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Date: 09-08-2020
Case Style:
Charles Edward Miller v. The State of Texas
Case Number: 01-19-00126-CR
Judge: Sherry Radack
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Patricia McLean
The Honorable Kim K Ogg
Defendant's Attorney:
Call 888-853-4800 if you need a Criminal Defense Attorney in Texas.
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The Assault
The complainant testified at trial that, on January 30, 2016, she and her best
friend, Kelesha James, went to another friend’s birthday party at a country bar called
Neon Boots. James and the complainant arrived at around 10:00 p.m. or 10:30 p.m.
and they stayed together for most of their time at the bar. James left at around 1:00
a.m. or 1:30 a.m., and the complainant stayed behind at the bar. James testified that
when she left, the complainant was not unconscious or in need of going to the
hospital, but she was “drunk.”
The complainant testified that she drank “[a] lot” that night. She testified that
she did not know the exact time that she left the bar, but thought it was between 1:00
a.m. and 2:00 a.m. because she knew it was before closing time. She left in her own
vehicle but realized after a few minutes that she had been drinking too much to drive,
so she pulled over near a railroad track and wooded area. She saw no other vehicles
or people around, removed the keys from the ignition, which unlocked her doors,
3
and went to sleep. She did not know the exact time that she pulled over, but thought
it was just a few minutes after leaving the bar.
After sleeping for what she thought was “a few hours,” the complainant was
awakened by appellant trying to take off her pants. She did not know exactly what
time she woke up. Although she tried to leave, appellant blocked her and put a small
knife in her hand. He pushed the complainant down across the seats, got on top of
her, and sexually assaulted her. She kept her eyes closed for most of the assault, but
saw his face a couple of times, including when she tried to leave the vehicle and
“later on after the assault.” She had no idea how long the assault lasted.
When appellant “was done,” he got up and “was just this nice person all of a
sudden.” Among other questions, appellant asked the for her name and phone
number. She gave him her real phone number “because that was the only thing that
I could think of is how I could get this guy.” Eventually, appellant told the
complainant he had to go to work and rode off on a bicycle. The complainant
testified it was still dark outside when he left. After he left, the complainant drove
to her mother’s house in Magnolia, Texas without stopping. On the way there, James
called the complainant to make sure she made it home safely, and she told James
what had happened. James testified that she called the complainant around 7:30 or
8:00 a.m. that morning.
4
When asked on direct what time she thought the assault occurred, the
complainant testified that she thought it was around 5:30 or 6:00 a.m. “[b]ecause I
had been sleeping for hours before it happened.” However, she admitted that she
was not certain of the time but was “pretty sure” the assault did not occur just an
hour after she fell asleep.
The next morning, appellant sent the complainant a text message. She posted
the sender’s phone number on Facebook and one of her friends found a profile which
was connected to the phone number. The name on the profile identified appellant,
Charles Miller, and the complainant immediately recognized the person in the profile
picture as her assailant. The complainant later reported the assault to police and told
them how she located the man who assaulted her.
Sergeant C. Garza, the investigator assigned to the case, was the second
witness to testify2
and testified before the complainant. Sergeant Garza testified on
cross-examination that there was never a concrete time as to when the assault
occurred, just that “it was very early morning hours of January 31.” Defense counsel
showed Sergeant Garza what appeared to be payroll records for appellant which
showed a clock-in time for work at 5:03 a.m. on January 31, 2016, at a location about
14 miles away from where the sexual assault occurred.
2
James was the first witness called by the State.
5
However, Sergeant Garza later testified that she did not know: (1) where
appellant was living at the time of the assault; (2) what transportation, other than a
bicycle, he had access to; and (3) whether appellant was the person who clocked in
for work that day, as she did not know the company’s clock-in procedures. Sergeant
Garza also agreed it was possible that an intoxicated person may not have the best
grasp of time.
The Rule Violation
The trial court recessed for lunch while the complainant was still on direct.
After lunch, appellant’s counsel conducted cross-examination of the complainant,
focusing heavily on the timeline of the assault. The complainant testified again that
she thought she left the bar between 1:00 and 2:00 a.m., but that she couldn’t “do an
exact time line” because “it’s been three years.” She also testified that although she
“felt like” she had slept for a few hours before being woken up, she reiterated that
she was intoxicated and did not “know a time line.” When pressed on her previous
testimony on direct that she slept for a few hours, the complainant testified that “I’ve
said that several times because—but I don’t know—but I literally—and I keep
repeating myself, I don’t know . . . Maybe it was a few hours, maybe it wasn’t. But,
again, that was three years ago.”
The complainant reaffirmed her testimony on direct that it was still dark when
appellant left, and that she drove straight to her parent’s house in Magnolia, though
6
she did not recall what time she got home because she did not “know a timeline.”
When pressed again about how long she had slept before the assault, the following
exchange occurred:
DEFENSE: Okay. You testified earlier that you’re pretty sure
it’s not—well, first of all, you said it was not
possible that you slept only an hour after 2:00
o’clock, right? And that’s per your recollection,
right?
