KENNERSON v. STATE

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Court of Appeals of Texas,Houston (1st Dist.).

Ervin Joseph KENNERSON, Appellant, v. The STATE of Texas, Appellee.

Nos. 01-96-00618-CR, 01-96-00917-CR.

Decided: November 25, 1998

Before Justices MIRABAL, WILSON, and TAFT. Kent Schaffer, Houston, for Appellants. Michael J. Guarino, B. Warren Goodson, Jr., Galveston, for Appellees.

OPINION ON MOTION FOR REHEARING EN BANC

Appellant, Ervin Joseph Kennerson, has filed a motion for rehearing en banc.   We deny rehearing, but we withdraw our opinion of August 27, 1998, and, without substantive change, we issue in its stead this opinion, which we order published in part.   Our judgments of August 27, 1998 remain unchanged.

A jury found appellant, Ervin Joseph Kennerson, guilty of two aggravated robberies and assessed his punishment at 99 years in prison in each case.1  In 13 points of error, appellant contends:  (1) the State exercised four peremptory strikes on the basis of race;  (2) trial counsel was ineffective for not adequately preparing for trial and not presenting alibi witnesses;  (3) the trial court erroneously denied appellant's motion to reopen to present a witness supporting appellant's misidentification theory;  (4) the trial court erred by mishandling a jury note about parole eligibility;  (5) the trial court fundamentally erred by not submitting a parole charge;  (6) the State presented factually insufficient evidence to prove identity;  and (7) the trial court erred by denying appellant's pretrial motion for continuance.   We affirm.

Facts

On September 14, 1995, 78-year-old Mr. Neely and 74-year-old Mrs. Neely were at home in Friendswood.   At about 9:00 p.m., appellant and another person invaded the Neelys' home.   In the course of the offense, appellant kicked Mrs. Neely in the face, breaking her glasses.   However, Mrs. Neely got a good view of him even without her glasses.   Appellant placed a gun to Mrs. Neely's head and threatened to rape her in front of her husband if she did not tell him where her jewelry was hidden.   Appellant and his accomplice stole several jewelry items and fled.   When the police arrived, Mrs. Neely described one of the robbers as 6'4” and 200 plus pounds and the other (appellant) as 5'11” and 165 pounds.

Four days after the offense, Mrs. Neely met with Friendswood police to make a composite drawing of the person who assaulted her.   The drawing depicted no facial hair, but did closely resemble appellant.   Mrs. Neely described her assailant as a black male between the ages of 25 and 35.   Two months later, and after Mrs. Neely had examined several police photospreads, she was able to identify appellant's photograph.   Mr. Neely did not see either of the two individuals well enough to describe or identify them.

At trial, appellant presented his cousin, a barber who cut appellant's hair each week, to testify that appellant had facial hair during the time of the offense.   A custodian of jail records testified that two months after the offense appellant was 5'11” and 150 pounds.

Denial of Motion to Reopen

In point of error six, appellant contends that the trial court erred in denying his motion to reopen the case.   After appellant rested, but before final arguments were made and the charge was read to the jury, appellant sought to call Michael Pratt to testify that he saw appellant at a wedding on September 16, 1995, two days after the offense, and appellant had facial hair.   A photograph of appellant, presumably showing facial hair, was offered in support of the motion.   Defense counsel stated the testimony would take only about five minutes.

 The decision whether to reopen is left to the sound discretion of the trial court.  Holifield v. State, 599 S.W.2d 836, 837 (Tex.Crim.App.1980).   The Code of Criminal Procedure provides that the trial court shall allow the introduction of testimony at any time before the conclusion of arguments in the case, if it appears necessary to the due administration of justice.  tex.Code Crim. P. Ann. art. 36.02 (Vernon 1989).   The trial court commits error when it denies a motion to reopen for the purpose of introducing admissible evidence so long as the motion is timely made and does not interfere with the due and orderly administration of justice.  Vital v. State, 523 S.W.2d 662, 664-65 (Tex.Crim.App.1975).  Moreover, whether the evidence is cumulative should not influence the trial court's decision whether to reopen the case.  Id. It is error not to reopen the case, in order to allow a witness to testify, when the following criteria are satisfied:  (1) the witness is present and ready to testify;  (2) the motion to reopen is made before final arguments and before the charge is read to the jury;  (3) the movant states with specificity what testimony the witness is expected to give, and the importance the testimony carries;  and (4) it is not apparent that the motion's purpose is to frustrate the due administration of justice.  Scott v. State, 597 S.W.2d 755, 758 (Tex.Crim.App.1979).

