Larry Villarreal v. State ( 2006 )

Opinion filed June 1, 2006

Opinion filed June 1, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00285-CR

                                                    __________

                                   LARRY VILLARREAL, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                                   Trial Court Cause No. 6688-D

                                                                   O P I N I O N

Larry Villarreal appeals his conviction by a jury of the offense of criminal mischief, allegedly caused by his intentionally and knowingly damaging and destroying a pickup, causing pecuniary loss in the amount of $1,500 or more but less than $20,000. The trial court assessed his punishment at confinement for twelve months in the Texas Department of Criminal Justice, State Jail Division.  He contends in three issues that the trial court erred in admitting the testimony of Tom Brewster as an expert for the State, in admitting photographs of damage to the complainant=s pickup; and in admitting a written estimate of damages to the pickup.  We affirm.

Villarreal asserts in issue one that the trial court erred in admitting the testimony of Brewster as an expert for the State.  Villarreal filed a motion based upon Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon Supp. 2005) requesting an order that the State disclose the name of any expert witness the State might use at trial.  On May 13, 2005, the trial court ordered the State to promptly disclose the name of any expert witness.

The State never specifically designated Brewster as an expert witness but referred to its subpoena list in the court file when counsel for Villarreal asked who its witnesses were.  The trial court noted that, of the names on the subpoena list, only Brewster could have been an expert. Counsel for Villarreal indicated that he was not saying that the State=s failure to designate Brewster as an expert was a surprise.  Villarreal=s counsel indicated that the State had provided him at the pretrial hearing with a copy of the estimate, telling him that Calvin Boatwright or Asomebody else@ would be the expert witness.  We also note that the State made it clear that Boatwright, whose name was disclosed to Villarreal as an expert witness, would be available to testify either later in the day or the next morning.  Despite the availability of the designated expert witness, Villarreal did not move for a continuance so that the designated witness could testify in lieu of Brewster or so that he might be prepared to counter Brewster=s testimony.  We also note that Villarreal was aware that the State would be calling a witness with respect to the amount of damage done to the pickup because he himself requested and obtained the appointment of an expert with respect to that issue. 

When a trial court grants a motion for discovery and the State fails to disclose the evidence ordered by the trial court, that evidence should not be admitted into evidence by the State during the trial.  Lindley v. State, 635 S.W.2d 541, 543 (Tex. Crim. App. 1982); De Pena v. State, 148 S.W.3d 461, 465 (Tex. App.CCorpus Christi  2004, no pet.).  In the context of expert witnesses, this common law duty has been codified by statute and has been extended to criminal defendants.  Article 39.14(b); De Pena, 148 S.W.3d at 465.  Therefore, the State had a duty to disclose to Villarreal its intention to call Brewster as an expert witness.  De Pena, 148 S.W.3d at 465.

When the trial court allows an unlisted witness to testify over objection, the decision is reviewed for an abuse of discretion.  Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); De Pena, 148 S.W.3d at 467.  Among the factors to be considered are any showing by the defendant of bad faith on the part of the prosecution in failing to disclose and whether the defendant could have reasonably anticipated that the witness would testify despite the State=s nondisclosure.  De Pena, 148 S.W.3d at 467.

The State disclosed to Villarreal that Boatwright or someone else would be an expert witness with respect to the issue of the extent of damage to the complainant=s pickup.  Brewster was the only witness listed on the State=s subpoena list who could have been an expert witness.  It appears from the facts, as we have outlined them, that Villarreal made no showing that the State acted in bad faith or that he could not under the circumstances reasonably anticipate Brewster=s testimony.  Also, as we have noted, the witness specifically designated as an expert witness was available, but Villarreal did not request a recess or continuance in order that the the designated witness could testify in lieu of Brewster or in order to prepare for cross-examination of Brewster.  Finding that the trial court did not abuse its discretion by admitting Brewster=s testimony, we overrule issue one.

Villarreal insists in issue two that the trial court erred in admitting photographs of damage to the complainant=s pickup.  The complainant testified that, on the occasion in question, he was the manager of a steel fabrication plant in Abilene and that Villarreal was working for him.  He described damage that was done to his pickup and identified State=s Exhibit Nos. 1 through 4 as photographs taken by the insurance company of his pickup and the damage done to it on the occasion in question.  Brewster testified that the photographs were of damage to the complainant=s pickup taken by an adjuster and that they were true and accurate.  However, on cross-examination, he acknowledged that he could not testify that the photographs accurately depicted the scene at the time they were taken because he could not testify concerning what the scene at the time was.

