                          COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 02-11-00420-CR


Jimmie Doyle Roberts                      §    From the 297th District Court

                                          §    of Tarrant County (1163520D)

v.                                        §    January 10, 2013

                                          §    Opinion by Justice McCoy

The State of Texas                        §    (nfp)

                                  JUDGMENT

        This court has considered the record on appeal in this case and holds that
there was error in the trial court’s judgment. It is ordered that the judgment of the
trial court is reversed and this case is remanded to the trial court for a new trial.



                                     SECOND DISTRICT COURT OF APPEALS



                                     By_________________________________
                                       Justice Bob McCoy
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00420-CR


JIMMIE DOYLE ROBERTS                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


                                     ----------

         FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                       MEMORANDUM OPINION1

                                     ----------

                                  I. Introduction

     In three points, Appellant Jimmie Doyle Roberts appeals his conviction for

causing bodily injury to an elderly person. See Tex. Penal Code Ann. § 22.04




     1
      See Tex. R. App. P. 47.4.

                                         2
(West 2011). We reverse the trial court’s judgment and remand the case for a

new trial.

                    II. Factual and Procedural Background

      Walgreens assistant manager James Gomez testified that he was working

with Roberts at around 1:00 p.m. on June 7, 2009, a Sunday, at the Colleyville

Walgreens when an incident occurred with complainant Bobby Petrey, an elderly

man who was a regular customer.2 Petrey was short fifty-eight cents for his

transaction, and he asked Gomez if he could pay it the next time he was in the

store. Gomez told Petrey that Walgreens’s policy would not permit this, and the

customer behind Petrey paid for most of Petrey’s transaction.

      Gomez said that Petrey appeared frustrated and continued to try to pay

Roberts, the cashier, who told him, “Mr. Petrey, it’s done, it’s taken care of, the

bill is settled, it’s done, you’re finished,” and then told him that if he wanted to

give his money to someone, to give it to the customer that had paid his bill.

Petrey remained agitated. During cross-examination, Gomez admitted that in his

statement to the police, he had said that Petrey berated Roberts, but he also

testified that he did not recall Petrey calling Roberts a “young punk” or a “piece of




      2
        The trial court admitted a copy of Petrey’s birth certificate, which showed
that he was born February 3, 1936, making him seventy-three years old at the
time of the incident.

                                         3
shit” or inviting Roberts to meet him around the corner where he would rip

Roberts’s behind.

      On his way out of the store, Petrey said something like, “[Y]ou guys need

to go to church.” Gomez testified that at Petrey’s statement, Roberts retorted,

“What are you still doing here, old man? Why are you still here?” Petrey walked

back into the store, and to avoid a scene, Gomez instructed Roberts to go to the

office. Roberts became more agitated, and when Gomez tried to nudge him

towards the office, Roberts pushed back and told Gomez to stop pushing him.

      Roberts stepped out from behind the cash register, and Gomez described

the following conversation between Roberts and Petrey:

             And at that point Mr. Petrey is saying, [“]I’m not afraid of
      you.[”] [Roberts] is saying the same thing, [“]I’m not afraid of you
      either, old man.[”] And as I thought [Roberts] was on his way to the
      office, I turned my back to [him]. As I turned around they were both
      face to face and [Roberts] pushed him.

Gomez said that he was less than a foot away from Petrey and Roberts when he

turned his back, and when he turned back around, they were face-to-face.

Gomez said that he did not see Petrey raise his fist or his cane but that Petrey

fell when Roberts pushed him.

      During cross-examination, Gomez said that Petrey continually berated

Roberts while approaching the counter, and Gomez admitted that he used the

word “provoke” with regard to Petrey’s behavior towards Roberts when giving his

statement to police. Gomez said that he did not recall asking Colleyville Police

                                       4
Detective Cheryl Womack3 about a criminal trespass notice for Petrey as a result

of his conduct in the store that day.

      Portions of State’s Exhibit 1, a video of the Walgreens transaction, were

admitted and published to the jury, as was Gomez’s 911 call after the incident.

Gomez said during cross-examination that the published portion of the video did

not show the complete transaction between Roberts and Petrey.

