                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-06-377-CR


MARVIN OWENS DANCER                                           APPELLANT
A/K/A MARVIN DANCER

                                             V.

THE STATE OF TEXAS                                                    STATE

                                         ------------

          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                         ------------

                         MEMORANDUM OPINION 1

                                         ------------

     Appellant Marvin Owens Dancer a/k/a Marvin Dancer appeals his two

convictions for aggravated robbery with a deadly weapon. We affirm.

     In the early morning hours of November 13, 2005, Javier Sanchez and

five friends (altogether, three men and three women) were socializing in

Sanchez’s Fort Worth apartment when there was a knock at the door and two


     1
         … See T EX. R. A PP. P. 47.4.
or three intruders forced their way inside. One of the intruders, who had a

loaded gun, demanded money and hit Sanchez and one of his male friends with

the gun. Sanchez’s group eventually disarmed their assailant, and the other

intruder(s) fled. When Officer John Lucas responded to Sanchez’s apartment,

he found appellant lying injured on the floor.

      Following a three-day trial, a jury convicted appellant of two counts of

aggravated robbery with a deadly weapon. The trial court sentenced appellant

to two forty-year sentences, to be served concurrently.

      In his first point, appellant contends that the trial court improperly refused

to strike the testimony of two witnesses and grant a mistrial because the State

failed to produce the witnesses’ written statements after their direct

examinations.

      Texas Rule of Evidence 615 requires a trial court to order the production,

after a witness has testified on direct examination, of the witness’s written

statement relating to the matter testified and provides sanctions if the party so

ordered fails to comply:

      (a) Motion for Production. After a witness other than the
      defendant has testified on direct examination, the court, on motion
      of a party who did not call the witness, shall order the attorney for
      the state or the defendant and defendant’s attorney, as the case
      may be, to produce, for the examination and use of the moving
      party, any statement of the witness that is in their possession and


                                         2
      that relates to the subject matter concerning which the witness has
      testified.

               ....

      (e) Sanction for Failure to Produce Statement. If the other party
      elects not to comply with an order to deliver a statement to the
      moving party, the court shall order that the testimony of the
      witness be stricken from the record and that the trial proceed, or,
      if it is the attorney for the state who elects not to comply, shall
      declare a mistrial if required by the interest of justice.2

The purpose of this rule is to assist the defendant to cross-examine and

possibly impeach a witness.3

      All six witnesses who were in Sanchez’s apartment gave Officer Lucas

written statements shortly after the offense occurred. After Sanchez testified

on direct examination, appellant requested Sanchez’s written statement under

Rule 615. The prosecutor responded that he had never received the witness’s

written statement and that four of the six statements were missing and

believed to have been lost by the police. Appellant moved for production of the




      2
          … T EX. R. E VID. 615.
      3
      … See Enos v. State, 909 S.W .2d 293, 295 (Tex. App.—Fort Worth
1995) (referring to Gaskin rule), pet. dism’d, improvidently granted, 959
S.W.2d 620 (Tex. Crim. App. 1997). Texas Rule of Criminal Evidence Rule
614(a) expanded and codified the Gaskin rule and was recodified in 1998 as
Texas Rule of Evidence 615. See, e.g., T EX. R. E VID. 615 cmt.; Enos v. State,
889 S.W.2d 303, 304 n.2 (Tex. Crim. App. 1994).

                                      3
statements under Rule 615(a) and for sanctions under Rule 615(e).4 The trial

court denied both motions. Later, following the direct examination of Daniel

Ceron—another eyewitness—appellant made similar requests, and the trial court

again denied relief.5

      Near the end of the trial, appellant called Detective Darren Darracq.

Detective Darracq responded to the scene approximately two and a half hours

after the offenses and received the six written statements from Officer Lucas.

Detective Darracq acknowledged to the jury that he had lost four of the

statements and, although he had looked for them, had no idea where they

were.6

      By its plain language, Rule 615(a) only requires a party to produce

witness statements that are in “their possession.” 7 The State argues that it did



      4
      … At trial, the grounds for appellant’s objections and motions were Rule
615, confrontation, and cross-examination. On appeal, however, he limits his
argument to Rule 615.
      5
       … Sanchez and Ceron also gave lengthy audio-taped statements on the
night of the aggravated robberies, albeit several hours after making the written
statements. Appellant was provided with these statements.
      6
      … In the trial court and on appeal, appellant has disclaimed any
suggestion of prosecutorial misconduct and has not challenged the detective’s
testimony that he lost the statements accidentally and never gave them to the
prosecution.
      7
          … T EX. R. E VID. 615(a).

                                       4
not “possess” the statements and, therefore, did not “elect” not to produce

them. We agree.

