Terrance Davis v. State ( 2015 )

ACCEPTED
06-15-00011-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/9/2015 3:44:05 PM
DEBBIE AUTREY
CLERK
06-15-00011-CR
FILED IN
6th
IN THE COURT OF APPEALS FOR THE COURT OF APPEALS
TEXARKANA, TEXAS
7/9/2015 3:44:05 PM
SIXTH APPELLATE DISTRICT OF TEXAS DEBBIE AUTREY
Clerk
TEXARKANA, TEXAS
___________________________________
TERRENCE LAVON DAVIS,
A ppellant
v.
STATE OF TEXAS,
Appellee
__________________________________
BRIEF FOR APPELLANT
___________________________________
APPEAL FROM THE 202nd DISTRICT COURT
BOWIE COUNTY, TEXAS
Trial Court No. 14F0109-202
ORAL ARGUMENT IS NOT REQUESTED
Alwin A. Smith
SBN: 18532200
602 Pine Street
Texarkana, Texas 75501
903-792-1608
903-792-0899 Fax
al@alwinsmith.com
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a) (2005), the parties to this suit are as
follows:
1. Terrence Lavon Davis is the Appellant and was the Defendant in trial
court.
2. The State of Texas, by and through the Bowie County Criminal
District Attorney’s Office, 601 Main Street, Texarkana, Texas, is the
Appellee and prosecuted this case in the trial court.
The trial attorneys were as follows:
1. Terrence Lavon Davis was represented by Rick Shumaker .
2. The State of Texas was represented by Jerry D. Rochelle, District
Attorney and Michael Shepherd, Assistant District Attorney.
The appellate attorney is as follows:
1. Terrence Davis is represented by Alwin A. Smith, 602 Pine Street,
Texarkana, Texas 75501.
2. The State of Texas is represented by Jerry D. Rochelle, District
Attorney and Michael Shepherd, Assistant District Attorney, 601
ii
Main Street, Texarkana, Texas 75501.
iii
TABLE OF CONTENTS
Pa ge
Identity of Parties and Counsel . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . iii
Index of Authorities ...............v
Statement of the Case ...............1
Issues Presented ...............2
Statement of Facts ...............3
Summary of the Argument ...............5
Argument and Authorities ...............6
Issue No. 1: ...............6
The State Failed to Corroborate the Testimony
of the Accomplice with Sufficient Evidence
That the Appellant Committed the Offense of
Aggravated Robbery
Issue No. 2: . . . . . . . . . . . . . . . 10
The Trial Court Committed Reversible Error
in Giving the Jury an Insufficient Instruction
on the Law of Accomplice Testimony
Issue No. 3: . . . . . . . . . . . . . . . 14
The Trial Court Committed Error in Refusing
to Grant the Appellant’s Motion for Continuance
after Discovery of the Prosecutor’s Misconduct
iv
in Misleading the Appellant’s Counsel as to
the Testimony of Witness Rutledge
Conclusion . . . . . . . . . . . . . . . 23
Certificate of Service . . . . . . . . . . . . . . . 24
v
INDEX OF AUTHORITIES
Cases
Page
Barney v. State, 698 S.W.2d 114 (Tex.Crim.App. 1985). . . . . . . . . . 21
Casanova v. State, 383 S.W.3d 530, 533 (Tex.Crim.
App.2012) . . . . . . . . . . . . . . . . . 12
Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App.
1988) ................. 7
Gallo v. State, 239 S.W.2d3d 757, 764 (Tex. Crim.
App.2007) . . . . . . . . . . . . . . . . . 20
Hardie v. State, 79 S.W.3d 625, 629 (Tex.App. - Waco
2002) . . . . . . . . . . . . . . . . . 11
Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim.
App. 1997) ................. 6
March v. State, 44 Tex. 64, 83 (1875) . . . . . . . . . . . . . . . . . 21
Moron v. State, 779 S.W.2d 399, 401 (Tex.Crim.App.