      We have reviewed the entire video, which shows Roberts becoming

physically agitated in response to something Petrey says to him and Gomez

physically restraining Roberts and pushing him away as Petrey returns to the

cashier’s area and approaches Roberts.       Petrey continues to move towards

Roberts, but their actual encounter is off-camera. The next time Petrey appears,

he is flying through the air and falling on the floor, still grasping his cane. The

recording of Gomez’s 911 call merely reflects that Gomez informed police that




      3
        Although the State listed Detective Womack as a witness, Roberts was
informed during trial that Detective Womack was out of state; he then obtained a
subpoena—issued on the first full day of trial—and moved for a continuance,
arguing that Detective Womack was a material witness because she had
indicated that Gomez told her that the Walgreens management team had
determined that providing customer care to Petrey in the future might put
additional staff at risk of being put in an unpleasant situation and that Gomez had
requested information on how to obtain a criminal trespass warrant for Petrey if in
the future he again returned to the store, created a disturbance, and refused to
leave. The trial court denied the motion and overruled Roberts’s objections to its
ruling.

                                        5
someone had been assaulted at Walgreens, that the victim was still there, and

that the assailant, an employee, had left.

      Colleyville Police Officer Kevin Maddux testified that he was dispatched to

handle a disturbance call at Walgreens around 1:00 p.m. and that he spoke with

Petrey and Gomez around seven minutes later; Roberts had already left the

scene. Petrey was agitated; he refused the offer of medical attention and told

Officer Maddux that he did not want to press charges against Roberts at that time

but that he was interested in pressing charges against Walgreens.4 Petrey told

Officer Maddux that he had tried to use a coupon and then had a disagreement

with the cashier when the coupon was rejected; he said that the cashier had

called him an old man and pushed him to the ground. Officer Maddux agreed

that a cane could be a deadly weapon depending on how it was used.

      On the first full day of trial, Roberts subpoenaed Petrey to appear and

moved for a continuance to secure his attendance.5 The trial court denied his

motion. The next day, outside the jury’s presence, Rene Flores, Roberts’s court-



      4
       Roberts offered, and the trial court admitted, a document from Walgreens,
from the senior legal assistant for tort litigation, reflecting that Petrey opened a
claim with Walgreens’s third party claims administrator but did not pursue the
claim and that no settlement was made. The document also indicates that
Walgreens was not in possession of any criminal trespass notices or other
business records related to Petrey.
      5
      Roberts complained to the trial court that the State had listed both Petrey
and Detective Womack on its witness list, even though neither appeared at trial.

                                         6
appointed private investigator, testified that he received a subpoena for Petrey

and served it on him.       Flores described Petrey as having a serious health

condition and being very ill and disabled. The State stipulated to Petrey’s health

and stated that Petrey’s health was the reason it had not produced him as a

witness.6 Flores spoke with Petrey twice—once by phone and once at Petrey’s

home—and he testified that Petrey had told him both times that he had been

shoved from behind and that he had raised his cane up but not to hit Roberts.

      When the trial court denied Roberts’s motion for a continuance, Roberts

asked the trial court to issue an attachment to have Petrey brought to the

courthouse. The trial court declined to issue the attachment, stating that it would

be detrimental to Petrey’s health. Before the jury, Flores testified about Petrey’s

poor health as the reason for his absence from court.

      During his informal bill of exception, Roberts stated that he anticipated that

Petrey would have testified that he had raised his cane before Roberts shoved

him, had used derogatory language to provoke Roberts, and had used fighting

words.

      The trial court denied Roberts’s requested jury instruction on self defense,

and the jury found Roberts guilty and sentenced him to fifteen years’




      6
         Petrey’s medical records were admitted into evidence during trial.

                                          7
confinement. The trial court entered judgment on the verdict, and this appeal

followed.

                            III. Compulsory Process

      In three points, Roberts argues that the trial court erred by denying his

motion for a writ of attachment to secure Petrey’s attendance at trial as a witness

and by denying his motions for a continuance to secure the attendance of Petrey

and Detective Womack.

