in the Interest of A. P., G. P. and L. P., Children

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00023-CV

                                                ______________________________

                 IN THE INTEREST OF A.P., G.P., AND L.P., CHILDREN

                                       On Appeal from the 336th Judicial District Court

                                                             Fannin County, Texas

                                                       Trial Court No. FA-10-39888

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM OPINION

            Bonnie Allen Pieroni, the sole appellant in this case, has filed a motion seeking to dismiss her appeal.  Pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, her motion is granted.  Tex. R. App. P. 42.1.

            We dismiss the appeal.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          April 12, 2011

Date Decided:             April 13, 2011

trial is not a final, appealable judgment. See Ortega v. State, 82 S.W.3d 748 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Lowe v. State, 999 S.W.2d 537, 537 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

          Rule 21.4 of the Rules of Appellate Procedure provides that a defendant may file a motion for new trial before, but no later than thirty days after the date when the trial court imposes or suspends sentence in open court. Tex. R. App. P. 21.4. No sentence is imposed or suspended as the separate result of a competency hearing, but only as a result of the prosecution of the criminal charge. Accordingly, a motion for new trial is not an appropriate method to attack the ruling on competency and has no effect on this proceeding. The contention of error is overruled.

          Hart next contends the court erred by overruling his motion for directed verdict. His argument is based on evidence that the gun was a BB gun, not a pellet gun as specifically alleged in the indictment. When the gun was introduced, the sponsoring officer read the identification stamping that identified it as a Powerline Model Number 93, CO2 BB gun.

          Hart argues under variance law that, because the indictment specified the gun was a pellet gun, which varied substantially from proof it was a BB gun, he was entitled to a directed verdict. "A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). Only a material variance requires reversal. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). "The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a defendant's 'substantial rights' is immaterial." Gollihar, 46 S.W.3d at 247–48; see Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). The defendant has the burden of demonstrating surprise or prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001). To determine whether a defendant's "substantial rights" have been prejudiced, we must consider two questions: whether the indictment, as written, informed the defendant of the charge against her or him sufficiently to allow such defendant to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248; Brown v. State, 159 S.W.3d 703, 709 (Tex. App.—Texarkana 2004, pet. ref'd).

          In Fuller, the Texas Court of Criminal Appeals held that a variance between an indictment alleging the victim was "Olen M. Fuller" and the evidence at trial which referred to the victim as "Mr. Fuller" or as "Buddy" was an immaterial variance. Fuller, 73 S.W.3d at 254. Similar to Fuller, the variance in this case does not involve a statutory element of the offense and there is no showing that Hart was surprised or prejudiced by the variance. The indictment, as written, sufficiently informed Hart of the charge against him and the variance would not subject Hart to another prosecution for the same offense. The variance is immaterial. The contention of error is overruled.

          Hart next raises several claims of error in connection with the admission of evidence in connection with the BB gun. He contends the court erred by allowing the State to designate and name an expert witness in midtrial to testify about the gun. A "standard" discovery order was entered by the trial court that directed both parties to disclose their expert witnesses no later than twenty days in advance of trial. Hart, in an abundance of caution, filed a request for a hearing to determine the State's compliance with that order. A hearing was held, at which the delivery of evidence expected to be used at trial was discussed. The court reiterated that, under the discovery order, evidence was to be turned over no later than thirty days before trial, unless a good faith or reasonable cause exception applied.

          The complained-of testimony is that of police sergeant Chris Brooks. He testified about a number of matters, including videotapes, an interview with the victim, his examination of the location of the attack, and characteristics of the gun. At no point during his testimony was he offered or qualified as an expert witness, nor did the court ever recognize him as such. During one discussion out of the jury's presence, the prosecutor clearly stated that Brooks was being used as a lay witness only. His testimony describing the gun was not based on "scientific, technical, or other specialized knowledge," but explicitly on his personal experiences using a BB or pellet gun. Accordingly, the complaint that he was improperly permitted to testify as an expert despite the State's failure to disclose that he would be used as such is without foundation in the record. Further, there was no objection suggesting that his testimony was the sort that could only be provided by an expert. The contention of error is overruled.

          Hart also contends the court erred by refusing to allow him to have Brooks demonstrate to the jury that the gun was incapable of being fired, and by refusing to allow him to have the gun tested by his own expert to determine whether it was capable of firing. As pointed out, the barrel of the gun was plugged with some type of rubbery substance, and the slide for loading the gun was "glued in." Under those circumstances, the gun was clearly inoperable when taken into the possession of the police three days after the attack.

          Hart contends he should have been allowed his own expert witness because the State used its own expert to examine and testify about the gun. We have already determined the witness was not qualified as, and did not testify as, an expert. The argument fails. The contention of error is overruled.