COMPLAINANT: I don’t have a timeline. Yes, I might have said,
Yeah, it’s not possible, which I really thought it was
later, but it might not be.
DEFENSE: Okay.
COMPLAINANT: You said he clocked in at 5:00, or she—someone
clocked in at 5:00 o’clock.
DEFENSE: Okay. Who told you about him clocking in
somewhere?
COMPLAINANT: No one did.
DEFENSE: Well, you just mentioned it. Who told you that?
COMPLAINANT: No one did.
DEFENSE: Who told it to you?
COMPLAINANT: My friend.
DEFENSE: Your friend sitting there?
COMPLAINANT: Uh-huh.
DEFENSE: So she has been watching the testimony and telling
you what people have been saying?
COMPLAINANT: No. She’s only been here for a few hours.
7
DEFENSE: Right. And so when did you talk to her and have her
tell you what was being said in here?
COMPLAINANT: Lunch break. And she would not tell me anything
except for she told me that.
DEFENSE: Right. And then so that obvious problem with that
is that the timeline becomes an issue, right?
COMPLAINANT: No.
After this testimony, appellant asked the trial court to strike the complainant’s
testimony for violation of the Rule.3 At a hearing held outside the jury’s presence,
the complainant testified that she had a conversation with her friend Jessica Smith
during the lunch break and that she thought Smith had seen “a piece” of the
testimony from the morning. She testified that Smith “did say something about a
clocking in,” but that Smith did not tell her “the exact time or anything,” only that
“[h]e clocked in, like, to work.” The complainant did not think Smith knew about
the Rule. The complainant agreed that the prosecutors told her “about the rule and
what those rules are,” but she “didn’t realize it had to do with someone that was just
like my friend sitting there.”
Smith testified at the hearing that she saw the portion of Sergeant Garza’s
testimony regarding appellant’s work records and when he clocked into work. Smith
told the complainant “there was something about the clock-in time,” but she did not
3
“The Rule” refers to Rule 614 of the Texas Rules of Evidence, which requires the
court, at the request of any party, to exclude witnesses so that they cannot hear other
witnesses’ testimony. TEX. R. EVID. 614.
8
tell the complainant the time that appellant clocked in, or the 5:00 a.m. time period,
and she had no idea where the complainant got that from. Smith did not know that
she was not supposed to share information of other testimony with the complainant,
but that she “didn’t really share that much with her. I just told her there was—
something about a timeline and a clock-in receipt or something.” She denied telling
the complainant that it was at 5:00 a.m.
Appellant moved to strike the complainant’s testimony in its entirety. The trial
court denied the motion, stating, “[a]s I said when you first came up here, you’re
certainly permitted to vigorously cross-examine her about it.” The trial court
admonished everyone in the courtroom that spectators cannot relay information to
witnesses about testimony and that future violators would be held in contempt, fined,
placed in jail, or both.
When the jury returned, defense counsel cross-examined the complainant
about her previous testimony and the Rule violation. The following exchange
occurred:
DEFENSE: All right. So to clarify, someone you know was
watching the trial earlier, correct?
COMPLAINANT: Yes. Not yesterday, but earlier today.
DEFENSE: Really—
COMPLAINANT: Yeah, she saw the previous who was my
investigator.
DEFENSE: Right. And over lunch you talked to her?
9
COMPLAINANT: Yes.
DEFENSE: And during that time she told you about my client
and his 5:00 o’clock a.m. check in at work; is that
true?
COMPLAINANT: She didn’t give the exact time, but, yeah, she did.
DEFENSE: Okay. And you’re aware that you’re under the rule
in this situation, right? Like, to where you’re not
supposed to be able to talk about those things?
COMPLAINANT: Yes.
*****
DEFENSE: All right. Now, you testified that the assailant, after
he assaulted you, told you that he had to go to work,
right?
COMPLAINANT: Yes. And it’s actually in paperwork. This didn’t just
happen, like, now. I said it before earlier when we
were talking and I’ve said it in all my reports.
DEFENSE: Well, I have your reports here and it was never
mention[ed] ever in any of your previous
statements. That’s—
COMPLAINANT: I’ve always said he had to leave for work.
*****
DEFENSE: All right. But this—but someone clearly told you
that there were work records introduced that he was
at work at 5:00 in the morning, correct?
COMPLAINANT: They said that she was—he was at work, yes.
DEFENSE: Okay. And then you testified that after—then you
testified today that he said he had to go to work?
COMPLAINANT: Actually, I said it earlier that he got on his bicycle
and went to work. That was earlier.
10
The Forensic Evidence
A sexual assault kit was not completed, but the complainant’s vehicle was
processed as part of the investigation. Possible semen was found in the vehicle.
Through an autosomal DNA analysis, appellant was excluded as a possible
contributor to DNA mixtures found in the complainant’s vehicle. However, Y-STR
analysis—DNA testing specific to the Y-chromosome—was also performed, and
appellant could not be excluded as a possible contributor to a male DNA mixture
found in the complainant’s vehicle. His Y-STR DNA profile was consistent with the
profile developed in the complainant’s vehicle. The profile was estimated to occur
in approximately 1 out of every 2,457 Caucasian individuals. The complainant
identified appellant from a photo array with 100 percent certainty. She also identified
appellant in court as the man who assaulted her.
