                                                                                                ACCEPTED
                                                                                            06-14-00192-CR
                                                                                 SIXTH COURT OF APPEALS
                                                                                       TEXARKANA, TEXAS
                                                                                       6/23/2015 2:09:23 PM
                            No. 06-14-00192-CR                                             DEBBIE AUTREY
                        Trial Court No. 11F0746-202                                                  CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS          TEXARKANA, TEXAS
                                                                    6/23/2015 2:09:23 PM
Reginald Reece,                                                        DEBBIE   AUTREY
                                                                              Appellant
                                                                            Clerk


v.

The State of Texas,                                                               State
                  Appealed from the 202nd Judicial District Court
                              Bowie County, Texas




                        BRIEF FOR THE STATE
                   The State Does Not Request Oral Argument

                                             Respectfully submitted:

                                             Jerry D. Rochelle
                                             Criminal District Attorney
                                             Bowie County, Texas
                                             601 Main Street
                                             Texarkana, Texas 75501
                                     By:     Lauren N. Sutton
                                             Assistant District Attorney
                                             601 Main Street
                                             Texarkana, Texas 75501
                                             Texas Bar No. 24079421
                                             Attorneys for the State
                              In The Court of Appeals
                       For the Sixth Supreme Judicial District
                                At Texarkana, Texas


Reginald Reece,                             §
           Appellant                        §
                                            §              No. 06-14-00192-CR
v.                                          §
                                            §
The State of Texas,                         §               BRIEF FOR THE STATE
             State                          §
                                            §


                                 Identity of the Parties

        The following is a complete list of all the parties to the trial court’s judgment

as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate

Procedure:

     1. Defendant and Appellant:

        Reginald Reece

     2. Attorneys for Appellant on appeal:

        Alwin A. Smith
        Attorney at Law
        Texas Bar No. 18532200
        602 Pine Street
        Texarkana, Texas 75501

     3. Attorneys for Appellant at trial:

        Rick Shumaker

     4. Attorney for the State of Texas at trial:

                                                i
   Michael Shepherd
   Lauren N. Richards
   Assistant District Attorneys
   Bowie County, Texas
   601 Main Street
   Texarkana, Texas 75501

5. Attorney for the State of Texas on appeal:

   Lauren N. Richards
   Assistant District Attorney
   Texas Bar No. 24079421
   601 Main Street
   Texarkana, Texas 75501

6. Presiding Judge at trial:

   The Honorable Leon F. Pesek, Jr.
   District Court Judge
   202nd Judicial District
   Bowie County, Texas
   Bi-State Justice Building
   100 North State Line Avenue
   Texarkana, Texas 75501




                                     ii
                                               Table of Contents

Identity of the Parties and Counsel ......................................................................... i-ii

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

Index of Authorities .............................................................................................. iv-v

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

Reply to Points of Error ............................................................................................. 2

Summary of the Argument......................................................................................... 3

Argument.............................................................................................................. 4-11

                   Reply to Point of Error Number One ................................................ 4-8
                   The trial court did not abuse its discretion in preventing
                   Appellant from introducing facts and sentences from other
                   cases in front of the jury panel during voir dire.


                   Reply to Point of Error Number Two ............................................. 8-11
                   The trial court did not abuse its discretion in allowing
                   testimony from the assistant manager of the victim business.



Prayer for Relief ....................................................................................................... 12

Certificate of Compliance ........................................................................................ 13

Certificate of Service ............................................................................................... 14




                                                            iii
                                     Index of Authorities

Cases

Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) ...................................10,11

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)................................. 10

Dewalt v. State, 307 S.W.3d 437 (Tex. App.—Austin 2010, pet. ref’d) ................... 4

Goodwin v. State, 91 S.W.3d 912 (Tex. App—Fort Worth 2002, no pet.) ............. 10

Hart v. State, 173 S.W.3d 131 (Tex. App.—Texarkana 2005, no pet.) .................... 6

Lincicome v. State, 3 S.W.3d 644 (Tex. App.—Amarillo 1999, no pet.).................. 9

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) ..................................... 9

Martinez v. State, 588 S.W.2d 954 (Tex. Crim. App. [Panel Op.] 1979).................. 6

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ............................... 9

Phelps v. State, 999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d) ................ 9

Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) ........................................ 9