1985) ................. 7
Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App.2005). . . . . . . . . 12
Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App.1998). . . . . . . . . 10
Romero v. State, 136 S.W.3d 680, 689 (Tex.App.-
Texarkana 2004) . . . . . . . . . . . . . . . . . 22
Zamora v. State, 411 S.W.3d 504, 513 (Tex.Crim.App.
2013) . . . . . . . . . . . . . . . . . 12
vi
Rules/Statutes
Texas Rules of Criminal Procedure, 404b . . . . . . . . . . . . . . . . . 16
Texas Rules of Criminal Procedure, Art. 29.13 . . . . . . . . . . . . . . . . . 19
Texas Rules of Criminal Procedure, Art. 38.14 . . . . . . . . . . . . . . . . . 6
Texas Rules of Criminal Procedure, Article 39.14. . . . . . . . . . . . . . . 14
vii
STATEMENT OF THE CASE
This is an appeal from a criminal conviction for the offense of
Aggravated Robbery.
The Appellant was indicted by the Bowie County Grand Jury for the
offense of Aggravated Robbery on May 29th, 2014, for an offense alleged to
have been committed on or about January 17, 2014. C.R., pg. 28. The
indictment also alleged that the Appellant was a repeat offender having been
previously convicted of the offense of Engaging in Organized Criminal
Activity.
The Appellant was tried before a jury which began on December 9, 2014,
and was concluded on December 11, 2014. After finding the Appellant guilty,
the Appellant pled true to the enhancement paragraph and the jury assessed
his punishment at 55 years in the Institutional Division of the Texas
Department of Corrections and assessed a fine of $10,000.00.
STATEMENT REGARDING ORAL ARGUMENT
Counsel for Appellant does not believe that oral argument is necessary
for the Court to make a ruling in this matter.
1
ISSUES PRESENTED
Appellant’s First Issue on Appeal
The State Failed to Corroborate the Testimony of the Accomplice with
Sufficient Evidence That the Appellant Committed the Offense of
Aggravated Robbery
Appellant’s Second Issue on Appeal
The Trial Court Committed Reversible Error in Giving the Jury an
Insufficient Instruction on the Law of Accomplice Testimony
Appellant’s Third Issue on Appeal
The Trial Court Committed Error in Refusing to Grant the Appellant’s
Motion for Continuance after Discovery of the Prosecutor’s Misconduct
in Misleading the Appellant’s Counsel as to the Testimony of Witness
Rutledge
2
STATEMENT OF FACTS
During the early morning hours of January 17th, 2014, two men entered
the EZ Mart store located on Summerhill Road, in Texarkana, Bowie County,
Texas. Vol. 3, pgs. 28-29. One of the men was wearing a hoodie over his head
and the other was not. Vol. 3, pg. 30. The man wearing the hoodie approached
the counter to make a small purchase and showed the clerk a gun and told him
to open the cash register. Vol. 3, pgs. 31-2. He was ordered to get on the floor
by both men. Vol. 3, pg. 34. The two men took the money out of the register
and the man not wearing the hoodie took a large number of cigarettes from
the store. Vol. 3, pg. 33.
After the robbery, the clerk informed the police that he could identify the
person who robbed him. Vol. 3, pg. 98. Approximately two weeks after the
robbery the clerk went to the police station and identified a person in a photo
lineup showed to him, that contained a photo of the Appellant. Vol. 3, pgs. 39-
40. The Appellant picked the picture of a person known as Morris Mitchell as
the person who robbed him. Vol. 3, pg. 162.
The police were able to discover a fingerprint on one of the cigarette
packages handled by the second robber, and identified him as Calvin Whaley.
Vol. 3, pgs. 100-1. The crime scene officer took no fingerprints from the
3
counter of the store, nor did he attempt to get any DNA from the area where
the robber with the hoodie was touching the counter and register. Vol. 3, pgs.
106-8. After Calvin Whaley was arrested he identified his accomplice as a
person whom he knew as “T”, who the police believed to be the Appellant. Vol.