      With regard to Petrey’s first point, both the state and federal constitutions

guarantee an accused compulsory process for obtaining a witness. U.S. Const.

amend. VI; Tex. Const. art. I, § 10. When a witness is subpoenaed and fails to

appear, “the defendant shall be entitled to have an attachment issued forthwith

for such witness.” Tex. Code Crim. Proc. Ann. art. 24.12 (West 2009); Sturgeon

v. State, 106 S.W.3d 81, 90 (Tex. Crim. App. 2003) (stating that article 24.12’s

plain language “makes it clear that attachment of a witness who has been duly

served with a subpoena is a matter of right”).

      The court of criminal appeals has established a three-step procedure for

determining whether an appellant has preserved error after a subpoenaed

witness fails to appear: (1) the party must request a writ of attachment, which

must be denied by the trial court; (2) the party must show what the witness would

have testified to; and (3) the testimony that the witness would have given must

be relevant and material. Sturgeon, 106 S.W.3d at 85 (citing Erwin v. State, 729

                                         8
S.W.2d 709, 714 (Tex. Crim. App. 1987), overruled on other grounds by Burks v.

State, 876 S.W.2d 877 (Tex. Crim. App. 1994)). If the party meets all three

requirements, “reversible error will result unless the error made no contribution to

the conviction or to the punishment.”     Id.; see also Tex. R. App. P. 44.2(a).

When the testimony of a missing witness is neither cumulative nor irrelevant, the

denial of the right to attach that witness is, in effect, the denial of the right to

present a defense. Sturgeon, 106 S.W.3d at 89.

      Conceding that Roberts has met the first two requirements, the State

contends that Roberts nonetheless failed to preserve error because Petrey’s

testimony was not material to the defense. To determine whether the testimony

of the absent witness was relevant and material, we must review the entire

record. See Trinidad v. State, 949 S.W.2d 22, 23 (Tex. App.—San Antonio 1997,

no pet.).

      None of the witnesses at trial saw Petrey raise his cane before Roberts

pushed him, and State’s Exhibit 1 does not show the physical encounter between

Roberts and Petrey. During his informal bill of exception, among other things,

Roberts stated that—based on what Petrey told the investigator—he anticipated

that Petrey would have testified that he had raised his cane before Roberts

pushed him, supporting Roberts’s self-defense theory. See Tex. Penal Code

Ann. § 9.31(a) (West 2011) (stating that a person is justified in using force

against another when and to the degree the actor reasonably believes the force

                                         9
is immediately necessary to protect himself against the other’s use or attempted

use of unlawful force).

      Roberts argues that for him to present this evidence to the jury absent

Petrey, he would have been forced to waive his Fifth Amendment privilege

against self-incrimination. Cf. Trinidad, 949 S.W.2d at 24 (stating that without the

subpoenaed witnesses’ testimonies, appellant’s mother would have been the

only witness able to counter the State’s witnesses’ testimonies, and given her

relationship to the appellant, her credibility was subject to greater question); see

also Sturgeon, 106 S.W.3d at 89 (noting that because the defense had relied

heavily on the alibi witnesses, without their testimony, he was unable to present a

defense). Because there was no other evidence presented at trial that Petrey

raised his cane, the evidence is not cumulative. Cf. Clark v. State, 305 S.W.3d

351, 356 (Tex. App.—Houston [14th Dist.] 2010) (holding that even if defendant

had preserved error, the same evidence came in elsewhere, making it

cumulative), aff’d, 365 S.W.3d 333 (Tex. Crim. App. 2012). And because it is

directly related to Roberts’s self-defense theory—particularly in light of Gomez’s

testimony that Petrey berated Roberts immediately before the physical

altercation, and the video shows Petrey moving towards Roberts—Petrey’s

testimony is material and relevant.    Because we cannot determine beyond a

reasonable doubt that denying the writ of attachment did not contribute to

Robert’s conviction, see Tex. R. App. P. 44.2(a), we sustain Roberts’s first point.

                                        10
Based on our resolution here, we need not reach Roberts’s second and third

points. See Tex. R. App. P. 47.1.

                                 IV. Conclusion

      Having sustained Roberts’s first point, which is dispositive, we reverse the

trial court’s judgment and remand the case for a new trial.



                                                   BOB MCCOY
                                                   JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.


DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DATE: January 10, 2013




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