Bruce Duncan v. State ( 2014 )

NUMBER 13-13-00647-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BRUCE DUNCAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Longoria
A Nueces County jury found Bruce Duncan guilty of the state jail felony offense of
forgery involving a check, see TEX. PENAL CODE ANN. § 32.21(d) (West 2011) (“Forgery”),
and after finding that Duncan had been previously convicted of two prior felonies, as
alleged by the State in the indictment, the jury assessed a thirteen year prison sentence
and a $5,000 fine, pursuant to the habitual felony offender statute under which the state
jail felony offense of forgery was punishable as a second degree felony offense. See id.
§ 12.425 (West Supp. 2013) (“Penalties for Repeat and Habitual Felony Offenders on
Trial for State Jail Felony”); id. § 12.33 (West 2011) (“Second Degree Felony
Punishment”).
Duncan now appeals his conviction by three issues in which he complains about
the admission into evidence of State’s Exhibits 7 and 8, which were copies of two different
checks from West Oso Independent School District (“WOISD”) that were allegedly forged
and presented by Duncan at two different banks. State’s Exhibit 7 was purportedly a copy
of the check identified in the indictment in the amount of $2,485.56. It served as the basis
for the forgery charge. State’s Exhibit 8 was a copy of a second check in the amount of
$2,456.34 that Duncan allegedly presented to a different bank on the same day. The
State argued State’s Exhibit 8 was admissible as “same transaction contextual evidence”
and as evidence to rebut Duncan’s asserted defense of mistake.
In his first and second issues on appeal, Duncan argues that the trial court erred
in admitting State’s Exhibits 7 and 8 over his objection that they were not the original
checks and were therefore inadmissible under Rule 1002 of the Texas Rules of Evidence.
See TEX. R. EVID. 1002 (“Requirement of Originals”). In his third issue, Duncan argues
that the trial court erred in admitting State’s Exhibit 8 over his objections that it was
inadmissible under Rule 404(b) because (1) the State purportedly failed to provide
Duncan with the required notice of its intent to offer the evidence in its case-in-chief and
(2) there is no exception under Rule 404(b) for extraneous offense evidence of a “pattern.”
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See TEX. R. EVID. 404(b) (“Other Crimes, Wrongs or Acts”). For the reasons set forth
below, we conclude that Duncan has failed to establish reversible error. Accordingly, we
affirm the trial court’s judgment.
I. STANDARD OF REVIEW
“[A] trial court’s ruling admitting or excluding evidence is reviewed on appeal for
abuse of discretion.” Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008)
(citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). “[T]he trial court’s
ruling will be upheld if it is reasonably supported by the record and is correct under any
theory of law applicable to the case.” Id. at 418. “In other words, as long as the trial
court’s decision was within the zone of reasonable disagreement and was correct under
any theory of law applicable to the case, it must be upheld.” Winegarner v. State, 235
S.W.3d 787, 790 (Tex. Crim. App. 2007). “This is so because ‘trial courts . . . are usually
in the best position to make the call on whether certain evidence should be admitted or
excluded.’” Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
Accordingly, in reviewing the admissibility of the evidence, “[t]he appellate court [must
not] effectively displace[] the trial court, commandeering a function institutionally assigned
elsewhere.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en
banc). “The trial court’s ruling is not, however, unreviewable.” Id. Under the applicable
standard of review, “[t]he trial court abuses its discretion only when the decision lies
outside the zone of reasonable disagreement.” Davis v. State, 329 S.W.3d 798, 803 (Tex.
Crim. App. 2010) (quotations omitted).
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II. THE BEST EVIDENCE RULE
In his first and second issues, Duncan complains that the trial court erred in
admitting State’s Exhibits 7 and 8 because they were copies of the checks at issue, not
the original checks.
A. Applicable Law
Rule 1002 of the Texas Rules of Evidence provides that “[t]o prove the content of
a writing, recording, or photograph, the original writing, recording, or photograph is
required except as otherwise provided in these rules or by law.” TEX. R. EVID. 1002. Rule
1003 provides the following exception to this requirement: “A duplicate is admissible to
the same extent as an original unless (1) a question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the
original.” TEX. R. EVID. 1003 (“Admissibility of Duplicates”). The authentication
requirement for admissibility “is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” TEX. R. EVID. 901(a).
Rule 1004 provides another exception in relevant part as follows:
The original is not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if:
(a) Originals Lost or Destroyed. All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith; [or]
(b) Original Not Obtainable. No original can be obtained by any available
judicial process or procedure . . . .
TEX. R. EVID. 1004(a)–(b) (“Admissibility of Other Evidence of Contents”).