In order for a photograph to be admitted as evidence, the proponent of the item must be able to prove that the depiction is an accurate representation of what it purports to depict.  Pierce v. State, 777 S.W.2d 399, 413 (Tex. Crim. App. 1989).  Although Brewster was not able to vouch for the accuracy of the photographs because he had not observed the damage done to the complainant=s pickup, we hold that the trial court did not abuse its discretion in admitting the photographs due to the complainant=s testimony that he had observed the damage to the pickup and that the photographs depicted that damage.  We overrule issue two. 

Villarreal argues in issue three that the trial court erred by admitting the estimate of damages to the complainant=s pickup into evidence.  Brewster identified the estimate, State=s Exhibit No. 6, as an estimate prepared in July 2003, under his supervision, of the damage to the complainant=s pickup.  When Brewster was asked for his opinion as to the pecuniary loss suffered in terms of damage to the pickup in question, Villarreal objected on the basis that Brewster did not prepare the estimate and that his answer based on the estimate would be hearsay.  The trial court sustained the objection.  Shortly thereafter, Brewster testified without objection that, based on the photographs of the pickup he had inspected and based on his review of the estimate, in his opinion, the gross amount of the loss to the complainant=s pickup was $1,856.19.  He related that it was the same estimate that his adjuster, Boatwright, had prepared.  State=s Exhibit No. 6 is an estimate prepared by Boatwright.  The trial court subsequently admitted the exhibit over Villarreal=s hearsay objection.

There is no dispute that the estimate is hearsay unless it falls within the business records exception to the hearsay rule.  Tex. R. Evid. 803(6).  Villarreal contends: (1) that the State failed to show that the estimate was made and kept in the course of a regularly conducted business activity; (2) that it was the regular practice of the business activity to make the estimate; (3) that the estimate was made at or near the time of the event that it records; and  (4) that the estimate was made by, or from information transmitted by, a person with knowledge.  He urges that, in the absence of such evidence, the estimate constitutes inadmissible hearsay.

The State contends that, although its questioning of Brewster did not follow the language of Rule 803(6), it was reasonable for the trial court to find that these four prerequisites were true and that the estimate was admissible as a business exception.  It relies upon Brewster=s assertion that the estimate was obtained from his files and that it had been performed under his supervision as well as his testimony that he reviews a claim once it is paid.

Whether or not the trial court erred in the admission of the estimate, we are not to reverse, in the case of constitutional error, if we determine beyond a reasonable doubt the error did not contribute to the conviction or punishment; and we must disregard any other error that does not affect appellant=s substantial rights.  Tex. R. App. P. 44.2(a), (b).

The admission of hearsay testimony deprives the defendant of his right to cross-examination and, therefore, violates his or her rights under the Confrontation Clause of the Sixth Amendment.  See McClenton v. State, 167 S.W.3d 86, 94 (Tex. App.CWaco 2005, no pet.).  In determining harm from Confrontation Clause error, we consider the importance of the witness=s testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting material points of the witness=s testimony, the extent to which cross-examination was permitted, and the overall strength of the State=s case.  Delaware v. Van Arsdall, 475 U.S. 673 (1986); McClenton, 167 S.W.3d at 95.  If, applying these factors, we cannot determine beyond a reasonable doubt that the Confrontation Clause violation did not contribute to appellant=s conviction or punishment, we must reverse the trial court=s judgment.  Rule 44.2(a); McClenton, 167 S.W.3d at 95.  We do not focus on the propriety of the trial=s outcome, but on calculating, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.  Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000); McClenton, 167 S.W.3d at 95.  The question is whether a reasonable probability exists that the error moved the jury from a state of non-persuasion to one of persuasion as to the issue in question.  Wesbrook, 29 S.W.3d at 119; McClenton, 167 S.W.3d at 95.

The complainant testified that he paid a little bit over $1,800 to have his pickup fixed. As previously noted, Brewster testified that, based upon the photographs of the damage, the gross amount of the loss to the complainant=s pickup was $1,856.19.  The estimate introduced also showed the gross damage to the complainant=s pickup was in the amount of $1,856.19. We conclude that, in view of the testimony of the complainant and Brewster, the introduction of the estimate itself was cumulative and not particularly significant.  The State=s case was strong in the absence of the admission of the estimate; and Villarreal presented no evidence, despite having had his own expert appointed, to contradict the amount of damage done to the complainant=s pickup.  We conclude beyond a reasonable doubt that, even if the trial court erred by admitting the estimate into evidence, it did not contribute to Villarreal=s conviction or punishment.  We also conclude that it did not affect Villarreal=s substantial rights.  We overrule issue three. 

The judgment of the trial court is affirmed.

June 1, 2006                                                                            PER CURIAM

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  McCall, J., and

Strange, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.