3, pg2. 131-2.
The Appellant was arrested by the police and interviewed but denied any
involvement in the crime. Vol. 3, pg. 141-3.
4
SUMMARY OF ARGUMENT
Issue Number One: The State Failed to Corroborate the Testimony of the
Accomplice with Sufficient Evidence That the Appellant Committed the
Offense of Aggravated Robbery
The State failed to corroborate the testimony of Calvin Whaley, the
accomplice as the witness Toni Rutledge was not credible in that she was
receding some benefit for testifying against the Appellant, and was
angry with the Appellant.
Issue Number Two: The Trial Court Committed Reversible Error in Giving
the Jury an Insufficient Instruction on the Law of Accomplice Testimony
The trial court committed reversible error in its charge to the jury on the
law of accomplice witness testimony in that the instruction given limited
the jury’s inquiry of corroboration to testimony only and not all of the
evidence.
Issue Number Three: The Trial Court Committed Error in Refusing to
Grant the Appellant’s Motion for Continuance after Discovery of the
Prosecutor’s Misconduct in Misleading the Appellant’s Counsel as to the
Testimony of Witness Rutledge
The trial court committed error in failing to grant the Appellant a
continuance pursuant to Article 29.13, which was requested and
required because of the misconduct of the State.
5
ARGUMENT
Issue Number One
The State Failed to Corroborate the Testimony of the
Accomplice with Sufficient Evidence That the Appellant
Committed the Offense of Aggravated Robbery
The Appellant was convicted of the offense of Aggravated Robbery upon
the testimony of the accomplice Calvin Whaley who testified on behalf of the
State. Vol. 3, Pg. 57. Whaley testified that the robbery was the Appellant’s
idea, and that the Appellant is the person seen in the video with him, who
displayed the firearm. Vol. 3, pgs. 75-78.
Article 38.14, of the Texas Code of Criminal Procedure provides that “a
conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows
the commission of the offense.” Art. 38.14, Tex.Crim.Proc. (Vernon’s 2015).
To determine whether the State has sufficiently corroborated the
accomplice's testimony, this Court must eliminate from consideration the
testimony of the accomplice witness and examine the remaining evidence to
ascertain whether there is evidence which tends to connect the accused to the
offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997);
6
Cockrum v. State, 758 S.W.2d 577, 581 (Tex.Crim.App.1988). The
corroborating evidence need not directly link the accused to the offense or be
sufficient in itself to establish guilt; instead, the corroborating evidence need
only tend to connect the accused to the crime committed. Moron v. State, 779
S.W.2d 399, 401 (Tex.Crim.App.1985).
In the case at bar, the testimony before the jury was that two men, one
wearing a hoodie over his head and Whaley entered the EZ Mart on Robinson
Road in Texarkana, Texas and robbed the store of cash and cigarettes. Vol. 3,
pgs. 28-33. The store employee, Darrin Conover, testified that after the
robbery he told the investigators that he could identify the robber who
produced the gun. Vol. 3, pgs. 35-36. Conover, however, testified during his
direct examination that he could not identify the person holding the gun
during the robbery. Vol. 3, pgs. 36-7. He later testified that he was shown a
line-up and picked out the man he identified as the one holding the gun. Vol.
3, pg. 44. He further went on to identify scars on the person’s face that he
identified. Vol. 3, pg. 44. The person he identified was a person named
Mitchell Morris. Vol. 3, pg. 46. On cross examination, Conover first denied
that he had ever spoken to anyone in the Bowie County District Attorney’s
Office about the case. Vol. 3, pgs. 39-40. He further denied that he spoke with
7
anyone about his identification of Morris as the person who robbed him. Vol.
3, pg. 42. He later changed his testimony, and admitted that he did speak to
the Assistant District Attorney and that it was not until he spoke to the
Assistant District Attorney, that he learned that there was a question about his
identification of the person who robbed him. Vol. 3, pg. 42. Mr. Conover
testified that when he made the identification of Morris as the robber, that the
police wanted him to be certain of his identification and that he was in fact
certain of his identification. Vol. 3, pg. 44. The witness also testified that it was
not until a year later, after he spoke with the Assistant District Attorney did he
begin to question his identification of the robber. Vol. 3, pg. 46.
