                                                                      ACCEPTED
                                                                  06-14-00192-CR
                                                       SIXTH COURT OF APPEALS
                                                             TEXARKANA, TEXAS
                                                             4/20/2015 2:37:40 PM
                                                                 DEBBIE AUTREY
                                                                           CLERK

                    06-14-00192-CR

                                              FILED IN
                                       6th COURT
         IN THE COURT OF APPEALS FOR THETEXARKANA, OF APPEALS
                                                       TEXAS
                                       4/21/2015 8:47:00 AM
        SIXTH APPELLATE DISTRICT OF TEXAS  DEBBIE AUTREY
                                               Clerk
                 TEXARKANA, TEXAS

      ___________________________________

        REGINALD REECE,
                                       APPELLANT

        V.

        STATE OF TEXAS,
                               APPELLEE
      __________________________________

             TRIAL CAUSE NO. 11 F 0746 202
      ___________________________________


       APPEAL FROM THE 202ND DISTRICT COURT
               BOWIE COUNTY, TEXAS

                BRIEF FOR APPELLANT


ORAL ARGUMENT IS NOT REQUESTED

                          Alwin A. Smith
                          SBN: 18532200
                          602 Pine Street
                          Texarkana, Texas 75501
                          903-792-1608
                          903-792-0899 Fax
                          al@alwinsmith.com
                          Attorney for Appellant
              IDENTITY OF PARTIES AND COUNSEL


     Pursuant to TEX. R. APP. P. 38.1(a) (2005), the parties to this suit are as

follows:

1.   Reginald Reece, is the Appellant and was the Defendant in trial court.

2.   The State of Texas, by and through the Bowie County Criminal

     District Attorney’s Office, 601 Main Street, Texarkana, Texas, is the

     Appellee and prosecuted this case in the trial court.



     The trial attorneys were as follows:

1.   Reginald Reece was represented by Rick Shumaker .

2.   The State of Texas was represented by Jerry D. Rochelle, District

     Attorney and Michael Shepherd, Assistant District Attorney.



      The appellate attorney is as follows:

1.   Reginald Reece is represented by Alwin A. Smith, 602 Pine Street,

     Texarkana, Texas 75501.

2.   The State of Texas is represented by Jerry D. Rochelle, District

     Attorney and Michael Shepherd, Assistant District Attorney, 601

     Main Street, Texarkana, Texas 75501.


                                       i
                         TABLE OF CONTENTS

                                                                  Pa ge

Identity of Parties and Counsel        ...............i

Table of Contents                      . . . . . . . . . . . . . . . ii

Index of Authorities                   . . . . . . . . . . . . . . . iii

Statement of the Case                  ...............1

Issues Presented                       ...............2

Statement of Facts                     ...............3

Summary of the Argument                ...............4

Argument and Authorities

      Issue No. 1:                     ...............5

      Issue No. 2:                     ...............8


Conclusion                             . . . . . . . . . . . . . . . 15

Certificate of Service                 . . . . . . . . . . . . . . . 16




                                  ii
                          INDEX OF AUTHORITIES

Cases                                                                         Page

Campbell v. State, 667 S.W.2e 221, 222 (Tex. App. -
  Dallas 1983)                                ................ 6

Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim.
  App. 1997)                                  . . . . . . . . . . . . . . . 11

Ellison v. State, 201 S.W.3d 714, 718 (Tex. Crim.
   App. 2006)                                  . . . . . . . . . . . . . . . 10

Haley v. State, 173 S.W.3d 510, 517 (Tex. Crim.
  App. 2005)                                  . . . . . . . . . . . . 10, 11

Hill v. State, 426 S.W.3d 868, 877 (Tex.App. - Eastland
  2014)                                        ................ 7

Lindsey v. State, 102 S.W.3d 223, 228 (Tex. App.-
   Houston [14th Dist.] 2003, pet. ref’d)     . . . . . . . . . . . . . . . 11

Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim.
  App. 2006)                                 . . . . . . . . . . . . . . . 10




Statutes/Rules

Rule 44.2(a), Tex.R.App. Proc. (Vernon’s 2015).. . . . . . . . . . . . 7, 11

Rule 401, Tex. R. Evid.                               . . . . . . . . . . . . . . . 11




                                           iii
                      STATEMENT OF THE CASE

            This is a criminal case wherein the Appellant was indicted by the

Bowie County Grand Jury for theft of property with a value of less than

$1,500.00, with two previous convictions, on September 22, 2011. C.R. pg. 16.

The Appellant ‘s original trial was reversed as to punishment by this Court in

Reece v. State, No. 06-13-00082-CR, 2014 WL 1851322, on January 23, 2014.

