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Ricky Wayne Wycough v. State ( 2004 )


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  • COURT OF APPEALS

    COURT OF APPEALS

    EIGHTH DISTRICT OF TEXAS

    EL PASO, TEXAS

     

    RICKY WAYNE WYCOUGH,                           )

                                                                                  )               No.  08-02-00418-CR

    Appellant,                          )

                                                                                  )                    Appeal from the

    v.                                                                           )

                                                                                  )     195th District Court

    THE STATE OF TEXAS,                                     )

                                                                                  )     of Dallas County, Texas

    Appellee.                           )

                                                                                  )     (TC# F-0118732-IN)

                                                                                  )

     

     

    O P I N I O N

     

    Appellant Ricky Wayne Wycough appeals his conviction for the offense of insurance fraud.  See Tex.Pen.Code Ann. ' 35.02 (Vernon 2003).  A jury found Appellant guilty of the offense as charged in the indictment and the trial court sentenced him to 1 year imprisonment, probated to 3 years= community supervision.  We affirm.

    In January 2001, Detective David Witt of the North Texas Auto Theft Task Force received a call from the Sachse Police Department about a possible stolen car.  He and fellow Detective John Harris went to Sachse and found a limousine parked behind a vacant mechanic shop.  There was a for-sale sign on the dashboard. Detective Witt called the phone number listed on the sign and a woman, later identified as Appellant=s wife, answered.  She denied they had a car for sale.   When Detective Witt told her that he was looking at a white limousine that had a for-sale sign with her phone number, she told him that they had sold the vehicle a year ago.

    Detective Witt observed some damage to the vehicle, in particular, it was rusted out along the bottom and the rear passenger window on the driver=s side was broken out.  There were no obvious signs of theft to the vehicle or any damage to indicate that it was hot-wired.  It looked like it had been there for awhile.  The detectives checked the VIN number and determined that the limousine matched the vehicle listed in the stolen report that Appellant had filed with the Dallas County Sheriff=s Department and later submitted to his insurance company.  The limousine was picked up by 24-Hour Wrecker Service and impounded.

    The detectives then interviewed Jarvis and Jackie Cole, who had owned the mechanic shop.  Mr. Cole told them that Appellant had called him to get a repair estimate for fixing the limousine and that Appellant brought the limousine to his shop.  The detectives also spoke with Rhonda Jones, Mrs. Cole=s sister and former employee of the shop. 

    Detective Witt then requested the insurance file from the insurance company to see the report on the theft of the vehicle.  He received the insurance packet four months later. From this material, Detective Witt learned that on February 17, 2000, Appellant had filed an insurance claim with State Farm Insurance Company, alleging theft of the limousine.  The State Farm records showed payment of $6,528 to Appellant on the claim.  Detective Witt testified, to his belief, that Appellant gave false and misleading statements to State Farm.  After reviewing the file, he and Detective Harris went and talked to Appellant on May 29, 2001.

    During Detective Witt=s conversation with Appellant, Appellant informed Detective Witt that he had heard that the limousine was at the Coles= business.  But he did not call the police or the insurance company to let them know because he did not want to get involved with the Coles.   He also explained that he had told his wife that if anyone called about the vehicle, to tell them they had sold it because he thought it would be easier to just tell them that it was sold. 

    Rhonda Jones testified at trial that she used to work for Jarvis Cole, her brother-in-law, as a receptionist and secretary at his limousine and mechanic shop.  According to Ms. Jones, Appellant and Mr. Cole used to be very good friends and knew each other well.  Ms. Jones recalled that while she was working there, Appellant called the shop several times to speak to Mr. Cole and they discussed what repairs he wanted done on the limousine because he was going to sell it.  The limousine had a for-sale sign on it with Appellant=s name and phone number when he brought it up to the shop for an estimate.  According to Ms. Jones, the limousine stayed at the shop for over a year with the for-sale sign displayed.

    Pamela Wycough, Appellant=s wife, testified that she and Appellant owned a limousine service business.  They purchased the limousine in 1992.  Mr. Cole gave her advice on running the business and occasionally drove for her. Their relationship soured in 1996 or 1997, when he used their limousine for a job and failed to pay them.

    The defense called Robert Lewis, Appellant=s employer, and Helen Earline Elliot, Appellant=s mother, to testify.  Mr. Lewis was familiar with Appellant=s limousine because Appellant used to bring it sometimes to Mr. Lewis= trucking company to do repairs.  Mr. Lewis recalled that one day, Appellant came in upset and told him the limousine was gone. Appellant then called the police. Mr. Lewis could not think of any reason why Appellant would have someone else make repairs on his vehicle.  Helen Earline Elliott, Appellant=s mother, also testified that Appellant was a mechanic and she could not imagine any circumstances where her son would have to take a vehicle to someone else for repairs.