The State called Toni Rutledge as their only witness to corroborate the
testimony of Whaley. Vol. 3, pg. 109. Rutledge testified that she was the
mother of the Appellant’s two daughters and that they had been in a
relationship. Vol. 3, pgs. 110-11. Rutledge testified that even though she had
been with the Appellant for nine years, she had never heard of Whaley the
accomplice. Vol. 3, pg. 113. Over objection, Rutledge was allowed to testify that
it was her opinion that the man’s voice in the video of the robbery, was that of
Appellant’s. Vol. 3, pgs. 115-6. Rutledge also testified that the person in the
video was wearing a hoodie similar to one owned by the Appellant, but that
8
she was too mad at the Appellant the day after the robbery to remember what
else he was wearing. Vol. 3, pgs. 119-120. Rutledge also testified that the only
reason she was testifying on direct examination was because she was
subpoenaed. Vol. 3, pg. 121.
On cross examination, however, the witness testified that she did not
talk to defense counsel prior to trial because she felt like she didn’t benefit
from talking to them. Vol. 3, pg. 124. When pressed as to what she meant by
“she didn’t benefit from talking to them”, the witness would not give an
answer and the trial court ordered counsel to move on. Vol. 3, pgs. 124-6.
The State ended their case by calling Detective Thacker with the
Texarkana Police Department. Vol. 3, pg. 130. Detective Thacker testified that
the first time that he interviewed the accomplice Whaley, he was told that the
man with him during the robbery was in jail at that time. Vol. 3, pg. 162. He
further testified that he later became aware that the man the victim had
identified, Morris, was in jail. Vol. 3, pg. 163.
It being clear that the evidence presented by the State lacked
corroboration of the accomplice’s testimony the conviction in this matter
should be reversed.
9
Issue Number Two
The Trial Court Committed Reversible Error in Giving
the Jury an Insufficient Instruction on the Law of
Accomplice Testimony
At the conclusion of the testimony in this matter the trial court provided
to the jury an instruction on the law of accomplice testimony. C.R., pg. 69. In
the instruction the trial court informed the jury that Calvin Whaley was an
accomplice. C.R., pg. 71.
Once the trial court determines that the witness is an accomplice the
trial court is required to give the jury an instruction on that fact in accordance
with Article 38.14. Posey v. State, 966 S.W.2d 57, 61 (Tex.Crim.App. 1998).
The trial court correctly instructed the jury that Whaley was an
accomplice as a matter of law. C.R., pg. 71. However, the remainder of the
instruction given by the trial court was flawed.
A correct jury instruction on the accomplice witness rule instructs the
jury that
“You are further instructed that a conviction cannot be had upon
the testimony of an accomplice unless the jury first believes that
the accomplice's evidence is true and that it shows the defendant
is guilty of the offense charged against him, and even then you
10
cannot convict unless the accomplice's testimony is corroborated
by other evidence tending to connect the defendant with the
commission of the offense charged, and the corroboration is not
sufficient if it merely shows the commission of the offense, but it
must tend to connect the defendant with its commission.”
(Emphasis added) Hardie v. State, 79 S.W.3d 625, 629
(Tex.App.—Waco 2002).
The trial court instructed the jury that “the witness, Calvin Whaley, is an
accomplice, if an offense was committed, and you cannot convict the
defendant upon his testimony unless you first believe that his testimony is
true and shows that the defendant is guilty as charged, and then you cannot
convict the defendant upon said testimony unless you further believe that
there is other testimony in the case, outside the evidence of Calvin Whaley
tending to connect the defendant with the offense committed, If you find that
an offense was committed, and the corroboration is not sufficient if it merely
shows the commission of the offense, but it must also tend to connect the
defendant with its commission, and then from all of the evidence you must
believe beyond a reasonable doubt that the defendant is guilty of the offense
charged against him.” C.R., pg. 71. (emphasis added).
