Opinion issued April 18, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-11-01019-CR
                           ———————————
                    TRACY BLAINE FRANCIS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Case No. 1282094



                            DISSENTING OPINION

      I respectfully dissent. The majority affirms the conviction of appellant,

Tracy Blaine Francis, for the felony offense of aggravated robbery and his seventy-

five-year sentence. See TEX. PENAL CODE ANN. § 29.03(a)(2), (3) (Vernon 2011).
I would reverse the conviction and remand for a new trial on the ground that the

State willfully violated a discovery order by withholding a machete offered as used

during the commission of the charged offense—but actually used in the

commission of an uncharged extraneous offense—with the intent of thwarting the

defense’s preparation for trial, in violation of Code of Criminal Procedure article

39.14. See TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (Vernon Supp. 2012). I

agree with Francis that the trial court erred with respect to the admission of this

evidence during the guilt phase of trial and that the error was harmful. Therefore,

Francis’s conviction should be reversed and the case remanded for a new trial.

                                   Background

         As the majority states, Francis was indicted for the felony offense of

aggravated robbery on October 14, 2010, based on the allegation that he

“unlawfully, while in the course of committing theft of property owned by

DEBORAH THOMAS, and with intent to obtain and maintain control of the

property, INTENTIONALLY AND KNOWINGLY threaten[ed] and place[d]

DEBORAH THOMAS in fear of imminent bodily injury and death, and [Francis]

did then and there use and exhibit a deadly weapon, namely, A KNIFE.” Thomas

had been Francis’s girlfriend a number of years before and was the mother of his

child.     At the time of the assault, Thomas and Francis had renewed their

relationship, and Francis had moved in with Thomas.


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      On June 21, 2011, approximately five months prior to the November 16,

2011 trial, Francis’s counsel filed “Defendant’s Request for Notice of State’s

Intention to Use Evidence of Extraneous Offenses at Trial.” On July 16, 2011, the

trial court entered a discovery order that ordered the State to furnish to the defense

“[a]ll physical objects to be introduced as part of the State’s case” as well as “[a]ll

contraband, weapons, [and] implements of criminal activity seized or acquired by

the State or its agents in the investigation of the alleged offense.” The order

specified that “the State is ordered to furnish the above for inspection and copying

10 working days before trial, or as soon as reasonably practicable after any such

information comes to their knowledge, whichever is earlier.”

      In response to the court’s discovery order, on September 6, 2011, two

months prior to trial, the State filed its “Notice of Intention to use Evidence

Pursuant to Texas Rules of Criminal Evidence 404, 609, and 37.07(g).” The State

gave no notice of its intent to introduce evidence of the use of a machete in the

assault or in any capacity. It did, however, state, “ON THE SAME DAY AS THIS

OFFENSE, THE DEFENDANT THREATENED MULTIPLE PEOPLE WHO

WORKED IN THE LEASING OFFICE WITH A KNIFE.”

      The trial, before a visiting judge, began on November 14, 2011. At trial,

after the jury was sworn, but prior to the presentation of evidence, Francis’s

counsel conferred with the State about the evidence the State intended to present.

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For the first time, Francis became aware that the State had a machete in its

possession and had marked it as an exhibit. The machete was distinctly different

and separate from the knife alleged to have been used in the case and described in

the official offense report. The police had been unable to recover that knife, and it

did not appear among the exhibits. No machete was mentioned in any reports,

witness statements, or documents produced to the defense prior to trial.

      Citing his timely request for notice under Rule 404, Francis objected to the

machete’s “introduction in any way.” In reply to the court’s remonstrance that a

machete is “just a big knife,” Francis announced his understanding that the

machete was not the knife alleged in the indictment. The prosecution affirmed for

the first time that “two knives . . . were used that night, this one and another one.”

The court replied, “Well, possession of a machete in itself is not necessarily an

extraneous offense.” The court granted a continuance with respect to the machete

to allow Francis’s counsel time to inspect the machete and confer with his client in

preparation for trial. The court also granted a motion in limine protecting the

Francis’s right to object should the machete be brought into the trial.