Robinson v. State, 35 S.W.3d 257 (Tex. App.—Texarkana 2000, pet. ref’d) ........... 9

Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003) ............................................ 4

Taylor v. State, 93 S.W.3d 487 (Tex. App—Texarkana 2002, pet. ref’d.) ............. 10

Thompson v. State, 267 S.W.3d 514 (Tex. App.—Austin 2008, pet. ref’d).............. 6

Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)................................... 9

Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) ...................................... 10

Wilder v. State, 111 S.W.3d 249 (Tex. App.—Texarkana 2003, pet. ref’d) ............. 9


                                                iv
Rules of Appellate Procedure

Tex. R. App. Proc. 33.1(a)(1) .................................................................................... 8




                                                         v
                            Statement of the Case

      Appellant, Reginald Reece, was convicted by a jury of Theft of property

with two prior theft convictions in the 202nd Judicial District Court of Bowie

County, Texas, the Honorable Leon F. Pesek, Jr. presiding. The jury assessed

punishment at twenty (20) years in the Institutional Division of the Department of

Criminal Justice, and the Judge sentenced the Appellant accordingly. Appellant

then perfected appeal to this Honorable Court and this court and Appellant’s trial

was revered as to punishment in Reece v. State, No. 06-13-0082-CR, 2014 WL

1851322. Appellant was re-tried on punishment only on October 15, 2014. A

second jury again assessed his punishment at twenty (20) years in the Institutional

Division of the Department of Criminal Justice, and the Judge sentenced the

Appellant accordingly. He now appeals the punishment verdict of the trial court

on two points of error.




                                        1
                    Reply to Points of Error

              REPLY TO POINT OF ERROR NUMBER ONE:

The trial court did not abuse its discretion in preventing Appellant
from introducing facts and sentences from other cases in front of the
jury panel during voir dire.


              REPLY TO POINT OF ERROR NUMBER TWO:

The trial court did not abuse its discretion in allowing testimony from
the assistant manager of the victim business.




                                  2
                          Summary of the Argument

                     REPLY TO POINT OF ERROR NUMBER ONE:

      The trial court did not abuse its discretion in preventing Appellant
      from introducing facts and sentences from other cases in front of the
      jury panel during voir dire.

      The trial court did not allow the Appellant to get into specific cases and their

sentences during voir dire. The Appellant was allowed to properly question the

jury as to whether or not they could consider the full range of punishment.

Therefore, the trial court did not abuse its discretion in limiting the Appellant’s

voir dire.



                     REPLY TO POINT OF ERROR NUMBER TWO:

      The trial court did not abuse its discretion in allowing testimony from
      the assistant manager of the victim business.

      The trial court did err in overruling the Appellant’s objection to the

testimony of Wal-Mart Assistant Manager Mark Harrison. The testimony was

proper victim-impact and was relevant for the jury to assess punishment. The trial

court did not abuse its discretion in allowing his testimony.




                                          3
                                         Argument

                              Reply to Point of Error One

       The trial court did not abuse its discretion in preventing Appellant
       from introducing facts and sentences from other cases in front of the
       jury panel during voir dire.

                               Argument and Authorities

A. Preservation of Error

       “If an appellant does not actually frame a question to the trial court, nothing

is preserved for review.”1 In addition, there is not preservation of error where the

Appellant merely informs the court of the general subject area from which he seeks

to propound questions.2 To preserve error, the Appellant “must show that he was

prevented from asking particular questions that were proper”3

       Appellant has not preserved his voir dire complaint for review. There is

nothing in the record to reveal what particular questions Reece’s counsel was

prevented from asking the panel.

       Prior to voir dire, the State objected to certain slides of the Appellant’s voir

dire power point. (R.R. Vol. 2, p. 6). The objection was that the slides sought to

introduce to the jury panel facts from other cases and the sentences the individuals


1
  Dewalt v. State, 307 S.W.3d 437, 457 (Tex. App.—Austin 2010, pet. ref’d).
2
  Id.
3
  Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003).
                                              4
in those cases received. (R.R. Vol. 2, p. 10; Record Exhibit No. 2, R.R. Vol. 4).

The Appellant’s response was that they were “entitled to voir dire to be able to

exercise our peremptory challenges on different offenses that these people may

have realized occurred in Bowie County and how they – attitudes towards

punishment in those offense.” (R.R. Vol. 2, p. 11). The trial court sustained the

State’s objection. (R.R. Vol. 2, p. 11).

