Robert Bryan Finch v. State ( 2015 )


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  •                                                                                  ACCEPTED
    06-14-00182-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    4/16/2015 10:53:39 AM
    DEBBIE AUTREY
    CLERK
    ORAL ARGUMENT WAIVED
    FILED IN
    6th COURT OF APPEALS
    CAUSE NO. 06-14-00182-CR            TEXARKANA, TEXAS
    4/16/2015 10:53:39 AM
    IN THE                       DEBBIE AUTREY
    Clerk
    COURT OF APPEALS
    SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
    ____________________________________________________________
    ROBERT BRYAN FINCH, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    ____________________________________________________________
    ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
    LAMAR COUNTY, TEXAS
    TRIAL COURT NO. 25677; HONORABLE BILL HARRIS, JUDGE
    ____________________________________________________________
    APPELLEE’S (STATE’S) BRIEF
    ____________________________________________________________
    Gary D. Young, County and District Attorney
    Lamar County and District Attorney’s Office
    Lamar County Courthouse
    119 North Main
    Paris, Texas 75460
    (903) 737-2470
    (903) 737-2455 (fax)
    ATTORNEYS FOR THE STATE OF TEXAS
    IDENTITY OF PARTIES AND COUNSEL
    Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and
    counsel is not required to supplement or correct the appellant’s list.
    -i-
    TABLE OF CONTENTS
    PAGE NO.:
    IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . .                                 i
    TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                ii
    INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .                  iv
    STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . .                     vii
    STATEMENT REGARDING ORAL ARGUMENT . . . . . . . .                                          viii
    ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . .                        ix
    INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           1
    STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 2
    SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . .                           13
    ARGUMENT AND AUTHORITIES
    ISSUE PRESENTED IN REPLY NO. 1: WHEN
    POTENTIAL JURORS SAW FINCH UNDER PHYSICAL
    RESTRAINT OUTSIDE THE COURTROOM, THE
    TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
    DENYING THE APPELLANT’S MOTION FOR MISTRIAL
    BECAUSE SUCH AN ENCOUNTER WAS INADVERTENT,
    FORTUITOUS AND AWAY FROM THE COURTROOM;
    THERE WAS NO ERROR, AND THERE WAS
    NO HARM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
    -ii-
    PAGE NO:
    ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL
    COURT DID NOT ABUSE ITS DISCRETION IN
    DECIDING TO ADMIT THE TESTIMONY OF THE
    APPELLANT’S MOTHER, ANGIE ROSSON, BECAUSE
    IT BALANCED THE INTERESTS OF THE STATE
    AND THE ACCUSED, CONSIDERED ALTERNATIVE
    SANCTIONS AND CONSIDERED THE BENEFIT AND
    DETRIMENT ARISING FROM A DISQUALIFICATION
    IN LIGHT OF THE NATURE AND WEIGHT OF THE
    TESTIMONY TO BE OFFERED; IN THE ALTERNATIVE,
    FINCH COULD NOT SHOW HARM. . . . . . . . . . . . .                                          19
    PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         25
    CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . .                                26
    CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . .                           26
    -iii-
    INDEX OF AUTHORITIES
    CASES:                                                                                          PAGE:
    Bell v. State, 
    938 S.W.2d 35
    , 50 (Tex. Crim. App. 1996) . . . . . . . .                          20,22
    Boyington v. State, 
    787 S.W.2d 469
    , 471 (Tex. App.--
    Houston [14th Dist.] 1990, pet. ref’d) . . . . . . . . . . . . . . . . . .                    18
    Bryant v. State, 
    282 S.W.3d 156
    , 161, 162 (Tex. App.--Texarkana
    2009, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21, 22
    Coleman v. State, 
    652 S.W.2d 205
    , 207 (Tex. App.--
    Houston [14th Dist.] 1982, pet. ref’d) . . . . . . . . . . . . . . . . . .                    17
    Garza v. State, 
    10 S.W.3d 765
    , 767, 768 (Tex. App.--Corpus Christi
    2000, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       19
    Guerra v. State, 
    771 S.W.2d 453
    , 474, 475 (Tex. Crim.
    App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    21,22
    Hawkins v. State, 
    135 S.W.3d 72
    , 77 (Tex. Crim.
    App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      15
    Ladd v. State, 
    3 S.W.3d 547
    , 567 (Tex. Crim. App. 1999) . . . . . . .                              15
    Martinez v. State, 
    186 S.W.3d 59
    , 65 (Tex. App.--Houston
    [1st Dist.] 2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21,22
    Moore v. State, 
    882 S.W.2d 844
    , 848 (Tex. Crim. App. 1994) . . . .                                 20
    Ocon v. State, 
    284 S.W.3d 880
    , 884 (Tex. Crim.
    App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15,17,18
    .
    Pina v. State, 
    38 S.W.3d 730
    , 733, 740, 741 (Tex. App.--
    Texarkana 2001, pet. ref’d) . . . . . . . . . . . . . . . . . . 14,15,16,17,18,19
    -iv-
    CASES:                                                                                           PAGE:
    Potter v. State, 
    74 S.W.3d 105
    , 110 (Tex. App.--Waco
    2002, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      21
    Routier v. State, 
    112 S.W.3d 554
    , 590 (Tex. Crim. App. 2003),
    cert. denied, 
    541 U.S. 1040
    , 
    124 S. Ct. 2157
    , 
    158 L. Ed. 2d 728
    (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            23
    Russell v. State, 
    155 S.W.3d 176
    , 181 (Tex. Crim.
