                                                                     ACCEPTED
                                                                 06-15-00011-CR
                                                      SIXTH COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                                                             7/9/2015 3:44:05 PM
                                                                DEBBIE AUTREY
                                                                          CLERK

                    06-15-00011-CR

                                             FILED IN
                                      6th
         IN THE COURT OF APPEALS FOR THE  COURT   OF APPEALS
                                        TEXARKANA, TEXAS
                                      7/9/2015 3:44:05 PM
        SIXTH APPELLATE DISTRICT OF TEXAS DEBBIE AUTREY
                                              Clerk
                 TEXARKANA, TEXAS

      ___________________________________

        TERRENCE LAVON DAVIS,
                                        A ppellant

        v.

        STATE OF TEXAS,
                                Appellee
      __________________________________

              BRIEF FOR APPELLANT
      ___________________________________


      APPEAL FROM THE 202nd DISTRICT COURT
              BOWIE COUNTY, TEXAS

              Trial Court No. 14F0109-202


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.   Terrence Lavon Davis 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.   Terrence Lavon Davis 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.   Terrence Davis 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

                                      ii
Main Street, Texarkana, Texas 75501.




                             iii
                        TABLE OF CONTENTS

                                                                         Pa ge

Identity of Parties and Counsel               . . . . . . . . . . . . . . . ii

Table of Contents                             . . . . . . . . . . . . . . . iii

Index of Authorities                          ...............v

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

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

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

Summary of the Argument                       ...............5

Argument and Authorities                      ...............6

     Issue No. 1:                             ...............6

     The State Failed to Corroborate the Testimony
     of the Accomplice with Sufficient Evidence
     That the Appellant Committed the Offense of
     Aggravated Robbery

     Issue No. 2:                             . . . . . . . . . . . . . . . 10

     The Trial Court Committed Reversible Error
     in Giving the Jury an Insufficient Instruction
     on the Law of Accomplice Testimony

     Issue No. 3:                             . . . . . . . . . . . . . . . 14

     The Trial Court Committed Error in Refusing
     to Grant the Appellant’s Motion for Continuance
     after Discovery of the Prosecutor’s Misconduct

                                    iv
      in Misleading the Appellant’s Counsel as to
      the Testimony of Witness Rutledge



Conclusion                                    . . . . . . . . . . . . . . . 23

Certificate of Service                        . . . . . . . . . . . . . . . 24




                                     v
                          INDEX OF AUTHORITIES

Cases
                                                                                      Page

Barney v. State, 698 S.W.2d 114 (Tex.Crim.App. 1985). . . . . . . . . . 21

Casanova v. State, 383 S.W.3d 530, 533 (Tex.Crim.
     App.2012)                              . . . . . . . . . . . . . . . . . 12

Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App.
     1988)                                   ................. 7

Gallo v. State, 239 S.W.2d3d 757, 764 (Tex. Crim.
      App.2007)                               . . . . . . . . . . . . . . . . . 20

Hardie v. State, 79 S.W.3d 625, 629 (Tex.App. - Waco
     2002)                                   . . . . . . . . . . . . . . . . . 11

Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim.
    App. 1997)                               ................. 6

March v. State, 44 Tex. 64, 83 (1875)                 . . . . . . . . . . . . . . . . . 21

Moron v. State, 779 S.W.2d 399, 401 (Tex.Crim.App.
    1985)                                    ................. 7

Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App.2005). . . . . . . . . 12

Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App.1998). . . . . . . . . 10

Romero v. State, 136 S.W.3d 680, 689 (Tex.App.-
    Texarkana 2004)                         . . . . . . . . . . . . . . . . . 22

Zamora v. State, 411 S.W.3d 504, 513 (Tex.Crim.App.
    2013)                                    . . . . . . . . . . . . . . . . . 12




                                           vi
Rules/Statutes

Texas Rules of Criminal Procedure, 404b                . . . . . . . . . . . . . . . . . 16

Texas Rules of Criminal Procedure, Art. 29.13 . . . . . . . . . . . . . . . . . 19

Texas Rules of Criminal Procedure, Art. 38.14 . . . . . . . . . . . . . . . . . 6

Texas Rules of Criminal Procedure, Article 39.14. . . . . . . . . . . . . . . 14




                                           vii
                      STATEMENT OF THE CASE

      This is an appeal from a criminal conviction for the offense of

Aggravated Robbery.