The State claims appellant did not satisfy the requirement that the witness was present, ready to testify.   We think a fair reading of the record reveals that the witness was present and ready to testify.   Additionally, the motion was timely and specific, and there is no showing that it was made for the purpose of impeding or delaying the trial.   Therefore, the trial court erred by not reopening to allow the testimony.

 However, no error (except for certain federal, constitutional errors labeled by the United States Supreme Court as “structural”) is categorically immune to a harmless error analysis.  High v. State, 964 S.W.2d 637, 638 (Tex.Crim.App.1998) (citing Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997)).   Under the new rules of appellate procedure, there are two categories of error, with different standards for determining harm.   See tex.R.App. P. 44.2.   Constitutional violations are governed by rule 44.2(a), while other error is governed by rule 44.2(b).  Id. Here, we deal with a statutory violation, so we apply rule 44.2(b):  “any error, defect, irregularity, or variance that does not affect substantial rights of the accused in a criminal trial must be disregarded.”  tex.R.App. P. 44.2(b).   A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict.  King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).

 In this case, appellant made a proffer that Mr. Pratt would testify appellant had facial hair on September 16, 1995, two days after the offense.   Appellant sought to introduce Mr. Pratt's testimony in order to challenge Mrs. Neely's identification of appellant as the robber.   However, the fact that appellant might have had facial hair two days after the offense does not controvert Mrs. Neely's testimony that she noticed no facial hair on the day of the robbery, because appellant could have grown it in the meantime.   In addition, there is no evidence of how fast appellant's hair grows.   Although Mrs. Neely did not notice facial hair, the composite drawing made from her description shows a darkness over the upper lip that could be mistaken for a mustache.   Mr. Pratt's testimony does not show that appellant was misidentified or that appellant did not commit the offense.   In view of the circumstances, we conclude that the trial court's denial of appellant's motion to introduce Mr. Pratt's testimony did not substantially influence the jury's verdict against appellant.   Therefore, appellant has failed to demonstrate that his substantial rights were affected by the court's refusal to reopen the case.   See King, 953 S.W.2d at 271.   Thus, we must disregard the trial court's error in denying appellant's motion to reopen the case.   See tex.R.App. P. 44.2(b).  Accordingly, we overrule appellant's point of error six.

Denial of Motion for New Trial

 In point of error seven, appellant contends the trial court erred in denying his motion for new trial to present testimony of material witnesses.   One of the requirements for obtaining a new trial based upon newly available evidence is that the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching.  Drew v. State, 743 S.W.2d 207, 226 (Tex.Crim.App.1987).   Should it appear to the trial court that, under the circumstances, the weight or credibility of the new evidence would probably not bring about a different result in a new trial, it is within the discretion of the trial court to deny the motion.  Jones v. State, 711 S.W.2d 35, 37 (Tex.Crim.App.1986).   A motion for new trial is addressed to the sound discretion of the trial court, and the trial court's decision, absent a showing of clear abuse of discretion, should not be disturbed on appeal.   Etter v. State, 679 S.W.2d 511, 515 (Tex.Crim.App.1984).

 The judge at the trial and at the hearing on the motion for new trial was the same.   He could have determined that the weight of the evidence was not such as to bring a different result because Pratt's testimony about appellant's facial hair was (1) not necessarily contrary to Mrs. Neely's not noticing it two days before and (2) merely cumulative of appellant's cousin's testimony that appellant had facial hair.   Evidence which is merely cumulative will rarely be judged by trial or appellate courts to be of such weight as likely to bring about a different result.  Id. Accordingly, we hold the trial court did not abuse its discretion in denying appellant's motion for a new trial.

Therefore, we overrule appellant's point of error seven.

The discussion of the remaining points of error does not meet the criteria for publication, tex.R.App. P. 47, and is thus ordered not published.   We affirm the judgments of the trial court.

Racially-Motivated Peremptory Strikes

In point of error one, appellant contends the trial court erred in denying appellant's challenge to the State's exercise of peremptory challenges on the basis of race.   In point of error two, appellant contends that he was thereby denied due process of law and a fair trial.   Appellant challenges the striking of four veniremembers.