    App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      
    20 Taylor v
    . State, 
    173 S.W.3d 851
    , 853 (Tex. App.--Texarkana
    2005, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    21,22
    Wead v. State, 
    129 S.W.3d 126
    , 129 (Tex. Crim. App. 2004). . . . .                                15,18
    Webb v. State, 
    766 S.W.2d 236
    , 240, 244 (Tex. Crim.
    App. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22,23
    Wilson v. State, 
    179 S.W.3d 240
    , 248, 249 (Tex. App.--Texarkana
    2005, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   20, 22
    Wood v. State, 
    18 S.W.3d 642
    , 648 (Tex. Crim. App. 2000) . . . . .                                  15
    -v-
    STATUTES:                                                                                        PAGE:
    TEX. CODE CRIM. PROC. ANN. ART. 36.06 (Vernon 2007) . . .                                            21
    TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West
    Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        4
    TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        viii
    TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                i
    TEX. R. APP. P. 44.0(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           21
    TEX. R. APP. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           24
    TEX. R. EVID. 614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     20,21
    -vi-
    STATEMENT OF THE CASE
    This is a criminal appeal from the trial court’s final judgment of
    conviction for the state-jail felony offense of theft of property of a value less
    than $1,500.00 with two or more prior convictions. See CR, pgs. 109-110.
    A grand jury in Lamar County charged Finch with the offense of theft
    of property of a value less than $1,500.00 with two (2) or more prior
    convictions. See CR, pg. 5. After a jury trial, a petit jury found Finch guilty
    of the offense, as alleged in the indictment. See RR, Vol. 6, pg. 133; CR, pg.
    93. The jury also found all of the prior convictions were true, as alleged in
    the indictment. See RR, Vol. 6, pg. 133.
    Following the punishment phase, the same petit jury assessed
    punishment at two (2) confinement in the Texas Department of Criminal
    Justice -- State Jail Division with a fine of $10,000.00. See RR, Vol. 6, pg.
    234; CR, pg. 99. After the court pronounced sentence (RR, Vol. 6, pg. 236),
    the trial court signed its Judgment of Conviction by Jury (CR, pgs. 109-110)
    and its Certification of Defendant’s Right of Appeal. See CR, pg. 107.
    Finch filed his notice of appeal. See CR, pg. 104. By this appeal,
    Finch brought two (2) issues/points of error.
    -vii-
    STATEMENT REGARDING ORAL ARGUMENT
    The State will waive oral argument. See Tex. R. App. P. 38.2.
    -viii-
    ISSUES PRESENTED IN REPLY
    ISSUE PRESENTED IN REPLY NO. 1:  WHEN POTENTIAL
    JURORS SAW FINCH UNDER PHYSICAL RESTRAINT OUTSIDE
    THE COURTROOM, THE TRIAL COURT DID NOT ABUSE ITS
    DISCRETION IN DENYING THE APPELLANT’S MOTION FOR
    MISTRIAL BECAUSE SUCH AN ENCOUNTER WAS
    INADVERTENT, FORTUITOUS AND AWAY FROM THE
    COURTROOM; THERE WAS NO ERROR, AND THERE WAS NO
    HARM.
    ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID
    NOT ABUSE ITS DISCRETION IN DECIDING TO ADMIT THE
    TESTIMONY OF THE APPELLANT’S MOTHER, ANGIE ROSSON,
    BECAUSE IT BALANCED THE INTERESTS OF THE STATE AND
    THE ACCUSED, CONSIDERED ALTERNATIVE SANCTIONS AND
    CONSIDERED THE BENEFIT AND DETRIMENT ARISING FROM
    A DISQUALIFICATION IN LIGHT OF THE NATURE AND
    WEIGHT OF THE TESTIMONY TO BE OFFERED; IN THE
    ALTERNATIVE, FINCH COULD NOT SHOW HARM.
    -ix-
    CAUSE NO. 06-14-00182-CR
    IN THE
    COURT OF APPEALS
    SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
    ____________________________________________________________
    ROBERT BRYAN FINCH, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    ____________________________________________________________
    ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
    LAMAR COUNTY, TEXAS
    TRIAL COURT NO. 25677; HONORABLE BILL HARRIS, JUDGE
    ____________________________________________________________
    APPELLEE’S (STATE’S) BRIEF
    ____________________________________________________________
    TO THE HONORABLE SIXTH COURT OF APPEALS:
    COMES NOW, the State of Texas, by and through the elected County
    and District Attorney of Lamar County, Gary D. Young, and the Lamar
    County and District Attorney’s Office, respectfully submits its Appellee’s
    (State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.
    Unless otherwise indicated, Robert Bryan Finch will be referred to as
    “the appellant” or “Finch” and the State of Texas as “the State.”
    -1-
    STATEMENT OF FACTS
    Factual Background.
    On February 23, 2014, Dustin Calhoun (Calhoun), who worked for
    Wal-Mart in asset protection for about a year and six months (RR, Vol. 6,
    pg. 39), got a phone call that a cashier had “just seen someone take a chain
    saw and run out the door.” See RR, Vol. 6, pg. 40. After they asked him for
    a receipt, the suspect took off running. See RR, Vol. 6, pg. 40. Calhoun
    “went and watched the videotape” and he saw that “the suspect came in,
    under a minute, grabbed the chain saw, walked past the register and [took]
    off running.” See RR, Vol. 6, pg. 41. See also RR, Vol. 6, pgs. 46-47, 53;
    State’s Exhibits 1, 2 and 8. The suspect left in a red pickup. See RR, Vol. 6,
    pgs. 47-48 (“He gets in it and leaves.”).
    Calhoun grabbed the cheapest chain saw and made a receipt for
    $167.00. See RR, Vol. 6, pgs. 51-52; State’s Exhibit 3. The receipt was
    evidence of how much it cost. See RR, Vol. 6, pg. 52.