      The Appellant was indicted by the Bowie County Grand Jury for the

offense of Aggravated Robbery on May 29th, 2014, for an offense alleged to

have been committed on or about January 17, 2014. C.R., pg. 28. The

indictment also alleged that the Appellant was a repeat offender having been

previously convicted of the offense of Engaging in Organized Criminal

Activity.

      The Appellant was tried before a jury which began on December 9, 2014,

and was concluded on December 11, 2014. After finding the Appellant guilty,

the Appellant pled true to the enhancement paragraph and the jury assessed

his punishment at 55 years in the Institutional Division of the Texas

Department of Corrections and assessed a fine 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

Appellant’s First Issue on Appeal

    The State Failed to Corroborate the Testimony of the Accomplice with
    Sufficient Evidence That the Appellant Committed the Offense of
    Aggravated Robbery

Appellant’s Second Issue on Appeal

    The Trial Court Committed Reversible Error in Giving the Jury an
    Insufficient Instruction on the Law of Accomplice Testimony

Appellant’s Third Issue on Appeal

    The Trial Court Committed Error in Refusing to Grant the Appellant’s
    Motion for Continuance after Discovery of the Prosecutor’s Misconduct
    in Misleading the Appellant’s Counsel as to the Testimony of Witness
    Rutledge




                                   2
                             STATEMENT OF FACTS

      During the early morning hours of January 17th, 2014, two men entered

the EZ Mart store located on Summerhill Road, in Texarkana, Bowie County,

Texas. Vol. 3, pgs. 28-29. One of the men was wearing a hoodie over his head

and the other was not. Vol. 3, pg. 30. The man wearing the hoodie approached

the counter to make a small purchase and showed the clerk a gun and told him

to open the cash register. Vol. 3, pgs. 31-2. He was ordered to get on the floor

by both men. Vol. 3, pg. 34. The two men took the money out of the register

and the man not wearing the hoodie took a large number of cigarettes from

the store. Vol. 3, pg. 33.

      After the robbery, the clerk informed the police that he could identify the

person who robbed him. Vol. 3, pg. 98. Approximately two weeks after the

robbery the clerk went to the police station and identified a person in a photo

lineup showed to him, that contained a photo of the Appellant. Vol. 3, pgs. 39-

40. The Appellant picked the picture of a person known as Morris Mitchell as

the person who robbed him. Vol. 3, pg. 162.

      The police were able to discover a fingerprint on one of the cigarette

packages handled by the second robber, and identified him as Calvin Whaley.

Vol. 3, pgs. 100-1. The crime scene officer took no fingerprints from the



                                       3
counter of the store, nor did he attempt to get any DNA from the area where

the robber with the hoodie was touching the counter and register. Vol. 3, pgs.

106-8. After Calvin Whaley was arrested he identified his accomplice as a

person whom he knew as “T”, who the police believed to be the Appellant. Vol.

3, pg2. 131-2.

      The Appellant was arrested by the police and interviewed but denied any

involvement in the crime. Vol. 3, pg. 141-3.




                                      4
                     SUMMARY OF ARGUMENT

Issue Number One: The State Failed to Corroborate the Testimony of the
Accomplice with Sufficient Evidence That the Appellant Committed the
Offense of Aggravated Robbery

     The State failed to corroborate the testimony of Calvin Whaley, the
     accomplice as the witness Toni Rutledge was not credible in that she was
     receding some benefit for testifying against the Appellant, and was
     angry with the Appellant.