    Appellant testified in his own defense.  Appellant last saw the limousine parked outside his employer=s shop where he had brought it to work on replacing the brakes.  Appellant did not recall seeing any broken glass on the ground and remembered having locked the vehicle.  Appellant stated he would not have trusted Jarvis Cole to work on the vehicle because he is not a mechanic.  Appellant also stated that Mr. Cole knew where he worked because he had come out there a couple of times with Marshall Biggs.  When he discovered the limousine was missing, he contacted the Sheriff=s Department and gave a true statement to the sheriff about the loss.  Appellant called his mother to find out what type of coverage the vehicle had and then called the insurance agent.  Appellant testified that his statements to the insurance company were true.  He denied taking the limousine to Mr. Cole=s garage and stated that he did not consider Mr. Cole trustworthy enough to have possession of his limousine.  In 1991 or 1992, he and Mr. Cole became acquaintances but later on, he curtailed their relationship.  Appellant did not know where Mr. Cole=s shop was located and had never been there.

    Later that spring, Appellant had a conversation with Robert Wolfe, a friend, in which there was mention of the limousine and Appellant told him that he better not be working on it because it was stolen.  A couple of months later, Appellant received a phone call and based on that conversation, he reached the conclusion that Jarvis Cole had his limousine.  He did not call the police at that time because he did not want to get mixed up with Mr. Cole and figured that Mr. Cole was going to get caught with it.  Appellant thought it would be safer if he stayed away from him.

    After both sides had rested and closed, but before closing arguments, the State made a motion to reopen its evidence to call Jarvis Cole as a witness.  Appellant objected on surprise grounds.  The trial court permitted the State to call Mr. Cole as a witness.  Jarvis Cole testified that he used to own a shop in Sachse doing limousine repair and warranty work.  He also painted cars, did some bodywork, and ran his air-conditioning company at the location.  At some point while he was operating his shop, Appellant brought in a limousine.  Appellant had called up Mr. Cole and asked if he had time to check his car out. Mr. Cole told Appellant to drop it off at his shop and that he would call him in a couple of days and give him an estimate.  Mr. Cole was asked to do an estimate on it because Appellant wanted to sell it.

    A couple days later, Mr. Cole quoted Appellant a price of $5,200 to $5,500, which they both agreed was too much money because the car was not worth that much.  Appellant told him that he could not sell it for that much and that he would get back to him in a couple days to let him know what he decided.  Eventually, Mr. Cole contacted Appellant and asked him to come and get it, since he had not made up his mind and it was taking up space. After a month and a half, Mr. Cole jump started the limousine and moved it out back.  The limousine sat out there for about a year.  Mr. Cole denied stealing the limousine and did not know how its window was broken.  Mr. Cole admitted having a criminal history, which included assault, injury to a child, evading arrest, violation of a protective order, driving while license suspended, theft by check, unlawfully carrying a weapon, forgery, and burglary.

    The defense called Don Ingle, a private investigator, as a rebuttal witness.  Mr. Ingle testified that Appellant and his counsel retained him to investigate this case. During the course of that investigation, Mr. Ingle spoke with people acquainted with Mr. Cole who informed him that Mr. Cole=s reputation for being peaceful and law-abiding was bad.  They also informed him that Mr. Cole=s reputation for being a truthful, honest citizen and honest businessman was bad.

    DISCUSSION

    Exculpatory Evidence

    In Issue One, Appellant argues the trial court erred by failing to grant his motion to dismiss due to the State=s destruction of evidence, the limousine that formed the basis of the insurance fraud.  Specifically, Appellant asserts that the limousine was clearly a source of potential exculpatory evidence at the time the State authorized the insurance company to dispose of it, giving him no chance to inspect the limousine and gather evidence in his own defense. 

    The State=s duty to preserve evidence is limited to the evidence that possesses an exculpatory value that was apparent before the evidence was destroyed.  California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L. Ed. 2d 413 (1984); Lee v. State, 893 S.W.2d 80, 86 (Tex.App.--El Paso 1994, no pet.).  To show a denial of due process has occurred when evidence was lost, a defendant must show the evidence was:  (1) material; (2) favorable to the defense; and (3) destroyed in bad faith by the State.  See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L. Ed. 2d 281 (1988); Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2534.  A showing that evidence might have been favorable does not meet the materiality standard.  Lee, 893 S.W.2d at 87.  If evidence is destroyed in good faith and in accord with normal police practice, there is no due process violation.  See Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533.