11
By limiting the jury’s inquiry to “other testimony”, the trial court in
effect told the jury that it must find the Appellant guilty because of the
testimony of Toni Rutledge. By focusing only on whether or not there was
“other testimony” tending to connect the Appellant with the offense, the jury
was instructed to disregard the other evidence that called into question the
validity of the testimony.
The accomplice witness instruction is part of the law of the case.
Zamora v. State, 411 S.W.3d 504, 513 (Tex.Crim.App. 2013). “This Court has
definitively held that the procedural framework of Almanza applies to
accomplice-witness instructions, both as a matter of law and as a matter of
fact, based on evidence that the witness was a direct party to the offense.
Casanova v. State, 383 S.W.3d 530, 533 (Tex.Crim.App.2012)”. Zamora at
513.
At trial counsel for Appellant did object, while in artfully, to the
instruction given to the jury as put forth in the charge to the jury. Vol. 4, pg.
6. “If an objection was made at trial, we then determine whether appellant
has demonstrated “some harm” from the error.” Ngo v. State, 175 S.W.3d 738,
744 (Tex.Crim.App.2005). By limiting the jury’s consideration to whether or
not there was “other testimony” that connected the Appellant to the crime, the
12
Appellant was denied the right to have the jury to determine if that
“testimony” was credible. Without the ability to consider all of the evidence
that went against the witnesses “testimony” as instructed, the jury was in
effect powerless to weigh all of the evidence in this case.
13
ISSUE NUMBER THREE
The Trial Court Committed Error in Refusing to Grant
the Appellant’s Motion for Continuance after Discovery
of the Prosecutor’s Misconduct in Misleading the
Appellant’s Counsel as to the Testimony of Witness
Rutledge
After the Appellant’s arrest, but before the return of the indictment by
the Grand Jury, the Appellant filed with the trial court his own motion for
discovery on February 20, 2014. C.R., pg. 15. Counsel for Appellant
additionally filed a motion for notice of State’s intent to use extraneous
evidence, C.R., pg. 30, along with a motion for discovery of punishment
evidence, C.R., pg. 33, on October 20, 2014. On December 3, 2014, counsel for
Appellant filed with the trial court a motion for compliance with Article 39.14.
C.R., pg. 47. The following day, December 4, 2014, Appellant’s counsel filed
an additional motion for compliance with Article 39.14. C.R., pg. 49. The latter
motion contained an additional request that the State notify Appellant’s
counsel of the name and address of any witness who would make an in court
identification of the Appellant. Id.
On December 9, 2014, counsel for Appellant filed with the trial court,
prior to jury selection a motion in limine. C.R., pg. 63. The trial court
conducted a hearing on the motion, wherein, Appellant’s counsel asked the
14
trial court to prohibit the State from putting any evidence before the jury with
regard to identification, as the State had failed to respond to the request made
on December 4, 2014. Counsel for Appellant specifically pointed out to the
trial court that he had requested information regarding witnesses that would
be called for identification purposes and that the State had not responded. Vol.
2, pg. 5. When the trial court asked the Assistant District Attorney about the
specific request, the State responded:
MR. SHEPHERD: “The original motion for discovery the State
responded to way back, and the Defense did send a series this past
week of additional motions. The State had already provided the
Defense a complete witness list of all witnesses the State intended
to call. The State provided the Defense the name of Toni Rutledge.
Obviously she’s not an eyewitness to the offense, but it is clear to
the Defense that she would be someone that would know the
Defendant and would be able to possibly make an identification
based on her living with him and being the father of two of her
children.” Vol. 2, pg. 6.