Issue Number Two: The Trial Court Committed Reversible Error in Giving
the Jury an Insufficient Instruction on the Law of Accomplice Testimony


     The trial court committed reversible error in its charge to the jury on the
     law of accomplice witness testimony in that the instruction given limited
     the jury’s inquiry of corroboration to testimony only and not all of the
     evidence.

Issue Number Three: The Trial Court Committed Error in Refusing to
Grant the Appellant’s Motion for Continuance after Discovery of the
Prosecutor’s Misconduct in Misleading the Appellant’s Counsel as to the
Testimony of Witness Rutledge


     The trial court committed error in failing to grant the Appellant a
     continuance pursuant to Article 29.13, which was requested and
     required because of the misconduct of the State.




                                      5
                               ARGUMENT

                            Issue Number One

      The State Failed to Corroborate the Testimony of the
      Accomplice with Sufficient Evidence That the Appellant
      Committed the Offense of Aggravated Robbery

      The Appellant was convicted of the offense of Aggravated Robbery upon

the testimony of the accomplice Calvin Whaley who testified on behalf of the

State. Vol. 3, Pg. 57. Whaley testified that the robbery was the Appellant’s

idea, and that the Appellant is the person seen in the video with him, who

displayed the firearm. Vol. 3, pgs. 75-78.

      Article 38.14, of the Texas Code of Criminal Procedure provides that “a

conviction cannot be had upon the testimony of an accomplice unless

corroborated by other evidence tending to connect the defendant with the

offense committed; and the corroboration is not sufficient if it merely shows

the commission of the offense.” Art. 38.14, Tex.Crim.Proc. (Vernon’s 2015).

      To determine whether the State has sufficiently corroborated the

accomplice's testimony, this Court must eliminate from consideration the

testimony of the accomplice witness and examine the remaining evidence to

ascertain whether there is evidence which tends to connect the accused to the

offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997);



                                      6
Cockrum v. State, 758 S.W.2d 577, 581 (Tex.Crim.App.1988).                  The

corroborating evidence need not directly link the accused to the offense or be

sufficient in itself to establish guilt; instead, the corroborating evidence need

only tend to connect the accused to the crime committed. Moron v. State, 779

S.W.2d 399, 401 (Tex.Crim.App.1985).

      In the case at bar, the testimony before the jury was that two men, one

wearing a hoodie over his head and Whaley entered the EZ Mart on Robinson

Road in Texarkana, Texas and robbed the store of cash and cigarettes. Vol. 3,

pgs. 28-33. The store employee, Darrin Conover, testified that after the

robbery he told the investigators that he could identify the robber who

produced the gun. Vol. 3, pgs. 35-36. Conover, however, testified during his

direct examination that he could not identify the person holding the gun

during the robbery. Vol. 3, pgs. 36-7. He later testified that he was shown a

line-up and picked out the man he identified as the one holding the gun. Vol.

3, pg. 44. He further went on to identify scars on the person’s face that he

identified. Vol. 3, pg. 44. The person he identified was a person named

Mitchell Morris. Vol. 3, pg. 46. On cross examination, Conover first denied

that he had ever spoken to anyone in the Bowie County District Attorney’s

Office about the case. Vol. 3, pgs. 39-40. He further denied that he spoke with



                                       7
anyone about his identification of Morris as the person who robbed him. Vol.

3, pg. 42. He later changed his testimony, and admitted that he did speak to

the Assistant District Attorney and that it was not until he spoke to the

Assistant District Attorney, that he learned that there was a question about his

identification of the person who robbed him. Vol. 3, pg. 42. Mr. Conover

testified that when he made the identification of Morris as the robber, that the

police wanted him to be certain of his identification and that he was in fact

certain of his identification. Vol. 3, pg. 44. The witness also testified that it was

not until a year later, after he spoke with the Assistant District Attorney did he

begin to question his identification of the robber. Vol. 3, pg. 46.