    At trial, Detective Witt testified that the vehicle was released to the insurance company because the company had paid a claim on it. He explained that it was not kept as evidence because the task force had photographs of the car and wanted to spare the insurance company the storage fees charged by the impound yards. According to Detective Witt this is standard.  The task force itself does not have an area where they can store such vehicles, but instead impounds vehicles with the towing service.  Detective Witt testified that the insurance company requested permission for release of the limousine, and as the owner, did not need his permission to get rid of it.

    Detective Harris also testified that the task force uses the state-certified storage facility of 24-Hour Wrecker Service and does not have a storage facility of its own.  In most cases, once notified, the insurance company comes within a matter of days to get the vehicle because storage fees accumulate daily.  The companies then will come remove the vehicles, pay the storage fees and towing fee, and take it to their facilities.  Detective Harris explained that if a vehicle is reported stolen, they look to see if a claim has been paid.  If the claim has been paid, the insurance company in this case, State Farm, owns the vehicle.  Detective Harris stated that they have to notify the owner within fifteen days and then determine whether to have a property hearing or release the vehicle.  They are mandated by their policy to determine rightful ownership and get the vehicle back to that individual or to the insurance company without delay. 

    Appellant argued at trial and now on appeal that through inspection of the limousine, he could have compared the mileage on the odometer, had an expert examine the damage to determine when it occurred, and could have examined the engine to see if it was working to refute Detective Witt=s testimony that the engine needed to be overhauled.  Appellant=s showing that the lost evidence might have been favorable fails to meet the materiality standard.  See Lee, 893 S.W.2d at 87. Further, Appellant has failed to show the State=s destruction of the limousine was in bad faith. See id. at 86.  Both detectives testified that release of the limousine to the owner was a standard procedure and there is no evidence to indicate bad faith on the part of the State in following its policy.  Issue One is overruled.


    Business Records Exception to Hearsay

    In his second issue, Appellant contends the trial court erred in admitting State=s Exhibit One, State Farm=s insurance claim file, which contained various documents which Appellant asserts were not admissible under the business records exception. Specifically, Appellant challenges the admissibility of the following documents contained in the company=s file:  (1) statements in the activity log about Detective Witt=s investigation; (2) the National Insurance Crime Bureau claim referral which states State Farm suspected fraud; (3) Appellant=s criminal record; and (4) Appellant=s prior insurance claims. 

    Texas Rules of Evidence 803(6) permits admission into evidence of records kept in the course of a regularly conducted business activity as an exception to the hearsay rule.  See Tex.R.Evid. 803(6), 802.  To be properly admitted under the business records exception, the proponent must prove the document was made at or near the time of events recorded, by or whom information transmitted by a person with knowledge of the events, and made and kept in the course of regularly conducted activity.  See Tex.R.Evid. 803(6); Philpot v. State, 897 S.W.2d 848, 851-52 (Tex.App.--Dallas 1995, pet. ref=d).  The trial court=s admission of evidence is reviewed under an abuse of discretion standard.  Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App. 1990).

    At trial, Appellant objected to the admissibility of certain documents contained in the State Farm insurance claim file. Appellant raised a hearsay objection to pages 17 and 19 of the insurance company=s activity log, which he describes as a summary of the State=s case based on conversations with Detective Witt and an unidentified source. Appellant also objected to the admissibility of a claim search of Appellant=s prior insurance claims on grounds that it was prejudicial.  The trial court limited the admissibility of the State Farm insurance claim file as business records, giving the following limiting instruction to the jury:

    Ladies and gentlemen of the Jury, these are a fairly substantial amount of records from the Complainant in the case, the insurance company.  They are complied by various employees, many whom you will not hear or see.  We don=t know the basis of the preparation of these documents, or at least it is not known at this time, so no one can vouch for the veracity of these records.

    Now, maybe individual records will be proved up during the course of the trial, but you--what I=m trying to get across to you is you are not to take them as being the gospel truth that this happened, as a matter of historical fact.  They are offered for the purpose of allowing you to see what records the insurance company has put together, but the truthfulness of them remains to be proven.

