Rex Allen Nisbett v. State ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REMAND
NO. 03-14-00402-CR
Rex Allen Nisbett, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 13-0481-K26, THE HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Rex Allen Nisbett of murdering his wife, Vicki Nisbett,
back in 1991, see Tex. Penal Code § 19.02(b)(1), (2), and assessed his punishment at confinement
for 42 years in the Texas Department of Criminal Justice, see id. § 12.32. On original submission,
we concluded that the State’s failure to present evidence demonstrating how Vicki died—to show
that she was in fact dead, that appellant perpetrated a specific act causing her death, and that he did
so with the requisite culpable mental state—rendered the evidence insufficient to support appellant’s
conviction. Nisbett v. State, No. 03-14-00402-CR, 2016 WL 7335843, at *16–17 (Tex.
App.—Austin Dec. 15, 2016) (mem. op., not designated for publication), rev’d, 552 S.W.3d 244
(Tex. Crim. App. 2018).
On discretionary review, the Court of Criminal Appeals disagreed with our conclusion
and instead concluded that, even without evidence of how Vicki died, the evidence sufficed to infer
Vicki’s death, infer that appellant caused it, and infer that he did so with the requisite culpable
mental state. Nisbett v. State, 552 S.W.3d 244, 262–268 (Tex. Crim. App. 2018). Therefore, the
court concluded that the evidence was sufficient to infer that appellant was guilty of murder. Id. at
268. The court reversed our judgment and remanded the case for us to address appellant’s remaining
points of error. Id. On remand, we will affirm the trial court’s judgment of conviction.
BACKGROUND
The factual background and procedural background of this case are fully discussed
in the prior opinion of this Court, see Nisbett, 2016 WL 7335843, at *1, 3–8, 10–13, and will not be
repeated here. We discuss further background details only as necessary to address the remaining
points of error raised by appellant.
DISCUSSION
In his remaining points of error, appellant asserts that the prosecutor violated his
constitutional right to remain silent during jury argument as well as during direct examination of a
State’s witness. In addition, he complains about the trial court permitting an expert witness to testify
absent proper notice under the discovery statute.
Jury Argument
In his second point of error, appellant argues that the prosecutor violated his right to
remain silent during jury argument by impermissibly commenting on appellant’s failure to testify.
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Specifically, during final jury argument in the punishment phase of trial, the prosecutor commented
that appellant would not reveal the location of his wife’s body:
One of the things that I do want you to take into consideration is the one thing that
the Johnson family wants out of this, and the only thing they’ve ever wanted. And
it’s not blood, and it’s not vengeance. It’s that they want Vicki back. They want to
give her a Christian burial. And they want her remains, and they want to be able to
have a memorial service and funeral that they’ve never had for her. That’s the one
thing they’ve asked for. They didn’t come here for vengeance and out for blood and
out for him to deal with a life sentence. That’s never been what’s in their hearts.
What was in their hearts was they just want Vicki back, and he refuses to do that. So
I hope you’ll remember that --
Defense counsel objected to this argument as “commenting on [appellant’s] right to silence, right
not to testify.” The trial court sustained the objection and then, on defense counsel’s request,
instructed the jury to disregard the comment. The trial court then denied defense counsel’s request
for a mistrial.
When the trial court sustains a defendant’s objection to an allegedly improper
argument and gives an instruction to disregard but denies the defendant’s request for a motion for
mistrial, the only issue to consider on appeal is whether the trial court erroneously denied the motion
for mistrial. Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011); Hawkins v. State,
135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). We review a trial court’s decision to deny a motion
for mistrial for an abuse of discretion. Archie, 340 S.W.3d at 738–39; Hawkins, 135 S.W.3d at 77;
Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). A trial court abuses its discretion
when the court’s decision is “so clearly wrong as to lie outside the zone within which reasonable
people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); accord
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McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). We must uphold the trial court’s
ruling on a motion for mistrial if it is within the zone of reasonable disagreement. Archie v. State,
221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Wead, 129 S.W.3d at 129.