After the conclusion of the evidence, the jury found appellant guilty of
aggravated sexual assault. The trial then proceeded to the punishment phase, with
the jury to assess punishment.
The Sentence
The indictment included two enhancement paragraphs alleging prior felony
convictions, one of which was for aggravated rape in 1981 and the other was for
burglary of a habitation in 1992. During the punishment phase, appellant pled “not
true” to the enhancement allegations. The State introduced three penitentiary packets
11
as a way to prove the enhancement allegations: (1) Exhibit 36 included an affidavit
from the Chairman of Classification and Records for the Texas Department of
Criminal Justice – Correctional Institutions Division, a judgment for defendant
Charles Edward Miller, Jr., reflecting a conviction for aggravated rape in 1981, and
fingerprint cards for Miller, Charles Edward Jr., which listed his date of birth; (2)
Exhibit 37 included an affidavit from the Chairman of Classification and Records
for the Texas Department of Criminal Justice – Correctional Institutions Division, a
judgment for defendant Charles Edward Miller reflecting a conviction for burglary
of a habitation in 1992, fingerprint cards for Miller, Charles Edward Jr., which listed
his date of birth, and photographs of appellant; and (3) Exhibit 38 included an
affidavit from the Chairman of Classification and Records for the Texas Department
of Criminal Justice – Correctional Institutions Division, a judgment for defendant
Charles Edward Miller, Jr., reflecting a conviction for burglary of a habitation in
1990, and fingerprint cards for Miller, Charles Edward Jr., which listed his date of
birth. A fingerprint expert testified that appellant was the source of the fingerprints
contained in the pen packets.
The jury found the aggravated rape enhancement true and appellant received
a life sentence. See TEX. PENAL CODE § 12.42(c)(2)(A)(i), (c)(2)(B)(ii). This appeal
followed.
12
Violation of the Rule
In his first issue, appellant argues the trial court abused its discretion by failing
to strike the complainant’s testimony after she violated the Rule. Appellant contends
that the complainant altered her testimony after learning appellant was at work at the
time of the alleged assault, information that she received from a friend who heard
Sergeant Garza’s testimony during trial. Appellant argues the trial court’s error in
not striking the complainant’s testimony prejudiced him because the complainant’s
altered testimony “corroborated her accusation of [appellant] as the perpetrator and
bolstered her credibility overall by eliminating the giant inconsistency
(impossibility) of [appellant] having been in two places at once.”
A. Standard of Review and Applicable Law
The purpose of placing witnesses in a proceeding under the sequestration rule
is to prevent the testimony of one witness from influencing the testimony of another.
Rule 614 requires a trial judge, at a party’s request, to order witnesses excluded from
the courtroom during the testimony of other witnesses. TEX. R. EVID. 614; Bell v.
State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). The court’s decision to allow
testimony from a witness who has violated the Rule is a discretionary matter. Bell,
938 S.W.2d at 50. “It has been held that the ruling of the trial court on an objection
to a witness testifying when he has remained in the courtroom after having been
placed under the ‘[R]ule’ may not be relied upon as a ground for reversal unless an
13
abuse of discretion is shown; and until the contrary has been shown, it will be
presumed on appeal that such discretion was properly exercised.” Valdez v. State,
776 S.W.2d 162, 170 (Tex. Crim. App. 1989). In reviewing the trial court’s decision
to allow the testimony, we look at whether the witness’s presence during other
testimony resulted in injury to the defendant. Bell, 938 S.W.2d at 50. We consider
two criteria to determine injury or prejudice: (1) whether the witness actually
conferred with or heard testimony of other witnesses, and (2) whether the witness’s
testimony contradicted testimony of a witness from the opposing side or
corroborated testimony of a witness he had conferred with or heard. Id.
B. Analysis
Here, the record is clear that a Rule violation occurred. The complainant
admitted that she spoke with her friend, Jessica Smith, and that Smith was present
in the courtroom during Sergeant Garza’s testimony. The complainant also admitted
that she discussed Sergeant Garza’s testimony with Smith, and that Smith told her
that Sergeant Garza testified that appellant clocked in at work, though she denied
that Smith told her the exact time. The complainant also admitted that the
prosecutors spoke to her about the Rule but stated she did not realize it precluded
her from speaking with a friend.
But a violation of the Rule does not automatically result in reversible error.
See Bell, 938 S.W.2d at 50. Instead, the trial court has discretion to allow the
14
testimony, and that discretion will not be overturned on appeal unless the violation
resulted in injury to the appellant. See id.
To determine whether the violation resulted in injury to appellant, we consider
first whether the complainant actually conferred with or heard testimony of other
witnesses. See Valdez, 776 S.W.2d at 170. The State seems to argue that this prong
is not met because the complainant did not actually hear the testimony of other
witnesses, but only spoke to Smith, a spectator who heard the testimony of Sergeant
Garza. We disagree. “A violation of the Rule occurs when a nonexempt prospective
witness remains in the courtroom during the testimony of another witness, or when
a nonexempt prospective witness learns about another’s trial testimony through
discussions with persons other than the attorneys in the case or by reading reports
or comments about the testimony.” See State v. Saylor, 319 S.W.3d 704, 710 (Tex.