      The State called Toni Rutledge as their only witness to corroborate the

testimony of Whaley. Vol. 3, pg. 109. Rutledge testified that she was the

mother of the Appellant’s two daughters and that they had been in a

relationship. Vol. 3, pgs. 110-11. Rutledge testified that even though she had

been with the Appellant for nine years, she had never heard of Whaley the

accomplice. Vol. 3, pg. 113. Over objection, Rutledge was allowed to testify that

it was her opinion that the man’s voice in the video of the robbery, was that of

Appellant’s. Vol. 3, pgs. 115-6. Rutledge also testified that the person in the

video was wearing a hoodie similar to one owned by the Appellant, but that



                                         8
she was too mad at the Appellant the day after the robbery to remember what

else he was wearing. Vol. 3, pgs. 119-120. Rutledge also testified that the only

reason she was testifying on direct examination was because she was

subpoenaed. Vol. 3, pg. 121.

      On cross examination, however, the witness testified that she did not

talk to defense counsel prior to trial because she felt like she didn’t benefit

from talking to them. Vol. 3, pg. 124. When pressed as to what she meant by

“she didn’t benefit from talking to them”, the witness would not give an

answer and the trial court ordered counsel to move on. Vol. 3, pgs. 124-6.

      The State ended their case by calling Detective Thacker with the

Texarkana Police Department. Vol. 3, pg. 130. Detective Thacker testified that

the first time that he interviewed the accomplice Whaley, he was told that the

man with him during the robbery was in jail at that time. Vol. 3, pg. 162. He

further testified that he later became aware that the man the victim had

identified, Morris, was in jail. Vol. 3, pg. 163.

      It being clear that the evidence presented by the State lacked

corroboration of the accomplice’s testimony the conviction in this matter

should be reversed.




                                        9
                             Issue Number Two

      The Trial Court Committed Reversible Error in Giving
      the Jury an Insufficient Instruction on the Law of
      Accomplice Testimony

      At the conclusion of the testimony in this matter the trial court provided

to the jury an instruction on the law of accomplice testimony. C.R., pg. 69. In

the instruction the trial court informed the jury that Calvin Whaley was an

accomplice. C.R., pg. 71.

      Once the trial court determines that the witness is an accomplice the

trial court is required to give the jury an instruction on that fact in accordance

with Article 38.14. Posey v. State, 966 S.W.2d 57, 61 (Tex.Crim.App. 1998).

      The trial court correctly instructed the jury that Whaley was an

accomplice as a matter of law. C.R., pg. 71. However, the remainder of the

instruction given by the trial court was flawed.

      A correct jury instruction on the accomplice witness rule instructs the

jury that

      “You are further instructed that a conviction cannot be had upon

      the testimony of an accomplice unless the jury first believes that

      the accomplice's evidence is true and that it shows the defendant

      is guilty of the offense charged against him, and even then you



                                       10
      cannot convict unless the accomplice's testimony is corroborated

      by other evidence tending to connect the defendant with the

      commission of the offense charged, and the corroboration is not

      sufficient if it merely shows the commission of the offense, but it

      must tend to connect the defendant with its commission.”

      (Emphasis added)       Hardie v. State, 79 S.W.3d 625, 629

      (Tex.App.—Waco 2002).

      The trial court instructed the jury that “the witness, Calvin Whaley, is an

accomplice, if an offense was committed, and you cannot convict the

defendant upon his testimony unless you first believe that his testimony is

true and shows that the defendant is guilty as charged, and then you cannot

convict the defendant upon said testimony unless you further believe that

there is other testimony in the case, outside the evidence of Calvin Whaley

tending to connect the defendant with the offense committed, If you find that

an offense was committed, and the corroboration is not sufficient if it merely

shows the commission of the offense, but it must also tend to connect the

defendant with its commission, and then from all of the evidence you must

believe beyond a reasonable doubt that the defendant is guilty of the offense

charged against him.” C.R., pg. 71. (emphasis added).