    After Calhoun made the surveillance video, he “called the cops.” See
    RR, Vol. 6, pg. 51. Officer Sean Upchurch, who worked for the Paris Police
    Department for about “a year and a half,” (Officer Upchurch) was working
    on February 23, 2014. See RR, Vol. 6, pg. 56. Officer Upchurch was
    -2-
    dispatched to the theft of a chain saw. See RR, Vol. 6, pg. 57.
    Officer Upchurch arrived there and reviewed the surveillance video
    and the still photos. See RR, Vol. 6, pgs. 51, 57, 64-65; State’s Exhibits 1, 2.
    Officer Upchurch took Calhoun’s statement. See RR, Vol. 6, pg. 51. With
    the still photos, Officer Upchurch sent an e-mail to all the officers with the
    photographs to identify the suspect. See RR, Vol. 6, pg. 58.
    Unrelated Arrest of a Suspect on February 26, 2014.
    On the night of February 26, 2014, officer Upchurch arrested “Robert
    Bryan Finch” on an unrelated charge. See RR, Vol. 6, pg. 58. While
    speaking to him, officer Upchurch noticed a piece of yellow duct tape on his
    eyeglasses. See RR, Vol. 6, pgs. 58, 65. “It appeared to be the same tape
    that was on the glasses the night of the theft.” See RR, Vol. 6, pg. 58.
    Whenever officer Upchurch sent an e-mail to all the officers, he
    received an e-mail back that named the suspect as “Robert Bryan Finch.”
    See RR, Vol. 6, pg. 59. On the night of February 26th, officer Upchurch took
    pictures of Finch. See RR, Vol. 6, pg. 59; State’s Exhibits 4-7. Also that
    night, officer Upchurch took some photographs of a pickup. See RR, Vol. 6,
    pgs. 60, 62; State’s Exhibit 6. Previously, officer Upchurch had seen the
    truck in the videotape. See RR, Vol. 6, pg. 62.
    -3-
    Officer Upchurch read the Miranda rights, and Finch waived his
    rights by agreeing to speak to officer Upchurch. See RR, Vol. 6, pg. 63.
    That night, Finch did not admit to stealing the chain saw. See RR, Vol. 6,
    pg. 63.
    On February 23rd, Tommy Moore, a detective at the Paris Police
    Department for fifteen years, (Detective Moore) also spoke with Finch. See
    RR, Vol. 6, pgs. 72-73. Detective Leigh Foreman actually read the Miranda
    warnings; and again, Finch waived his rights. See RR, Vol. 6, pgs. 74-75.
    The interview was recorded. See RR, Vol. 6, pgs. 75-76; State’s Exhibit 9.
    During this interview with Detective Moore, Finch admitted to taking chain
    saw because “[h]e needed gas money.” See RR, Vol. 6, pg. 87.
    Subsequently, a grand jury in Lamar County returned an original
    indictment that charged Finch with theft of property less than $1,500.00 with
    two prior convictions. See CR, pg. 5; RR, Vol. 6, pg. 30. See also Tex.
    Penal Code Ann. § 31.03(e)(4)(D) (West Supp. 2014).
    Voir Dire Proceedings and Jury Trial.
    On September 29, 2014, the trial court called cause number 25677,
    which was “set for jury trial this morning.” See RR, Vol. 5, pg. 4. After an
    exchange with the defendant (Finch), the trial judge introduced himself to
    -4-
    the venire panel as the judge for the County Court at Law but would be
    presiding in court today for the 6th District Court. See RR, Vol. 5, pg. 14.
    After hearing disqualifications, exemptions or excuses from individual
    jurors (RR, Vol. 5, pgs. 14-43), the trial court instructed the remaining jurors
    that “we’re going to have to put you back into the hallway and prepare a
    seating chart.” See RR, Vol. 5, pg. 43. The jury panel was ushered out. See
    RR, Vol. 5, pg. 44.
    Motion for Mistrial and Subsequent Hearing.
    While the jury panel was out in the hallway waiting to come into the
    courtroom, the trial judge remarked that “when Mr. Finch was brought up
    after lunch to come into the courtroom for jury selection, that he was
    wearing handcuffs and leg irons and that he was moved through the jury
    panel as it waited in the hallway from the elevator into the bailiff’s office.”
    See RR, Vol. 5, pg. 47. When the trial court recognized “Mr. Turner” (i.e.
    David C. Turner, Jr.) (RR, Vol. 5, pg. 2), defense counsel made a motion for
    mistrial. See RR, Vol. 5, pg. 47.
    The trial court then proceeded “to take some testimony on this” (RR,
    Vol. 5, pg. 47) and heard from two witnesses: (1) Sampson Peralta (Peralta),
    a jailer with the Lamar County Sheriff’s Department, and (2) Ron Byers, the
    -5-
    bailiff for the district court. See RR, Vol. 5, pgs. 48, 54. Both sides and the
    trial judge asked questions of Peralta (RR, Vol. 5, pgs. 48-53) and of Byers.
    See RR, Vol. 5, pgs. 54-56.
    After the trial court excused the witness (Byers), defense counsel for
    Finch made a motion for mistrial again, and the State responded. See RR,
    Vol. 5, pgs. 57-58. The trial court took the motion under advisement. See
    RR, Vol. 5, pg. 58.
    The trial court brought the jury panel into the courtroom. See RR,
    Vol. 5, pg. 59. The trial judge then asked the panel, as follows:
    I need to ask the panel a question, and you can just show
    me by raising your hand as way of response. How many of you
    saw the Defendant walking from the elevator to the bailiff’s
    office? Got a good look at him. Just raise your hand.