The law provides for, and presumes, a fair trial free from improper argument by the
State. Ex parte Lane, 303 S.W.3d 702, 712 (Tex. Crim. App. 2009) (citing Long v. State,
823 S.W.2d 259, 267 (Tex. Crim. App. 1991)). Proper jury argument must generally fall within one
of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence;
(3) responses to argument of opposing counsel; and (4) pleas for law enforcement. Freeman v. State,
340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.
App. 2008). The fact that a defendant did not testify does not fall into any of these categories and
may not be the subject of comment by the prosecution. Cruz v. State, 225 S.W.3d 546, 548 (Tex.
Crim. App. 2007); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).
Further, a comment on a defendant’s failure to testify violates both the federal and
state constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex.
Crim. App. 2011); see U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art.
38.08; see also Griffin v. California, 380 U.S. 609, 615 (1965). However, the implication that the
State’s comment referred to the defendant’s failure to testify must be “a clear and necessary one.”
Randolph, 353 S.W.3d at 891; accord Bustamante, 48 S.W.3d at 767. Indirect or implied allusions,
or language that might be construed as such, do not constitute a violation. Randolph, 353 S.W.3d
at 891; Busby v. State, 253 S.W.3d 661, 666 (Tex. Crim. App. 2008); see Patrick v. State,
906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995) (“A mere indirect or implied allusion to the
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accused’s failure to testify does not violate appellant’s rights,” and “if the language can reasonably
be construed to refer to appellant’s failure to produce evidence other than his own testimony, the
comment is not improper.”). Indeed, “[i]t is well settled that a prosecutor’s comment amounts to a
comment on a defendant’s failure to testify only if the prosecutor manifestly intends the comment
to be, or the comment is of such character that a typical jury would naturally and necessarily take it
to be, a comment on the defendant’s failure to testify.” Wead, 129 S.W.3d 130 (emphasis added);
accord Bustamante, 48 S.W.3d at 765.
Thus, the test is whether the language used was manifestly intended to be, or was of
such a character that the jury would necessarily and naturally take it as, a comment on the
defendant’s failure to testify. Randolph, 353 S.W.3d at 891; Archie, 340 S.W.3d at 738; Cruz,
225 S.W.3d at 48; see Bustamante, 48 S.W.3d at 765 (collecting cases). The context in which the
comment was made must be analyzed to determine whether the language used was of such character.
Randolph, 353 S.W.3d at 891; Cruz, 225 S.W.3d at 548; Bustamante, 48 S.W.3d at 765. Courts are
not to find that the prosecutor manifestly intended to comment on the defendant’s failure to testify
if some other explanation for the remark is equally plausible. Randolph, 353 S.W.3d at 891. In
assessing whether the defendant’s rights have been violated, courts must view the State’s argument
from the jury’s standpoint and resolve any ambiguities in the language in favor of its being a
permissible argument. Id.
To evaluate whether the trial court abused its discretion in denying a motion for
mistrial based on an improper jury argument in the punishment phase, the Court of Criminal Appeals
has adopted a test that balances (1) the severity of the misconduct (the magnitude of the prejudicial
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effect of the prosecutor’s remarks); (2) the curative measures taken (the efficacy of any cautionary
instruction by the judge); and (3) the certainty of the punishment assessed absent the misconduct
(likelihood of the same punishment being assessed). Hawkins, 135 S.W.3d at 77 (applying tailored
version of Mosley factors in context of punishment phase of non-capital trial); see Mosley v. State,
983 S.W.2d 249, 260 (Tex. Crim. App. 1998) (balancing three factors to determine whether
improper jury argument warrants mistrial). A mistrial is the appropriate remedy only when “the
objectionable events are so emotionally inflammatory that curative instructions are not likely to
prevent the jury from being unfairly prejudiced against the defendant.” Archie, 340 S.W.3d at 739
(quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)); see Ocon v. State,
284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (“A mistrial is an appropriate remedy in
‘extreme circumstances’ for a narrow class of highly prejudicial and incurable errors.”); Hawkins,
135 S.W.3d at 77 (“Only in extreme circumstances, where the prejudice is incurable, will a mistrial
be required.”).