The Appellant’s punishment was enhanced to that of a second degree felony

because of his previous convictions. C.R. pg. 40. On October 14, 2014, the

Appellant’s retrial began and on October 15, 2014, the jury assessed the

Appellant’s punishment at twenty years in the Institutional Division of the

Texas Department of Criminal Justice and assessed a fine in the amount of

$10,000.00.



           STATEMENT REGARDING ORAL ARGUMENT


      Counsel for Appellant does not believe that oral argument is necessary

for the Court to make a ruling in this matter.




                                      1
                        ISSUES PRESENTED


First Issue on Appeal: The Trial Court erred in Limiting the Defendant’s
Right to Voir Dire the Jury Panel on Punishment


Second Issue on Appeal: The Trial Court Erred in Allowing the State to
Put on Inadmissible Evidence of Victim Impact




                                   2
                         STATEMENT OF FACTS



      On June 7, 2011, the Appellant was stopped by the Texarkana Police

Department, because his vehicle matched the description of a vehicle used in

a misdemeanor shoplifting at the Wal-Mart store. Vol. 3, pg. 69. Upon

discovering what were believed to be stolen items in the vehicle the Appellant

was arrested. Vol. 3, pg. 76.

      The investigation revealed that employees of the Wal-Mart, noticed the

Appellant to be putting items into his pants and leaving the store. Vol. 3, pg.

32-3. After noticing the Appellant, the manager of the store followed the

Appellant out of the store and was able to retrieve from the Appellant some of

the items allegedly taken. Vol. 3, pg. 64.

      The total amount alleged to have been taken by the Appellant was

approximately $1,100.00.




                                       3
                       SUMMARY OF ARGUMENT


First Issue on Appeal: The Trial Court erred in Limiting the Defendant’s
Right to Voir Dire the Jury Panel on Punishment

      The trial court prevented the Appellant from being able to voir dire the

jury panel as to their beliefs about punishment so as to intelligently be able to

exercise his peremptory challenges or to be able to challenge a juror for cause.



Second Issue on Appeal: The Trial Court Erred in Allowing the State to
Put on Admissible Evidence of Victim Impact

      Over the objection of the Appellant, the trial court allowed the State

to introduce “victim impact” testimony that did not involve the victim

alleged in the indictment, nor was it limited to the Appellant’s behavior.




                                       4
                                ARGUMENT

                           First Issue on Appeal

      The Trial Court erred in Limiting the Defendant’s Right to Voir
      Dire the Jury Panel on Punishment


      Prior to the beginning of voir dire, the Assistant District Attorney

removed from the Appellant’s counsel’s possession certain power point pages

of his presentation for the jury. Vol. 2, pg. 4. After the Appellant’s counsel

objected to the trial court about the removal by the assistant district attorney,

the trial court then allowed the State to use the pilfered items to lodge an

objection as to several of the items contained therein. Vol. 2, pgs. 4-9. The

State then objected to two slides from the presentation that were admitted as

State’s Exhibit 2 and 3. Vol. 4, pgs. 89-90. State’s exhibit number 2 was of a

power point page that inquired about potential juror’s knowledge of criminal

proceedings in Bowie County, and about a case that had received considerable

press. State’s exhibit number 3 was a like page that inquired about an

additional case and the punishment. Appellant’s counsel argued to the trial

court that these exhibits were designed to inquire into the potential jurors

attitudes with regard to punishment. Vol. 2, pgs. 11-2. The trial court then

sustained the State’s objection, stating that he felt that the inquiry would



                                       5
“open up issues involved in other cases”. Vol. 2, pg. 12. The trial court also

stated that it felt that the question would be an improper commitment

question. Vol. 2, pg. 12.

      The Appellant was being tried by the jury for punishment only. His

previous record subjected him to a second degree punishment for the

commission of a Class A misdemeanor offense of shoplifting. CR. Pg. 16. It was

paramount that that the Appellant be able to exercise his peremptory

challenges and challenges for cause against any juror who could not or would

not consider the full range of punishment in this case.

      The trial court may control voir dire examination of the panel of

perspective jurors, but that ability is an abuse of the trial court’s discretion

when, as here, it limits the Appellant with regard to a proper area of inquiry.

Campbell v. State, 667 S.W.2d 221, 222 (Tex.App.—Dallas 1983). By refusing

to allow Appellant’s counsel to inquire into the venire members’ beliefs on

punishment he was effectively prohibited from being able to fully explore their

ability to fully consider the full range of punishment. “Defense counsel is

entitled to ask the venire members the question of whether they could

consider the full range of punishment, and if the trial court prevents counsel

from doing that, then defense counsel may not be able to discern if a juror



                                       6
should be struck for cause because he is unqualified.” Hill v. State, 426 S.W.3d

868, 877 (Tex.App.—Eastland 2014).