A. Standard of Review

An accused has a right to a trial by a jury whose members are selected in a racially-neutral, nondiscriminatory manner.  Tex.Code Crim. P. Ann. art. 35.261 (Vernon 1989);  Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986).   We review a trial court's ruling in the light most favorable to it, applying a “clearly erroneous” standard of review.   See Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.1991).   A three-step procedure consists of the accused making a prima facie case of purposeful discrimination, shifting the burden to the State to provide race-neutral explanations for its challenges, shifting the burden back to the accused to prove the State's reasons were only a pretext for race-motivated strikes.   Batson, 476 U.S. at 97, 106 S.Ct. at 1723.   The exercise of even one racially-motivated peremptory strike invalidates the jury selection process and requires a new trial.  Whitsey v. State, 796 S.W.2d 707, 716 (Tex.Crim.App.1989).

B. Review of Pertinent Veniremembers

1. Mr. Sanders

When the prosecutor asked Mr. Sanders if he agreed with the range of punishment for aggravated robbery, Mr. Sanders answered that he did.   When asked if he felt it was good for the jury to have the discretion to sentence someone to life in the penitentiary if it was warranted, Mr. Sanders said, “I don't know.   Yes.” When the prosecutor further questioned him on this point, Mr. Sanders stated, “I said I didn't know.   I'm not sure.”   The State exercised a peremptory strike against Mr. Sanders.

Counsel for appellant challenged the State's use of a peremptory strike upon Mr. Sanders, an African American.   The prosecutor explained that Mr. Sanders was ambivalent when asked whether he felt that five to 99 years in the penitentiary was an appropriate range of punishment for these aggravated robbery cases.   The prosecutor said he struck Mr. Sanders because Mr. Sanders might have been weak on punishment, not because of his race.   Counsel for appellant responded that, although Mr. Sanders initially said he was not sure, he then absolutely stated that he could consider the full range of punishment.

Appellant argues that the record contradicts the State's reasons that Mr. Sanders was perceived to be weak on punishment and unsure about the propriety of the punishment range.   Appellant relies on Mr. Sanders's answers that he agreed with the range of punishment and that a jury should have the discretion to assess a life sentence.   Appellant points to a failure of the prosecutor to question Mr. Sanders regarding his feelings or beliefs on punishment.

The State argues on appeal that the record shows Mr. Sanders's inability to be specific with the State regarding the full range of punishment.   The prosecutor felt Mr. Sanders answered “No” when asked if he could consider a life sentence in this case.   When questioned further, Mr. Sanders explained he was “not sure” about his ability to consider the full range of punishment including a life sentence for these aggravated robbery cases.

The record actually shows Mr. Sanders stating that he agreed with the range of punishment and that he could sentence someone convicted of aggravated robbery within that range, but that he was not sure if it was good for the jury to have that kind of discretion.   The record reflects the prosecutor erroneously believed Mr. Sanders had answered “No,” when first asked if it was good for the jury to have that kind of discretion, while what Mr. Sanders actually said was, “I don't know.   Yes.”

A venire member's equivocation on imposing a sentence of life imprisonment if the defendant is found guilty is a racially neutral reason for striking the venire member.  Yarbough v. State, 732 S.W.2d 86, 90 (Tex.App.-Dallas 1987), rev'd on other grounds, 761 S.W.2d 17, 18 (Tex.Crim.App.1988).  Here, while Mr. Sanders did not equivocate about sentencing within the full range of punishment, he did demonstrate hesitancy and uncertainty about whether it was good for a jury to have the discretion to be able to sentence someone to life in the penitentiary.   Under the circumstances of this case, appellant has not shown that the prosecutor's stated concern about Mr. Sanders's answer as reflecting possible weakness on punishment constituted a pretext for exercising a purposefully discriminatory strike.   Therefore, the trial court's denial of appellant's challenge to the State's peremptory strike against Mr. Sanders was not clearly erroneous.

2. Ms. Roberts

The record reflects the prosecutor asked whether a robber should not be punished as severely if the victim had been wearing expensive jewelry in public.   Ms. Roberts shook her head and then answered, “No.” When defense counsel challenged the State's exercise of a peremptory strike against Ms. Roberts, the prosecutor contrasted the immediate answers from other veniremembers with that of Ms. Roberts, who hesitated a long time before answering, as if she were thinking about it.   The prosecutor felt Ms. Roberts was unsure about this issue, and that was the State's reason for striking her.   The prosecutor expressly denied basing the strike on Ms. Roberts's race.