     

    Appellant did not object to this limiting instruction.  By its limiting instruction, the trial court informed the jury that at that time, the State Farm insurance claim file were not being offered for their truth.[1]  See Tex.R.Evid. 105(a); Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L. Ed. 2d 479 (1993), overruled in part on different grounds by Maxwell v. State, 48 S.W.3d 196, 200 (Tex.Crim.App. 2001).  The jury is presumed to follow the trial court=s instructions in the manner presented.  See Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App. 1996)(jury presumed to follow court=s instructions as given in charge).  Because State=s Exhibit One was not admitted to prove the truth of the matter asserted, its contents about Detective Witt=s investigation were not inadmissible on hearsay grounds and therefore, the trial court did not abuse its discretion in admitting the company=s activity log in this regard.  See Tex.R.Evid. 105(a), 801(d).

    On appeal, Appellant also contends the trial court erred in admitting the file=s claim search of Appellant=s prior insurance claims, arguing that it was inadmissible as extraneous offense evidence under Rule 404(b).  Appellant=s argument on appeal does not comport with any of his trial objections.  See Fuller v. State, 827 S.W.2d 919, 928 (Tex.Crim.App. 1992); Tex.R.App.P. 33.1(a)(1)(A).  Therefore, error if any, is waived as to the admissibility of the prior insurance claims document.  We also decline to consider Appellant=s arguments on appeal that the trial court erred in admitting the National Insurance Crime Bureau claim referral and Appellant=s criminal record, which were contained in the insurance company=s file. At trial, Appellant did not object to admission of these documents.  An objection must be timely and specific to preserve error.  See Tex.R.App.P. 33.1(a)(1)(A).  We overrule Issue Two.

    Limitation on Cross-Examination

    In his third issue, Appellant argues the trial court erred in limiting cross-examination of State=s witness Rhonda Jones about whether she lied to the State when she told the State that she had no criminal record during its preparation of the case.  Appellant asserts that this information was a proper form of cross-examination to establish the witness is prepared to lie to the State. 

    The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right to confront the witnesses against him.  See U.S. Const. Amend. VI; Pointer v. State of Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L. Ed. 2d 923 (1965).  The right to cross-examination, however, is not unlimited and the trial court has broad discretion to limit the scope of


    cross-examination to prevent Aharassment, prejudice, confusion of the issues, the witness= safety, or interrogation that is only marginally relevant.@ Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986).  We review the trial court=s decision to exclude evidence under an abuse of discretion standard.  Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L. Ed. 2d 68 (1993). 

    Outside the jury=s presence, Appellant=s counsel informed the trial court of her intention to offer into evidence prior convictions within the last ten years against Ms. Jones for impeachment purposes.  The trial court indicated it would permit impeachment with the prior convictions. Appellant=s counsel also sought to impeach Ms. Jones with statements she made to the State prosecutor during its investigation in which Ms. Jones indicated she had no criminal history.

    Testifying outside the jury=s presence on this matter, Ms. Jones stated she was convicted in the justice court for bad checks probably fifteen years ago and believed the convictions were all over ten years old.  Ms. Jones did not recall any of the bad check convictions during 1998 and 1999, which were shown to her by Appellant=s counsel.  Ms. Jones explained that she did tell the prosecutor that she did not have a criminal record because she thought it was fifteen years ago and did not think that that was still on her record.  Defense counsel argued that the evidence showed she told a lie to the State during the preparation of the case and was relevant to her credibility.  In response, the State argued it was an honest mistake and too prejudicial to put in front of the jury.  The trial court ruled that it would not permit examination of Ms. Jones concerning her conversations with the prosecutors. 

    At trial, the State questioned Ms. Jones about the bad checks.  To her knowledge, all those checks had been take care of and repaid.  On cross-examination, defense counsel questioned Ms. Jones about the bad checks, asking her if there could be as many as twenty bad checks that had been brought against her.  Ms. Jones did not recall how many there were. 


    On appeal, Appellant asserts the trial court should have permitted him to show the jury that the witness had lied to the State in the State=s preparation of its case.  A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.  Tex.R.Evid. 611(b).  While Rule 608(a) permits admission of opinion and reputation evidence to attack or support the credibility of a witness, subsection (b), prohibits the introduction of specific instances of conduct for those same purposes.  See Tex.R.Evid. 608 (a)and (b).  Despite Appellant=s urging, Ms. Jones= testimony about her statement to the State prosecutor does not show that she directly lied to the State concerning her criminal record, but rather shows her mistaken belief about the status of that record. 

    Regardless, this evidence was not permissible to attack Ms. Jones= credibility because Rule 608(b) bars impeachment of a witness=s general character for truthfulness through specific acts of conduct other than evidence of conviction of a crime.  See Dixon v. State, 2 S.W.3d 263, 271 (Tex.Crim.App. 1998); Tex.R.Evid. 608(b), 609.  Further, the State objected to the evidence on grounds that it was too prejudicial.  Even assuming Ms. Jones= statement was admissible as an exception to Rule 608(b) as Appellant asserts, the trial court could have reasonably determined that its probative value was substantially outweighed by the danger of unfair prejudice pursuant to Rule 403.  See Tex.R.Evid. 403. Under these circumstances, we conclude the trial court did not abuse its discretion in concluding this evidence was inadmissible.  Issue Three is overruled.