          Hart further contends he should have been allowed to demonstrate that the gun was incapable of firing and that Brooks' belief that someone could "shoot out" the obstruction in the barrel had no basis in reality. The reality is that the requested act could not have occurred during the trial. The evidence unequivocally shows it was impossible to load the gun with a BB, because both ends of the barrel were inaccessible—the slide for loading was glued shut and the end of the barrel was plugged. It might have been possible to pull out the obstruction for loading, but such removed material would then have to be reinserted to determine whether one could shoot through the identically reinserted obstruction. It is apparent such a demonstration was not likely to produce an accurate result. The trial court did not abuse its discretion in disallowing the demonstration. Further, the evidence clearly demonstrated to the jury that the gun was incapable of firing. Thus, additional evidence to that effect by a live demonstration would at best be cumulative of evidence already before the jury.

          Under Rule 403, all relevant evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Arguably, because part of the definition of deadly weapon includes anything that "in the manner of its use or intended use is capable of causing death or serious bodily injury," the question of whether a gun works is relevant to the issue of whether a deadly weapon was used. However, because the evidence in this case unequivocally shows that the gun was inoperable, a live demonstration would at best have been cumulative of the evidence already before the jury. We do not find that the trial court abused its discretion by refusing to allow the introduction of the demonstrative evidence suggested. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

          Under this contention, Hart also contends he should have been permitted to present an identical BB gun to the jury—one that had not been altered and clearly showed the brass end of the barrel to indicate the gun was a BB gun, not a firearm. In support of his position that similar items may be introduced before the jury, he cites three cases, each of which involved situations where the actual item was not available for the jury's inspection, and introduction of a similar item was shown to assist the fact-finder in its determination. In this case, the actual gun was before the jury, and there is no persuasive reason articulated that would require an identical (but unaltered) gun to be admitted into evidence. We find no abuse of discretion. See id.

          Hart next contends the court erred by allowing the State to introduce a pen packet not previously and timely provided to counsel as required by the trial court's discovery order and the court's prior ruling on Hart's compliance motion. The pen packet was from Missouri and contained documents showing two convictions in that state. The packet was certified June 30, 2004, by the Missouri Department of Corrections, although the State's counsel informed the trial court it had been received June 29. A new pen packet was prepared and introduced reflecting the correct certification date. Counsel objected to its admissibility because it was not timely provided and because the packet contained a Texas judgment that had been faxed to Missouri. Counsel provides no authority to support his argument. He does not suggest surprise, because he was informed of the enhancements, along with the cause numbers of the Missouri convictions, by a document filed October 20, 2003, and notice was therefore provided and timely. See Brooks v. State, 957 S.W.2d 30, 31 (Tex. Crim. App. 1997). He suggests no way in which he was harmed by the late presentation.

          It is obvious that the actual packet was not provided before trial, as required by the court's "Standard Discovery Order." Further, this type of documentary evidence is the type contemplated by the order. However, the order contains specific limiting language by which it requires the State to turn over all documents that might be offered at trial and "which are in the possession, custody or control of the State or any of its agencies." This pen packet was not in the possession, custody, or control of the State until midtrial. Accordingly, the order was not violated on its face, and no error has been shown.

          Hart next contends the trial court erred by failing to suppress his written statement. He argues he was coerced by the officer into giving a statement and thus his statements and the DNA evidence thereafter obtained should have been suppressed. Our review of the record reflects that this is a misstatement. The motion to suppress evidently covered Hart's written consent to obtain DNA samples and a consent to search the residence. There is no statement or confession in evidence.

          In our review of the trial court's ruling on suppression, we recognize that the trial court is the exclusive trier of fact and judge of the credibility of the witnesses, and our review of its ruling is limited to a determination of whether the trial court abused its discretion. The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact-findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

          Consent must be voluntary to be effective, and if that consent is the result of coercion, the consent is involuntarily obtained. In determining whether consent was voluntary, we look to certain relevant factors, such as: the youth of the accused; the education of the accused; the intelligence of the accused; the constitutional advice given to the accused; the length of the detention; the repetitiveness of the questioning; and the use of physical punishment. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000); State v. Hunter, 102 S.W.3d 306, 311 (Tex. App.—Fort Worth 2003, no pet.). Additionally, testimony by law enforcement officers that no coercion was involved in obtaining the consent is evidence of the consent's voluntary nature. Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000); Hunter, 102 S.W.3d at 311. Consent is not rendered involuntary merely because the accused is under arrest. Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002); Harrison v. State, 144 S.W.3d 82, 88 (Tex. App.—Fort Worth 2004, pet. granted). A police officer's failure to inform the accused that he or she may refuse consent is a factor to consider in determining the voluntariness of consent; however, the absence of such information does not automatically render the accused's consent involuntary. Johnson, 68 S.W.3d at 653; Levi v. State, 147 S.W.3d 541, 545 (Tex. App.—Waco 2004, pet. ref'd).