      In Jenkins v. State, the Texas Court of Criminal Appeals held that Rule

615 only requires a prosecutor to produce witness statements that are “in the

prosecutor’s possession” or in the possession of the “prosecutorial arm of the

government.” 8 When interpreting Rule 615 in the past, we have stated that a

party possesses a statement “if it is within [the party’s] control or readily

accessible,” 9 or in the party’s “actual or constructive possession.” 10

      The evidence shows that at the time of trial the statements were not in

the possession of the State. The prosecutor affirmatively represented to the

trial court that he was never given Sanchez’s or Ceron’s written statement.

Detective Darracq’s testimony that he lost the statements and could not find

them corroborated the prosecutor’s representations. The undisputed evidence



      8
       … 912 S.W.2d 793, 819 (Tex. Crim. App. 1995) (op. on reh’g); see also
Olivas v. State, No. 08-99-00442-CR, 2000 WL 1867971, at *5 (Tex.
App.—El Paso Dec. 21, 2000, no pet.) (not designated for publication)
(concluding based on Jenkins that “possession” refers only to statements in the
prosecutor’s possession).
      9
       … Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995,
pet. ref’d & pet. dism’d).
      10
       … Williams v. State, 940 S.W.2d 802, 805 (Tex. App.—Fort Worth
1997, pet. ref’d); Jordan v. State, 897 S.W.2d 909, 918 (Tex. App.—Fort
Worth 1995, no pet.).

                                        5
showed that neither he nor the prosecutor physically possessed the statements

at the time they were requested, nor were the statements within their control

or readily accessible.11 We, therefore, hold that Sanchez’s and Ceron’s written

statements were not in the State’s possession for purposes of Rule 615.12

      Section (e) of the rule requires sanctions “[i]f the other party elects not

to comply with an order to deliver a statement to the moving party.” 13 The trial

court, however, found that the State did not possess the statements and thus

the court never ordered the State to deliver them to appellant. Because the trial




      11
         … Additionally, the trial court found that the recorded statements were
made contemporaneously with the written statements and speculated that they
were probably more detailed than the written statements. No one disputed the
trial court’s recitation of the facts.
      12
        … See Amunson v. State, 928 S.W.2d 601, 608 (Tex. App.—San
Antonio 1996, pet. ref’d) (holding that rule was not violated where officer
stated he made a report but was “unable to find it” because there was no
report to tender to counsel); see also Olivas, 2000 WL 1867971, at *5 (holding
officers’ handwritten statements and evidence forms that were kept at drug
task force office and had never been provided to the prosecutor were not in the
prosecutor’s possession); Baker v. State, No. 05-97-00986-CR, 1999 WL
418314, at *6 (Tex. App.—Dallas June 24, 1999, pet. ref’d) (not designated
for publication) (holding that State was not required to produce statements that
were not in its possession at the time of request because they had been
destroyed pursuant to document retention policies).
      13
           … T EX. R. E VID. 615(e).

                                       6
court never ordered the State to deliver the statements, the State did not elect

not to comply with an order to deliver the statements to appellant.14

       For these reasons, we hold that the trial court properly denied appellant’s

Rule 615 motions for production and for sanctions. We overrule appellant’s

first point.15

       In his second point, appellant argues that the trial court improperly

allowed the State to bind a juror in voir dire.      The allegedly objectionable

question dealt with whether the State would be required to produce in evidence

a weapon in order to establish aggravated robbery:

       [The State]:      . . . if there’s been testimony that there’s a weapon and
                         you believe that testimony beyond a reasonable doubt,
                         does that mean, in fact, that the State would have to
                         produce the weapon?

       [Appellant]:      I’m going to again object to the attempt to bind this
                         particular juror.

                 ....




       14
       … See Marquez v. State, 757 S.W.2d 101, 103 (Tex. App.—San
Antonio 1988, pet. ref’d).
       15
        … Although appellant understandably wanted the missing statements
to assist him in cross-examining and possibly impeaching Sanchez and Ceron,
there is no indication that the statements were exculpatory, and appellant did
not advance a Brady objection in the trial court. We express no opinion as to
the outcome of a Brady analysis under these facts.

                                        7
[The State]:   . . . Is there anyone here that would require the State
               to have the weapon? Anyone on this panel?

[Appellant]:   Judge, again, I’m going to object to asking that
               question. Still an attempt to bind now the entire panel.

THE COURT:     And I’ll sustain it as phrased of would they require.
               That would all depend on the facts and the
               circumstances of an individual case.

[Appellant]:   Your Honor, we’d ask for an instruction to disregard.

THE COURT:     Well, no one answered the question, so I’ve ruled on
               the question as phrased.        No one can ask
               you—disregard the way he phrased it, just as a
               precaution. No one can ask you what you will do until
               you hear the evidence. It’s what you can keep an
               open mind to do in an appropriate case based upon
               what the facts show. Does everyone understand that
               distinction?

SEVERAL PANEL MEMBERS: Yes.