                                       11
       By limiting the jury’s inquiry to “other testimony”, the trial court in

effect told the jury that it must find the Appellant guilty because of the

testimony of Toni Rutledge. By focusing only on whether or not there was

“other testimony” tending to connect the Appellant with the offense, the jury

was instructed to disregard the other evidence that called into question the

validity of the testimony.

       The accomplice witness instruction is part of the law of the case.

Zamora v. State, 411 S.W.3d 504, 513 (Tex.Crim.App. 2013). “This Court has

definitively held that the procedural framework of Almanza applies to

accomplice-witness instructions, both as a matter of law and as a matter of

fact, based on evidence that the witness was a direct party to the offense.

Casanova v. State, 383 S.W.3d 530, 533 (Tex.Crim.App.2012)”. Zamora at

513.

       At trial counsel for Appellant did object, while in artfully, to the

instruction given to the jury as put forth in the charge to the jury. Vol. 4, pg.

6. “If an objection was made at trial, we then determine whether appellant

has demonstrated “some harm” from the error.” Ngo v. State, 175 S.W.3d 738,

744 (Tex.Crim.App.2005). By limiting the jury’s consideration to whether or

not there was “other testimony” that connected the Appellant to the crime, the



                                       12
Appellant was denied the right to have the jury to determine if that

“testimony” was credible. Without the ability to consider all of the evidence

that went against the witnesses “testimony” as instructed, the jury was in

effect powerless to weigh all of the evidence in this case.




                                      13
                        ISSUE NUMBER THREE

      The Trial Court Committed Error in Refusing to Grant
      the Appellant’s Motion for Continuance after Discovery
      of the Prosecutor’s Misconduct in Misleading the
      Appellant’s Counsel as to the Testimony of Witness
      Rutledge

      After the Appellant’s arrest, but before the return of the indictment by

the Grand Jury, the Appellant filed with the trial court his own motion for

discovery on February 20, 2014. C.R., pg. 15. Counsel for Appellant

additionally filed a motion for notice of State’s intent to use extraneous

evidence, C.R., pg. 30, along with a motion for discovery of punishment

evidence, C.R., pg. 33, on October 20, 2014. On December 3, 2014, counsel for

Appellant filed with the trial court a motion for compliance with Article 39.14.

C.R., pg. 47. The following day, December 4, 2014, Appellant’s counsel filed

an additional motion for compliance with Article 39.14. C.R., pg. 49. The latter

motion contained an additional request that the State notify Appellant’s

counsel of the name and address of any witness who would make an in court

identification of the Appellant. Id.

      On December 9, 2014, counsel for Appellant filed with the trial court,

prior to jury selection a motion in limine. C.R., pg. 63. The trial court

conducted a hearing on the motion, wherein, Appellant’s counsel asked the



                                       14
trial court to prohibit the State from putting any evidence before the jury with

regard to identification, as the State had failed to respond to the request made

on December 4, 2014. Counsel for Appellant specifically pointed out to the

trial court that he had requested information regarding witnesses that would

be called for identification purposes and that the State had not responded. Vol.

2, pg. 5. When the trial court asked the Assistant District Attorney about the

specific request, the State responded:

      MR. SHEPHERD: “The original motion for discovery the State

      responded to way back, and the Defense did send a series this past

      week of additional motions. The State had already provided the

      Defense a complete witness list of all witnesses the State intended

      to call. The State provided the Defense the name of Toni Rutledge.

      Obviously she’s not an eyewitness to the offense, but it is clear to

      the Defense that she would be someone that would know the

      Defendant and would be able to possibly make an identification

      based on her living with him and being the father of two of her

      children.” Vol. 2, pg. 6.



