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Irene RODRIGUEZ, Appellant v. The STATE of Texas, Appellee
In four issues, appellant, Irene Rodriguez, challenges her conviction for hindering apprehension or prosecution. See Tex. Penal Code Ann. § 38.05(d). We affirm.
I. Article 39.14 of the Code of Criminal Procedure
In her first issue, appellant contends that the State violated article 39.14(a) of the Code of Criminal Procedure by withholding evidence of an outstanding warrant for Larry Lopez, which had a material effect on her trial strategy and thereby deprived her of due process. See Tex. Code Crim. Proc. Ann. art. 39.14(a).
In the instant case, appellant was charged by indictment with hindering the arrest, prosecution, conviction, or punishment of Lopez for the offense of failure to register as a sex offender by repeatedly telling police that Lopez had previously left for work when he was hiding at the residence where he and appellant were residing. Among the witnesses called by the State at trial was Jason Earles, a Detective Sergeant with the Navarro County Sheriff's Office. Detective Sergeant Earles received a tip about the whereabouts of Lopez and went to appellant's residence to inquire about Lopez's location. During Detective Sergeant Earles's testimony, the State referenced a copy of the warrant issued for Lopez's arrest. Appellant objected under article 39.14 of the Code of Criminal Procedure that the warrant had not been disclosed prior to trial. See id. The State responded that, among other things, it did not possess the warrant until the morning of Detective Sergeant Earles's testimony; that the warrant was obtained from the District Clerk, who is not under contract with the State; and that the warrant was disclosed to appellant the same morning. After additional arguments were made, the trial court overruled appellant's objection and admitted the Lopez arrest warrant into evidence. However, the trial court did grant appellant a running objection to the exhibit.
Under article 39.14(a),
[A]s soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or of a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state․
Tex. Code Crim. Proc. Ann. art. 39.14(a).
Notwithstanding the fact that the record reflects that the State received a certified copy of Lopez's arrest warrant on the first day of trial and provided defense counsel a copy of the arrest warrant on the same day, see id., we note that appellant complains that she was prejudiced by the “untimely” disclosure of Lopez's arrest warrant because it affected counsel's case assessment and strategy. However, the record reflects that appellant did not request a continuance in response to the State's proffer of the Lopez arrest warrant. In other words, appellant had the opportunity to avoid the prejudice and impairment but chose not to. Therefore, we hold that appellant has waived her article 39.14(a) complaint in this issue. See Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) (“The failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise.”); Martin v. State, 176 S.W.3d 887, 900 (Tex. App.—Fort Worth 2005, no pet.); see also Byrd v. State, No. 02-15-00288-CR, 2017 WL 817147 at **5-6, 2017 Tex. App. LEXIS 1773 at **12-13 (Tex. App.—Fort Worth Mar. 2, 2017, no pet.) (mem. op., not designated for publication) (concluding that appellant waived his complaint under article 39.14(a) by failing to request a continuance). Accordingly, we overrule appellant's first issue.
II. Sufficiency of the Evidence
In her second issue, appellant contends that there is not sufficient evidence to support her conviction. In her third issue, appellant complains that the trial court erred by denying her motion for a directed verdict. Because a motion for a directed verdict is the same as a challenge to the legal sufficiency of the evidence, see Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996), we consider appellant's second and third issues together.
The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer “to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a “divide and conquer” strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law as authorized by the indictment” includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
To show that the evidence presented was legally sufficient to support a conviction for felony hindering apprehension, the State must prove that appellant, with intent to hinder arrest, harbors or conceals a person charged with a felony. See Tex. Penal Code Ann. § 38.05(a), (d); see also Sanford v. State, No. 12-04-00330-CR, 2006 WL 1119257 at **1-2, 2006 Tex. App. LEXIS 3554 at **4-5 (Tex. App.—Tyler Apr. 28, 2006, pet. ref'd) (mem. op., not designated for publication). Whether appellant possessed such an intent must ordinarily be established by circumstantial evidence. See King v. State, 76 S.W.3d 659, 661 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see also Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (noting that intent may be inferred from the acts, words, and conduct of the accused). While lying to the police about the whereabouts of a person does not ipso facto satisfy the elements of section 38.05, the gravamen of the offense rests on the intent of the defendant. See King, 76 S.W.3d at 661.