    Okay. I need everybody who raised their hand to stay
    here in the courtroom. I need everyone else who did not raise
    their hand to step out into the lobby. Don’t go far, okay, cause I
    think we’ll be back in here in a minute. But everyone who just
    raised their hand, stay here.
    (A portion of the panel was ushered out at 2:24 p.m.)
    (Off-the-record discussion from 2:24 p.m. to 2:25 p.m.)
    THE COURT: All right. Let’s go back on the record.
    And the record should reflect -- and, Mr. Turner, you join me in
    this observation if you wish -- there are approximately 20
    people remaining in the courtroom who indicated they saw the
    Defendant walking from the elevator into the bailiff’s office.
    -6-
    Now I intend to talk to these individual -- these jurors
    individually to see if we have any issues.
    (Beginning of at-the-bench- discussions.)
    See RR, Vol. 5, pg. 60.
    During “at-the-bench discussions,” the trial court conversed with
    several venire persons. See RR, Vol. 5, pgs. 60-105. Afterwards, the trial
    court asked “each of you to go stand back in the hallway again.” See RR,
    Vol. 5, pg. 105. Through defense counsel, Finch renewed his motion for
    mistrial (RR, Vol. 5, pg. 105), which the trial court then denied. See RR,
    Vol. 5, pg. 106. Afterwards, the trial judge addressed the venire panel and
    proceeded with jury selection on the afternoon of September 29, 2014. See
    RR, Vol. 5, pgs. 106-107.
    At the end of the voir dire proceedings, the trial court impaneled a
    petit jury of twelve jurors and two alternate jurors. See RR, Vol. 5, pgs.
    131-132; CR, pg. 86. The trial court then dismissed the remaining venire
    persons. See RR, Vol. 5, pg. 132.
    Guilt-Innocence Phase of the Jury Trial.
    On September 30, 2014, the trial court commenced the guilt-
    innocence phase of the jury trial with instructions to the jury. See RR, Vol.
    6, pgs. 23-29. The State read the charging instrument. See RR, Vol. 6, pgs.
    -7-
    30-31. Finch entered a plea of “not guilty” and a plea of “not true” to the
    enhancement allegations. See RR, Vol. 6, pg. 31. Later, Finch stipulated to
    the admissibility of the two prior theft convictions. See RR, Vol. 6, pgs. 70-
    72.
    During the direct-examination of officer Upchurch, he identified
    Finch as the defendant in open court. See RR, Vol. 6, pg. 63. During the
    testimony of Detective Foreman, the recorded interview of Finch was also
    published to the jury. See RR, Vol. 6, pg. 85; State’s Exhibit 9.
    Following the testimony of Detective Foreman (RR, Vol. 6, pg. 89),
    the State proffered a “Stipulation of Evidence” (State’s Exhibit 12) to prove
    the two prior theft convictions, as alleged in the indictment. See CR, pg. 5.
    The trial court admitted the “Stipulation of Evidence.” See RR, Vol. 6, pgs.
    90-91; State’s Exhibit 12. The State then rested. See RR, Vol. 6, pg. 92.
    The defense also rested. See RR, Vol. 6, pg. 97. Both sides rested
    and closed. See RR, Vol. 6, pg. 97.
    The trial court heard no objections to its jury charge (RR, Vol. 6, pg.
    97), and proceeded to read the charge to the jury. See RR, Vol. 6, pgs. 99-
    109; CR, pgs. 87-92. After closing arguments (RR, Vol. 6, pgs. 109-117),
    the jury retired to begin its deliberations. See RR, Vol. 6, pg. 117.
    -8-
    Upon concluding its deliberations, the jury returned its verdict that
    found Finch guilty of the offense of theft of property less than $1,500.00
    with two prior convictions. See RR, Vol. 6, pg. 133; CR, pg. 93. The jury
    also found all of the prior convictions were true, as alleged in the indictment.
    See RR, Vol. 6, pg. 133.
    Punishment Phase.
    The trial court moved into the punishment phase of the trial. See RR,
    Vol. 6, pg. 134. The State proffered the testimony of Kristin Moore Rosson
    (RR, Vol. 6, pgs. 136-143), Detective Derek Belcher (RR, Vol. 6, pgs. 144-
    148) and Angie Rosson (Angie Rosson). See RR, Vol. 6, pg. 148.
    When the State called Angie Rosson as a witness (RR, Vol. 6, pg.
    148), the following exchange occurred:
    THE COURT: She was around here a moment ago.
    MS. HAIRSTON: No, she’s right there.
    MR. TURNER: Oh, is she? Well, then she’s in violation
    of the Rule, Your Honor. We’d object to any testimony of this
    woman. We put her under the Rule.
    THE COURT: And she’s been sitting here since the
    punishment phase began.
    MR. TURNER: She’s been sitting here apparently when
    --
    -9-
    THE COURT: She’s your -- she’s your witness.
    MR. TURNER: I understand, Your Honor, but she’s
    calling the witness, and this was one of the reasons I wanted her
    under the Rule.
    THE COURT: I know, but she’s been sitting right
    behind your client for the better part of the past hour.
    MR. TURNER: And I was not aware of it, Your Honor.
    THE COURT: I’m going to overrule the objection.
    See RR, Vol. 6, pg. 149.
