretion by allowing the State's undisclosed witness, Dr. Nancy Kellogg, to testify during the trial. We review the trial court's decision to allow an undisclosed witness to testify using an abuse of discretion standard. Bridge v. State, 726 S.W.2d 558, 566 (Tex.Crim.App. 1986). In making that determination, we must answer two questions: (1) did the prosecutor act in bad faith by failing to disclose the name of the witness ahead of time and (2) could the defendant reasonably anticipate that the witness would testify, although the State did not include her name on the witness list. Martinez v. State, 131 S.W.3d 22, 29 (Tex. App.-San Antonio 2003, no pet.). In deciding whether the prosecutor acted in bad faith, we look at three areas: (1) whether the State intended to deceive; (2) whether the State's notice left the defense adequate time to prepare; and (3) whether the State freely provided the defense with information. Id. In deciding whether defendant could reasonably anticipate that Kellogg would testify, we examine: (1) the degree of surprise to the defendant; (2) the degree of disadvantage inherent in that surprise ( e.g., defendant was aware of what the witness would say, or the witness testified about cumulative or uncontested issues); (3) the degree to which the trial court was able to remedy that surprise ( e.g., by granting the defense a recess, postponement, or continuance, or by ordering the State to provide the witness' criminal history). Id. Pursuant to defendant's pre-trial discovery request, the trial court required the State to provide defendant with the names of all the witnesses it intended to call during trial. Although the State initially complied with the order, it did not include Kellogg's name on the list as an expert witness. To explain its failure to disclose Kellogg as an expert, the State explained that during voir dire, members of the jury expressed concern as to the lack of physical evidence in cases, such as this, involving finger penetration. As a result, the State decided that it needed an expert to explain why there was no such physical evidence. The State contacted Kellogg later that day asking if she would testify as an expert. Kellogg agreed, but because she did not inform the State of her decision until later that evening, the State did not notify defendant of its intent to call her as a witness until early the next morning. To prove absence of bad faith, the State argued that it did not intend to deceive defendant by failing to disclose Kellogg's name because it did not know of its need for an expert until after voir dire. In addition, the record demonstrates the trial court granted defendant's request for an opportunity to interview Kellogg prior to her testimony and defendant did not request an additional continuance or reset to further prepare his case. Finally, the record demonstrates the State freely provided defendant with information regarding the expert because no significant time delay occurred between the time Kellogg agreed to testify and the State notified defendant. Therefore, we conclude the State did not act in bad faith by failing to disclose Kellogg as a witness. Turning to the second prong, we must decide whether defendant could reasonably anticipate that Kellogg would testify although the State did not disclose her name. The State called Kellogg to testify as an educational expert. Instead of testifying to the specific facts of this case, Kellogg generally explained why there was a lack of physical evidence in finger penetration cases and commented on issues involving her past examinations of abused children. While it is apparent that defendant was not aware of the State's intent to call Kellogg as a witness until the trial, it is also evident that the State did not know Kellogg would testify until after voir dire. Defendant did not request a continuance, but instead requested time to interview Kellogg, which request was granted by the court. Based on the record before us, we cannot say the trial court abused its discretion in allowing Kellogg's testimony.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.