App.—Dallas 2009, pet. ref’d) (emphasis added). Because the complainant learned
about Sergeant Garza’s testimony through discussions with Smith, the first prong of
the injury test has been met.
Under the second prong, we consider whether the complainant’s testimony
contradicted testimony of a witness from the opposing side or corroborated
testimony of a witness he had conferred with or heard. See Valdez, 776 S.W.2d at
170. Here, the complainant’s testimony about the assault contradicted the appellant’s
evidence that appellant clocked in at work at 5:03 a.m. However, the complainant’s
15
testimony post Rule violation did not substantively change from her testimony on
direct. As recounted above, the complainant testified on direct that: (1) she thought
she left the bar somewhere between 1:00 and 2:00 a.m., but was not sure of the exact
time; (2) she pulled over to the side of the road after driving for what she thought
was a few minutes; (3) she fell asleep for what she thought was a few hours, although
she could not be sure of exactly how long she was asleep; (4) she awoke to someone
assaulting her; (5) she did not know what time she woke up or how long the assault
occurred; (6) appellant told her he had to go to work and left on his bicycle; (7) she
did not know what time it was when appellant left, but it was still dark; and (8) she
drove directly to her parent’s house in Magnolia after the assault, but did not know
what time it was when she arrived. Although the complainant testified that she
thought the assault happened around 5:30 or 6:00 a.m., she stated she was not sure
of the time.
On cross-examination, her testimony remained substantially the same about
the above details. She did waver on how long she slept after pulling over, saying
“I’ve said that several times because—but I don't know—but I literally—and I keep
repeating myself, I don’t know . . . Maybe it was a few hours, maybe it wasn’t. But,
again, that was three years ago.” However, this testimony is consistent with her
previous testimony before the Rule violation, when she admitted that she thought
and felt like she slept for a few hours, but she could not be sure. She also stated
16
numerous times on direct that she could not give exact times because the assault
occurred three years ago. Therefore, it does not appear that the information the
complainant received from Smith—related to appellant clocking in at work—
influenced the complainant’s testimony because her testimony remained consistent
before and after the Rule violation. See Barnes v. State, 165 S.W.3d 75, 86 (Tex.
App.—Austin 2005, no pet.) (determining no harm was shown because witness’s
testimony before Rule violation was consistent with her later post-violation
testimony); Townes v. State, No. 04-10-00796-CR, 2012 WL 566000, at *3 (Tex.
App.—San Antonio Feb. 15, 2012, pet. ref’d) (mem. op., not designated for
publication) (finding second prong not met because witnesses’ testimonies never
changed from prior statements made pre-trial or statements made during trial before
Rule was violated).
Moreover, appellant extensively cross-examined the complainant about her
violation of the Rule, which the jury could have considered in assessing her
credibility. And the trial court admonished everyone in the courtroom that spectators
cannot relay information to witnesses about testimony and that future violators
would be held in contempt, fined, placed in jail, or both. See Roper v. State, No. 05-
07-00102-CR, 2008 WL 2548826, at *3 (Tex. App.—Dallas June 26, 2008, pet.
ref’d) (not designated for publication) (holding trial court did not abuse its discretion
in admitting testimony of witness who violated Rule because appellant extensively
17
cross-examined witness about her violation of Rule, yet she maintained her
testimony that appellant committed charged offenses); Reed v. State, No. 14-02-
00671-CR, 2003 WL 21782537, at *3 (Tex. App.—Houston [14th Dist.] July 31,
2003, pet. ref’d) (mem. op., not designated for publication) (holding trial court did
not abuse its discretion in letting witness testify, in part, because after violation of
Rule was exposed, trial court again admonished witness in front of jury and allowed
opposing counsel to cross-examine him about violation). Under these circumstances,
we hold that the trial court did not abuse its discretion in refusing to strike the
complainant’s testimony after she violated the Rule.
We overrule appellant’s first issue.
Admissibility of Pen Packets
In his second issue, appellant argues that the trial court should have excluded
the pen packets, Exhibits 36 through 39, because the State did not serve them on him
as required by Rule 902(10) of the Texas Rules of Evidence. In response, the State
argues that appellant waived this argument on appeal because his objection at trial
does not comport with the argument he raises here.
A. Standard of Review and Applicable Law
Authentication of evidence is a condition precedent to its admissibility. See
TEX. R. EVID. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).
The proponent of the evidence must “make a threshold showing that would be
18
‘sufficient to support a finding that the matter in question is what its proponent
claims.’” Tienda, 358 S.W.3d at 638 (quoting TEX. R. EVID. 901(a)); Reed v. State,
811 S.W.2d 582, 586 (Tex. Crim. App. 1991).
Rules of Evidence 901 and 902 govern the authentication requirement. Rule
of Evidence 901(b) provides an illustrative, though not exhaustive, list of examples
of extrinsic evidence that satisfies the requirement of authentication. See TEX. R.