    Over Finch’s objection, the State proceeded with the direct
    examination of Angie Rosson. See RR, Vol. 6, pg. 151. Following the
    testimony of Angie Rosson (RR, Vol. 6, pgs. 151-167), the State recalled
    Detective Moore as a witness. See RR, Vol. 6, pg. 167. Following the
    testimony of Detective Moore (RR, Vol. 6, pgs. 167-172), the State
    proffered State’s Exhibits 10, 11 and then 13 through 27, which the trial
    court admitted. See RR, Vol. 6, pg. 172. After publishing these exhibits to
    the jury, the State rested. See RR, Vol. 6, pg. 176.
    The defense began its case-in-chief by calling George Young as a
    witness, who testified that he knew Finch. See RR, Vol. 6, pgs. 176-182.
    Next, the defense called Allison Bunch Finch, who testified as the
    appellant’s wife. See RR, Vol. 6, pgs. 182-187. Then, the defense called
    -10-
    Mark Annette, who testified as a detention officer at the Lamar County jail.
    See RR, Vol. 6, pgs. 188-191. The defense also called Matt Martin Mcada
    as a witness. See RR, Vol. 6, pg. 191.
    After a brief recess of the trial proceedings, Finch testified on his own
    behalf. See RR, Vol. 6, pg. 203. Following his testimony (RR, Vol. 6, pgs.
    203-220), the defense rested. See RR, Vol. 6, pg. 220. With no rebuttal
    evidence, the State rested and closed. See RR, Vol. 6, pg. 220.
    After hearing no objections, the trial court read its punishment charge
    to the jury. See RR, Vol. 6, pgs. 221-225; CR, pgs. 96-98. Following
    closing arguments (RR, Vol. 6, pgs. 226-229), the jury retired to begin its
    deliberations.   See RR, Vol. 6, pg. 229.        Upon the conclusion of its
    deliberations, the jury returned an unanimous verdict. See RR, Vol. 6, pgs.
    234-235; CR, pg. 101.
    By its verdict, the jury assessed punishment at two (2) confinement in
    the Texas Department of Criminal Justice -- State Jail Division with a fine of
    $10,000.00. See RR, Vol. 6, pg. 234; CR, pg. 99. The trial court discharged
    the jury at the conclusion of the jury trial. See RR, Vol. 6, pg. 235. The trial
    court pronounced sentence. See RR, Vol. 6, pg. 236.
    On September 30, 2014, the trial court signed its Judgment of
    -11-
    Conviction by Jury. See CR, pgs. 109-110. On the same day, the trial court
    signed its Certification of Defendant’s Right of Appeal. See CR, pg. 107.
    Finch also filed his notice of appeal. See CR, pg. 104.
    Proceedings in this Court of Appeals.
    On or about October 6, 2014, Finch filed his notice of appeal in this
    Court. The District Clerk of Lamar County filed the Clerk’s Record on or
    about November 7, 2014. The official court reporter filed a motion for
    extension of time to file the Reporter’s Record, which this Court granted.
    The court reporter then filed the Reporter’s Record on or about December
    29, 2014. The exhibits were filed on or about January 5, 2015.
    With the filing of the appellate record, Finch filed his first (and only)
    motion for extension of time to file his brief on January 26, 2015, which this
    Court granted on February 3, 2015.          Finch filed his brief on or about
    February 23, 2015.
    On or about March 25, 2015, the State filed its first (and only) motion
    for extension of time to file its brief, which this Court granted on March 31,
    2015. The State filed its brief on April 16, 2015.
    -12-
    SUMMARY OF THE ARGUMENT
    With two (2) issues/points of error, Finch alleged that (1) the trial
    court erred in failing to grant a mistrial after jurors saw Finch in shackles in
    violation of his rights under the United States and Texas Constitutions; and
    (2) the trial court erred when it allowed a State’s witness to testify who had
    observed other testimony in violation of “the Rule.” This Court should
    overrule the appellant’s, Finch’s, two issues/points of error, and affirm for
    the following reasons:
    (1)   The trial court did not abuse its discretion in denying the
    appellant’s motion for mistrial because Finch’s encounter with potential
    jurors was “inadvertent, fortuitous and away from the courtroom.” There
    was no error, and there was no harm.
    (2)    The trial court did not abuse its discretion in allowing the
    appellant’s mother, Angie Rosson, to testify because the trial court balanced
    the interests of the State and the accused, considered alternative sanctions
    and considered the benefit and detriment of witness disqualification. Even if
    Finch could prove both prejudice prongs, his substantial rights were not
    affected, given his prior convictions and criminal history.
    -13-
    Therefore, the issues/points of error should be overruled. The trial
    court’s final judgment of conviction should be affirmed.
    ARGUMENT AND AUTHORITIES
    ISSUE PRESENTED IN REPLY NO. 1:  WHEN POTENTIAL
    JURORS SAW FINCH UNDER PHYSICAL RESTRAINT OUTSIDE
    THE COURTROOM, THE TRIAL COURT DID NOT ABUSE ITS
    DISCRETION IN DENYING THE APPELLANT’S MOTION FOR
    MISTRIAL BECAUSE SUCH AN ENCOUNTER WAS
    INADVERTENT, FORTUITOUS AND AWAY FROM THE
    COURTROOM; THERE WAS NO ERROR, AND THERE WAS NO
    HARM.
    A.      Standard of Review: Abuse of Discretion.
    With his first issue on appeal, Finch alleged that the trial court erred in
    failing to grant a mistrial after jurors saw him in shackles in violation of his
    rights under the United States and Texas Constitutions.           See generally
    Appellant’s Brief, pgs. 11-14. However, the trial court did not abuse its
    discretion because jurors saw Finch under physical restraint outside the
    courtroom. See Pina v. State, 
    38 S.W.3d 730
    (Tex. App.--Texarkana 2001,
    pet. ref’d).