      The first witness, Officer M. Scott, who had responded to Thomas’s 911

call, testified that he thought he was responding to an unarmed assault. He did not

recall Thomas mentioning a knife, only a beating. He testified that no knife was




                                          4
found at the scene, mentioned by the other responding officers, or mentioned in the

police report. He saw no evidence of a knife wound on Thomas.

      The next witness, Susan Myers, a counselor in the family violence unit of

the Houston Police Department, interviewed Thomas when she came to the

department on October 16, 2010, to pursue charges. She testified that Thomas had

been badly beaten. On cross-examination, Myers admitted that her report of the

interview did not mention a knife but rather recorded that Thomas was beaten with

fists. On re-direct, however, she admitted that a knife was mentioned in Thomas’s

statement.

      The next morning, before the jury was brought in, the trial court agreed to

take up the motion in limine and stated, “It appears as though from my

conversation with [defense counsel], he’s had a chance to inspect the machete in

question and has had ample opportunity to speak to his client about it and prepare

for cross-examination.”     Defense counsel replied, “That is correct, Judge.

Although it doesn’t eliminate the objections that will be made.” The judge replied,

“Certainly,” and stated that he would address the objections as they arose.

      The State then called Thomas, who began to testify about the events leading

up to the charged crime. After Thomas had described the beating and the theft of

money from her bra, the State asked, “During the time that he was beating you, did

he ever make any threats to you?” In response to Thomas’s answer, “Yes,” the

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State asked, “Okay. Can you tell us about that?” She replied, “In the process of

him beating me—there’s a machete that was laying right beside me.”

      The court called a bench conference and excused the jury. Francis objected

“initially” on Rule 404(b) grounds that there was no evidence that the machete was

used in the offense in any way and that it was his understanding that “the State is

contending that it was simply there and it was not used to threaten the complainant.

And additionally, the police reports indicate that if there was a knife used, it was a

kitchen knife.” He stated that the defense’s first indication “that a machete was

going to be talked about or introduced into evidence was yesterday after the jury

had already been impaneled.” During the lunch break, defense counsel observed

the machete, asked about it, “and was then told it was going to be introduced into

evidence.”

      Francis also objected that introduction of the machete violated the discovery

order signed by the original judge on July 16, 2011, which specifically required

that the State turn over any weapons or other contraband involved in the offense

ten days ahead of trial. The State replied that, earlier that day she had explained to

the court “that [Thomas] was threatened with this machete, that [Francis] said he

was going to chop her up into little pieces and using the machete. And he had it

laying by her threatening her with it.” She further stated that she “brought the

machete as evidence”; that she intended to offer it at trial; that defense counsel told

                                          6
her he had not seen it; that “[she] did receive the machete from [the complainant]

when [she] went to interview her in preparation for trial . . . before the last trial

setting”; and that it had been in her possession since that time; but that she

“honestly didn’t know that the defense didn’t know about the machete. [She]

thought that it was in the offense report, but it wasn’t.”

          The trial court stated on the record that he had granted “a short continuance

to give the defense time to inspect to see if there was something unique about the

machete or something else that needed to be done that would enable [defense

counsel] to properly represent [his] client” and that the court’s “understanding was

that [defense counsel] had plenty of time to look at it, to examine it and to talk to

[his] client about it and prepare for cross-examination or whatever may occur in

trial.”

          Francis re-urged his objection that he had not been told about the machete

until the day before and that he had not had the opportunity to do any further

investigation beyond talking to Francis. He further objected that “if this machete

was found in September and the [discovery] order was granted in July and we just

found out about it yesterday, then this is a violation of that discovery order under

39.14” and, therefore, the machete was “inadmissible because of that.”