Appellant argues that the prosecutor’s argument here was intended to “inflame the
jury at the expense of appellant’s rights” and therefore he is “entitled to a reversal.” However, as
we noted above, indirect or implied allusions are not sufficient to show a violation of the Fifth
Amendment—the words spoken must be a clear reference to the defendant’s failure to testify. See
Busby, 253 S.W.3d at 666. The inference appellant asks us to draw here is tenuous at best.
Furthermore, nothing in the record suggests that the prosecutor manifestly intended the remark to
be a comment on appellant’s failure to testify during punishment. Nor can we conclude that a typical
jury would have naturally and necessarily understood the prosecutor’s comment, in the context in
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which it was given, to refer to appellant’s failure to testify at trial. The prosecutor’s comment, taken
literally, was to the effect that appellant refused to disclose the location of Vicki’s body to her family
so they could give her a proper burial.
However, assuming arguendo that the prosecutor’s remark was a comment on
appellant’s failure to testify during the punishment phase of trial, we consider the relevant factors
to determine whether the trial court abused its discretion by denying appellant’s request for a
mistrial. See Hawkins, 135 S.W.3d at 77.
Concerning the magnitude of the prejudicial effect of the prosecutor’s comment, we
observe that, in concluding his jury argument in the punishment phase, defense counsel argued that
“the punishment should fit the person” and stated:
. . . [Appellant is] 53 years old. Okay? So whatever number you come up with is
going to impact the rest of his life. The rest of his life. And we want you to go decide
that number not with vengeance in your heart, but with those common elements that
the preacher tells you every Sunday: [u]nderstanding, compassion.
And I know that we have Vicki Nisbett that you’re going to keep [her] in your
minds as [you do] this. Please keep in your mind as well, this is not the time to
express vengeance against [appellant], but show the proper care and attention that
you’re going to put in assessing the law here that you did in the last 10 days, that you
took.
Thank you.
After brief introductory remarks expressing appreciation to the jury for its consideration during the
guilt-innocence deliberations, the prosecutor made the argument at issue.
The context of the comment reflects that the prosecutor’s remark was an argument
made in response to defense counsel’s assertion that “this is not the time for vengeance against
[appellant].” The comment by the prosecutor was a “fair response” to defense counsel’s argument
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in that it asserted that the victim’s family was not seeking vengeance against appellant—which
defense counsel decried—but only wanted a conclusion to the situation (the recovery of Vicki’s body
for a proper burial) that, under the circumstances, was unobtainable without appellant’s cooperation.
See Randolph, 353 S.W.3d at 892–93 (recognizing that comments about failure to testify are
permissible if they are “fair response” to defendant’s claims or assertions or if evidence in record
supports prosecutor’s remarks). Even assuming that the prosecutor’s remark constituted a comment
about appellant’s failure to testify during the punishment phase, the remark was embedded within
other remarks responding to opposing counsel’s comments; thus, the magnitude of prejudice from
the statement was diminished. See Archie, 340 S.W.3d at 741 (concluding that, because improper
questions during final argument were embedded within other remarks that invited jury to draw
legitimate inference from evidence, magnitude of prejudice was “concomitantly diminished”).
Furthermore, the prosecutor’s remark was brief and isolated. See Archie, 221 S.W.3d at 700 (noting
that prosecutor’s impermissible comment on failure to testify was brief). We conclude that the
extent of prejudice from the prosecutor’s jury argument, if improper, was not so great as to
necessarily render a timely curative instruction ineffective. See Archie, 340 S.W.3d at 741.
We next consider the curative measures taken by the trial court. See id.; Hawkins,
135 S.W.3d at 77. After the prosecutor made the challenged statement, defense counsel objected,
and the trial court sustained the objection. Then, on defense counsel’s request, the court instructed
the jury to disregard the comment. In addition to the oral instruction to disregard, which was given
immediately after the challenged statement, the trial court included a written instruction in the jury
charge instructing the jury not to “consider the fact that the defendant has not testified as a
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circumstance against him” or to “allude to, comment on, or in any manner refer to the fact that the
defendant has not testified” during deliberations on appellant’s punishment. “The law generally
presumes that instructions to disregard and other cautionary instructions will be duly obeyed by the
jury.” Archie, 340 S.W.3d at 741; accord Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App.