      Having established error, the Appellant urges this Court to consider the

error pursuant to a Rule 44.2(a) analysis, that being, whether this error did

not, beyond a reasonable doubt, contribute to the punishment as assessed by

the jury and was, therefore, harmless. Rule 44.2(a) Tex.R.App.Proc.,Vernon’s

2015).

      The Appellant in this case was tried as to punishment only for the

offense of Class A misdemeanor theft, which was enhanced to a State Jail

Felony because of two prior theft convictions, which was enhanced to a second

degree felony because of two prior felony convictions. The jury assessed his

punishment at the maximum number of years and assessed the maximum

fine. CR. pg. 72. It could not be clearer that the jury in this matter did not

consider the full range of punishment.




                                       7
                         Second Issue on Appeal

      The Trial Court Erred in Allowing the State to Put on Admissible
      Evidence of Victim Impact


      During the punishment trial of the Appellant, the State offered the

testimony of Mark Harrison, the store manager of the Wal-Mart from which

the Appellant had committed the misdemeanor theft. Vol. 3, pg. 57. During his

testimony, the following exchange took place between the witness and the

assistant district attorney:

      “Question: And in your current capacity as an assistant manager,

                  do you have a significant desire to have an impact on

                  being able to control the merchandise that is taken

                  from the store? Do you have a reason as to why you

                  want to protect the store merchandise?

      Answer:     Yes, sir. If we can protect our assets, it helps keep

                  costs down.”

Vol. 3, pg. 58. Counsel for Appellant objected to the testimony as being

irrelevant. Vol. 3, pg. 58. The State responded that as a 20 year employee of

Wal-Mart, the witness could testify to the impact of shoplifting on the

corporation. Vol. 3, pg. 58-9. The trial court overruled the Appellant’s



                                      8
objection and allowed the State to continue. Vol. 3, pg. 59. The witness was

then allowed to testify to the following:

      “Question: (Mr. Shepherd) You may continue.

      Answer:     Yes. The amount of shoplifting that we get, it’s very

                  extensive and it causes the prices to go up. We have to

                  pay for asset protection associates in the store, the

                  cameras. It’s just a very expensive part of the job.

      Question: And basically what you’re saying is that as it relates to

                  Walmart, that’s a multi-billion dollar corporation. Is

                  that correct, sir?

      Answer:     Yes, sir.

      Question: And a corporation of that size, if property is taken

                  from the store, for them to maintain a profit margin,

                  they have to raise prices when property is stolen at a

                  significant margin. Is that correct, sir?

      Answer:     That is correct.

      Question: Therefore, would that process affect normal shoppers

                  as it relates to their prices being increased due to

                  thefts that occur at a particular store?



                                       9
      Answer:     Yes, sir. The costs are distributed to all of us that shop

                  at Walmart.”

Vol. 3, pg. 59.

      It is clear that this testimony was victim impact testimony, and that it

was not limited to the Appellant nor of the effect of his crime on a particular

store, but was testimony of the impact on every shopper of all shoplifting done

at all Wal-Marts throughout the world.

      “We review a trial court's ruling on the admissibility of evidence under

an abuse of discretion standard.” Rodriguez v. State, 203 S.W.3d 837, 841

(Tex.Crim.App.2006). “We will uphold the trial court's decision as long as it

falls within the zone of reasonable disagreement.” Id. “We may not reverse the

court's decision solely because we disagree with it.” Id.

      “In determining admissibility of punishment evidence, “a trial judge

must operate within the bounds of Rules 401, 402, and 403". Ellison v. State,

201 S.W.3d 714, 718 (Tex.Crim.App.2006).

      “Victim-impact evidence is admissible during the punishment phase

when the evidence has some bearing on the defendant's personal

responsibility and moral culpability.” Haley v. State, 173 S.W.3d 510, 517

(Tex.Crim.App. 2005). “Extraneous victim impact evidence by people not



                                       10
named in the indictment is inadmissible because such evidence runs the risk

of extreme prejudice and can lead to an unfair punishment hearing.” Cantu v.