          When the trial court asked the State to proffer Thomas’s testimony, the

prosecutor replied:

                                            7
             I anticipate that her testimony is going to be that the defendant
      had the machete as well as a kitchen knife. That he put the machete
      next to her and told her that he was going to cut her up into little
      pieces as he threatened her with the knife. He held the knife to her.
      He moved the knife down her body. Put the knife into her vagina and
      told something along the lines of I could really fuck you up. And then
      after that, then took the money and left.

            I anticipate that she’s going to say that she doesn’t—she
      doesn’t—she hasn’t seen the knife since that night, which would
      indicate that he took the knife with him. But he did leave the
      machete. And so, the machete was there. The police did not take it.

            When she talked to Ms. Logan, who was the prosecutor in the
      court before me, she told Ms. Logan about the machete as well, which
      was in Ms. Logan’s notes, which was in the file that was open to
      defense counsel . . . .

      The court asked if the notes were work product or notes that were available

to Francis’s counsel, and the State replied, “It was her notes. I don’t know if she

had them in a work product folder or not. I don’t know that. But there were notes

in the file.” Francis’s counsel volunteered that he seen notes about Francis’s

sharpening a machete in connection with Francis’s sharpening knives fourteen

hours prior to the event, but he stated that he did not know the machete was present

during the offense, and he had no way to know that it was in the State’s possession

“because they went and got it” and it was not in the police report. He stated that

the intended use of the machete at trial as evidence of the event was a surprise that

affected his trial strategy.   The trial court expressly overruled Francis’s Rule




                                         8
404(b), Rule 402,1 and article 39.14 objections. The State then questioned Thomas

extensively about the details of the attack with the machete, which was introduced

into evidence, in addition to testifying in detail about Francis’s attack on her with

the knife and with his fists.

                            Violation of Discovery Order

      In his first issue, Francis argues that the trial court erred by admitting the

machete into evidence during the guilt phase of trial because the State willfully

withheld the machete’s existence contrary to the trial court’s discovery order,

violating Code of Criminal Procedure article 39.14.

      1.     Willful Violation of Discovery Order

      In reviewing the trial court’s decision to admit or exclude evidence, the

appellate court must determine whether the court’s decision was an abuse of

discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). Unless

it was “outside the ‘zone of reasonable disagreement,’” the decision must be

upheld. Id. When the trial court makes findings of fact based on an evaluation of

credibility and demeanor, we should show almost total deference to those findings.

Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). If the

trial court does not enter findings of fact, we view the evidence in the light most

favorable to the ruling and assume the trial court made implicit findings of fact that


1
      Rule 402 provides that irrelevant evidence is inadmissible. TEX. R. EVID. 402.
                                           9
support the ruling as long as those findings are supported by the record. Id.

(quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)).

      Texas Rule of Evidence 404(b) provides that “[e]vidence of other crimes,

wrongs or acts is not admissible to prove the character of a person in order to show

action in conformity therewith,” but it may be admissible for other purposes,

“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.” TEX. R. EVID.

404(b).

      Texas Code of Criminal Procedure article 39.14 provides that, upon the

defendant’s motion, the court shall order the State, pretrial, “to produce and permit

the inspection . . . of . . . objects or tangible things not privileged, which constitute

or contain evidence material to any matter involved in the action and which are in

the possession, custody or control of the State or any of its agencies.” TEX. CODE

CRIM. PROC. ANN. art. 39.14(a). “Evidence willfully withheld from disclosure

under a discovery order should be excluded from evidence.” Oprean, 201 S.W.3d

at 726 (quoting Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978)).

      To determine a violation of a discovery order under article 39.14, the

appellate court must determine whether the State acted voluntarily and with the

specific intent to willfully disobey the order. Id. The State’s intent to willfully

                                           10
disobey the discovery order may be inferred from its actions and words. Id. at 728.