Appellant argues that the record does not reflect that Ms. Roberts hesitated.   To the contrary, appellant asserts she answered just like three veniremembers who became part of the jury.   The State relies on the reason given at trial, possible bias against wealthy persons who display their jewelry, as well as a reason given for the first time on appeal, namely, that Ms. Roberts was unable to trust the identification of an accused by an eyewitness of a different race.   We do not consider the State's explanation given for the first time on appeal.   See Vargas v. State, 838 S.W.2d 552, 556 (Tex.Crim.App.1992).  Regarding whether Ms. Roberts hesitated, the State relies on the rule that even fantastic or implausible reasons to strike are acceptable, as long as they are race-neutral.  Williams v. State, 937 S.W.2d 479, 485 (Tex.Crim.App.1996) (citing Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).   We defer to the trial court's prerogative of resolving the disagreement concerning Ms. Roberts's hesitation in the prosecutor's favor.   We cannot say that the hesitation observed by the prosecutor, which he interpreted as uncertainty on an issue important enough to inquire about, was a pretext for purposefully exercising a discriminatory peremptory strike based on race.   See White v. State, 874 S.W.2d 229, 237 (Tex.App.-Houston [14th Dist.] ), pet. dism'd, improvidently granted, 890 S.W.2d 69 (Tex.Crim.App.1994).   Therefore, the trial court's denial of appellant's challenge to the State's peremptory strike against Ms. Roberts was not clearly erroneous.

3. Mr. Blake

The prosecutor asked what things veniremembers would want to consider in determining whether someone gets a good look at someone else.   Mr. Blake responded, “I would like to see how long did you [sic] get a look at the person because we all look like somebody else.   I've been mistaken for other people.”   When defense counsel challenged the State's exercise of a peremptory strike on Mr. Blake, the prosecutor said the State was worried about Mr. Blake's having been mistaken for someone else.   Defense counsel did not attempt to rebut the prosecutor's explanation.

On appeal, appellant attacks the prosecutor's concerns about Mr. Blake's having been mistaken for others by a lack of follow-up questions by the prosecutor to discover whether Mr. Blake had ever been falsely accused or whether he could convict someone based on eyewitness identification.   Considering appellant's failure to challenge at trial the prosecutor's primary reason for striking Mr. Blake, i.e., the prosecutor's concern about Mr. Blake's having been misidentified, which is a race-neutral explanation on its face, we cannot say the trial court was clearly erroneous in implicitly accepting the prosecutor's explanation.   See Vargas, 838 S.W.2d at 556 (holding appellate challenge based on trial prosecutor's lack of further questioning fails where defendant did not challenge facially race-neutral explanations at trial).

4. Ms. August

The prosecutor asked if anyone did not want to be asked any questions, and Ms. August responded.   When the prosecutor asked if Ms. August was nervous, she nodded her head.   When defense counsel challenged the State's peremptory strike of Ms. August, the prosecutor stated she was struck because she was the only panel member who would not answer the State's questions.   When defense counsel pointed out that Ms. August did answer one question, the trial court remarked that Ms. August said she didn't want to answer any questions.

We have previously found striking a potential juror for being unresponsive to questions during voir dire to be a valid, race-neutral explanation.   See York v. State, 764 S.W.2d 328, 331 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd).   On appeal, appellant claims Ms. August was just nervous and that she never refused to answer the prosecutor's question.   Furthermore, appellant asserts the prosecutor never asked her a meaningful question.   The State responds that Ms. August's unresponsive attitude is a race-neutral reason similar to inattentiveness.   While we do not agree with the State that nervousness is similar to inattentiveness, we cannot say the trial court clearly erred in finding that Ms. August's unwillingness to answer questions was a race-neutral reason to strike her.   See id.

5. Mr. Dawson

Veniremember number 11, Mr. Dawson, is an African American who was not struck peremptorily.   He served on the jury.

C. Summary

Appellant argues that the trial court's acceptance of the State's reasons for challenging veniremembers Sanders, Roberts, Blake, and August is not supported by the record (emphasizing that an error as to only one requires reversal).   The State argues it presented race-neutral reasons that pass muster under the clearly erroneous standard of review.