B. Relevant Facts
At trial, one of the State’s witnesses was Lori Taylor, a bank service manager for
Wells Fargo Bank (the “Bank”), who testified without objection that on February 29, 2012,
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Duncan came to her bank to cash a check from WOISD. The prosecutor then handed
Taylor a copy of the check marked as State’s Exhibit 7 and elicited testimony from her
that she recognized it as a “true and correct copy of the check,” that it was made out to
Bruce Duncan, that it was for $2,485.63, that it was numbered 12772, that the original
check had been electronically scanned and was sent to storage before it was destroyed
forty-five days later, and that the check was from WOISD and purportedly had been
signed by Velma Rodriguez and David Palacios. When the State then tendered State’s
Exhibit 7, Duncan objected that the exhibit was not the original check. Although Duncan
acknowledged that “[Rule] 1004 has the exception that the destruction of the check or the
destruction of a document is an exception,” he argued that “it must be done in good faith.”
Duncan then argued in relevant part as follows:
Again, they found out that this was [a] forgery within days, there’s absolutely
no reason we should not have the original check here. Things like
watermarks are very, very important. Things like the texture of the check,
things like determining whether or not, in good faith, anyone would believe[]
that it was real, that’s extremely important stuff. At the very minimum, I’d
like to voir dire her on the subject in determining as to why this check was
destroyed.
The trial court overruled the objection and admitted the evidence.
The State also presented the testimony of Maria Avalos, a bank teller for a
separate branch of the Bank, who testified that on February 29, 2012, Duncan presented
her with a check from WOISD in an amount that was over $2,000, which was purportedly
signed by Velma Rodriguez and David Palacios and made payable to Bruce Duncan.
Avalos testified that State’s Exhibit 8 was a “fair and accurate depiction or copy of the
original check that . . . [she] received that day.” The trial court admitted State’s Exhibit 8
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over Duncan’s objection that it was “not an original and it should not be admissible
pursuant to . . . [Rule 1002] of the Texas Rules of Evidence . . . .”
During closing argument, Duncan’s attorney admitted that the checks at issue were
forgeries that Duncan cashed on February 29, 2012:
There are several elements they have to prove. First, is the check a
forgery? And we admit it’s a forgery. We all know it’s a forgery. Check No.
12772, Check No. 12773 are forgeries. Did Bruce Duncan cash those
checks to Lori Taylor [and Maria Avalos]? He absolutely did, you’ve seen
the evidence, [sic] you’ve seen the checks, [sic] he absolutely cashed them.
The question is, he did not know the checks were forged. He did not intend
to defraud, or harm anyone. You have not heard one bit of evidence from
the State that shows he had intent. In fact, every bit of evidence you heard
shows evidence that’s clearly the opposite.
C. Discussion
On appeal, Duncan argues that State’s Exhibit 7 was inadmissible under Rule
1004 because he established that “the bank had ample opportunity to locate the original
within a 45 day period after finding out that the check in question was a forgery.” See
TEX. R. EVID. 1004(a). According to Duncan, “[s]ince the [B]ank did not present the
original nor did it make any attempt to locate it before it was destroyed, . . . such action
amounted to bad faith and [was] in violation of the Texas Rules of Evidence.” See id.
Duncan makes the same argument with respect to State’s Exhibit 8.
We reject Duncan’s argument that the evidence was inadmissible under Rule
1004(a) because, as a practical matter, the Bank was not the proponent of the evidence
at trial—the State was. See id. The evidence was admissible under Rule 1004(a)
because the State established that the original checks had been lost or destroyed, and
Duncan never asserted or attempted to prove that the State, as the proponent of the
evidence, lost or destroyed the original checks in bad faith. See id. Therefore, Duncan
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has not established that State’s Exhibits 7 and 8 were inadmissible as “other evidence”
of the original checks under Rule 1004(a) of the Texas Rules of Evidence. Id.
Furthermore, Duncan has not negated the admissibility of State’s Exhibits 7 and 8
as duplicates under Rule 1003, which as set forth above, contains two clauses under
which duplicates are inadmissible. See TEX. R. EVID. 1003. We will address the
admissibility of the evidence under both clauses. See id.
First, under clause (1) of Rule 1003, “a duplicate . . . is inadmissible if ‘a question
is raised as to the authenticity of the original.’” Narvaiz v. State, 840 S.W.2d 415, 431
(Tex. Crim. App. 1992). “That is, under Rule 1003 a duplicate is inadmissible if, on the
evidence presented, reasonable jurors might differ as to whether the original is what it is
claimed to be.” Id. Here, the State alleged that the two checks were checks that Duncan
presented to the Bank on February 29, 2012. At trial, there was no dispute, and in fact,
Duncan conceded, that the two checks evidenced by State’s Exhibits 7 and 8 were the
checks he presented at the Bank and that they were forgeries. There was no evidence
that would raise a question about whether the checks were what the State claimed them
to be. Reasonable jurors could not disagree about whether the checks were the actual
checks presented by Duncan, as the State alleged. See id. Therefore, Duncan has not
established that State’s Exhibits 7 and 8 were inadmissible as duplicates under clause
(1) of Rule 1003. See TEX. R. EVID. 1003(1).