We consider “whether the record indicates that (1) the prosecutor intended to harm

the defense, (2) the prosecutor’s actions were a strategic and purposeful effort to

thwart the defense’s preparation of its case, or (3) the prosecutor consciously

decided to violate the plain directive of the discovery order.” Walker v. State, 321

S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d, untimely filed);

see Oprean, 201 S.W.3d at 727–28. The appellate court also considers the validity

of the State’s rationale and explanation for violating the discovery order, as well as

whether it suddenly discovered the evidence such that compliance with the terms

of the discovery order was impossible. See Oprean, 201 S.W.3d at 727–28.

      In Oprean, the trial court signed a discovery order requiring the State to

furnish, at least ten days before trial, “[a]ll video and tape recordings that contain

the defendant’s voice.” Id. at 725. After a jury found Oprean guilty of felony

DWI, defense counsel asked the State what evidence she intended to present at the

punishment phase the next morning. Id. The prosecutor stated that she intended to

present only the judgments and sentences from Oprean’s prior DWI convictions.

Id. Right before the punishment phase began, defense counsel learned, when he

asked the prosecutor about the presence of a police officer in the courtroom, that

she intended to offer a videotape depicting one of Oprean’s prior convictions. Id.

Defense counsel objected to admission of the videotape on the ground that the

                                         11
State violated the discovery order. Id. The trial court overruled this objection and

denied defense counsel’s request for a recess to inspect the videotape and prepare a

strategy. Id.

      In concluding that the State acted with the specific intent to willfully disobey

the discovery order, the Court of Criminal Appeals found two things “particularly

unacceptable about the prosecutor’s conduct.” Id. at 727. First, she specifically

told defense counsel the night before the punishment phase that she intended to

offer only the judgments and sentences, and there was no indication that she did

not discover the existence of videotape until after that conversation. Id. Second,

the prosecutor’s explanation for her conduct—that “there was no [37.07] charge in

[the] court’s discovery order”—was invalid, which is a factor that should be

considered when determining willfulness. 2 Id. at 727–28. The court concluded


2
      Code of Criminal Procedure article 37.07, section 3(g), which applies to the
      punishment phase, provides, “On timely request of the defendant, notice of intent
      to introduce evidence under this article shall be given in the same manner required
      by Rule 404(b), Texas Rules of Evidence.” TEX. CODE CRIM. PROC. ANN. art.
      37.07 § 3(g) (Vernon Supp. 2012). In Oprean v. State, after defense counsel
      objected to the introduction of the videotape on the ground that the prosecutor
      violated the discovery order, the prosecutor stated, “[T]here was no [Article
      37.07(g)] charge in this Court’s discovery order and no [37.07] request was ever
      made by defense counsel, which is required to be made to me to give him this
      evidence.” 201 S.W.3d 724, 725 (Tex. Crim. App. 2006). Although Oprean
      involved the admission of evidence wrongfully withheld in violation of a
      discovery order in the punishment phase of trial, this Court has applied Oprean in
      situations in which the trial court admits evidence withheld in violation of a
      discovery order in the guilt-innocence phase of trial. See Walker v. State, 321
      S.W.3d 18, 22–23 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d, untimely
      filed); see also Hall v. State, 283 S.W.3d 137, 163–69 (Tex. App.—Austin 2009,
                                          12
that “[b]ecause the prosecutor knew about the discovery order and chose to invoke

Article 37.07 after counsel called her attention to the order, she made a conscious

decision to violate the plain directive of the discovery order.” Id. at 728. The

court held that the prosecutor’s conduct was a “calculated effort to frustrate the

defense” and remanded the case to this Court to determine the harm, if any, caused

by admission of the videotape. Id.; cf. State v. LaRue, 152 S.W.3d 95, 96–97 (Tex.

Crim. App. 2004) (finding no evidence of willful withholding of DNA evidence

where prosecutor stated he was involved in other matters at time of evidence

production request and thought someone else would be appointed to handle case;

nothing indicated that prosecutor’s fax of discovery material to defense counsel

three days after deadline was purposeful effort to thwart defense, and there was no

evidence that prosecutor’s request to proceed with trial despite failure to timely

produce DNA evidence was calculated to deny defendant’s right to speedy trial).