We conclude that the trial court had a basis for rejecting appellant's Batson challenges to veniremembers Sanders, Roberts, Blake, and August.   The fact that the prosecutor did not exercise a peremptory strike against Mr. Dawson lends further support to the trial court's ruling that the State did not engage in purposeful, racial discrimination.   Reviewing the totality of the circumstances, we hold that the trial court's denial of appellant's Batson challenges was not clearly erroneous.

We overrule appellant's points of error one and two.

Ineffective Assistance of Counsel

In points of error three and four, appellant contends he was denied effective assistance of counsel, guaranteed by both the federal and state constitutions, at both phases of trial.   Appellant argues that his trial counsel failed to conduct an independent investigation and admitted she was not prepared to proceed to trial.   As for the punishment stage, appellant asserts that any ineffectiveness that might affect the guilt stage also affected the punishment stage.   However, appellant does not raise any action or inaction of trial counsel that occurred during the punishment stage.   In point of error five, appellant contends the trial court erred in denying appellant's motion for new trial based upon ineffective assistance of counsel.

In reviewing a claim of ineffective assistance of counsel, we employ the standard of review set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986).   Under this test, a defendant must show that:  (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the trial would have been different.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068;  Hernandez, 726 S.W.2d at 56-57.

A. Failure to Investigate

Appellant asserts that trial counsel failed to conduct an independent investigation and was unprepared for trial, as shown by trial counsel's motion for continuance on the day before trial.   Appellant argues that his right to effective assistance of counsel under the Sixth Amendment of the United States Constitution, and art. 1, § 10 of the Texas Constitution, was violated.

We do not find that defense counsel's representation fell below a reasonable standard of competence merely because she filed a motion for continuance.   Moreover, the prosecutor's testimony that defense counsel spent a lot of time in the prosecutor's office looking at documents and preparing for trial directly contradicts appellant's claim that trial counsel was unprepared.   Additionally, it appears from the record that trial counsel had employed an outside investigator as early as December of 1996, approximately four months before trial, to interview the State's witnesses.   Therefore, we are not persuaded that trial counsel was unfamiliar with the identities of the State's witnesses.   In order to meet his burden under the first prong of Strickland, appellant must overcome the strong presumption that trial counsel is considered to have rendered adequate assistance and made all significant decisions in the exercise of reasonable, professional judgment.   Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.   Appellant has not met the first prong of the Strickland test.   We overrule appellant's points of error three and four.

B. Failure to Call Alibi Witnesses

Appellant asserts that the trial court erred in denying his motion for new trial.   Appellant relies on his own testimony that, in the three 15-minute visits from trial counsel, he told her about potential witnesses Rose Farmer, appellant's mother (who was present at the courthouse during trial), Shanedria Ridley, appellant's girlfriend (who was also present at the courthouse during trial), Wayne Grice (appellant's employer who allegedly called appellant at 11:00 p.m. the night of the offense), and Michael Pratt, appellant's uncle.   Appellant also relies on affidavits, offered at the motion for new trial hearing, from witnesses Pratt, Ridley, and Farmer, none of whom was called at trial, who could have established an alibi and supported appellant's misidentification defense.

Counsel's failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would have benefitted from their testimony.  King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983).   The prosecutor offered testimony at the motion for new trial hearing that, had the appellant utilized an alibi defense, the State would have introduced at the guilt phase the extraneous offense evidence introduced at the punishment phase.   The extraneous, aggravated robbery, offered at punishment, closely resembled this offense.   One of the two victims of that robbery also took a good look at appellant and identified him as her assailant.   It is possible that appellant's trial counsel decided not to call the four witnesses at trial because that would have opened the door for the prosecution to introduce evidence of the extraneous offense.   Appellant concedes the presence of Ridley and Farmer in the courtroom shows that trial counsel never intended to call them.   In regard to witness Grice, the record does not show what testimony he would have supplied that could have been helpful to appellant.   Therefore, the only arguable ineffectiveness was the untimely calling of Michael Pratt.

Nevertheless, the record does not reflect the reason for the untimely calling of Pratt.   Presumably, it was Pratt's tardiness that was at fault because trial counsel did attempt to reopen to call Pratt and preserved error for reviewing the trial court's refusal to permit re-opening of the case.   Therefore, appellant has not met his burden of proving that trial counsel's representation was inadequate.   We overrule appellant's point of error five.