    Through his fourth issue, Appellant also argues the trial court erred by refusing to permit him to cross-examine Ms. Jones about whether her motive in giving a statement was to protect Mr. and Mrs. Cole.  Rule 613(b) permits impeachment of a witness by proof of circumstances or statements showing his or her bias or interest.  See Tex.R.Evid. 613(b).  Generally, a defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose motive, bias, or interest for a witness to falsify his or her testimony, subject to the trial court=s discretion to limit the scope of cross-examination.  See Carroll v. State, 916 S.W.2d 494, 497-98 (Tex.Crim.App. 1996).

    During cross-examination of Ms. Jones, Appellant=s counsel asked Ms. Jones the following question: AIsn=t it true that the reason you gave this statement was to keep Jarvis Cole out of jail for stealing this car?@  The trial court sustained the State=s objection to this question.  An off-the-record discussion then occurred.  The following day, Appellant=s counsel requested that the record reflect her objection that this was relevant evidence to show Ms. Jones= motive to falsify her testimony.

    To complain of excluded evidence, the proponent must make an offer of proof or an informal bill of exceptions to establish the substance of the evidence for review.  Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App. 1999); see Tex.R.Evid. 103(a)(2) and (b).  Absent a showing of what the testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review.  Guidry, 9 S.W.3d at 153.  Here, Appellant made no offer of proof nor a bill of exceptions concerning the specific question asked of Ms. Jones.  Finding nothing preserved for review, we overrule Issue Four.

    Alternate Perpetrator Theory

    In Issue Five, Appellant contends the trial court erred in forbidding testimony concerning extraneous offenses of Jarvis Cole through testimony of three witnesses.  Appellant argues that the testimony concerning Mr. Cole=s character and extraneous offenses would have been relevant to support his alternate perpetrator defensive theory. 


    In the offer of proof, Appellant=s counsel stated witness Tim Heron would have showed that property had been taken from Mr. Heron by Mr. Cole who subsequently claimed that there was a civil issue arising from that property.  Appellant=s counsel stated Mr. Heron took Mr. Cole to court and Mr. Heron recovered the property showing that Mr. Cole=s claims about that property were false.  Appellant would have called Tim Ayas to testify that Mr. Cole had him sign a lease for property that Mr. Cole knew he no longer controlled, then took the money for the property and never returned it. Witness R.W. Greenwood, Jr. would have testified that Mr. Cole had a reputation in the community for being deceitful and untrustworthy, and has a bad reputation in the community with regard to being violent.  Appellant argued the witnesses= testimony was relevant and prohibiting its admission violated his right under the Sixth Amendment to present witnesses in his defense. 

    Alternate perpetrator evidence may be admitted to establish a defendant=s innocence by showing that someone else committed the crime.  Wiley v. State, 74 S.W.3d 399, 406 (Tex.Crim.App. 2002).  However, the defendant still must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged Aalternative perpetrator.@ Id.  Courts must be sensitive to the special problems presented by alternative perpetrator evidence in Rule 403 evidentiary rulings on its relevancy.  See id.

    Here, Appellant was charged with the offense of insurance fraud.  Section 35.02(a) of the Texas Penal Code provides:

    A person commits an offense if, with the intent to defraud or deceive an insurer, the person causes to be prepared or presents to an insurer in support of a claim for payment under a health or property and casualty insurance policy a statement that the person knows contains false or misleading information concerning a matter that is material to the claim, and the matter affects a person=s right to a payment or the amount of payment to which a person is entitled.

     

    Tex.Pen.Code Ann. ' 35.02(a)(Vernon Supp. 2004).

     

    In cross-examination, Appellant conceded that he filed the insurance claim with State Farm, but denied that it contained false or misleading information or that is was filed with the intent to defraud or deceive. 

    Appellant=s proffered witnesses= testimony may have shown that Mr. Cole has taken property from others and has a bad reputation in the community, but it provides no nexus on its own, or in combination with other evidence between the crime charged, insurance fraud, and Mr. Cole as the alleged alternative perpetrator of that offense. See Wiley, 74 S.W.3d at 406.  To the extent that the proffered evidence would have been even marginally relevant to the defense theory that Mr. Cole was the Areal thief,@ the trial court could have reasonably concluded that its probative value was substantially outweighed by confusion of the issues or misleading to the jury.  See Tex.R.Evid. 403. We overrule Issue Five.