As stated above, Detective Sergeant Earles testified that he received an anonymous tip that Lopez was staying at a residence in Navarro County, so he and other deputies went to the residence to execute an arrest warrant. Upon arriving, he made contact with the owner of the residence whose name he could not remember. The homeowner gave consent to search the house, so the deputies entered the house and proceeded upstairs. Detective Sergeant Earles knocked on the door of one of the upstairs bedrooms. He heard “[l]ots of noise, lots of moving around.” Detective Sergeant Earles announced that they were looking for Lopez. Approximately eight minutes later, appellant opened the door. Detective Sergeant Earles stated that he had a felony arrest warrant for Lopez for failure to register as a sex offender. Appellant responded that “he wasn't there. He left for work early that morning.” When asked if the deputies could enter the room to take a look, appellant consented. The deputies did not find Lopez at this time.
The deputies then requested that appellant come downstairs, and she complied. While speaking with appellant and the homeowner, Detective Sergeant Earles received information that Lopez's voice had just been heard before the deputies arrived and that he was upstairs. When asked again about Lopez's whereabouts, appellant reiterated that “he had left for work that morning and he wasn't there.” Detective Sergeant Earles warned appellant that concealing Lopez's location was an offense. Appellant maintained her story that Lopez had left that morning. Thereafter, the deputies went upstairs with appellant. Appellant gave consent to search the room again, and Lopez was found “[h]iding under a, it looked like a twin bed up against the wall in the corner with some, I believe, he had some stuff pulled up against him.” After Lopez was discovered, Detective Sergeant Earles looked at appellant, and she “turned around and put her hands behind her back.” Deputies arrested both appellant and Lopez.
Viewing the evidence in the light most favorable to the jury's verdict, the evidence permitted the jury, as factfinder, reasonably to infer that appellant's repeated lies about Lopez's location to law enforcement after being informed about Lopez's arrest warrant was intended to conceal Lopez's location, if only for a matter of seconds, so as to hinder his arrest. See King, 76 S.W.3d at 660-61 (concluding that circumstantial evidence demonstrated the defendant's intent to hinder apprehension of a parolee when the defendant answered the door to the parolee's residence and lied to police, denying that the parolee was at the residence); Rotenberry v. State, 245 S.W.3d 583, 588 (Tex. App.—Fort Worth 2007, pet. ref'd) (“Lying about the presence of a fugitive will ‘obstruct or delay’ the apprehension of the fugitive; thus, in the context of section 38.05, lying to police could constitute ‘concealing.’ ”); see also Black v. State, No. 2-07-023-CR, 2008 WL 1867967 at **2-3, 2008 Tex. App. LEXIS 3089 at **5-7 (Tex. App.—Fort Worth Apr. 24, 2008, no pet.) (per curiam) (mem. op., not designated for publication) (concluding that, when combined with appellant's knowledge that his brother was on parole and that the police had an arrest warrant for his brother, appellant's lie to police that his parolee brother was not at a motel room when, in fact, he was present in the motel room, was sufficient to establish appellant's intent to conceal or harbor his brother, if only for a short time); Sanford, 2006 WL 1119257, at **2-3, 2006 Tex. App. LEXIS 3554, at **6-7 (holding that there was a reasonable inference of the intent to conceal when appellant lied to police about a person being in the back seat of her car as police were clearly searching for that person). As such, we conclude that appellant's conviction for felony hindering apprehension or prosecution is supported by sufficient evidence. See Tex. Penal Code Ann. § 38.05(a), (d); see also Zuniga, 551 S.W.3d at 732-33. We overrule appellant's second and third issues.
III. Admission of Alleged Hearsay Evidence
In her fourth issue, appellant argues that the trial court abused its discretion by admitting hearsay evidence from Detective Sergeant Earles. We disagree.