Jury Note

In point of error eight, appellant contends the trial court erred in failing to respond, as required by statute, to a jury note inquiring about parole eligibility.   In point of error nine, appellant contends he was denied due process of law at the punishment phase by the trial court's failure to disclose the jury note.   In point of error 10, appellant claims reversible error is presented by jury misconduct in discussing parole eligibility.

When the jury wishes to communicate with the court, it shall notify the sheriff, who shall inform the court.  Tex.Code Crim. P. Ann. art. 36.27 (Vernon 1989).   In this case, the jury apparently composed the note during deliberations, but the note was not found until later by the cleaning crew.   The jury apparently changed its mind before even notifying the bailiff, and, thus, the note was never communicated to the court as required by article 36.27.   Under these circumstances, the court did not have a statutory duty to respond.   We, therefore, overrule appellant's point of error eight.

Having found no record support that the note was communicated to the court, we likewise overrule appellant's point of error nine, complaining of the trial court's failure to disclose the note.

Appellant's allegations of jury misconduct in point of error 10 are purely speculative.   An examination of the record fails to support any allegations of improper conduct.   Generally, where a motion for new trial alleges jury misconduct during deliberations, the motion should either be accompanied by an affidavit of one who has knowledge of the alleged misconduct or should give some reason for failing to do so.  Bearden v. State, 648 S.W.2d 688, 690 (Tex.Crim.App.1983);  Hampton v. State, 838 S.W.2d 337, 339 (Tex.App.-Houston [1st Dist.] 1992, no pet.).   Appellant has failed to produce an affidavit by someone with knowledge of what transpired in the jury room or offer any reason for this failure.   Accordingly, we overrule appellant's point of error 10.

Omitted Parole Charge

In point of error 11, appellant contends the trial court erred by failing to instruct the jury not to consider parole in assessing punishment, as mandated by statute.   See Tex.Code Crim. P. Ann. art. 37.07, § 4 (Vernon Supp.1998).   Appellant further contends that the error was “egregious” because the imposition of the maximum, 99-year sentence deprived appellant of a fair and impartial trial.

We have held that a defendant cannot challenge on appeal the trial court's failure to include a parole law instruction in the punishment charge when the defense counsel has affirmatively stated that there were no objections to the jury charge.   See Ly v. State, 943 S.W.2d 218, 220-21 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd).   Here, the record reveals that defense counsel affirmatively stated, “No [objection], Your Honor,” when the court presented the jury charge and asked for the parties' objections.   This waived appellant's point of error 11.

Factual Insufficiency

In point of error 12, appellant contends the evidence is factually insufficient to prove that appellant committed aggravated robbery as alleged in both indictments.   Appellant claims the State's proof of appellant's identity is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.   Appellant's specific complaint is that Mrs. Neely did not notice that appellant had facial hair, while his witness testified that he did have facial hair at the time of the offense.

In reviewing factual sufficiency of evidence, we view all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996);  Durand v. State, 931 S.W.2d 25, 26 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).

Appellant presented only one witness, the barber, who also happened to be appellant's cousin, who stated appellant had facial hair at the time of the robbery.   Another witness, one of appellant's co-workers, could not remember appellant not having facial hair during that time.   On the other hand, appellant's photograph in the photospread, showing appellant with facial hair, is not significantly different from the composite drawing created at Mrs. Neely's direction.   As noted above, the dark area above appellant's upper lip in the composite drawing could be easily mistaken for a mustache.   Moreover, Mrs. Neely had several opportunities to observe the perpetrator during the course of the robbery and testified that she was certain appellant was that person.   In light of the above, we do not find the jury's verdict to be so contrary to the overwhelming weight of the evidence as to render the verdict clearly wrong and unjust.   Accordingly, we overrule appellant's point of error 12.

Denial of Continuance

In point of error 13, appellant contends the trial court erred by denying his pretrial motion for continuance.   Appellant relies on arguments from the pretrial hearing of April 1, 1996, namely that:  (1) the State failed to provide appellant's trial counsel with a witness list, afforded her no opportunity to examine physical evidence, and made unfulfilled representations as to the trial date;  (2) trial counsel claimed it would have been malpractice for her to go forward with the trial;  (3) trial counsel had not reviewed at least two offense reports in the State's file;  and (4) she didn't even have appellant's file and needed at least two days to get ready for trial.