          The evidence consisted of a videotape (and its transcription) of the process through which consent was obtained. Hart points to the parts of the process where he was told that he "needed to give the officers what they needed in order to clear his name," that it would be better off in the long run for him and his family that the police go to his residence. There is no evidence of physical mistreatment; there is evidence Hart was in custody at the time (although the officer was uncertain himself); and that Miranda warnings were read to him. Hart was in his early forties at the time of the offense, so youth was not a consideration. Although there was a competency hearing, the evidence in that regard showed he had at least average intelligence, and there was no indication he was not competent at the time he gave consent. Although unclear, the trial court was informed that Hart had been with the police approximately an hour before being given the Miranda warnings and that the consent was given about four hours after he came to the police station. The record does not show any activity by the officers that would be such as to overpower the free will of the defendant, and we do not find that the court abused its discretion by denying the motion to suppress.

          Hart next contends the trial court erred by failing to grant him a new trial after it was discovered that juror Stephanie Flynn did not disclose she had been previously married to Paris police officer Jeff Kinslow, nor did she disclose that Kinslow's uncle had been the victim of a capital murder during an armed robbery. This information was brought to the court's attention during the hearing on Hart's motion for new trial. Hart argues Flynn did not respond truthfully during voir dire and, because of this failure, a juror who he would have struck was on the jury.

          When a juror withholds material information during voir dire, the parties are denied the full opportunity to intelligently exercise their challenges, thus hampering their selection of a disinterested and impartial jury. Franklin v. State, 138 S.W.3d 351, 355 (Tex. Crim. App. 2004). A defendant is entitled to reversal if the omission is material and the defendant has exercised due diligence in eliciting that information. Id. at 356.

          Counsel asked the panel, "Who all here is involved in law enforcement or has a close friend, family member, or relative that is involved or has been involved in law enforcement?" Flynn did not respond. However, Flynn was divorced seven months earlier from the police officer, which necessarily means that neither Kinslow nor his relatives were family members or relatives. It is likely she also does not consider her ex-husband a close friend, and the ex-husband's uncle had been killed over ten years earlier.

          In his closing questions to the jury panel, Hart's counsel also asked jurors to respond if they felt that, "You know, if you had asked that question, I would have raised my hand; and there is no way in the world they would pick me to be on that jury?" The answer to that question is one that is necessarily internalized, and there is no evidence that bears on the matter. Cf. Armstrong v. State, 897 S.W.2d 361, 363–64 (Tex. Crim. App. 1995) (existence of ongoing close friendship and relationship not reversible when questions asked not specific enough to draw out the answer).

          The granting or denying of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Based on the information before the trial court, we cannot find that the court's decision was unsupportable, nor can we say the questions were not sufficiently specific to the nondisclosed information to allow a conclusion that Flynn answered untruthfully. The contention of error is overruled.

          Hart finally contends the trial court erred by showing the jury photographs of the tattoos of nude women on his thighs. He objected at trial, arguing they were more prejudicial than probative because of their subject matter, specifically in light of the victim's previous testimony she could not identify the tattoos—but did testify there were tattoos on the thighs of her attacker. Hart offered to stipulate there are tattoos on his thighs. The court overruled Hart's objections and allowed admission of the photographs.

          Counsel argues the photographs of the tattoos were of such graphic subject matter they would sway the jury in some irrational and emotional fashion. The stipulation would undeniably have served to meet the State's needs in this instance, especially since the victim could not describe their appearance. The admission of evidence subject to this objection is controlled by Tex. R. Evid. 403, which provides (among other things) that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

          Once a defendant objects to photographic evidence on the basis of Rule 403, the trial court must weigh its probative value against its potential for unfair prejudice. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). An appellate court reviewing the trial court's decision may reverse only for an abuse of discretion, i.e., only when the trial court's decision was outside the zone of reasonable disagreement. Id. The trial court must consider the "host of factors affecting probativeness . . . and balance those factors against the tendency, if any, that the photographs have to encourage resolution of material issues on an inappropriate emotional basis." Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999).

          In this case, although the tattoos are graphic representations of a nude woman, they are not such that we believe they would necessarily sway a jury into resolving the case based on emotion rather than reason. We find the decision to be within the zone of reasonable disagreement. The contention of error is overruled.

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      June 2, 2005

Date Decided:         August 24, 2005

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