EVID. 901(b)(1)-(10); Reed, 811 S.W.2d at 586. Rule 902 identifies certain evidence
as self-authenticating and dispenses with Rule 901’s requirement of extrinsic
evidence of authenticity for that evidence. See TEX. R. EVID. 902(1)-(10). A
document may be authenticated under either Texas Rules of Evidence 901 or 902
and need not be authenticated under both. See Reed, 811 S.W.2d at 586.
We review a trial court’s decision to admit evidence over an authentication
objection for an abuse of discretion. Tienda, 358 S.W.3d at 638. If the trial court’s
ruling is at least within the zone of reasonable disagreement, we will not interfere.
Id.
B. Analysis
To preserve error, a party must timely object and state the grounds for the
objection with enough specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context. TEX. R. APP. P.
33.1(a)(1)(A); see Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016).
19
The objection must be sufficiently clear to give the trial court and opposing counsel
an opportunity to address the objection and, if necessary, correct the purported error.
Thomas, 505 S.W.3d at 924; see also Smith v. State, 499 S.W.3d 1, 7–8 (Tex. Crim.
App. 2016) (“There are two main purposes behind requiring a timely and specific
objection. First, the judge needs to be sufficiently informed of the basis of the
objection and at a time when he has the chance to rule on the issue at hand. Second,
opposing counsel must have the chance to remove the objection or provide other
testimony.”). If a trial objection does not comport with arguments on appeal, error
has not been preserved. Thomas, 505 S.W.3d at 924.
We consider the context of the complaint to determine if the party preserved
error. Edwards v. State, 497 S.W.3d 147, 162 (Tex. App.—Houston [1st Dist.] 2016,
pet. ref’d). If the correct ground for exclusion was obvious to the trial court and
opposing counsel, waiver will not result from a general or imprecise objection. Id.
However, if the context shows that a party failed to effectively communicate his
argument, then the error is deemed waived on appeal. Id.
At trial, appellant’s counsel objected to the admission of Exhibits 36 through
39 because “despite making a 39.144
request pretrial many months ago, these items,
4 Texas Code Criminal Procedure article 39.14 provides that:
[A]s soon as practicable after receiving a timely request from the
defendant the state shall produce and permit the inspection and the
electronic duplication, copying, and photographing, by or on behalf
of the defendant, of any offense reports, any designated documents,
20
I believe, were obtained, like, on the eve on [sic] trial and were not actually disclosed
to me.” The parties continued the discussion about the admissibility of these exhibits
and the following exchange occurred:
DEFENSE: I didn’t see them before we started then. I didn’t see
them.
STATE: Judge, he’s referring to something else that I handed
which is not these exhibits. Also, these are selfauthenticating document.
COURT: Has he seen this prior to trial?
STATE: Yes, he has. Yes, sir.
COURT: When were they given?
STATE: Prior.
DEFENSE: Prior to what?
STATE: We had them for a while.
DEFENSE: I don’t think I’ve ever seen them.
STATE: You saw them for sure.
papers, written or recorded statements of the defendant or a witness,
including witness statements of law enforcement officers but not
including the work product of counsel for the state in the case and
their investigators and their notes or report, or any designated books,
accounts, letters, photographs, or objects or other tangible things not
otherwise privileged that constitute or contain evidence material to
any matter involved in the action and that are in the possession,
custody, or control of the state or any person under contract with the
state.
TEX. CODE CRIM. PROC. art. 39.14(a).
21
DEFENSE: I never looked at that pen packet. They were never
served to me and not in the pretrial.
COURT: Were they provided in discovery?
STATE: Yes, Your Honor. He knew about these and we had
them in the file the entire time. He’s aware of them.
We had this discussion several days ago.
COURT: Were they listed in any type of discovery product
that you gave to him, those particular ones?
DEFENSE: There’s no copies of them. They might have been in
their file the whole time. Honestly, I’ve never
looked at the pen packets in the file.
STATE: That is not a[n] excuse that he didn’t open them.
DEFENSE: Open file policy is not an excuse, Your Honor.
STATE: And, Your Honor, I can’t take them apart as he’s
referring because they are certified selfauthenticating documents from the State of Texas.
COURT: Overruled. They’re admitted unless you have
another objection?
DEFENSE: No, sir.
COURT: They are admitted.
Nowhere in this discussion did appellant’s counsel reference Rule 901 or 902
governing authentication of evidence, nor did he argue that the exhibits were
inadmissible because they were not properly authenticated. Appellant argues that
although his objection began as a discovery-violation objection, he later invoked
Rule 902(10) by arguing that the exhibits “were never served to me.” When viewed
in context of the entire conversation, however, it appears that the parties and the trial
22
court understood appellant’s objection to the exhibits to be based on a discovery
violation. The trial court’s questioning focused on whether appellant’s counsel was
aware of the exhibits, whether they were listed in any discovery documents, and
whether appellant’s counsel had seen them prior to trial.