The record reflects that these cases were originally set for trial on April 1, 1996, with discovery to be completed by March 25, 1996.   On March 8, 1996, the State filed a motion for preferential setting.   At the hearing on this motion, held March 12, 1996, the prosecutor urged the trial court to set these cases preferentially for April 1 and carry over the cases to the following week, if necessary.   It was during this hearing that defense counsel first began objecting to proceeding to trial because discovery had not been completed.   Nevertheless, the trial court granted the State's motion, noting there was plenty of time to complete discovery, but to get back to the court if disputes arose.

On the morning of April 1, 1996, defense counsel announced that she was not ready, that further discovery was necessary, that the prosecutor had misled her to conclude the cases would not be reached, that she did not even have her case file with her, and it would result in malpractice if she were forced to trial that day.   The prosecutor acknowledged a State's witness list had not been provided, claiming that open access to the State's files had been provided instead.   Defense counsel had spent several days perusing the State's files, but claimed there were still files she had not studied.   She also had not examined the physical evidence which the prosecutor had told her had been in custody of the Bureau of Alcohol, Tobacco, and Firearms whose offices were near defense counsel's residence.   The trial court heard conflicting arguments about whether the prosecutor had provided discovery or misled defense counsel about the certainty of trial.   The trial court overruled appellant's motion for continuance and ordered the parties to appear at 1:30 that afternoon to proceed with trial.

At 1:30 p.m., defense counsel presented a motion for continuance reasserting the same grounds argued earlier in the day.   A different judge listened to extensive arguments, which went into greater detail than in the morning hearing.   The prosecutor introduced into evidence the portions of the State's files which defense counsel had examined, with her initials on the pages as verification.   Defense counsel introduced additional material from the State's files she had not yet examined.   She also had not yet examined the physical evidence which, by this time, was in custody of the prosecutor.   At 3:00 p.m., the trial court again denied the motion for continuance.   However, the prosecutor again volunteered to make the State's files and physical evidence available to defense counsel.   When the trial court ordered that voir dire would begin the following morning at 9:00 a.m., defense counsel suggested that if the trial court could make it 9:30 a.m., she would be there “with bells.”

Trial proceeded the next morning, with defense counsel having apparently announced ready with one reservation that is not shown on the record.   After voir dire, the jury was excused for the day while the trial court heard a motion to suppress the identification testimony of Mrs. Neely.   The trial in chief began on April 3, 1996.

At the motion for new trial hearing, appellant introduced the affidavit of trial counsel that stated she was not prepared to try the case on April 1, 1996.   It set out defense counsel's opposition to the State's motion for preferential setting because defense counsel had not completed discovery.   Defense counsel claimed the prosecutor had promised the trial would be postponed if only defense counsel did not hold the prosecutor's feet to the fire in providing a State's witnesses list.   Defense counsel claimed the only reason she proceeded to trial, despite her lack of preparation, was the threat by the trial court to hold her in contempt.   The only harm claimed by defense counsel was “I was unprepared to confront some of the witnesses, as I had not known of their identity until they were called as witnesses.”

It is noteworthy that the State presented only six witnesses in its case-in-chief:  (1) the two victims of the crime;  (2) one of their daughters who reported the crime;  (3) two scene officers;  and (4) the officer who did the composite drawing.   All of these witnesses were prominently featured in the offense report that defense counsel initialed on March 12, 1996.

The granting or denial of a motion for continuance is within the sound discretion of the trial court.  Duhamel v. State, 717 S.W.2d 80, 83 (Tex.Crim.App.1986).   Absent a showing of prejudice, we cannot hold that the trial court abused its discretion in overruling appellant's motion for continuance.  Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex.Crim.App.1995).  Moreover, the bare assertion that counsel did not have adequate time to interview the State's potential witnesses does not alone establish prejudice.   Id.

Under the facts of this case, we do not find that there has been a showing of prejudice against appellant.   Applying the analysis used in Heiselbetz, we conclude that the trial court did not abuse its discretion in denying appellant's motion for continuance.   Accordingly, we overrule appellant's point of error 13.

Conclusion

We affirm the judgments of the trial court.

I dissent from the en banc court's denial of the appellant's motion for rehearing en banc on the panel's resolution of the appellant's points of error six and seven in his brief (points one and two in the motion for rehearing en banc).   I agree with the panel that the trial court erred when it refused to permit the appellant to reopen, but I disagree that we can disregard the error because it did not affect a substantial right of the appellant.   See Tex.R.App. P. 44.2(b).