    In Issue Twelve, Appellant complains of cumulative error on the court=s restriction on his right to present an alternate perpetrator.  However, proffered evidence during the trial to show Mr. Cole took the vehicle would not have been sufficient to establish Appellant=s alternate perpetrator theory because no nexus was shown between this evidence and the crime allegedly committed.  See Wiley, 74 S.W.3d at 406.  Finding no cumulative error, we overrule Issue Twelve.

    Undisclosed Witness

    Appellant argues in his sixth issue that the trial court erred in permitting the State to offer Jarvis Cole=s testimony after both sides had rested and closed.  At trial prior to final arguments, the State requested permission to offer Jarvis Cole=s testimony to contradict Appellant=s defense theory.  Appellant objected to allowing Jarvis Cole to testify on surprise grounds.  On appeal, we understand Appellant=s contention to be that the trial court erred in allowing a State=s witness to testify who had not been previously disclosed to Appellant. 

    Article 36.02 of the Texas Code of Criminal Procedure provides that the trial court Ashall 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.@  Tex.Code Crim.Proc.Ann. art. 36.02 (Vernon 1981).  The decision to reopen a case is left to the trial court=s sound discretion.  See generally Peek v. State, 106 S.W.3d 72, 75 (Tex.Crim.App. 2003).  A trial court abuses its discretion if it refuses to reopen a case when the witness is present and ready to testify, the request to open has been made before the charge was read to the jury and final arguments were made, the court has some indication of what the testimony will be and is satisfied that the testimony is material and bears directly on the main issues in the case, and there is no showing that introduction of the testimony will impede the trial or interfere with the orderly administration of justice.  See Sims v. State, 833 S.W.2d 281, 286 (Tex.App.--Houston [14th Dist.] 1992, pet. ref=d); Gibson v. State, 789 S.W.2d 421, 423 (Tex.App.--Fort Worth 1990, pet. ref=d).

    We review the trial court=s decision to allow a disclosed State=s witness to testify for an abuse of discretion. See Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App. 1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L. Ed. 2d 879 (1994).  In reviewing the trial court=s decision, we should consider whether there is a showing of bad faith on the part of the State and whether the defendant could reasonably anticipate that the witness would testify, even though the name is not on a witness list.  Nobles v. State, 843 S.W.2d 503, 514-15 (Tex.Crim.App. 1992).  In determining bad faith reviewing courts have inquired:  (1) whether the defense shows that the State intended to deceive; (2) whether the State=s notice left the defense adequate time to prepare; and (3) whether the State freely provided the defense with information, that is, by maintaining an open files policy, by providing updated witness lists, or by promptly notifying the defense of new witnesses.  Hardin v. State, 20 S.W.3d 84, 88 (Tex.App.--Texarkana 2000, pet. ref=d).  Further, reviewing courts examining whether the defense could have anticipated the State=s witness have considered:  (1) the degree of surprise to the defendant; (2) the degree of disadvantage inherent in that surprise; and (3) the degree to which the trial court was able to remedy that surprise.  Id. at 88-9.

    On appeal, Appellant asserts that it was not reasonable to anticipate Jarvis Cole would testify after being repeatedly told by the State that he would not.  Further, Appellant argues the State could have contacted the defense to make it aware that it intended to call Mr. Cole as a witness.  In this case, the State rested and closed its case on the first day of trial.  On the second day of trial, the State prosecutor represented to the trial court that he had a conversation on the prior evening with Mr. Cole in which Mr. Cole expressed that he wanted to come in that day to testify about Appellant bringing in the limousine to his shop.  The parties were permitted to voir dire Mr. Cole outside the jury=s presence. 


    There is nothing in the record to indicate the State intended to deceive Appellant by failing to inform him before the next day of trial or otherwise acted in bad faith.  Further, Appellant could have reasonably anticipated what Mr. Cole=s testimony given that Mr. Cole=s sworn statement was already in evidence. Voir dire testimony also indicated his testimony was cumulative of his statement and Rhonda Jones= testimony.  While the trial court did not grant Appellant=s motion for a continuance, the trial court was able to remedy Appellant=s surprise, if any, by having the State provide Mr. Cole=s criminal history record for cross-examination. We conclude the trial court did not abuse its discretion in admitting Mr. Cole=s testimony.  Issue Six is overruled.