2009); Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see, e.g., Archie, 340 S.W.3d
at 741 (considering trial court’s “specific and timely” instruction to disregard improper statements
as well as written instruction in jury charge reminding jurors of “their duty not to comment on or
allude to the [defendant’s] failure to testify” in determining that improper statements “were not so
indelible” that jury would ignore trial court’s instructions); Archie, 221 S.W.3d at 700 (concluding
that oral instruction to disregard and written instruction not to consider failure to testify “sufficiently
ameliorated any potential harm” from improper statements); Hawkins, 135 S.W.3d at 84 (noting that
analysis of this factor should consider instructions given in jury charge). We conclude that the
prosecutor’s jury argument, if improper, was not so “offensive or flagrant” as to render the trial
court’s curative instructions ineffective. See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim.
App. 2000) (noting that prosecutor’s impermissible jury argument was quickly followed by
instruction to disregard and observing that “[o]nly offensive or flagrant error warrants reversal when
there has been an instruction to disregard”).
Finally, we consider the certainty of the punishment assessed absent the misconduct,
or the likelihood of the same punishment being assessed. See Archie, 221 S.W.3d at 700; Hawkins,
135 S.W.3d at 77. During punishment jury argument, neither party argued in favor of a particular
sentence but instead put forth considerations for the jury in assessing punishment. In addition to the
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evidence from the guilt-innocence phase of trial—which the Court of Criminal Appeals has
determined sufficed to infer appellant’s guilt—the State presented evidence in the punishment phase
concerning additional assaultive conduct by appellant: a prior conviction for misdemeanor assault
in 1993 and an arrest for misdemeanor assault in 2012.1 The jury assessed appellant’s punishment
at 42 years’ confinement, which is in the middle of the statutory punishment range for a first degree
felony. See Tex. Penal Code § 12.32(a) (providing that punishment range for first degree felony is
confinement for five to 99 years or life). Given the serious nature of the offense alone, but
particularly in combination with the punishment evidence presented, we conclude that it is likely that
the same punishment would have been assessed against appellant even in the absence of the State’s
comment. See Archie, 221 S.W.3d at 700.
When considering all three factors, we conclude that the trial court could have
reasonably believed that its prompt instruction to disregard the prosecutor’s comment, if it was
improper jury argument, was effective to ameliorate any prejudice that appellant suffered from the
comment. See Hawkins, 135 S.W.3d at 85. Thus, the trial court could have further concluded that
this single instance of jury argument, if it was improper, did not rise to the level of the “narrow class
of highly prejudicial and incurable errors” that require granting a mistrial. See Ocon, 284 S.W.3d
at 884; Hawkins, 135 S.W.3d at 77. Accordingly, we conclude that the trial court’s decision to deny
appellant’s request for a mistrial was not outside the zone of reasonable disagreement. Therefore,
1
The record reflects that the 1993 conviction resulted from the revocation of appellant’s
1992 deferred-adjudication community supervision for an assault against a male victim that did not
involve family violence. The record reflects that the 2012 arrest was for a physical altercation that
appellant had with a neighbor while they were drinking. Appellant was never charged or prosecuted
for this assault.
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we hold that the trial court did not abuse its discretion in denying the request. See Archie,
221 S.W.3d at 700; Hawkins, 135 S.W.3d at 85.
For the foregoing reasons, we overrule appellant’s second point of error.
Direct Examination of State’s Witness
In his third point of error, appellant asserts that the prosecutor violated his
constitutional right to remain silent by questioning Assistant Chief Deputy Richard Elliott about
whether appellant had ever denied killing his wife. The record reflects the following exchange with
the deputy at the conclusion of the State’s direct examination:
PROSECUTOR: In the 22 and a half years that you have worked with or dealt
with Rex Nisbett, has he ever said to you “Chief, I did not kill
my wife”?
CHIEF ELLIOTT: No, he has not.
The prosecutor then passed the witness, and defense counsel began cross examination.
To preserve a complaint for appellate review, a party must have raised the complaint
to the trial court by a timely request, objection, or motion that states the specific grounds for the
ruling sought. Tex. R. App. P. 33.1(a)(1)(A); see Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim.