In response, counsel for the Appellant informed the trial court:



                                      15
      MR. SHUMAKER: “Judge, we were never given anything that that

      witness was going to testify as to that information. The only thing

      they told us is through an extraneous offense deal that she was

      going to testify that he supposedly possessed a gun or something

      in October of 2013. And we feel like if Brady is to have any teeth

      to it, that is the exact kind of information that’s in the possession

      of the State that’s entitled to be produced. They sent us a witness

      list, Judge, stating what every other witness was going to testify to.

      There’s absolutely no mention that she’s going to attempt to

      identify his voice.” Vol. 2, pg. 6.



Appellant’s counsel goes on to state that he was provided a response to notice

of 404(b) evidence that included the information that witness Rutledge was

being called to testify to a matter regarding the possession of a gun. Vol. 2, pg.

7. The trial court carried the motion along until such time as it had to research

the matter. Vol. 2, pg. 9.

      The following morning, after the jury had been selected, the Appellant’s

counsel filed a motion to suppress identification. C.R., pg. 61. In his argument

before the trial court, Appellant’s counsel reiterated that in response to his



                                        16
request for notice under 404(b), the State responded in writing that witness

Rutledge was going to testify to a matter involving a gun in October of 2014.

Vol. 3, pgs. 7-8. Both times counsel for Appellant put on the record that he was

told the witness would be testifying to the October matter, the State did not

disagree. In response to the Appellant’s motion the State responded:



      MS. SUTTON: “Your Honor, as far as the request that the Defense

      filed last week, that request tracked the language of the Morton

      Act, that statute, and then Mr. Shumaker tacked on the end the

      portion about voice identification. I don’t believe that that is

      something that is required by statute for us to tell him that a

      witness is going to be able to make an identification of the

      Defendant based on their personal knowledge. That’s something

      that we ask of any witness that is able to do such, that they identify

      the Defendant based on their personal knowledge, and that’s

      entirely admissible. And for the Defendant to say that he would

      not know that his client’s girlfriend/spouse of nine years would be

      able to make such identification seems pretty unreasonable.” Vol.

      3, pgs. 8-9.



                                       17
      The trial court again carried the motion and instructed the attorneys to

not mention the witness and to not present any evidence until such time as the

trial court could re-address the matter. Vol. 3, pg. 9. At the trial court’s

morning break, the trial court again took up the matter of the Appellant’s

motion. Vol. 3, pg. 52. The trial court ruled that even though the State had

made reference that the defense was notified that the witness was going to

testify to an extraneous offense, the trial court would overrule the Appellant’s

motion. Vol. 3, pg. 53. Upon hearing the trial court’s ruling, counsel for the

Appellant then presented the trial court with a verified written motion for

continuance. C.R., pg. 63, Vol. 3, pg. 53. In requesting the continuance,

Appellant’s counsel argued:



      MR. SHUMAKER: Just a second, Judge. In that regard, I have a

      motion for continuance that I’m going to file that’s sworn to that

      I would ask the Court to file, in that this information was not

      provided to us. Had we known that there was going to be a voice

      identification, we would have requested a consulting expert to

      have had a chance to analyze this to see if it was in fact could be



                                      18
      attributed to the Defendant. It has changed our whole trial

      strategy of this case. We’re claiming surprise at this point that it

      was given to us the last day, and we’re asking for a continuance.

      It won’t prejudice anybody for us to have a two-week continuance

      to have a chance to secure an expert and to be able to adequately

      cross examine this lady, and I will further state we have attempted

      to contact her and she refuses to talk to us. The Defendant’s right

      to receive effective assistance of counsel will be prejudiced at trial,

      Judge, if we’re not allowed a continuance to have an opportunity

      to investigate this matter further.” Vol. 3, pg. 53.



      The trial court denied the Appellant’s motion for a continuance. Vol. 3,

pg. 55.