A defendant in a criminal proceeding is entitled to due process of law, due course of law, and a fair trial.   See U.S. Const. amend 5 and 14;  Tex. Const. art. 1, § 19.   Inherent in such rights is the right to present a defense by calling witnesses and presenting evidence.   See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973).

Texas Code of Criminal Procedure § 36.02 provides, “The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.”   It is reversible error for the trial court to refuse a timely request to reopen to produce admissible evidence, regardless of its weight or the issue upon which it is offered, so long as it does not threaten to unduly impede the trial.  Rogers v. State, 774 S.W.2d 247, 263 (Tex.Crim.App.1989).   The trial court commits error in not reopening the case when the following conditions are met:  (1) the witness was present and ready to testify;  (2) the request to reopen was made before the charge was read to the jury and final arguments were made;  (3) the judge had some indication of what the testimony would be, and was satisfied that the testimony was material and bore directly on the main issues in the case;  and (4) there is no showing that introduction of the testimony would have impeded the trial or interfered with the orderly administration of justice.  Tucker v. State, 578 S.W.2d 409, 410 (Tex.Crim.App.1979);  Forbes v. State, 976 S.W.2d 749, 752 (Tex.App.-Houston [1st Dist.], n. pet. h.).

At trial, the sole issue was the identity of the assailant on September 14, 1995.   Only one of the two witnesses identified the appellant as the person who assaulted and robbed them.   That witness, an elderly lady, testified she was only able to see the intruder for a few seconds before her glasses were knocked off.   She testified she did not notice any facial hair on the assailant on the night of the robbery.   The drawing of the assailant, which she assisted the police in creating, did not show any facial hair.

Just after the appellant rested, the appellant made a motion to reopen his case to present the testimony of Mike Pratt, who would testify that when he saw the appellant at a wedding on September 16, 1995, two days after the robbery, the appellant had facial hair.   Through Pratt, the appellant wanted to introduce a photograph showing the appellant with facial hair, similar to how he looked on September 16, 1995.   Defense counsel informed the court the testimony would take only five minutes.   The court denied the motion.

On appeal, the appellant complains of both a statutory violation as well as a violation of his constitutional right to due process.   The majority found “[h]ere, we deal with a statutory violation ․,” without addressing the nature of the error.   I believe the error was constitutional.   When the trial court denied the appellant's motion to reopen, it denied him his rights under due process and due course of law.   Thus, the error was constitutional.   Cf. Williams v. State, 958 S.W.2d 186, 194 n. 9 (Tex.Crim.App.1997).   The panel should have applied Texas Rule of Appellate Procedure 44.2(a) to address the issue of harm.   Under Rule 44.2(a), the State bears the burden to prove that the error made no contribution to the appellant's conviction or punishment.

Even if the error was merely statutory, as the panel opinion holds, I disagree with the panel that the error did not affect the appellant's substantial rights.   The appellant's right to a fair trial, conducted under principles of due process and due course of law, was a substantial right that was undermined by the trial court's refusal to permit the appellant to reopen.   When weighed against the short delay in the trial that would have resulted from granting the motion, the refusal to grant the motion was unconscionable.   Compare with Wilkinson v. State, 423 S.W.2d 311, 313 (Tex.Crim.App.1968) (permitting defendant to reopen would have produced “indefinite delay”).

Because the evidence of identity was central to the State's case and to appellant's defense, we cannot conclude beyond a reasonable doubt that the error in refusing to permit the appellant to reopen did not contribute to his conviction.   See Phillips v. State, 878 S.W.2d 617, 619 (Tex.App.-Corpus Christi 1994, no pet.) (case reversed because defendant was not permitted to reopen to introduce evidence that was relevant to defendant's alibi and defense).

I would reverse.

FOOTNOTES

1.   Mrs. Neely was the victim in trial court cause number 95CR1683, our cause number 01-96-00618-CR;  Mr. Neely was the victim in trial court cause number 95CR1686, our cause number 01-96-00917-CR.

TIM TAFT, Justice.

A majority of the justices of the Court voted to overrule the motion for rehearing en banc. Justice O'CONNOR dissenting from the overruling of the motion for rehearing en banc.

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