In response, counsel for the Appellant informed the trial court:
15
MR. SHUMAKER: “Judge, we were never given anything that that
witness was going to testify as to that information. The only thing
they told us is through an extraneous offense deal that she was
going to testify that he supposedly possessed a gun or something
in October of 2013. And we feel like if Brady is to have any teeth
to it, that is the exact kind of information that’s in the possession
of the State that’s entitled to be produced. They sent us a witness
list, Judge, stating what every other witness was going to testify to.
There’s absolutely no mention that she’s going to attempt to
identify his voice.” Vol. 2, pg. 6.
Appellant’s counsel goes on to state that he was provided a response to notice
of 404(b) evidence that included the information that witness Rutledge was
being called to testify to a matter regarding the possession of a gun. Vol. 2, pg.
7. The trial court carried the motion along until such time as it had to research
the matter. Vol. 2, pg. 9.
The following morning, after the jury had been selected, the Appellant’s
counsel filed a motion to suppress identification. C.R., pg. 61. In his argument
before the trial court, Appellant’s counsel reiterated that in response to his
16
request for notice under 404(b), the State responded in writing that witness
Rutledge was going to testify to a matter involving a gun in October of 2014.
Vol. 3, pgs. 7-8. Both times counsel for Appellant put on the record that he was
told the witness would be testifying to the October matter, the State did not
disagree. In response to the Appellant’s motion the State responded:
MS. SUTTON: “Your Honor, as far as the request that the Defense
filed last week, that request tracked the language of the Morton
Act, that statute, and then Mr. Shumaker tacked on the end the
portion about voice identification. I don’t believe that that is
something that is required by statute for us to tell him that a
witness is going to be able to make an identification of the
Defendant based on their personal knowledge. That’s something
that we ask of any witness that is able to do such, that they identify
the Defendant based on their personal knowledge, and that’s
entirely admissible. And for the Defendant to say that he would
not know that his client’s girlfriend/spouse of nine years would be
able to make such identification seems pretty unreasonable.” Vol.
3, pgs. 8-9.
17
The trial court again carried the motion and instructed the attorneys to
not mention the witness and to not present any evidence until such time as the
trial court could re-address the matter. Vol. 3, pg. 9. At the trial court’s
morning break, the trial court again took up the matter of the Appellant’s
motion. Vol. 3, pg. 52. The trial court ruled that even though the State had
made reference that the defense was notified that the witness was going to
testify to an extraneous offense, the trial court would overrule the Appellant’s
motion. Vol. 3, pg. 53. Upon hearing the trial court’s ruling, counsel for the
Appellant then presented the trial court with a verified written motion for
continuance. C.R., pg. 63, Vol. 3, pg. 53. In requesting the continuance,
Appellant’s counsel argued:
MR. SHUMAKER: Just a second, Judge. In that regard, I have a
motion for continuance that I’m going to file that’s sworn to that
I would ask the Court to file, in that this information was not
provided to us. Had we known that there was going to be a voice
identification, we would have requested a consulting expert to
have had a chance to analyze this to see if it was in fact could be
18
attributed to the Defendant. It has changed our whole trial
strategy of this case. We’re claiming surprise at this point that it
was given to us the last day, and we’re asking for a continuance.
It won’t prejudice anybody for us to have a two-week continuance
to have a chance to secure an expert and to be able to adequately
cross examine this lady, and I will further state we have attempted
to contact her and she refuses to talk to us. The Defendant’s right
to receive effective assistance of counsel will be prejudiced at trial,
Judge, if we’re not allowed a continuance to have an opportunity
to investigate this matter further.” Vol. 3, pg. 53.
The trial court denied the Appellant’s motion for a continuance. Vol. 3,
pg. 55.
Article 29.13, of the Texas Code of Criminal Procedure provides, “a
continuance or postponement may be granted on the motion of the State or
defendant after the trial has begun, when it is made to appear to the
satisfaction of the court that by some unexpected occurrence since the trial
began, which no reasonable diligence could have anticipated, the applicant is
so taken by surprise that a fair trial cannot be had.” Art. 29.13,
19
Tx.C.Crim.Proc. (Vernon’s 2015).