    A trial court’s denial of a mistrial is reviewed for an abuse of
    discretion. See Ocon v. State, 
    284 S.W.3d 880
    , 884 (Tex. Crim. App. 2009).
    An appellate court views the evidence in the light most favorable to the trial
    court’s ruling, considering only those arguments before the court at the time
    -14-
    of the ruling. See id (citing Wead v. State, 
    129 S.W.3d 126
    , 129 (Tex. Crim.
    App. 2004)).     The ruling must be upheld if it was within the zone of
    reasonable disagreement. See 
    id. A mistrial
    is an appropriate remedy in “extreme circumstances” for a
    narrow class of highly prejudicial and incurable errors. See id (reference to
    footnote omitted) (citing Hawkins v. State, 
    135 S.W.3d 72
    , 77 (Tex. Crim.
    App. 2004); Wood v. State, 
    18 S.W.3d 642
    , 648 (Tex. Crim. App. 2000)). A
    mistrial halts trial proceedings when error is so prejudicial that expenditure
    of further time and expense would be wasteful and futile. See 
    Ocon, 284 S.W.3d at 884
    (citing Ladd v. State, 
    3 S.W.3d 547
    , 567 (Tex. Crim. App.
    1999)). Whether an error requires a mistrial must be determined by the
    particular facts of the case. See 
    id. B. The
    Trial Court Did Not Abuse its Discretion in Denying
    the Appellant’s, Finch’s, Motion for Mistrial.
    In Pina, a capital murder case, the appellant “was taken from the
    courthouse in handcuffs and taken through a number of jurors.” See 
    Pina, 38 S.W.3d at 740
    . In Pina, the appellant made an oral motion for mistrial
    during voir dire, which the trial court denied. See 
    id. In the
    last of six (6)
    issues on appeal in Pina, the appellant contended that the trial court erred in
    denying his motion for a mistrial. See 
    id. at 733,
    740.
    -15-
    In Pina, this Court affirmed and found “no basis to conclude that the
    trial court abused its discretion.” See 
    id. at 741.
    This Court reasoned:
    There was no obvious physical restraint on Pina in the
    courtroom during the trial in the presence of the jury. The rules
    are different where jurors see a defendant under physical
    restraint outside the courtroom. If such encounters are
    inadvertent, fortuitous, and away from the courtroom, there is
    no error. . . .
    We also find no harm. The two jurors who said they saw
    Pina outside the courtroom in handcuffs were removed from the
    panel. Since the other two testified that they did not see Pina in
    handcuffs outside the courtroom, there was no harm in failing
    to disqualify them. No other jurors were questioned, and no
    further relief was requested.
    See 
    id. at 741
    (italics added in the opinion).
    In applying the Pina rationale to the present facts and circumstances,
    Finch’s first issue/point of error should be overruled for two (2) reasons:
    1.     Finch’s Encounter with Potential Jurors Was “Inadvertent,
    Fortuitous, and Away from the Courtroom,” So There Was No Error.
    As the first reason, there was no obvious physical restraint on Finch in
    the courtroom during the trial in the presence of the jury. See 
    id. As this
    Court stated in Pina, “[t]he rules are different where jurors see a defendant
    under physical restraint outside the courtroom.” See id (italics added in the
    opinion).
    -16-
    Here, Finch was under physical restraint outside the courtroom. See
    id (italics added in the opinion). In this appellate record, the trial judge
    remarked that Finch “was wearing handcuffs and leg irons and [] he was
    moved through the jury panel as it waited in the hallway from the elevator
    into the bailiff’s office.” See RR, Vol. 5, pg. 47. Sampson Peralta, the jailer
    with the Lamar County Sheriff’s Department, testified that it was “a minute”
    between the time he left the elevator and the time he went inside the bailiff’s
    office. See RR, Vol. 5, pg. 53. By this evidence, such an encounter with
    potential jurors was outside the courtroom and was “inadvertent, fortuitous,
    and away from the courtroom,” so there was no error. See 
    Pina, 38 S.W.3d at 741
    . See also Coleman v. State, 
    652 S.W.2d 205
    , 207 (Tex. App.--
    Houston [14th Dist.] 1982, pet. ref’d) (juror noticed appellant being brought
    out of the elevator in handcuffs but the “accidental glimpse” was not of such
    prejudicial effect as to have deprived appellant of a fair trial).
    In conclusion, the trial court did not abuse its discretion in denying
    Finch’s motion for mistrial. See 
    Ocon, 284 S.W.3d at 884
    . Viewing the
    evidence in the light most favorable to the trial court’s ruling, the trial court
    could have found that Finch’s encounter with potential jurors was
    “inadvertent, fortuitous and away from the courtroom”, so there was no
    -17-
    error. See 
    Pina, 38 S.W.3d at 741
    . Thus, the trial court’s ruling in denying
    Finch’s motion for mistrial was certainly within the zone of reasonable
    disagreement, and should be upheld. See 
    Ocon, 284 S.W.3d at 884
    (citing
    
    Wead, 129 S.W.3d at 129
    ).
    2.     No Harm.
    As the second reason, Finch could not show harm. See 
    id. In his
    brief, Finch alleged that “[f]ive of the jurors chosen--nearly half of the jury--
    saw Finch in shackles. See Appellant’s Brief, pgs. 13-14. But prior to jury
    selection, the trial court exercised its discretion and allowed both sides to
    interview jurors prior to the trial to determine which members had witnessed
    Finch in handcuffs. See RR, Vol. 5, pg. 60 (“And the record should reflect -
    - and, Mr. Turner, you join me in this observation if you wish -- there are
    approximately 20 people remaining in the courtroom who indicated they saw
    the Defendant walking from the elevator into the bailiff’s office.”). See also
    Boyington v. State, 
    787 S.W.2d 469
    , 471 (Tex. App.--Houston [14th Dist.]