    Improper Jury Argument

    In Issue Seven, Appellant contends that the State prosecutor intentionally lied to the jury during closing argument.  In his closing argument to the jury, the prosecutor stated:

    They got to talk about how bad a person she is.  She knew that she had some bad check cases in the past. She knew that.  And she knew when she came in this door that everything bad that she=s ever done is going to come back and be thrown in her face.  She knew that.  She came in any way, and she told you the truth, that she saw the Defendant, she saw his wife at the shop drop off the car.  Did she change her story?  No, she didn=t.

     

    Appellant did not object to the State=s jury argument at trial, but on appeal argues the prosecutor intentionally mislead the jury because he knew that Ms. Jones had told him previously that she had no criminal record and that she had only learned her criminal record was going to be made evident to the jury after the hearing outside the jury=s presence.  Appellant argues this was fundamental error so egregious and its harm so great that he was denied a fair and impartial trial. 


    To preserve any error from improper jury argument, a party must object to the argument and pursue the objection until the trial court rules adversely.  Mathis v. State, 67 S.W.3d 918, 926-27 (Tex.Crim.App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); see Tex.R.App.P. 33.1.  To do so, a party must object to the argument, request an instruction for the jury to disregard, and then move for a mistrial.  Cockrell, 933 S.W.2d at 89. Appellant=s complaint on appeal involves rights implemented on request only, that is, an objection to the State=s response to defense counsel=s attack on Ms. Jones credibility through impeachment evidence.[2]   A defendant=s right not to be subjected to improper prosecutorial jury argument falls within the third category of rights addressed in Cockrell, which a defendant waives if he does not pursue his objection to an adverse ruling.  See id.; Calderon v. State, 950 S.W.2d 121, 137-38 (Tex.App.--El Paso 1997, no pet.).  We conclude Appellant failed to preserve error as to the State prosecutor=s jury argument, therefore Issue Seven is overruled. 

    Motion for Continuance

    Through his Issues Eight and Nine, Appellant contends the trial court erred in not granting his oral motion for a continuance to bring in witnesses he had released and by not granting him additional time to prepare closing arguments. 


    We review a trial judge=s denial of a motion for continuance for an abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002).  To establish an abuse of discretion, the defendant must show that he was actually prejudiced by the denial of his motion.  Id.  After a trial has begun, a continuance may be granted Awhen 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.@  Tex.Code Crim.Proc.Ann. art. 29.13 (Vernon 1989). When a defendant=s complaint of the denial of a continuance is based on the absence of a witness, the defendant must make a showing as to what the witness=s testimony would have been.  See Gentry v. State, 770 S.W.2d 780, 787 (Tex.Crim.App. 1988).  A defendant may make this showing by attaching affidavits to the motion for continuance or to a motion for new trial or by providing testimony at a new trial hearing.  Id. at 787-88. 

    At trial, Appellant requested a continuance to bring back available witnesses he had released from subpoenas, which he did based on the trial court=s ruling against introduction of evidence about Jarvis Cole.  Appellant claimed he had at least three witnesses to bring back to testify.  Appellant sought a continuance to call the witnesses he had released without the court=s permission for impeachment purposes.  In his motion for new trial, Appellant made no showing as to what these absent witnesses would have testified to.  We find that Appellant has failed to preserve error, if any, on the trial court=s denial of the motion for continuance.  Issue Nine is overruled.

    Appellant also argues the trial court erred in not granting him additional time to present his final argument in light of the State calling Jarvis Cole as a witness, which denied him his right to a fair trial.  At trial, Appellant=s counsel requested more time to modify her closing argument, specifically to argue after lunch.  In response, the trial judge stated, ANo, I=m sorry, we can=t.@ Appellant=s counsel replied, AOkay.@

    A trial court has broad discretion in the conduct of a trial proceeding.  See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 199 (Tex.Crim.App. 2003)(orig. proceeding).  Assuming Appellant has not waived error by his counsel=s reply, Appellant fails to show that his right to a fair trial was hindered by the trial court=s decision not to postpone the trial proceeding. Unlike the cases Appellant relies on in his brief, Appellant was not denied the right to counsel or the opportunity to present a closing argument.  See e.g., Medley v. State, 47 S.W.3d 17, 25-6 (Tex.App.--Amarillo 2000, pet. ref=d)(trial court erred in denying appellant=s request to withdraw his waiver of right to counsel); Dang v. State, 99 S.W.3d 172, 191 (Tex.App.--Houston [14th Dist.] 2002, pet. granted)(the trial court did not abuse its discretion by limiting appellant=s closing argument to twenty minutes); Herring v. New York, 422 U.S. 853, 863, 95 S.Ct. 2550, 2555, 45 L. Ed. 2d 593 (1975)(a trial judge cannot absolutely deny a defendant the opportunity for any closing summation at all).  Under these circumstances, we find the trial court did not abuse its discretion in refusing to grant Appellant additional time to prepare closing argument.  Issue Eight is overruled.