App. 2017); Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Yazdchi v. State,
428 S.W.3d 831, 844 (Tex. Crim. App. 2014). At trial, appellant did not object to the prosecutor’s
question to Chief Elliott or his answer. Thus, the record reflects that appellant failed to properly
preserve for appellate review his complaint about the alleged violation of his Fifth Amendment right
to remain silent during witness questioning.
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Preservation of error is a systemic requirement on appeal. Darcy v. State,
488 S.W.3d 325, 327 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim.
App. 2014). A reviewing court should not address the merits of an issue that has not been preserved
for appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Wilson v. State,
311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010). Accordingly, because the record reflects that
appellant failed to properly preserve this complaint for appellate review, we overrule his third point
of error.
Notice of Expert Witness
In his fourth point of error, appellant asserts that the State failed to give proper notice
pursuant to the discovery statute of an anticipated expert witness, Megan Clement, a forensic
scientist employed at Cellmark Forensics. Consequently, appellant maintains that the trial court
erred in permitting her to testify.
We review the trial court’s decision to permit expert testimony absent proper notice
under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000);
Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Nobles v. State, 843 S.W.2d 503, 514
(Tex. Crim. App. 1992).
Before trial, appellant filed a Motion and Request for Notice of State’s Expert
Witnesses. Although the trial court did not rule on appellant’s motion, the State subsequently filed
multiple notices of its intent to use expert witnesses. In three of the notices, the State listed “Megan
Clement: Tarrant County Medical Examiner who collected evidence.” At trial, appellant objected
to Clement’s testimony because no address for Clement had been given and, at the time of trial,
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Clement was no longer employed at the Tarrant County Medical Examiner’s office. The State
responded that appellant had not obtained a ruling on his motion requesting notice. The trial judge
indicated that it was the court’s “custom” to “never to sign the order, just to grant it orally or not.”
The judge further advised that he did not “have an independent recollection” of ruling on the motion
but “we can certainly look it up in the court reporter’s record.” Ultimately, the trial court overruled
appellant’s objection and allowed Clement to testify.
At the time of appellant’s trial, article 39.14(b) provided:
On motion of a party and on notice to the other parties, the court in which an action
is pending may order one or more of the other parties to disclose to the party making
the motion the name and address of each person the other party may use at trial to
present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court
shall specify in the order the time and manner in which the other party must make the
disclosure to the moving party, but in specifying the time in which the other party
shall make disclosure the court shall require the other party to make the disclosure
not later than the 20th day before the date the trial begins.
Tex. Code Crim. Proc. art. 39.14(b). At that time, article 39.14(b) was not “self-executing.”2
McFatridge v. State, No. 10-08-00049-CR, 2011 WL 1334400, at *3 (Tex. App.—Waco
Apr. 6, 2011, pet. ref’d) (mem. op., not designated for publication); Harris v. State, 287 S.W.3d 785,
792 (Tex. App.—Houston [1st Dist.] 2009, no pet.), abrogated on other grounds by Barrios v. State,
283 S.W.3d 348 (Tex. Crim. App. 2009); Tamez v. State, 205 S.W.3d 32, 39 (Tex. App.—Tyler
2
In 2015, the Legislature amended article 39.14(b) to require a party receiving a request for
disclosure of expert witnesses to provide the information to the requesting party based on the request
alone without an order from the trial court. See Act of May 22, 2015, 84th Leg., R.S., ch. 459, § 1,
2015 Tex. Gen. Laws 1774 (current version at Tex. Code Crim. Proc. art. 39.14(b)). The amendment
became effective September 1, 2015, see Act of May 22, 2015, 84th Leg., R.S., ch. 459, § 3,
2015 Tex. Gen. Laws 1774, and did not apply in this case.
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2006, no pet.); see Tex. Code Crim. Proc. art. 39.14(b). Rather, the statute allowed a trial court the
discretion to order the State to disclose its expert witnesses upon request. McFatridge,
2011 WL 1334400, at *3; Harris, 287 S.W.3d at 792; Tamez, 205 S.W.3d at 39. Even with a
request, however, a trial court order was necessary before the State was required to timely disclose
its expert witnesses. McFatridge, 2011 WL 1334400, at *3; Harris, 287 S.W.3d at 792; Tamez,