    1990, pet. ref’d).
    Both sides questioned these potential jurors (RR, Vol. 5, pgs. 60-105)
    for the purpose of excluding any members who may have viewed him in
    -18-
    handcuffs or shackles. See Garza v. State, 
    10 S.W.3d 765
    , 767 (Tex. App.--
    Corpus Christi 2000, pet. ref’d).
    Subsequently, however, Finch did not attempt any showing of harm or
    prejudice, see id, by requesting additional strikes or other relief prior to “five
    of the jurors [being] chosen.”      See Appellant’s Brief, pg. 13; 
    Pina, 38 S.W.3d at 741
    (“[n]o other jurors were questioned, and no further relief was
    requested.”).     Further, Finch did not attempt any showing of harm or
    prejudice by making a “request to have an instruction given to the jury
    panel, or the jury after it was impaneled.” See 
    Garza, 10 S.W.3d at 767-68
    .
    In conclusion, (1) there was no error; and (2) there was no harm. For
    either of these reasons, Finch’s first issue/point of error should be overruled.
    ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID
    NOT ABUSE ITS DISCRETION IN DECIDING TO ADMIT THE
    TESTIMONY OF THE APPELLANT’S MOTHER, ANGIE ROSSON,
    BECAUSE IT BALANCED THE INTERESTS OF THE STATE AND
    THE ACCUSED, CONSIDERED ALTERNATIVE SANCTIONS AND
    CONSIDERED THE BENEFIT AND DETRIMENT ARISING FROM
    A DISQUALIFICATION IN LIGHT OF THE NATURE AND
    WEIGHT OF THE TESTIMONY TO BE OFFERED; IN THE
    ALTERNATIVE, FINCH COULD NOT SHOW HARM.
    A.        Standard of Review: Abuse of Discretion.
    When the State called Angie Rosson as a witness during the
    punishment phase, Finch objected on the basis that “Well, then she’s in
    -19-
    violation of the Rule, Your Honor. We’d object to any testimony of this
    woman.” See RR, Vol. 6, pg. 149. In overruling this specific objection (RR,
    Vol. 6, pg. 149), the trial court did not abuse its discretion because if a
    witness violated the witness sequestration rule, the trial court still had
    discretion to allow testimony from the witness. See Martinez v. State, 
    186 S.W.3d 59
    , 65 (Tex. App.--Houston [1st Dist.] 2005, pet. ref’d) (citing Bell v.
    State, 
    938 S.W.2d 35
    , 50 (Tex. Crim. App. 1996)).
    B.   The “Witness Sequestration Rule” and Article 36.06 of the
    Texas Code of Criminal Procedure.
    Rule 614 of the Texas Rules of Evidence provided in pertinent part
    that “[a]t a party’s request, the court must order witnesses excluded so that
    they cannot hear other witnesses’ testimony[,] [o]r the court may do so on its
    own.” See Tex. R. Evid. 614. This “witness sequestration rule” was once
    discretionary with trial court, but its application is now mandatory upon
    proper request. See Bryant v. State, 
    282 S.W.3d 156
    , 161 (Tex. App.--
    Texarkana 2009, pet. ref’d); Wilson v. State, 
    179 S.W.3d 240
    , 248 (Tex.
    App.--Texarkana 2005, no pet.) (citing Moore v. State, 
    882 S.W.2d 844
    , 848
    (Tex. Crim. App. 1994)). A trial court errs if it fails to enforce a proper
    invocation of the witness sequestration rule. See 
    Bryant, 282 S.W.3d at 161
    (citing Russell v. State, 
    155 S.W.3d 176
    , 181 (Tex. Crim. App. 2005)).
    -20-
    However, if error is shown, it is a “violation of an evidentiary rule, the error
    is non-constitutional, and will be disregarded unless it affected the
    appellant’s substantial rights.” See id (citing Tex. R. App. P. 44.2(b)).
    Once Rule 614 is invoked, witnesses are instructed by the court that
    they cannot converse with one another or with any other person about the
    case, except by permission from the court. See 
    Martinez, 186 S.W.3d at 65
    .
    See also Tex. Code Crim. Proc. Ann. art. 36.06 (Vernon 2007). Again, a
    trial court’s decision to admit testimony from a witness (even if that witness
    has heard others testify during the trial in violation of the witness
    sequestration rule) is reviewed for abuse of discretion. See 
    Bryant, 282 S.W.3d at 161
    (citing Guerra v. State, 
    771 S.W.2d 453
    , 474 (Tex. Crim.
    App. 1988); Taylor v. State, 
    173 S.W.3d 851
    , 853 (Tex. App.--Texarkana
    2005, no pet.); Potter v. State, 
    74 S.W.3d 105
    , 110 (Tex. App.--Waco 2002,
    no pet.)).
    D.    Determining Harm or Prejudice.
    Determining harm or prejudice by a witness’s violation of Rule 614 is
    based on whether the witness’s presence during other testimony resulted in
    harm to the defendant. See 
    Bryant, 282 S.W.3d at 161
    (citing Webb v. State,
    
    766 S.W.2d 236
    , 240 (Tex. Crim. App. 1989); 
    Guerra, 771 S.W.2d at 474
    -
    -21-
    75; 
    Wilson, 179 S.W.3d at 248-49
    )). “Injury to the defendant is shown when
    two criteria are met: (a) whether the witness actually conferred with or
    heard testimony of other witnesses, and (b) whether the witness’ testimony
    contradicted testimony of a witness from the opposing side or corroborated
    testimony of a witness with whom he or she had conferred or heard.” See
    
    Bryant, 282 S.W.3d at 161
    -62 (quoting 
    Webb, 766 S.W.2d at 240
    ). The
    appellant has the burden to demonstrate the record supports a finding under
    both prongs. See 
    Bryant, 282 S.W.3d at 162
    (citing 
    Taylor, 173 S.W.3d at 853
    ).