    Jury Charge

    In his tenth and eleventh issues, Appellant contends the trial court committed reversible error by denying his request for a jury instruction on the definition of reasonable doubt and for an instruction that Appellant=s refusal to sign a written statement was no evidence of guilt. 

    With respect to Appellant=s complaint that the trial court erred in failing to include a definition of reasonable doubt in the charge, the Texas Court of Criminal Appeals has held that a trial court is no longer required to instruct a jury on the definition of reasonable doubt, finding that the Abetter practice is to give no definition of reasonable doubt at all to the jury.@ Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000), overruled in part by Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991).  The trial court in Appellant=s case did not err in refusing Appellant=s request of such an instruction.  Issue Ten is overruled.

    Appellant also requested an instruction that an individual=s refusal to sign a written statement is no evidence of guilt.  The trial court denied the request, stating its determination that it was a fact that can be introduced into evidence and that it did not see it as highly prejudicial.

    At trial, Detective Witt gave the following testimony concerning his interview with Appellant about the limousine.  At the start of their conversation at Appellant=s business on May 29, 2001, Detective Witt told Appellant they were investigating the theft of the car and gave Appellant a Miranda warning.  Appellant then signed a Miranda waiver.  Detective Witt never told Appellant he was under investigation. Detective Witt testified that after they finished talking, he asked Appellant if he would put in writing what he had just told him.  Appellant declined, stating he did not want to do that, that he had already talked to his attorney and she advised him not to talk to us without her being there.

    On direct examination, Appellant testified that he received word that the investigators wanted to speak to him.  Appellant placed a phone call to his attorney because he had heard stories about what they were saying.  His attorney gave him some suggestions as to what to do if the police came to see him, but he did not exactly follow them.  Appellant stated that he voluntarily spoke to the investigators and what he said during the course of that conversation was the truth. Appellant recalled telling them about his conversation with Mr. Wolfe and that he told his wife what to say about the car.  They asked him to sign a statement, but he declined.  Appellant explained that he did not know whether to sign a statement and wanted to talk to his attorney before actually giving them a written statement.  He told Investigator Witt that he did not really mind, since he had already talked to him, but wanted to talk with his attorney first and would get back to him, which he did.

    On appeal, Appellant asserts that just as it is improper to impeach an individual with his post-arrest silence, it is also improper to impeach an individual with a post-arrest refusal to sign a written statement, or to use that refusal for any purpose.  Appellant contends that like his right to an instruction on his Fifth Amendment right not to testify, he is also entitled to an instruction that his refusal to give a written statement is no evidence of guilt. 

    The accused has a right to remain silent when arrested, and the exercise of that right may not be used against the defendant as a circumstance tending to show guilt.  Sanchez v. State, 707 S.W.2d 575, 578 (Tex.Crim.App. 1986).  However, in this case, Appellant did not invoke his right to remain silent, but rather spoke voluntarily with the investigators and then decided not to reduce his oral statements to writing.  While Detective Witt did give Appellant Miranda warnings prior to his interview, there is no evidence to indicate Appellant was under arrest at the time.  Even assuming that Appellant was under arrest, Appellant points to no authorities in support of his contention that a post-arrest refusal to sign a written statement is an exercise of his Fifth Amendment rights where he chose not to remain silent.  Further, the record does not show that the State attempted to use the fact of his refusal as evidence tending to show his guilt.  We find that no error exists in the jury charge concerning the trial court=s denial of Appellant=s limiting instruction.  See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996)(in reviewing for jury charge error, the reviewing court must first decide whether error exists). Issue Eleven is overruled.

    Having overruled all of Appellant=s issues for review, we affirm the trial court=s judgment.

    May 20, 2004

    DAVID WELLINGTON CHEW, Justice

     

    Before Panel No. 2

    Barajas, C.J., McClure, and Chew, JJ.

     

    (Do Not Publish)


    [1] A>Hearsay= is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ Tex.R.Evid. 801(d).

    [2] Defense counsel in closing arguments had stated, AThis is Rhonda Jones. And then finally, we talked about the fact that we can introduce prior convictions to show someone=s not trustworthy.  She admitted to the conviction of ten--of 20 bad checks.  I submit to you that Rhonda Jones, based upon the testimony you heard, is not a credible witness as to what happened that day.@