Second, with respect to the admissibility of the evidence under clause (2) of Rule
1003, we note that although we agree with Duncan that the original checks were “very
important” evidence with potentially unique probative value that the other evidence and
duplicates might not have offered, we conclude that the potentially unique probative value
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of the original checks went to the issues of whether the checks were the actual checks
presented by Duncan and whether the checks were forgeries. See TEX. R. EVID. 1003(2).
Given that Duncan admitted both of these facts, we cannot conclude that it was unfair to
admit the duplicates in lieu of the originals under clause (2) of Rule 1003. See id.
Finally, assuming arguendo that it was error to admit State’s Exhibits 7 and 8, we
conclude that any such error was harmless. “It is well established that the improper
admission of evidence does not constitute reversible error if the same facts are shown by
other evidence which is not challenged.” Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim.
App. 1998) (quotations omitted). “Our rule, therefore, is that overruling an objection to
evidence will not result in reversal when other such evidence was received without
objection, either before or after the complained-of ruling.” Id. at 718. “This rule applies
whether the other evidence was introduced by the defendant or the State.” Id.
Here, before Duncan made any objection to State’s Exhibit 7, Taylor testified
without objection to the essential facts of the State’s case with respect to State’s Exhibit
7. It was not until the State tendered State’s Exhibit 7 that Duncan objected that the
exhibit was not the original check. At that point, “the substance of this evidence . . . [had
been] admitted without limitation or objection during the complainant’s [employee’s]
testimony on direct examination by the State.” Klien v. State, 273 S.W.3d 297, 318 (Tex.
Crim. App. 2008). Thus, any error in the admission of State’s Exhibit 7 was “harmless.”
Id.
The same is true with respect to Duncan’s complaint about the admission of State’s
Exhibit 8. Avalos testified to the essential facts of the State’s case with respect to State’s
Exhibit 8 without objection. Although Duncan made a timely objection to State’s Exhibit
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8 under Rule 404(b), it was not until the State tendered State’s Exhibit 8 that Duncan
objected that the exhibit was not the original check. See TEX. R. EVID. 404(b). Again, “[i]t
is well settled in this state that the erroneous admission of testimony is not cause for
reversal, if the same fact is proven by other testimony not objected to.” Leday, 983
S.W.2d at 718 (quotations omitted). Therefore, any error in the admission of State’s
Exhibit 8 based on it not being the original check “is not cause for reversal” because
Avalos’s testimony proved the same facts. Id.
Accordingly, we overrule Duncan’s first and second issues.
III. EXTRANEOUS OFFENSE EVIDENCE
In his third and final issue, Duncan contends that the trial court abused its
discretion by admitting State’s Exhibit 8 over his two objections: (1) that he did not receive
“reasonable notice,” as required by Rule 404(b); and (2) that the evidence was
inadmissible because there is no “pattern” exception in Rule 404(b). See TEX. R. EVID.
404(b).
A. Applicable Law
Rule 404(b) provides as follows:
Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts
is not admissible to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon timely
request by the accused in a criminal case, reasonable notice is given in
advance of trial of intent to introduce in the State’s case-in-chief such
evidence other than that arising in the same transaction.
Id.
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B. Standard of Review
With regard to notice, “[t]he ultimate issue is whether the State’s notice was
‘reasonable.’” Castillo v. State, 186 S.W.3d 21, 33 (Tex. App.—Corpus Christi 2005, pet.
ref’d). The trial court has discretion to determine whether the State provided reasonable
notice as required by Rule 404(b). Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App.
2001). “[T]he reasonableness of the notice is determined by all of the facts and
circumstances of the case.” Castillo, 186 S.W.3d at 34. “The reasonableness of the
notice must also be determined by reference to the purpose of the rule: to eliminate the
unfair prejudice that can result from the surprise introduction of extraneous offense
evidence at trial.” Id. “A determination that is within the zone of reasonable disagreement
does not constitute an abuse of discretion.” Id. “Since the notice requirement of Rule
404(b) is a rule of evidence admissibility, then it is error to admit Rule 404(b) evidence
when the State has not complied with the notice provision of Rule 404(b).” Hernandez v.
State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005).
C. Relevant Facts
In Duncan’s request for Rule 404(b) notice, he specifically asked only “that the
prosecutor give written notice in advance of trial of the State’s intent to introduce evidence
of other crimes, wrongs or acts (adjudicated or unadjudicated) in punishment pursuant to
Rule 404(b).” (emphasis added). However, in a subsequent paragraph of the request,
contingent upon the failure of the State to provide the requested notice, Duncan asked
the trial court to order written notice of Rule 404(b) evidence to be introduced at either the
guilt-innocence or punishment phases of trial.