    E.     Application of Law to the Alleged Violation of the Witness
    Sequestration Rule in the Present Case.
    1.   The Trial Court Did Not Abuse its Discretion in Admitting
    Testimony from Angie Rosson.
    Even if “the Rule” was violated, the trial court still had discretion to
    allow testimony from this witness. See 
    Martinez, 186 S.W.3d at 65
    (citing
    
    Bell, 938 S.W.2d at 50
    ). In Webb, the Texas Court of Criminal Appeals
    explained that when a trial court decides whether to disqualify a witness
    under the Rule, the trial court must balance the interests of the State and the
    accused, consider alternative sanctions, and consider the benefit and
    detriment arising from a disqualification in light of the nature and weight of
    -22-
    the testimony to be offered. See 
    Webb, 766 S.W.2d at 244
    . See also Routier
    v. State, 
    112 S.W.3d 554
    , 590 (Tex. Crim. App. 2003), cert. denied, 
    541 U.S. 1040
    , 
    124 S. Ct. 2157
    , 
    158 L. Ed. 2d 728
    (2004).
    In the present case, the violation of “the Rule” involved Angie
    Rosson, who the trial judge knew as the appellant’s mother because she
    wanted to watch the jury selection. See RR, Vol. 5, pg. 45. Here, the trial
    court was also “aware of her presence in the courtroom,” as Finch contended
    in his brief, because the trial judge remarked, “[s]he was around here a
    moment ago” and “she’s been sitting here since the punishment phase
    began.” See RR, Vol. 6, pg. 149; Appellant’s Brief, pg. 13. However, the
    trial court could have still decided to admit the testimony from Angie
    Rosson, after balancing the interests of the State and the accused. See 
    Webb, 766 S.W.2d at 244
    ; Routier v. 
    State, 112 S.W.3d at 590
    . The trial court
    could have balanced the interests of the State, which called Angie Rosson as
    a witness, and the accused, who may have relied on his mother’s testimony
    as potential mitigation evidence. See 
    id. In allowing
    Angie Rosson to testify, the trial court could have
    considered alternative sanctions to disqualification because practically
    speaking, the jury would have wanted to hear testimony from Finch’s
    -23-
    mother during the punishment phase. See id; RR, Vol. 6, pg. 149. In
    considering the benefit and detriment arising from a disqualification of
    Angie Rosson as a witness, the trial court could have decided, in the exercise
    of its sound discretion, not to deprive Finch of potential mitigation evidence
    from the appellant’s mother during the punishment phase of the trial. See 
    id. This decision
    should not be disturbed merely because the State was “calling
    the witness, and this was one of the reasons [defense counsel] wanted her
    under the Rule.” See RR, Vol. 6, pg. 149.
    2.   In the Alternative, Finch Could Not Show Harm, Given his
    Prior Convictions and Criminal History.
    Even if Finch carried his burden to support a finding of harm under
    both prongs, see appellant’s brief, pgs. 16-17, the theft of the power drill was
    merely one extraneous offense, when compared to a “Stipulation of
    Evidence” that proved two (2) prior theft convictions beyond a reasonable
    doubt. See RR, Vol. 6, pgs. 90-91; State’s Exhibit 12. Aside from the theft
    of the power drill, the State introduced Finch’s other convictions, so it would
    be difficult to articulate how the extraneous theft offense of the power drill
    affected the appellant’s substantial rights, when compared to Finch’s other
    convictions. See Tex. R. App. P. 44.2(b). Because the extraneous offense
    involving the theft of the power drill did not affect the appellant’s substantial
    -24-
    rights, Finch could not show harm. Accordingly, the appellant’s, Finch’s,
    second issue/point of error should be overruled.
    PRAYER
    WHEREFORE PREMISES CONSIDERED, the State of Texas prays
    that upon final submission without oral argument, this Court order the trial
    court clerk to supplement the appellate record to include a certified bill of
    costs; and then affirm the trial court’s final judgment of conviction, adjudge
    court costs against the appellant, and for such other and further relief, both at
    law and in equity, to which it may be justly and legally entitled.
    Respectfully submitted,
    Gary D. Young
    Lamar County & District Attorney
    Lamar County Courthouse
    119 North Main
    Paris, Texas 75460
    (903) 737-2470
    (903) 737-2455 (fax)
    By:________________________________
    Gary D. Young, County Attorney
    SBN# 00785298
    ATTORNEYS FOR STATE OF TEXAS
    -25-
    CERTIFICATE OF COMPLIANCE
    Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
    the “Appellee’s (State’s) Brief” was a computer-generated document and
    contained 6491 words--not including the Appendix, if any. The undersigned
    attorney certified that he relied on the word count of the computer program,
    which was used to prepare this document.
    ______________________________
    GARY D. YOUNG
    gyoung@co.lamar.tx.us
    CERTIFICATE OF SERVICE
    This is to certify that in accordance with Tex. R. App. P. 9.5, a true
    copy of the “Appellee’s (State’s) Brief” has been served on the 16th day of
    April, 2015 upon the following:
    Don Biard
    McLaughlin Hutchison & Biard LLP
    38 First Northwest
    Paris, TX 75460
    ______________________________
    GARY D. YOUNG
    gyoung@co.lamar.tx.us
    -26-