       For clarification, on appeal, Reece references State’s Record Exhibits 2 and

3. However, a review of the record indicates that both slides which were excluded

by the trial court were actually both part of State’s Record Exhibit 2. The State also

objected to the portion of Appellant’s slide show that stated “We punish the person

because we do not like them,” which is contained in State’s Record Exhibit 3 (R.R.

Vol. 4). However, the trial court stated it would allow the question. (R.R. Vol. 2, p.

14).

       The crux of Appellant’s complaint is that he was unable to question the jury

panel related to State’s Record Exhibit 2. While the slides contain questions about

whether there is agreement regarding whether appropriate sentences were received

by the individuals in other cases, the Appellant did not actually frame a question to

the trial court. For this reason, the Appellant has failed to preserve this point of

error for review.




                                           5
B. Standard of Review

       Should this court determine the Appellant preserved this point of error for

review, it was not an abuse of discretion for the trial court to limit Appellant’s voir

dire. A trial court may impose reasonable restrictions on voir dire examination. 4 A

trial court’s decision to limit voir dire should be reviewed under an abuse of

discretion standard.5 The trial court abuses its discretion when it limits a proper

question concerning a proper area of inquiry.6

B. Application of Law to Facts

       Appellant argues the trial court committed error by limiting his right to voir

dire the jury panel on punishment. Appellant argues that because the trial court

sustained the State’s objections to two slides of his voir dire, that it amounted to an

impermissible limitation on his voir dire.

       Both the State and the defense have the right to inform the jury of the range

of punishment applicable to an offense and to quality the panel on the fully

possible range of punishment applicable to the case.7 Jurors must be able to

consider the full range of punishment for an offense.


4
  Thompson v. State, 267 S.W.3d 514, 517 (Tex. App.—Austin 2008, pet. ref’d) (citing Boyd v.
State, 811 S.W.2d 105, 115 (Tex. Crim. App. 1991)).
5
  Id.
6
  Id.
7
  Martinez v. State, 588 S.W.2d 954, 956 (Tex. Crim. App. [Panel Op.] 1979); Hart v. State, 173
S.W.3d 131 (Tex. App.—Texarkana 2005, no pet.).
                                               6
      The trial court sustained the State’s objection to the power point slide which

contained facts of other cases and the sentences received in those cases stating:

      “The court is going to sustain the State’s objection on the basis that these
      questions open up issues that involve other cases. The jury was not available
      to hear all the evidence in those particular cases to understand what may
      have been an appropriate or inappropriate sentence in any particular case.
      The Court does agree that that could lead to confusion or would cause a jury
      to be committed as to a particular line of sentencing, and the Court finds that
      to be improper.” (R.R. Vol. 2, p. 12).


      The question on the slide boiled down to, do you agree that twenty-years is

an adequate punishment for intoxicated manslaughter and ‘do you agree life is an

adequate punishment for capital murder.’ These questions are essentially

commitment questions and totally unrelated to the case at bar. The panel had no

facts in front of them to make such a determination about what is adequate

punishment. It was proper for the trial court to limit this line of questioning.

      However, the Appellant was allowed to voir dire the jury panel as to the full

range of punishment. (R.R. Vol. 2, p. 63, 64). The Appellant additionally was

allowed to ask the following question: “[b]ut you would agree that a misdemeanor

shoplifting case is not akin to murder in punishment for murder.. [t]hat those

punishments ought to be different.” (R.R. Vol. 2, p. 45).

      The trial court allowed the Appellant to ask the jury panel proper questions

related to whether they could consider the full range of punishment.


                                           7
          For these reasons, Appellant’s first point of error should be overruled.



                                 Reply to Point of Error Two

          The trial court did not abuse its discretion in allowing testimony from
          the assistant manager of the victim business.

                                     Argument and Authorities

A. Preservation of Error

          To present a complaint for appellate review, the record must show that the

complaint was made to the trial court by a timely request, objection or motion.8

Appellant’s second point of error is that the trial court erroneously allowed the

State to elicit inadmissible evidence of victim impact.

          At trial the Appellant objected that Assistant Manager Mark Harrison’s

testimony was not relevant. Mr. Harrison testified that as assistant manager of

Wal-Mart, if they can protect their assets it helps keep costs down. (R.R. Vol. 3, p.