Even a general authentication objection, without more, is not adequate to
preserve a complaint on appeal. Snow v. State, No. 02-17-00310-CR, 2019 WL
237734, at *3 (Tex. App.—Fort Worth Jan. 17, 2019, no pet.) (mem. op., not
designated for publication); Guaderrama v. State, No. 02-14-00500-CR, 2016 WL
828325, at *4 (Tex. App.—Fort Worth Mar. 3, 2016, no pet.) (mem. op., not
designated for publication) (concluding that general authentication objection was
“improper authentication objection” and inadequate to preserve complaint on
appeal); cf. Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984) (objection
that is too general will not preserve issue for appeal). What appellant relies on as an
authentication objection falls short of even a general authentication objection.
Nothing in the record demonstrates that the trial court and opposing counsel were
aware of the specific grounds appellant relies on here, i.e., that the exhibits were
inadmissible under Rule 902(10) because they were not served on appellant 14 days
before trial. Accordingly, appellant has failed to preserve this issue for appeal.
We overrule appellant’s second issue.
23
Testimony of Fingerprint Expert
In his third issue, appellant argues that the trial court should have excluded
the testimony of the State’s fingerprint expert, Dimitry Payavla, during the
punishment phase because the State failed to properly disclose the name of this
expert in accordance with Article 39.14(b) of the Texas Code of Criminal Procedure.
A. Standard of Review and Applicable Law
Generally, notice of the State’s witnesses must be given upon request by the
defense. Hamann v. State, 428 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d). Article 39.14 of the Texas Code of Criminal Procedure requires a
party, upon request from the other side, to disclose the name and address of each
witness that may testify at trial, including expert witnesses, at least 30 days before
trial. TEX. CODE CRIM. PROC. art. 39.14(b). If the trial court allows a witness who
was not on the State’s list to testify, we review that decision for an abuse of
discretion. Hamann, 428 S.W.3d at 227 (citing Martinez v. State, 867 S.W.2d 30, 39
(Tex. Crim. App. 1993)).
Among the factors a reviewing court considers in determining whether a trial
court abused its discretion by allowing a witness who is not on the State’s witness
list to testify are (1) whether the State’s actions in calling a previously undisclosed
witness constituted bad faith, and (2) whether the defendant could have reasonably
anticipated that the witness would testify. Id. at 227–28 (citing Wood v. State, 18
24
S.W.3d 642, 649 (Tex. Crim. App. 2000)). In determining whether the State acted
in bad faith, the principal area of inquiry is whether the defense shows that the State
intended to deceive the defendant by failing to provide the defense with a witness’s
name. Id. at 228. In examining whether the defense could have reasonably
anticipated that the State would call the witness, reviewing courts generally examine
(1) the degree of surprise to the defendant; (2) the degree of disadvantage inherent
in that surprise (i.e., 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 (i.e., by granting the defense a
recess, postponement, or continuance, or by ordering the State to provide the
witness’s criminal history). Id.
B. Analysis
Within this issue, appellant argues this court should apply Texas Rule of Civil
Procedure 193.6(a), which provides for the exclusion of undisclosed evidence at trial
absent a showing of good cause, instead of the abuse-of-discretion standard applied
to evidentiary issues. We decline to do so.
Appellant claims that we should adopt a remedy of exclusion for violations of
article 39.14(b), such as that set forth in Texas Rule of Civil Procedure 193.6,
because doing so would further the purposes and goals of the legislature in enacting
25
the Michael Morton Act.5 However, appellant fails to recognize that the Michael
Morton Act, which became effective on January 1, 2014, amended subsection (a) of
article 39.14 and added subsections (c) through (n), but made no change to
subsection (b), the subsection at issue in this case. See In re State, No. 01-19-00688-
CR, 2020 WL 1943033, at *3 n.8 (Tex. App.—Houston [1st Dist.] Apr. 23, 2020,
orig. proceeding); see also Senate Comm. on Criminal Justice, Bill Analysis, Tex.
H.B. 510, 84th Leg., R.S. (2015) (“The 83rd Legislature’s Michael Morton Act
comprehensively overhauled the discovery process for Texas criminal cases. The
Act reformed the Texas criminal discovery statute in the Code of Criminal Procedure
to ensure more open and transparent discovery in all criminal cases and to improve
the reliability of criminal convictions. However, the Act did not change the
discovery of expert witnesses, which remains covered by Article 39.14 (b), Code of
Criminal Procedure.”). Article 39.14(b) was not amended until 2015. See Act of June
15, 2015, 84th Leg., R.S., ch. 459, § 1, 2015 Tex. Gen. Laws 1774. Apart from
claiming that the penalty of exclusion would further the goals of the Michael Morton
Act, appellant has made no argument as to why we should adopt a different standard
of review other than the abuse-of-discretion standard. Because appellant has made
5 Michael Morton Act, 83d Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106 (codified as
an amendment to TEX. CODE CRIM. PROC. art. 39.14).
26
no other argument as to why we should apply a different standard of review, we
decline to engage in such analysis.