Specifically, on appeal, appellant complains about testimony from Detective Sergeant Earles regarding statements made by a juvenile that she heard Lopez's voice just before Detective Sergeant Earles arrived and that Lopez was upstairs. However, on cross-examination, appellant elicited testimony from Detective Sergeant Earles that another person, the unnamed homeowner, indicated that Lopez was upstairs without objection.
“ ‘An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.’ ” Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)); see also Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection.”). Because the same or similar allegedly hearsay testimony was admitted elsewhere, without objection, any error in admitting Detective Sergeant Earles's testimony regarding statements made by the juvenile was cured. See Lane, 151 S.W.3d at 193; Valle, 109 S.W.3d at 509; see also Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting that any error was harmless when “very similar” evidence was admitted without objection). Accordingly, we overrule appellant's fourth issue.
Having overruled all of appellant's issues, we affirm the judgment of the trial court.
This is one of the top five most important Michael Morton Act cases this Court has decided. The Court holds that a motion for continuance is required to preserve error for the State's failure to produce requested discovery. I disagree. Specifically, the Court holds that Appellant waived the complaint about the State's failure to timely produce a document, an arrest warrant, specifically requested in discovery pursuant to article 39.14 because, although its use was objected to and the objection was overruled, Appellant's counsel did not then request a continuance when the State sought to introduce the document into evidence. I respectfully disagree that a motion for continuance should be required to preserve error of this issue. However, only because the trial court's error was harmless, I concur in the Court's judgment which affirms the trial court's judgment of conviction.
The State first argued at trial that the document was not requested in discovery. This argument vaporized when the Appellant's attorney directed the trial court's attention to a letter sent to the State that was already part of the record in connection with a prior discovery hearing wherein production of the document was specifically requested.
The State then argued that it produced the document on the date that it was received by the State. The date the document was received by the District Attorney is not necessarily the relevant date. The State argued that it did not have possession, custody, or control of the document prior to the first day of trial. It is not that the State did not know or think it was going to need the document. After all, the District Attorney had already gone to the trouble to get a certified copy of the document from the trial court clerk. To make this argument, the State argues that the District Clerk is not included in the definition of “the State,” for purposes of having possession, custody, or control of the document. I will pass on further discussion of the unreasonableness of that argument.
And under the Court of Criminal Appeals' recent decision in Watkins, there is no question that the document was material as therein defined. Watkins v. State, 619 S.W.3d 265, 269-71 (Tex. Crim. App. 2021).
But then we get to the part of the analysis that is critical to whether the adoption of the Michael Morton Act is going to have any lasting meaning for the fair and efficient prosecution of criminal trials in Texas. There is a reason that the Michael Morton Act was passed by the legislature. Many, including the State's high court for criminal proceedings, believed it was a sea change for criminal discovery in Texas. See Watkins v. State, 619 S.W.3d 265, 284-93 (Tex. Crim. App. 2021). But the resistance to change has been fierce. The State here demands a request to produce the specific item. Done. The State here demands an objection to using the untimely produced item at trial. Done. The State here demands that the defendant must request a continuance. Appellant did not make a motion for continuance, a motion which has to be in writing and sworn to, see Tex. Code Crim. Proc. arts. 29.03; 29.08; so, according to the Court and the State, the issue is not preserved for appellate review. The State and the Court rely on the line of cases which hold that to preserve an issue of surprise, the defendant must request a continuance. I do not believe that article 39.14 requires a request for a continuance to preserve error in this circumstance.
The traditional rule regarding preservation is that the party making the complaint must bring the issue to the trial court's attention at a time and in a manner that the trial court can correct the problem. See Tex. R. App. P. 33.1; Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). It is sometimes expressed that the defendant must pursue the issue until the defendant receives an adverse ruling. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). In this instance, Appellant did that. Appellant objected to the State's use of the document that was not timely produced in response to a specific request. The objection was overruled. At that point, Appellant has suffered an adverse ruling. Why should a further complaint or objection or motion be required to preserve the complaint for appellate review? If Appellant was entitled to the discovery, if the discovery item was not timely produced, if there was a proper objection to its use at trial, and on appeal, if Appellant complains about the trial court allowing the State to use the late produced document to which a proper objection was made and overruled, why do we, as the appellate court, not simply evaluate the trial court's ruling for error, and for this discussion presuming that it is error, then proceed to the harm analysis? I do not know.