58). The trial court overruled the Appellant’s objection. The State continued it’s

line of questioning and the Appellant did not object. (R.R. Vol. 3, p. 59). The

Appellant also did not request a running objection at any time. Because the

Appellant did not make a timely objection to the trial court related to the rest of the

testimony, Appellant has not preserved a complaint for appellate review related to



8
    Tex. R. App. Proc. 33.1(a)(1).
                                                8
the further questioning of Mr. Harrison regarding the impact shoplifting has on his

store.

B. Standard of Review

         The trial court has wide discretion in deciding whether to admit or exclude

evidence.9 When considering whether a trial court’s decision to admit or exclude

evidence is error, an appellate court must determine whether the trial court abused

that discretion.10 This inquiry depends on the facts of each case.11

         When reviewing a trial court’s decision to admit or exclude evidence, an

appellate court must afford great deference to the trial court’s balancing

determination and should reverse a trial court “rarely and only after a clear abuse

of discretion.”12 An abuse of discretion occurs only when the trial court acts

arbitrarily or unreasonably without reference to any guiding rules or principles.13

Even if the reviewing court might have reached a different result, the court must

uphold the trial court’s decision to admit or exclude evidence if it was within the




9
  Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Wilder v. State, 111
S.W.3d 249, 255 (Tex. App.—Texarkana 2003, pet. ref’d).
10
   Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
11
   Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
12
   Robbins v. State, 88 S.W.3d 256, 262 (Tex. Crim. App. 2002).
13
   Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372.
                                               9
“zone of reasonable disagreement.”14 A trial court’s evidentiary ruling must be

upheld if it was correct under any theory of law applicable to the case.15

C. Application of Law to Facts

       Appellant objected to the following testimony being irrelevant,

       STATE:        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?

       WITNESS: Yes, sir. If we can protect our assets, it helps keep costs down.

       …

       (R.R. Vol. 3, p. 58).

       Appellant claims that this testimony was irrelevant because it improper

victim impact evidence. Appellant cites Cantu v. State16 for the proposition that the

evidence is inadmissible. However, in Cantu, the Texas Court of Criminal Appeals

found it was improper to admit testimony from a victim’s mother during the

punishment phase as to the daughter’s good character, activities she enjoyed and




14
   Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810
S.W.2d at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex.
App—Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort
Worth 2002, no pet.).
15
   De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
16
   Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997).
                                             10
the impact of her on her family.17 However, her daughter was not the victim named

in the indictment and the Defendant was actually standing trial for capital murder

of another, different individual.18

          Here, the witness Mark Harrison was an assistant manager of the victim,

Wal-Mart, and had been employed by the corporation for 20 years. (R.R. Vol. 3, p.

57-58). His testimony was relevant and admissible during punishment as he served

as a spokesperson for the victim business and had knowledge of the impact stealing

has on the store. Appellant has not cited any case law, and the State has failed to

find any, which would prevent a representative of the victim with personal

knowledge from testifying as to the impact the offense has on the store.

          The trial court did not abuse its discretion in allowing Mark Harrison to

testify during the punishment phase as to the impact theft has on the victim.

          For these reasons, Appellant’s second point of error should be overruled.




17
     Id. at 637.
18
     Id.
                                            11
                                  Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and

competent evidence sufficient to justify the conviction and punishment assessed in

this case and no reversible error appearing in the record of the trial of the case, the

State of Texas respectfully prays that this Honorable Court affirm the judgment

and sentence of the trial court below.



                                               Respectfully Submitted:

                                               Jerry D. Rochelle
                                               Criminal District Attorney
                                               Bowie County, Texas
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819



                                               __/s/Lauren N. Sutton____________
                                         By:   Lauren N. Sutton
                                               Assistant District Attorney
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819

                                               Attorneys for the State




                                          12
                             Certificate of Compliance

      I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of

Appellate Procedure, Appellee’s Brief contains 5,827 words, exclusive of the

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix.



                                               __/s/Lauren N. Sutton__________________
                                               Lauren N. Sutton




                                          13
                              Certificate of Service

      I, Lauren N. Sutton, certify that I have served a true and correct copy of the

foregoing Brief for the State upon Mr. Al Smith, Attorney for Appellant, on this

the 23rd day of June, 2015.



                                             __/s/Lauren N. Sutton___________
                                             Lauren N. Sutton




                                        14