      Article 29.13, of the Texas Code of Criminal Procedure provides, “a

continuance or postponement may be granted on the motion of the State or

defendant after the trial has begun, when it is made to appear to the

satisfaction of the court that by some unexpected occurrence since the trial

began, which no reasonable diligence could have anticipated, the applicant is

so taken by surprise that a fair trial cannot be had.” Art. 29.13,



                                        19
Tx.C.Crim.Proc. (Vernon’s 2015).

      The Court of Criminal Appeals has consistently stated: “We review a trial

court's ruling on a motion for continuance for abuse of discretion. Janecka v.

State, 937 S.W.2d 456, 468 (Tex.Crim.App.1996). To establish an abuse of

discretion, there must be a showing that the defendant was actually prejudiced

by the denial of his motion. Id. A bare assertion that counsel did not have

adequate time to interview the State's potential witness does not alone

establish prejudice.     Heiselbetz v.     State, 906 S.W.2d 500, 512

(Tex.Crim.App.1995). Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App.

2007).

      The case before this Court however, is quite different from most requests

made under Article 29.13. In this case, the Appellant was informed by the

State that a particular witness would appear for a limited purpose, when in

fact the State intended to use her as its main and only corroboration witness

in the case. But for the representations made by the State with regard to what

she would have testified to, any attorney would have pursued an interview

with the witness. Once discovered, that she was to testify to the voice

identification of the Appellant, any attorney would have sought the assistance

of either an expert, or other witnesses familiar with Appellant who would have



                                      20
potentially contradicted the testimony of Rutledge. If deception be practiced

upon the defendant in relation to the attendance of a state's witness, it may

constitute surprise. March v. State , 44 Tex. 64, 83 (1875) .

      It is clear, that had the State merely listed the witness in its disclosure,

then the Appellant’s claim of surprise should, and most probably would have

fallen on deaf ears. Barney v. State, 698 S.W.2d 114 (Tex.Crim.App 1985). But

when the State, intentionally or not, directly deceives the defendant as to the

testimony of a witness, it cannot, in good faith claim that the Defendant would

not be harmed.

      The most important right that any defendant has while facing a criminal

accusation is that of a fair trial. “The guarantee of due process under the

Fourteenth Amendment includes the right to a fair trial, and basic to this right

is the presumption of a defendant's innocence. Marx, 987 S.W.2d at 581

(citing Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525

(1986)). “To implement the presumption, courts must be alert to factors that

may undermine the fairness of the fact-finding process,” and, “[i]n the

administration of criminal justice, courts must carefully guard against dilution

of the principle that guilt is to be established by probative evidence and

beyond a reasonable doubt.” Id. (quoting Estelle v. Williams, 425 U.S. 501,



                                       21
503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)).” Romero v. State, 136 S.W.3d

680, 689 (Tex.App.—Texarkana 2004). To allow the State to benefit from this

event makes a mockery of the notion of a fair trial and does violence to the

spirit of Article 39.14, as amended by the Michael Morton Act.




                                    22
                               CONCLUSION


      It is for the reason stated in point of error number one that Appellant

prays that this Court reverse his conviction and render an order of acquittal

or in the alternative for the reasons stated in point of error numbers two and

three that this honorable court reverse his conviction and remand his case to

the trial court for a new trial consistent with the law.



                                     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 3,582 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.

                                       23
                                    /s/Alwin A. Smith


                          Certificate of Service

      This is to certify that a true and correct copy of Appellant’s Brief has
been forwarded to the Appellant, Terrence Lavon Davis, #1972854, Ferguson
Unit, 12120 Savage Drive, Midway, Texas 75852 and Mr. Michael Shepherd,
601 Main Street, Texarkana, Texas 75501, Attorney for the State, 601 Main
Street, Texarkana, Texas 75501, on this the 9th day of July 2015, by placing
the same in the U.S. Mail or private courier service.


                                    /s/Alwin A. Smith




                                     24