      As evidence of willfulness in this case, Francis points to the following

circumstances: (1) the machete was not mentioned in any discovery, including the

offense report, witness statements, or Thomas’s medical records related to the

robbery; (2) the machete’s existence came to light only after defense counsel

observed the machete among the State’s exhibits at trial, not as a result of any

voluntary act by the prosecutor; (3) the State had possession of the machete for

      pet. ref’d) (applying Oprean analysis when State offered evidence in guilt-
      innocence phase of trial that was withheld in violation of discovery order).
                                        13
more than one month prior to trial; and (4) the State failed to disclose other

evidence it introduced―threatening telephone calls Francis made to Thomas while

in custody―in violation of the discovery order.           Francis argues that these

circumstances are akin to the circumstances in Oprean, which the Court of

Criminal Appeals determined required the exclusion of evidence. See 201 S.W.3d

at 728. I agree. I would hold that in failing to disclose the existence of the

machete in its possession and Thomas’s statement about its use in the course of

Francis’s assault on her, the State acted voluntarily and with the specific intent to

violate the trial court’s discovery order. See id. at 727–28.

      Four months after the trial court entered the discovery order, Francis first

learned, after the trial had already begun, that the machete was in the State’s

possession and that the State intended to question Thomas about Francis’s threats

to “cut [Thomas] up into little pieces” with the machete that he laid beside her as

he was drawing a kitchen knife up and down her body. The police report and

initial witness statements did not mention either a knife or a machete. The officers

who responded to Thomas’s 911 call saw no evidence that a knife was used in the

commission of the offense.       Thomas later described being threatened with a

pocketknife or kitchen knife, however, and there was evidence that Francis had

threatened others with a kitchen knife earlier. Francis was indicted for threatening




                                          14
Thomas with a knife, not with a knife and a machete. Therefore, Francis’s act of

threatening Thomas with a machete was an extraneous offense.

      No mention whatsoever was made of a machete in any report, in any files

turned over by the State to the defense, or in the State’s response to Francis’s

request for notice of intent to use extraneous-offense evidence. The State’s report

of its intent to use extraneous-offense evidence referenced the intent to use

evidence that Francis had made threats to others with a kitchen knife, but it did not

mention anything about a machete. Yet the State had obtained the machete in an

interview with Thomas in September 2011, well over a month before the trial

began on November 14, 2011, and it had determined that Francis used the machete

to threaten Thomas with death, in addition to threatening her with a kitchen or

pocketknife, beating her, and robbing her. The State retained the machete in its

possession, intending to introduce it at Francis’s trial for assault with a knife that

was never recovered, and it included the machete among the exhibits it intended to

offer at trial. It is uncontested that the defense became aware of the machete only

when it discovered it among the State’s trial exhibits—after the jury had been

seated.

      Francis’s counsel objected repeatedly to the trial court that he had predicated

Francis’s defense preparation on insufficiency of the evidence to prove his guilt for

assault with a knife, rather than an assault with fists, and not on assault with both a

                                          15
knife and a machete. At or near the time of the crime, Thomas reported only an

assault with a knife; the police report contained no reference to a knife; and no

evidence of the use of a knife in the assault was found or reported at the time of the

crime—only evidence that Francis had beaten Thomas with his fists.

      It is beyond question, to my mind, that Thomas’s testimony that Francis

threatened to cut her into little pieces could only refer to the machete that he laid

beside her as he was drawing the kitchen knife or pocketknife up and down her

body and threatening to “fuck [her] up” with it. During Thomas’s testimony, the

machete—but no knife—lay in full view of the jury. Had the machete not been

offered into evidence and had Thomas not been allowed to testify about it, the jury

would have had before it only Thomas’s testimony about a knife that was never

recovered or reported by the responding officers and which left no wounds on

Thomas.

