Latonya Chermere Payton v. State ( 2001 )

  IN THE

TENTH COURT OF APPEALS

No. 10-00-041-CR

      LATONYA CHERMERE PAYTON,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court # 3244-99

O P I N I O N

      A jury convicted Latonya Payton of misdemeanor criminal mischief. The jury assessed punishment at one year confinement and recommended that imposition of sentence be suspended. The court placed Payton on community supervision for one year. She argues in three points that: 1) the trial court abused its discretion by allowing an undisclosed witness to testify; 2) the trial court erroneously overruled her objection to the undisclosed witness’s testimony; and 3) the verdict was the product of jury misconduct.

      In her first two points, Payton contends that the trial court erred by allowing a previously undisclosed witness to testify as to the amount of damage caused by Payton’s conduct. During the State’s case in chief, the prosecutor attempted to introduce damage estimates without supporting affidavits, which Payton objected to as hearsay. The State then procured a sponsoring witness, Anna Lisa Farmer. Payton objected to Farmer’s testimony based on the State’s failure to disclose her under a trial discovery order. The court heard argument and allowed Farmer’s testimony, finding good cause. Payton contends that this was error because it was in violation of the discovery order.

      The State should disclose witnesses if they will be used at any stage in the trial. See Beets v. State, 767 S.W.2d 711, 747 (Tex. Crim. App. 1987); Young v. State, 547 S.W.2d 23 (Tex. Crim. App. 1977). It is within the discretion of the trial court to allow an undisclosed witness to testify. See Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. 1981). If the trial court allows a witness who is not on the State's list to testify, we review that decision for abuse of discretion. See Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App.1993). Our review encompasses two factors: (1) whether the State's actions constituted bad faith, and (2) whether Payton could have reasonably anticipated that Farmer would testify. See Nobles v. State, 843 S.W.2d 503, 514-15 (Tex. Crim. App.1992). We will not disturb the trial court’s decision absent a showing that the State’s failure to identify the witness resulted from bad faith or that Payton could not have reasonably anticipated Farmer’s testimony.

      In determining whether the State acted in bad faith, several factors have been examined by reviewing courts: (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. See Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.—Texarkana 2000, pet. ref’d) (citations omitted). It is clear that the State’s omission was not the product of bad faith. The record fails to establish that the State knew of Farmer’s testimony and willfully refused to disclose it to Payton. The State failed to secure supporting affidavits for their damage estimates. However, Payton presented no evidence that the State acted improperly in calling Farmer to testify.

       Similarly, in determining whether the defense could have anticipated the State's witness, reviewing courts also have examined three areas of inquiry: (1) the degree of surprise to the defendant; (2) the degree of disadvantage inherent in that surprise (e.g., the defendant was aware of what the witness would say, or the witness testified about cumulative or uncontested issues); and (3) the degree to which the trial court was able to remedy that surprise (e.g., by granting the defense a recess, postponement, or continuance, or by ordering the State to provide the witness's criminal history). See id.

      The record in this case indicates that the surprise to Payton was minimal and she was not disadvantaged by Farmer’s testimony. Counsel admitted that he was prepared for the State to offer affidavits in support of the damage estimate but not for live testimony. The record reflects that Farmer’s testimony was similar to that of an affidavit in that her testimony consisted of her qualifications as an auto body damage estimator and the dollar amount of the damage. The trial court permitted counsel to take Farmer on voir dire to establish her qualifications as an expert witness, to which Payton did not object. Payton anticipated that damage estimate evidence would be introduced by the State and, therefore, was not prejudiced by Farmer’s testimony.

      Therefore, Payton has failed to show that the trial court abused its discretion by allowing Farmer to testify in lieu of an affidavit supporting the State’s evidence. Points one and two are overruled.

      In point three, Payton argues that the verdict was not the product of a fair and impartial jury. Juror Brian Oller states in his affidavit that he “voted guilty at the time to avoid a deadlock with the understanding that Ms. Payton could appeal.” Payton claims that Oller’s affidavit is sufficient to warrant a new trial based on juror misconduct.

      A motion for new trial based on juror misconduct must be supported by a juror’s affidavit alleging “outside influences” affected the jury’s decision. See Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24 (Tex.1987); Hines v. State, 3 S.W.3d 618, 623 (Tex. App.—Texarkana 1999, pet. ref’d.). An outside influence is that which originates from a source other than the jurors themselves. See Hines, 3 S.W.3d at 623. Juror Oller’s belief that Payton could appeal does not constitute an outside influence. Therefore, point three is overruled.

      The judgment of the trial court is affirmed.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed October 10, 2001

Do not publish

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