THE COURT:     Because if the lawyers can sit here and say these are
               the facts, will you do this, if those are the facts, would
               you do that, well, the lawyers would be here for three
               days asking those questions, as they should, if you
               could give them answers and then try the case here in
               voir dire instead of try the case through testimony. On
               the other hand, there are rules that both sides are
               entitled to rely on you to follow which is to evaluate the
               testimony, render a true verdict based on the evidence
               and decide if there’s proof or not—proof of any or all
               elements of the offense. And if proved beyond a
               reasonable doubt, the State’s entitled to a guilty verdict.
               If not proven beyond a reasonable doubt as to any or
               all elements, the Defense is entitled to a not guilty.
               Does everyone understand that basic premise?


                              8
      SEVERAL PANEL MEMBERS: Yes, sir.

      [Appellant]:        To perfect the record, we move for mistrial.

      THE COURT:          That will be denied.

      When the trial court sustains an objection and instructs the jury to

disregard 16 but denies a defendant’s motion for a mistrial, the issue is whether

the trial court abused its discretion in denying the mistrial.17 In determining

whether the trial court abused its discretion in denying the mistrial, we balance

three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative

measures, and (3) the certainty of conviction absent the misconduct.18 Only

in extreme circumstances, when the prejudice is incurable or the comment is

“so prejudicial that expenditure of further time and expense would be wasteful

and futile,” will a mistrial be required.19 Generally, a prompt instruction to




      16
         … Appellant claims that an instruction to disregard was requested but
not given. Based on the exchange quoted above, however, we conclude that
the trial court did instruct the jury to disregard the prosecutor’s question.
      17
           … Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
      18
        … Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)
(op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
      19
       … Hawkins, 135 S.W.3d at 77; see also Simpson v. State, 119 S.W.3d
262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).

                                         9
disregard will cure error associated with an improper question or comment,

including a question posed at voir dire. 20

      To begin with, we note that none of the jurors responded to the allegedly

improper commitment question. Further, nothing in the record suggests that

this is an “extreme circumstance” where the prejudice, if any, was incurable,

and appellant does not argue that this is such a case. Accordingly, we hold

that the instruction to disregard cured the error, if any, and the trial court did

not abuse its discretion in denying appellant’s motion for mistrial.21 We overrule

appellant’s second point.

      In his third point, appellant argues that the trial court improperly failed to

grant a mistrial to cure the State’s improper jury argument which constituted

an attack upon appellant over the shoulders of his counsel.

      During the State’s rebuttal closing argument at the guilt-innocence phase,

the prosecutor denied that identity of the assailant was an issue, arguing, “He

[the defense attorney] knows who it was. He knows who was carried out on



      20
        … Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000);
Hamilton v. State, No. 02-04-00435-CR, 2005 W L 3008449, at *2 (Tex.
App.—Fort Worth Nov. 10, 2005, pet. ref’d) (mem. op., not designated for
publication); Calderon v. State, 847 S.W.2d 377, 380 (Tex. App.—El Paso
1993, pet. ref’d).
      21
        … See Calderon, 847 S.W.2d at 380–81 (holding that instruction to
disregard cured error from prosecutor’s improper comment during voir dire).

                                        10
that stretcher. It was the Defendant.” The trial court sustained appellant’s

objection and instructed the jury to disregard the argument but denied

appellant’s motion for mistrial.

      Applying the law discussed above, we conclude that the trial court did

not abuse its discretion in refusing to grant a mistrial.       The prosecutor’s

objectionable argument was not so extreme or manifestly improper that an

instruction to disregard could not cure any possible prejudicial effect.22 Further,

the trial court instructed the jury to disregard the argument and explained that

“what the lawyers say about each other or about the evidence is not evidence.”

The jurors indicated that they understood the trial court’s instruction by nodding

and answering “[y]es, sir.” The prosecutor then restated the argument without

objection.   Finally, the evidence of guilt was strong.      The three testifying

witnesses’ accounts of the aggravated robberies were consistent, and they

identified the man who had assaulted them with a gun as the man who was

lying on the floor of the apartment when Officer Lucas arrived. 23



      22
        … See Orona v. State, 791 S.W.2d 125, 127–30 (Tex. Crim. App.
1990) (concluding beyond a reasonable doubt that error in prosecutor’s
accusation that defendant’s attorneys “know how to argue to get people off”
was harmless in that statement was not so prejudicial, under facts of the case,
as to call for reversal).
      23
        … Although the witnesses did not identify appellant in the courtroom as
their assailant, Officer Lucas identified appellant as the man he found on the

                                        11
      For these reasons, we conclude that the trial court did not abuse its

discretion in refusing to grant a mistrial, and we overrule appellant’s third point.

      Having overruled all of appellant’s points, we affirm the trial court’s

judgment.




                                                   PER CURIAM

PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

PUBLISH

DELIVERED: April 3, 2008




floor of the apartment.

                                        12