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The State then filed notice of its intent to offer a list of extraneous offenses at both
the guilt-innocence and punishment phases of trial, which did not specifically include the
collateral forgery involving check 12773 (i.e., State’s Exhibit 8). However, the State’s
notice did include the following:
The State also plans to offer any evidence as to any of the Defendant’s prior
offenses/crimes/wrongs/acts and/or prior conduct that is referred to in the
discovery provided, and any evidence and documents referring to the case
at chief that has been provided in the discovery packet, and hereby provides
notice of its intent to do so under [R]ules 803, 804, and 902.
At trial, the State represented, and Duncan agreed, that evidence of this second
check, State’s Exhibit 8, had been provided to the defense in discovery. However,
Duncan argued that the State failed to provide proper Rule 404(b) notice of its intent to
use the second check as extraneous offense evidence. The State then represented that
Duncan had witness statements concerning the second check and thus had sufficient
notice of it, and Duncan conceded that he had notice of the check but maintained that he
was not aware that it would be used under Rule 404(b). Duncan further argued that the
evidence was inadmissible under Rule 404(b) because it did not fall within any of the
exceptions enumerated in the rule. Specifically, Duncan objected that Rule 404(b) does
not include an exception for a “pattern” of extraneous offenses in its “other purposes”
prong.
The trial court overruled Duncan’s objections to the sufficiency of the State’s Rule
404(b) notice and to the admissibility of the evidence under Rule 404(b). The trial court
then admitted State’s Exhibit 8 into evidence over Duncan’s objections, and the State
used State’s Exhibit 8 to prove that Duncan knew that both checks were forgeries and to
refute Duncan’s assertion of mistake and lack of intent to commit forgery.
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D. Discussion
On appeal, Duncan contends that the trial court erred in overruling his objections
to State’s Exhibit 8. We begin with Duncan’s complaint as it pertains to the sufficiency of
the State’s Rule 404(b) notice, which we reject for two reasons. First, we agree with the
State that Duncan’s request for notice pursuant to Rule 404(b) was deficient in the sense
that it was limited to evidence to be offered by the State during the punishment phase of
trial, whereas the complained-of evidence, State’s Exhibit 8, was offered during the guilt-
innocence phase of trial. Second, even assuming Duncan’s request was not deficient,
we would conclude that Duncan has not established an abuse of discretion with respect
to the trial court’s determination that the State’s Rule 404(b) notice was sufficient because
Duncan’s attorney had actual notice of the evidence, which was provided to counsel in
the State’s discovery packet, and because based on the facts and circumstances set forth
in the record and summarized above, it would be possible for reasonable minds to reach
different conclusions about whether the State’s notice was reasonable and whether
Duncan suffered unfair surprise when the State offered State’s Exhibit 8 into evidence.
See Castillo, 186 S.W.3d at 34. Therefore, the ruling was not outside the zone of
reasonable disagreement. See Winegarner, 235 S.W.3d at 790. Based on the foregoing,
we conclude that Duncan has not demonstrated an abuse of discretion with respect to
the trial court’s ruling on the notice issue.
Next, we turn to Duncan’s contention that State’s Exhibit 8 was inadmissible under
Rule 404(b) because “Rule 404(b) does not have a pattern exception.” The Texas Court
of Criminal Appeals has explained that, without more, evidence of a “‘system’ or ‘pattern’
of committing offenses by itself . . . [creates] exactly the forbidden inference” that Rule
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404(b) is designed to prevent. Johnston v. State, 145 S.W.3d 215, 222 (Tex. Crim. App.
2004). “That is why ‘pattern’ is not listed in Rule 404(b) as an exception.” Id. However,
“[p]atterns of acts may show identity, intent, plan, absence of mistake, or one of the other
listed grounds” in the “other purposes” prong of Rule 404(b). Id.
In this case, the State offered State’s Exhibit 8 to establish Duncan’s knowledge
that State’s Exhibit 7, the check identified in the indictment, was a forgery and that he
therefore acted with the requisite intent to commit the offense of forgery and that there
was no mistake or lack of intent, as Duncan asserted at trial. See TEX. PENAL CODE ANN.
§ 32.21. Since Rule 404(b) specifically includes “intent,” “knowledge,” and “absence of
mistake” in its list of exceptions in its “other purposes” prong, and because Duncan has
not asserted or explained why the complained-of evidence does not fit within those
exceptions, we conclude that he has failed to demonstrate that the trial court abused its
discretion by admitting State’s Exhibit 8 under Rule 404(b). See TEX. R. EVID. 404(b).
Accordingly, we overrule Duncan’s third issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
1st day of May, 2014.
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