The Court of Criminal Appeals has consistently stated: “We review a trial
court's ruling on a motion for continuance for abuse of discretion. Janecka v.
State, 937 S.W.2d 456, 468 (Tex.Crim.App.1996). To establish an abuse of
discretion, there must be a showing that the defendant was actually prejudiced
by the denial of his motion. Id. A bare assertion that counsel did not have
adequate time to interview the State's potential witness does not alone
establish prejudice. Heiselbetz v. State, 906 S.W.2d 500, 512
(Tex.Crim.App.1995). Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App.
2007).
The case before this Court however, is quite different from most requests
made under Article 29.13. In this case, the Appellant was informed by the
State that a particular witness would appear for a limited purpose, when in
fact the State intended to use her as its main and only corroboration witness
in the case. But for the representations made by the State with regard to what
she would have testified to, any attorney would have pursued an interview
with the witness. Once discovered, that she was to testify to the voice
identification of the Appellant, any attorney would have sought the assistance
of either an expert, or other witnesses familiar with Appellant who would have
20
potentially contradicted the testimony of Rutledge. If deception be practiced
upon the defendant in relation to the attendance of a state's witness, it may
constitute surprise. March v. State , 44 Tex. 64, 83 (1875) .
It is clear, that had the State merely listed the witness in its disclosure,
then the Appellant’s claim of surprise should, and most probably would have
fallen on deaf ears. Barney v. State, 698 S.W.2d 114 (Tex.Crim.App 1985). But
when the State, intentionally or not, directly deceives the defendant as to the
testimony of a witness, it cannot, in good faith claim that the Defendant would
not be harmed.
The most important right that any defendant has while facing a criminal
accusation is that of a fair trial. “The guarantee of due process under the
Fourteenth Amendment includes the right to a fair trial, and basic to this right
is the presumption of a defendant's innocence. Marx, 987 S.W.2d at 581
(citing Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525
(1986)). “To implement the presumption, courts must be alert to factors that
may undermine the fairness of the fact-finding process,” and, “[i]n the
administration of criminal justice, courts must carefully guard against dilution
of the principle that guilt is to be established by probative evidence and
beyond a reasonable doubt.” Id. (quoting Estelle v. Williams, 425 U.S. 501,
21
503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976)).” Romero v. State, 136 S.W.3d
680, 689 (Tex.App.—Texarkana 2004). To allow the State to benefit from this
event makes a mockery of the notion of a fair trial and does violence to the
spirit of Article 39.14, as amended by the Michael Morton Act.
22
CONCLUSION
It is for the reason stated in point of error number one that Appellant
prays that this Court reverse his conviction and render an order of acquittal
or in the alternative for the reasons stated in point of error numbers two and
three that this honorable court reverse his conviction and remand his case to
the trial court for a new trial consistent with the law.
Respectfully submitted,
/s/Alwin A. Smith
Alwin A. Smith
TBN: 18532200
al@alwinsmith.com
602 Pine Street
Texarkana, Texas 75501
903/792-1608
903/792-0899 Fax
Certificate of Compliance
Pursuant to the Tex. R. App. P. 9.4(i)(3), I hereby certify that this brief
contains 3,582 words (excluding the caption, table of contents, table of
authorities, signature of proof of service, certification and certificate of
compliance). This is a computer-generated document created in Wordperfect,
using 14 point typeface for all text. In making this certificate of compliance,
I am relying on the word count provided by the software used to prepare the
document.
23
/s/Alwin A. Smith
Certificate of Service
This is to certify that a true and correct copy of Appellant’s Brief has
been forwarded to the Appellant, Terrence Lavon Davis, #1972854, Ferguson
Unit, 12120 Savage Drive, Midway, Texas 75852 and Mr. Michael Shepherd,
601 Main Street, Texarkana, Texas 75501, Attorney for the State, 601 Main
Street, Texarkana, Texas 75501, on this the 9th day of July 2015, by placing
the same in the U.S. Mail or private courier service.
/s/Alwin A. Smith
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