As stated, the Court and the State rely on those cases in which the defendant asserts some surprise.1 But this is not a “surprise” case. This is a statutory discovery violation case. Moreover, Appellant is not asserting surprise in the traditional sense; so the cases about something surprising happening during trial are not on point. The line of cases regarding surprise and the need to request a continuance should be limited to their facts. Surprises happen. Witnesses change their testimony. Witnesses die. Trial exhibits are destroyed in a flood or fire. Any number of surprises may happen. A trial without some surprise is as rare as a unicorn. But the State is statutorily obligated to produce requested discovery as soon as practicable. Tex. Code Crim. Proc. art. 39.14(a). If there is a “surprise,” it is only because Appellant failed to anticipate the late production of documents by the State. And when that does happen, it is certainly no surprise to the State. In this case, the State was certainly not surprised. The State was ready to go with a certified copy of the document so that they would not even need a sponsoring witness.
Moreover, if the “surprise” line of cases requiring a continuance would otherwise be applied to preserve error, in light of the Court of Criminal Appeals' method of resolving Watkins, it is time to shift the relevant inquiry to what is required under the current version of article 39.14. If the only consequence for the State's failure to timely produce a requested document is that, once the defendant objects and the objection is overruled, the defendant must request a continuance, which if granted might cause a delay in the proceedings, then the State has suffered no real consequence of its failure. The problem is that if timely production would have modified trial strategy, including the analysis of the advisability of accepting a plea recommendation that is no longer on the table, the harm caused by the late production is irreversible.2
The bottom line is that article 39.14 is not going to have the impact the legislature intended if there is no consequence of failing to comply with it other than a momentary delay during trial (which the jury will likely hold against the defendant for making the objection rather than the State for failing to timely produce the document). Requiring a motion for continuance and then incurring a brief delay of the trial is not the type of consequence that will affect the desired change.
I would hold that, like almost every other alleged error, Appellant is entitled to a review of the issue; in essence, Appellant has not waived appellate review, as long as Appellant has pursued the issue to an adverse ruling by motion or objection. In this case, there is no question that the issue was pursued by Appellant to an adverse ruling.3 Thus, I would proceed to review the issue on its merits, and having done so, I would hold that the error allowing the State to use the untimely produced document was harmless. Because the Court holds that appellate review of the issue was waived by the failure to request a continuance even after a proper objection was overruled, I cannot join the Court's opinion. However, after my independent analysis of the error, I have determined under the relevant rules and cases for harm analysis that the error was harmless and, therefore, respectfully concur with the Court's judgment which affirms the conviction.
1. Also cited is an unpublished case from the Second Court of Appeals that relies on the same line of “surprise” cases. See Byrd v. State, No. 02-15-00288-CR, 2017 WL 817147 at **5-6, 2017 Tex. App. LEXIS 1773 at **12-13 (Tex. App.—Fort Worth Mar. 2, 2017, no pet.) (mem. op., not designated for publication).
2. The only possible way to avoid this type of prejudice to Appellant would be to put Appellant back in the position Appellant would have been in had the document been timely produced. If at the time that it should have been produced there was a plea offer on the table, that plea offer would have to be put back on the table.
3. Appellant has argued that this is the type of error described above that a mere continuance could never cure. So, even in some cases, if a continuance is required for preservation, it should not be required in a situation where the alleged harm could not have been cured by merely having some additional time to prepare or respond to the late production.
JOHN E. NEILL, Justice
*(Chief Justice Gray concurring)
Response sent, thank you
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Docket No: No. 10-18-00253-CR
Decided: May 20, 2021
Court: Court of Appeals of Texas, Waco.
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