      I can only infer, on the basis of the record in this case, that the prosecutor

willfully withheld from the defense both the machete itself, which was in the

State’s possession, and notice of Thomas’s statement to the prosecutor a month

before trial that Francis laid the machete beside her and threatened to cut her into

little pieces, knowing that this evidence was not in the police report or in any files

turned over or made available to the defense. The prosecutor also knew that she

intended to introduce the machete and Thomas’s testimony about it at trial. And

                                         16
she knew that the defense had prepared for trial in the belief that only a

pocketknife or kitchen knife had allegedly been used during the course of Francis’s

assault on and robbery of Thomas and that no knife had been found, no wound had

been made, and no machete had been mentioned.

      I would hold, on the basis of this record, that the State acted willfully and

with the specific intent to violate the trial court’s discovery order and that the

prosecutor’s actions were a strategic and purposeful effort to thwart the defense’s

preparation of its case. See Walker, 321 S.W.3d at 22. I note specifically that the

prosecutor did not suddenly discover the evidence such that compliance with the

terms of the discovery order was impossible. See Oprean, 201 S.W.3d at 727–28.

Moreover, the prosecutor’s rationale and explanation for violating the discovery

order—that she thought the machete was in the police report and that she “honestly

didn’t know that the defense didn’t know about the machete”—are, to my mind,

entirely implausible and self-serving. See id. Because I would hold that the

State’s withholding of the machete was a willful violation of the discovery order

requiring exclusion of the evidence, I would turn to whether the admission of the

machete was harmful error.

      2.    Harm

      In determining the harm that was caused by the trial court’s admission of

evidence that was willfully withheld by the State in violation of a discovery order,

                                        17
we disregard the error unless it affects the defendant’s substantial rights. Oprean

v. State, 238 S.W.3d 412, 415 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d);

TEX. R. APP. P. 44.2(b) (providing that we must disregard non-constitutional errors

that do not “affect substantial rights”). A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s

verdict. Oprean, 238 S.W.3d at 415 (citing King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997)). Here, the harm that the court reviews is the harm caused

by the State’s violation of the discovery order. Id. (citing McDonald v. State, 179

S.W.3d 571, 578 (Tex. Crim. App. 2005)). The court must consider the intended

purpose of the discovery order: to prevent surprise and to permit Francis to

prepare an adequate defense. See id. (citing Hernandez v. State, 176 S.W.3d 821,

825 (Tex. Crim. App. 2005) and Ford v. State, 73 S.W.3d 923, 926 (Tex. Crim.

App. 2002)). The court must, therefore, analyze how the State’s willful failure to

comply with the discovery order affected Francis’s ability to prepare for

introduction of the machete into evidence and Thomas’s testimony about its use

and to formulate his defensive strategy. See id.

      As both the State and the defense knew, assault with a deadly weapon, such

as a knife, is a more serious crime than assault without such a weapon. And if the

State had had no evidence or insufficient evidence that a knife was used in the

crime, Francis would have been subject to conviction on a lesser offense. Instead,

                                         18
the State produced a machete—an intrinsically more deadly weapon than a

pocketknife or most kitchen knives—at trial and based its arguments on its use

during the assault in addition to the use of the knife. I would conclude that the

State’s withholding of evidence about the machete was calculated to prevent

Francis’s preparation for the introduction of this evidence that the State knew

would make an indelible impression on the jury and would have a strong influence

on its verdict and its assessment of his sentence.

      For the reasons set forth above, I would conclude that the prosecutor’s

willful violation of the trial court’s discovery order by withholding both the

machete and Thomas’s intended testimony about its use was calculated to and did

surprise defense counsel and affect his ability to formulate a trial strategy.

Therefore, I would find the error harmful. See Oprean, 201 S.W.3d at 726–28;

Oprean, 238 S.W.3d at 415–16 (finding that admission of videotape had

“substantial and injurious effect or influence in determining the jury’s verdict”).




                                          19
                                      Conclusion

      I would sustain Francis’s first issue, reverse his conviction, and remand the

case for a new trial.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(a).




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