Instead, applying the standard long applicable to a trial court’s decision to
allow a witness not on the State’s witness list to testify, we hold that the trial court
did not abuse its discretion in allowing Payavla to testify. Here, no evidence shows
that the State acted in bad faith or intended to deceive appellant by failing to provide
the defense with the specific name of its fingerprint expert. The State timely
disclosed a list of witnesses that provided generally that it intended to call a
fingerprint identification expert from the Harris County Sheriff’s Office at 1301
Franklin, Houston, TX 77002. The State explained at trial that there were only four
or five deputies who provide this type of testimony, and the State did not know until
the trial date which of those officers would be available to testify. There is also no
evidence that appellant inquired further as to the identity of the expert witness or a
time as to when the State would know the witness’s identity. Under similar
circumstances, we have previously concluded that the defendant failed to show the
State acted in bad faith or intended to deceive by failing to provide a specific name
of an expert. See Hamann, 428 S.W.3d at 228 (holding State did not act in bad faith
because it generally notified defendant that it intended to call fingerprint expert at
trial and defendant made no further inquiry into identity of such expert witness); see
also Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977) (holding trial court
27
did not abuse its discretion in allowing testimony from undisclosed expert because,
at time defense requested that information, State did not know who it would call and
defense failed to follow up with State). Thus, we conclude that the State did not act
in bad faith or intend to deceive appellant by failing to disclose Payavla as its
fingerprint expert.
Furthermore, the record demonstrates that appellant could have reasonably
anticipated that the fingerprint expert would testify. While the fact that Payavla was
the designated fingerprint expert was a surprise to appellant, the degree of
disadvantage inherent in that surprise was minimal because appellant was aware the
State would call a fingerprint expert, and the State intended to introduce evidence of
his previous conviction. See Hamann, 428 S.W.3d at 228 (holding trial court did not
abuse its discretion in allowing fingerprint expert whose name was not disclosed to
testify, because defendant knew State would call fingerprint expert and State
intended to introduce evidence of his prior convictions). Thus, we conclude that the
trial court did not abuse its discretion in allowing Payavla to testify during the
punishment phase of appellant’s trial.
We overrule appellant’s third issue.
Legal Sufficiency of Enhancement Paragraph
In his fourth issue, appellant argues that the evidence was insufficient to prove
the 1981 conviction for aggravated rape, which was used by the State as a sentencing
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enhancement, because he was 16 at the time of the offense and the State produced
no evidence that the case was transferred from juvenile court. Accordingly, appellant
argues that Exhibit 36, which contains the pen packet for the 1981 conviction, is
void on its face and is insufficient to show a prior conviction. The State argues State
that the Court of Criminal Appeals has already addressed this issue and held that the
State is not required to show a valid transfer order under similar circumstances. In
his reply brief, appellant raises an additional argument that the evidence was
insufficient to prove both the 1981 conviction (Exhibit 36) and the 1990 conviction
(Exhibit 38) because the fingerprint cards contained in those pen packets were not
from the respective convictions.
A. Standard of Review and Applicable Law
A trier of fact must consider whether the totality of the evidence establishes
beyond a reasonable doubt that the defendant was previously convicted of the
enhancement offense. Wood v. State, 486 S.W.3d 583, 589 (Tex. Crim. App. 2016).
The trier of fact weighs the credibility of each piece of evidence and determines
whether the totality of the evidence establishes the existence of the alleged
conviction and its link to the defendant beyond a reasonable doubt. Id. In reviewing
the sufficiency of the evidence to support a finding that an enhancement is “true,”
we consider all the evidence in the light most favorable to that finding and determine
29
whether a rational trier of fact could have found the essential elements beyond a
reasonable doubt. Id.
To enhance a defendant’s sentence based on a prior conviction, the State must
prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the
defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex.
Crim. App. 2007). The State may prove both elements in a number of different ways,
including through documentary proof (such as a judgment) that contains sufficient
information to establish both the existence of a prior conviction and the defendant’s
identity as the person convicted. Id.at 921–22.
B. Analysis
Appellant argues that because the State presented no evidence that the 1981
case was transferred from juvenile court, the evidence supporting that 1981
conviction for aggravated rape is insufficient as a matter of law. We agree with the
State, however, that the Court of Criminal Appeals has already addressed this issue
and held that the State is not required to show a valid transfer order under similar
circumstances. See Johnson v. State, 725 S.W.2d 245, 247 (Tex. Crim. App. 1987).
In Johnson, the defendant objected at trial to the admission of an allegedly void prior
conviction, arguing that he was a minor at the time the offense occurred and a proper
order transferring the case from juvenile court was not included in the pen packet
introduced into evidence by the State. Id. at 246. The Court of Criminal Appeals
30
explained that the State establishes a prima facie showing of a prior conviction by
introducing a copy of the judgment and sentence in each case used for enhancement
and connecting them with the defendant. Id. at 247. Once the State introduces a
judgment and sentence and connects the defendant with them, regularity in the
judgment is presumed. Id. The burden then shifts to the defendant, who must make
an affirmative showing of any defect in the judgment, whether that be to show no
waiver of indictment or no transfer order. Id. The court found that the State made a
prima facie showing of a valid prior conviction by introducing evidence of a
judgment and sentence and identifying defendant with them. Id. The burden then
shifted to the defendant to affirmatively show a defect which proved the conviction
was void as he alleged. Id. Because no such showing was made, the court held that
the State proved a valid prior conviction. Id.