205 S.W.3d at 39–40); see Williams v. State, No. 04-06-00797-CR, 2007 WL 3171335, at *2 (Tex.
App.—San Antonio Oct. 31, 2007, no pet.) (mem. op., not designated for publication) (“[T]he
State’s obligation to disclose its expert witnesses under article 39.14(b) of [the] Code of Criminal
Procedure is triggered only by a court order.”); see also In re Tibbe, No. 03-13-00741-CV,
2013 WL 6921525, at *2 (Tex. App.—Austin Dec. 31, 2013, orig. proceeding) (“[U]nder its plain
language, the disclosure provision of article 39.14(b) is triggered only by a defendant’s motion
requesting disclosure of the State’s testifying experts and a trial court order.”) (emphasis added).
The record in this case reflects that the State filed a motion requesting that appellant
disclose his expert witnesses, and the trial court granted that motion. However, although appellant
filed a motion requesting that the State disclose its expert witnesses, the record does not show that
the court ever ordered disclosure, and appellant does not direct us to any place in the record where
such an order was made. The record does not contain a signed order requiring the disclosure nor
does the record reflect any verbal order requiring the disclosure.3 Therefore, because there was no
order granting appellant’s motion requesting disclosure by the State of its expert witnesses, the trial
3
We reviewed the reporter’s record as suggested by the trial court and found no oral granting
of appellant’s motion requesting disclosure of the State’s expert witnesses.
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court did not err in allowing Clement to testify. See, e.g., Chamberlain v. State,
No. 05-13-01213-CR, 2015 WL 3413543, at *9 (Tex. App.—Dallas May 27, 2015, pet. ref’d) (mem.
op., not designated for publication) (holding that because record did not contain order granting
appellant’s request for disclosure of State’s expert witnesses, trial court did not err in allowing
detective to testify).
Moreover, even if the trial court had ordered the State to disclose its expert witnesses,
we perceive no reversible error. See Tex. R. App. P. 44.2(b) (providing that non-constitutional error
must be disregarded unless it affects defendant’s substantial rights). Appellant had notice that
Clement was a potential expert witness. Appellant complains that he “was harmed by Clement’s
unnoticed testimony because he was not informed that instead of testifying as a medical doctor
presumably about a cause of death as a medical examiner, Clement was actually a chain of custody
witness that could affect the admissibility of all of the DNA evidence in this case.” This argument
fails for several reasons. First, the statute does not require (nor did it at the time of appellant’s trial)
the State to describe the potential expert witness or the anticipated testimony. It simply requires
disclosure of the name and address of the potential expert witness. The party providing notice is not
responsible for the recipient’s understanding (or misunderstanding) concerning anticipated testimony
that results from the disclosed information. Second, as Vicki’s body has never been recovered and
no evidence exists showing how she died, it was unreasonable to anticipate testimony from a medical
examiner regarding cause of death. Finally, Clement was listed on three of the State’s notices of
intent to use expert witnesses as someone “who collected evidence.” Given the DNA evidence in
this case, appellant should have reasonably anticipated that witnesses regarding the chain of custody
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of the evidentiary samples subjected to DNA testing would testify—particularly a witness who was
described as having “collected evidence.”
Furthermore, if Clement had not been disclosed as an expert witness at all, we would
review the trial court’s decision to allow her to testify, despite the lack of notice, by considering
whether the prosecutor acted in bad faith and whether appellant could have reasonably anticipated
the testimony. See Wood, 18 S.W.3d at 649–50; Martinez, 867 S.W.2d at 39; Tamez, 205 S.W.3d
at 39–40; Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.—Austin 2001), aff’d, 92 S.W.3d 531
(Tex. Crim. App. 2002). Here, as we previously noted, Clement’s testimony regarding the chain of
custody could have reasonably been anticipated. Further, nothing in the record suggests that the
State acted in bad faith when it listed Clement as a possible expert witness without her address or
her current place of employment.
For the foregoing reasons, we hold that the trial court did not abuse its discretion in
allowing Clement to testify. Accordingly, we overrule appellant’s fourth point of error.
CONCLUSION
Having overruled appellant’s remaining points of error, we affirm the trial court’s
judgment of conviction.
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__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed on Remand
Filed: November 29, 2018
Do Not Publish
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