State, 939 S.W.2d 627, 637 (Tex.Crim.App.1997); Lindsay v. State, 102

S.W.3d 223, 228 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Such

evidence is irrelevant under Rule 401 of the Texas Rules of Evidence. Cantu,

939 S.W.2d at 637.

      “Pursuant to Texas Rule of Appellate Procedure 44.2(b), any non-

constitutional error that does not affect appellant's substantial rights must be

disregarded. A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury's verdict. In assessing

the likelihood that the jury's decision was adversely affected by the error, an

appellate court should consider everything in the record, including any

testimony or physical evidence admitted for the jury's consideration, the

nature of the evidence supporting the verdict, the character of the alleged

error and how it might be considered in connection with other evidence in the

case. The reviewing court may also consider the jury instructions, the State's

theory and any defensive theories, closing arguments, voir dire and whether

the State emphasized the error.” Haley, at 518-9.

      The State began Appellant’s punishment trial by asking in voir dire:



                                       11
     MR. SHEPHERD: In regard to a shoplifting case, do you

     understand, or what are your feelings in regard to how many

     people in the community are affected when it comes to

     shoplifting? Do you think that, you know, only the big corporation

     of Walmart is affected, or do you think potentially everyone can be

     affected?

     PANEL MEMBER OTWELL: Everyone is affected.

     MR. SHEPHERD: Okay. And how and why do you feel that way,

     ma’am?

     PANEL MEMBER OTWELL: The workers in Walmart, some of

     their pay is taken away for extra security that shouldn’t have to be

     there because people should be honest. I am watched when I am

     not a thief. I even feel like I’m being watched and even have some

     unfounded guilt sometimes, just because I feel that I’m being

     watched for no apparent reason. I just believe that it affects

     society as a whole. We should be honest, we should go in and we

     should pay for goods, and we should work hard.

Vol. 2, pg. 33. After this exchange with Panel Member Otwell, the Assistant

District Attorney went on to state:



                                      12
      “MR. SHEPHERD: All right. Thank you very much. I think you

      were very well spoken in regard to that. And I think we all

      understand that, just as Ms. Otwell pointed out, when it comes to

      shoplifting, you know, some individuals might think why are we

      here, that’s such a minor crime. A lot of people think that. A lot of

      people think that -- well, in this case at bar, I believe the total

      amount stolen on that day was about $1,100 worth of

      merchandise, okay? A lot of people think that, or some people

      think, well, Walmart is a big multi-billion dollar corporation, they

      can make that up in no time, it doesn’t affect me, I’m not going to

      worry about it. Some people think that. However, the reality is,

      just as Ms. Otwell pointed out, that additional security,

      surveillance cameras, all of that is tacked onto the price of goods

      that we all have to pay for. Absolutely nothing is going to come out

      of Walmart’s pocket. It’s going to come out of our pockets. If the

      Texarkana Walmart loses $10,000 a month in merchandise that’s

      stolen out of the store, you can rest assured that when we go in

      there to buy something --.”

Vol. 2, pg. 34. At this point Appellant’s counsel objected, and the trial court



                                       13
instructed the State to “ask questions” without ruling on the objection. Vol. 2,

pg. 34.

      In closing, the State reminded the jury “And remember, we all pay for

what he does. It doesn’t just affect Walmart. It doesn’t just affect the people

there. It affects all of us.” Vol. 3, pg. 106. It cannot be reasonably disputed that

the repeated reference to the effect on all shoppers at all Wal-Marts with

regards to the offense of shoplifting in general, didn’t have a substantial effect

and influence on the jury's punishment assessment.




                                        14
                               CONCLUSION


      It is for the reasons stated herein that the Appellant, requests that this

Court reverse the punishment assessed by the jury in this case and remand

this matter to the trial court for a proper punishment trial.



                                     Respectfully submitted,



                                     /s/Alwin A. Smith
                                     Alwin A. Smith
                                     TBN: 18532200
                                     al@alwinsmith.com
                                     602 Pine Street
                                     Texarkana, Texas 75501
                                     903/792-1608
                                     903/792-0899 Fax


                        Certificate of Compliance

      Pursuant to the Tex. R. App. P. 9.4(i)(3), I hereby certify that this brief
contains 1997 words (excluding the caption, table of contents, table of
authorities, signature of proof of service, certification and certificate of
compliance). This is a computer-generated document created in Wordperfect,
using 14 point typeface for all text. In making this certificate of compliance,
I am relying on the word count provided by the software used to prepare the
document.

                                     /s/Alwin A. Smith




                                       15
                          Certificate of Service

      This is to certify that a true and correct copy of Appellant’s Brief has
been forwarded to the Appellant, Reginald Reece, #1857130, Gurney Unit,
1385 FM 3328, Palestine, Texas 75803 and Michael Shepherd, Attorney for
the State, 601 Main Street, Texarkana, Texas 75501, on this the _____ day
of April 2015, by placing the same in the U.S. Mail or private courier service.


                                    /s/Alwin A. Smith




                                      16