The same is true here. At trial, the State introduced Exhibit 36, a pen packet
containing a judgment and sentence relating to appellant’s 1981 conviction for
aggravated rape and a fingerprint card. The State’s fingerprint expert testified that
he compared the fingerprints on the fingerprint card contained in Exhibit 36, and
they matched the defendant’s fingerprints taken before trial. Therefore, the State
made a prima facie showing of a valid prior conviction by introducing evidence of a
judgment and sentence and identified appellant with them. See Johnson, 725 S.W.2d
at 247. The burden then shifted to appellant to affirmatively show a defect (such as
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the absence of an order transferring him from juvenile court to district court) in the
prior conviction that would render it void. Appellant failed to show a defect. Because
the State made a prima facie showing of appellant’s prior conviction, we hold that
the evidence is legally sufficient to support the jury’s finding of true to the
enhancement paragraph.
In his reply brief, appellant raises an additional argument as to why the
evidence is insufficient to support the enhancement paragraph. He contends that the
fingerprint cards in Exhibits 36 and 38 were insufficient to link appellant to those
offenses because the fingerprint cards are not connected to the respective offenses
in Exhibits 36 and 38. Citing Chambers v. State, 580 S.W.3d 149, 161 (Tex. Crim.
App. 2019), appellant argues we should consider this argument because it is “part
and parcel” to the arguments raised in his opening brief and because he specifically
challenged Exhibit 36 as insufficient evidence. We disagree. Although the Court of
Criminal Appeals acknowledged in Chambers that courts may consider arguments
and authorities in reply briefs that are related to the arguments in the original brief,
the court noted that was not a case in which the defendant was raising a completely
different sufficiency challenge for the first time in a reply brief. Id. But that is exactly
what appellant has done here. In his opening brief, appellant argued that the evidence
was insufficient to support the enhancement paragraph related to the 1981 conviction
because Exhibit 36 contained no transfer order. But in his reply, he raises a
32
completely different sufficiency challenge based on the fingerprint cards. Therefore,
we do not consider this argument raised for the first time in appellant’s reply brief. 6
TEX. R. APP. P. 38.3; Deutsch v. State, 566 S.W.3d 332, 341 n.9 (Tex. App.—
Houston [14th Dist.] 2018, no pet.).
We overrule appellant’s fourth issue.
6 Even if we were to consider appellant’s argument, we would still conclude the
evidence is sufficient to support the enhancement paragraphs. Although appellant
argues that the fingerprint cards (dated 2015) are not related to the 1981 conviction
in Exhibit 36 and the 1990 conviction in Exhibit 38, and therefore are insufficient
to support the enhancement findings, numerous courts have rejected this exact
argument and found that the fingerprint set maintained by the Texas Department of
Criminal Justice refer to the packet as a whole, and a single set of fingerprints may
therefore be used to prove up a defendant’s identity across multiple convictions. See
Cole v. State, 484 S.W.2d 779, 784 (Tex. Crim. App. 1972) (holding all five
convictions in pen packet admissible even though only one fingerprint card, made
in reference to only one conviction, was included in pen packet because “[t]he
fingerprints are used as a means of insuring that the person on trial is the same one
to whom the packet refers” and “[t]he fingerprints refer to the packet as a whole”);
see also Cantu v. State, No. 13-16-00205-CR, 2017 WL 2979804, at *3 (Tex.
App.—Corpus Christi July 13, 2017, pet. ref’d) (mem. op., not designated for
publication) (rejecting defendant’s argument that evidence was insufficient to link
him to 1989 conviction for enhancement purposes when fingerprint card in pen
packet was dated 1972 because fingerprint set maintained by TDC refers to whole
packet and can be compared to fingerprints taken from defendant on same day of
trial); Dorton v. State, No. 14-99-00941-CR, 2001 WL 253700, at *2 (Tex. App.—
Houston [14th Dist.] Mar. 15, 2001, no pet.) (not designated for publication)
(holding state offered sufficient proof of 1974 conviction to support enhancement
paragraph because testimony of fingerprint expert at trial matched fingerprints on
fingerprint card to those taken from defendant at trial, even though fingerprint card
did not refer to 1974 conviction because fingerprints in pen packet refer to packet
as whole). Here, a fingerprint expert testified that the fingerprints contained in
Exhibits 36 through 38 (though dated 2015) matched those taken from appellant at
trial. Exhibits 36, 37 and 38 also contained judgments and sentences for appellant’s
1981 conviction for aggravated rape, 1992 conviction for burglary of habitation, and
1990 conviction for burglary of a habitation, respectively. Therefore, sufficient
evidence supported the enhancement paragraphs. Flowers, 220 S.W.3d at 921.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: