                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00176-CR
        ______________________________


    TIMOTHY DALE WILKINS, JR., Appellant

                        V.

        THE STATE OF TEXAS, Appellee




      On Appeal from the County Court at Law
               Hunt County, Texas
           Trial Court No. CR0701683




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                         MEMORANDUM OPINION

           Jessica Reichle1 left her husband and young child to live with Timothy Dale Wilkins, Jr.,

in Lone Oak, Texas, in a relationship touched by illicit drug use. As a result of a physical

altercation between Wilkins and Reichle, Wilkins was charged with and convicted of assault

causing bodily injury–family violence. 2             The trial court assessed a sentence of 365 days’

confinement in the Hunt County Jail. Wilkins appeals, claiming that the trial court erred by

denying his motion for dismissal or, in the alternative, a continuance to investigate exculpatory

evidence disclosed by the State during trial and that the evidence is legally insufficient to support

his conviction. We affirm the judgment of the trial court because (1) the trial court did not abuse

its discretion in denying Wilkins’ motion to dismiss, (2) the trial court did not abuse its discretion

in denying the motion for continuance, and (3) the evidence is legally sufficient to support

Wilkins’ conviction.

Background

           Reichle and Wilkins used illicit drugs during their relationship, but had resolved to get their

lives ―straight‖ and stop using drugs. According to Reichle, the morning after the two made this




1
    In March 2007, Reichle was known as Jessica Whatley.
2
 Section 22.01 of the Texas Penal Code defines the offense of assault as ―intentionally, knowingly or recklessly‖
causing ―bodily injury to another, including the person’s spouse.‖ TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon
Supp. 2009).


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decision, Wilkins woke her up to invite her to use ―meth‖3 with him. Reichle was very upset and

reminded Wilkins of their decision to stop using drugs. In response to this protest, Wilkins went

into the bathroom and shut the door. When Reichle pushed the door open, Wilkins grabbed her

by the back of the neck, told her he was going to drown her under the sink faucet, and then

slammed the left side of her body into the wall. Reichle testified that she experienced bruising on

the left side of her body as well as bruising and scratches on her back and her left arm as a result of

the altercation. In addition, Reichle was burned in a small area below her left shoulder where

Wilkins extinguished a cigarette.

            Reichle ran outside for help and was able to call her mother, Rhea Petersen, with the use of

a neighbor’s cell phone.4 When Petersen arrived approximately fifteen minutes after receiving

Reichle’s call (between 7:00 and 8:00 that evening),5 she observed a bruise on Reichle’s cheek.

To Petersen, it looked as if the bone had been broken. Reichle had been crying, was irate,

agitated, and very upset.




3
 Methamphetamine is ―an amine C10H15N used medically in the form of its crystalline hydrochloride especially in the
treatment of obesity and often used illicitly as a stimulant – called also methedrine. . . .‖ MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY 781 (11th ed. 2003).
4
    Reichle testified that she did not have a car at the time of the assault.
5
Reichle initially testified that she made the call to Petersen on the morning of March 12. In subsequent testimony,
Reichle stated that she did not know if it was morning, noon, afternoon, or night.


                                                                3
            Petersen took Reichle to the Rains County Police Department where Officer John Wallace

photographed Reichle’s injuries and took her statement.6

            Wilkins’ account of the events of March 12, 2007, differs substantially from the testimony

of Reichle and Petersen. According to Wilkins, he and Reichle were residing in the home of

Wilkins’ mother in Lone Oak. Wilkins testified that, on March 12, 2007, he and Reichle did not

fight and he did not assault Reichle on that date or any other. Instead, Wilkins testified that

Reichle went to visit Petersen on the evening of March 12 seeking financial assistance and seeking

to arrange to visit her child.

            Wilkins’ narrative continued concerning an encounter between Reichle and Petersen and

its aftermath. Reichle left in her own car at approximately 6:30 p.m. and returned to the trailer she

shared with Wilkins at approximately 11:30 p.m. that same evening. When she returned, Reichle

showed signs of having been injured. When Wilkins inquired about the injuries, Reichle told him

that she and Petersen got into an argument over Wilkins, and Reichle called Petersen a ―bitch.‖

Petersen slapped Reichle and the ―fight was on.‖ After the fight, Petersen called the police, and

both Petersen and Reichle claimed Wilkins caused the injuries.7 Reichle came back for Wilkins

because she did not want him arrested for something he did not do. She took him to a friend’s

house in Rolling Hills, where Wilkins stayed the night and smoked methamphetamine. Reichle

6
 Because the assault happened in Hunt County, Wallace contacted Hunt County Deputy Larry Proctor and arranged
for Petersen and Reichle to meet with Proctor in Tawakoni later that evening to make a report.
7
    Wilkins testified that some of the marks on Reichle were not bruises, but were track marks from using needles.


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then returned to Petersen’s house. The following day, Wilkins returned to his mother’s house

where Reichle joined him. The two stayed together for approximately one week before Reichle

moved out. In the weeks and months that followed, Wilkins did not contact law enforcement to

clear his name because he was on drugs and did not care.

(1)        The Trial Court Did Not Abuse Its Discretion in Denying Wilkins’ Motion to Dismiss

           About a week before trial, Wilkins filed several discovery motions, including a motion for

discovery and inspection of evidence, a motion for the production of exculpatory and mitigating

evidence, and a motion to discover criminal records of witnesses. Each of these motions was

granted on the date of trial, September 10, 2009.

           During the lunch break at trial, the State produced Reichle’s criminal record. 8 After

having received the record, Wilkins presented a Brady9 motion, claiming the criminal record

contained exculpatory evidence which was not timely produced. According to argument of

counsel, the record included a charge of assault against Reichle that occurred close to the time

Wilkins was accused of committing the assault on Reichle. Because Wilkins denied commission

of the assault, he contends that Reichle’s altercation during the same time frame—demonstrated

by the late-produced record—is exculpatory.

           As a remedy for the late production, Wilkins asked for dismissal of the case against him.


8
 The document identified as Reichle’s criminal record was not introduced as an exhibit at trial and is not a part of the
record on appeal.
9
    Brady v. Maryland, 373 U.S. 83 (1963).

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In the alternative, Wilkins asked for a continuance to permit him time to investigate the

information contained in Reichle’s criminal record. The court denied both motions, but permitted

Wilkins to recall Reichle and Petersen to question each regarding the record in question.

       Wilkins contends that the State’s failure to disclose exculpatory evidence before trial

violated his due process rights and that, as a result, the trial court erred in denying his ―motion for

sanctions resulting in dismissal.‖

       The trial court’s ruling on a motion to dismiss is subject to an abuse of discretion standard

of review.    Williams v. State, 464 S.W.2d 842, 844–45 (Tex. Crim. App. 1971); State v.

Hernandez, 830 S.W.2d 631, 635 (Tex. App.—San Antonio 1992, no pet.). In considering

whether the trial court abused its discretion, we must determine whether its ruling lies outside the

zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh’g).

       Here, Wilkins sought the remedy of dismissal for the State’s failure to timely produce

allegedly exculpatory evidence. Wilkins cites no authority in support of his contention that

dismissal is the proper remedy in this circumstance, and we find none.

       We observe that, in the appropriate circumstance, mistrial can be an appropriate remedy for

the failure to produce exculpatory evidence. See, e.g., Ex parte Masonheimer, 220 S.W.3d 494,

507 (Tex. Crim. App. 2007). Wilkins did not seek a mistrial in this instance, just a dismissal.

We decline to treat a motion to dismiss as a motion for mistrial, as the two are distinctly different



                                                  6
procedural vehicles. The defining feature of a mistrial is that the order contemplates further

prosecution. State v. Moreno, 294 S.W.3d 594, 601 (Tex. Crim. App. 2009) (citing Lee v. United

States, 432 U.S. 23, 30 (1977)). Wilkins sought dismissal after the jury was empanelled and

sworn; thus, after jeopardy had attached. Further prosecution subsequent to dismissal would

therefore be jeopardy-barred. See State v. Manning, 833 S.W.2d 322, 323 (Tex. App.—Waco

1992, no pet.) (citing Crist v. Bretz, 437 U.S. 28, 37–38 (1978)). Thus, the remedy sought by

Wilkins was a dismissal of the charges against him with no opportunity for retrial. Conversely,

the remedy of mistrial generally affords the opportunity for retrial.10

         Because we find no abuse of discretion on the part of the trial court in its denial of Wilkins’

motion to dismiss, we overrule this point of error.

(2)      The Trial Court Did Not Abuse Its Discretion in Denying the Motion for Continuance

10
  In certain limited circumstances, the remedy of mistrial produces the same result as dismissal after jeopardy has
attached. However, the narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial after a
mistrial does not apply here. That exception is limited to cases of governmental actions intended to provoke mistrial
requests. United States v. Tateo, 377 U.S. 463, 468 n.3 (1964). Consequently, harassing or overreaching
prosecutorial conduct, even if sufficient to justify a mistrial on a defense motion, does not bar retrial absent intent on
the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. Oregon v. Kennedy, 456
U.S. 667, 675–76 (1982). Thus, retrial after a defense-requested mistrial is jeopardy-barred only when ―the
prosecutorial conduct giving rise to the successful motion for a mistrial was intended to provoke [or goad] the
defendant into moving for a mistrial.‖ Id. at 679. Here, there has been no allegation of prosecutorial intent to
provoke Wilkins to seek a mistrial, and the record reveals no evidence of such intent.

In this regard, we note that the trial court granted Wilkins’ discovery motion on the morning of trial; the information
was produced during a lunch break. This ―tardy‖ production of impeachment evidence (it is far from clear that the
evidence in question was indeed exculpatory) falls woefully short of the conduct necessary to invoke the narrow
exception to the general rule that there is no jeopardy bar to retrial after a defense-requested mistrial. See, e.g.,
Masonheimer, 220 S.W.3d 494 (under unique facts of this case, a third prosecution was jeopardy-barred when first
two proceedings were terminated before final judgment on defendant’s mistrial motions, provoked primarily by
State’s intentional failure to disclose exculpatory evidence with specific intent to avoid acquittal at first proceeding
when defendant did not discover all exculpatory evidence until second proceeding).

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       Wilkins next contends that the trial court erred in failing to grant his motion for

continuance, as an alternative to granting the dismissal motion, in order to afford the opportunity to

investigate, possibly locate a new witness to the assault, and effectively cross-examine and

impeach Reichle and Petersen. We disagree.

       The decision on whether to grant a motion for continuance is left to the sound discretion of

the trial court. Wilson v. State, 195 S.W.3d 193, 197 (Tex. App.—San Antonio 2006, no pet.).

We, therefore, apply an abuse of discretion standard of review to the trial court’s ruling. Id. To

establish an abuse of discretion, there must be a showing that the defendant was actually

prejudiced by the denial of his or her motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim.

App. 1996) (citing Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995)).

       While Wilkins made an oral motion to dismiss at trial, there is no written, verified motion

to dismiss in the record before this Court. Recently, the Texas Court of Criminal Appeals

addressed this issue in Anderson v. State, No. PD-1441-08, 2009 WL 3837335 (Tex. Crim. App.

Nov. 18, 2009). In that case, the State received a written report of DNA test results on the

morning of trial. Before jury selection, the State gave Anderson’s attorney the report after the

lunch break. When he was unsuccessful in having the report stricken, Anderson’s attorney made

an oral request for a continuance, which was denied.

       The court of appeals observed that generally, an unsworn oral motion for continuance

preserves nothing for review, but recognized a ―due process exception‖ to this rule, whereby an



                                                  8
appeal of an oral motion for continuance is permitted if denial of the motion amounts to a denial of

due process.11 In overruling the court of appeals’ determination that the trial court abused its

discretion in failing to grant the motion for continuance, the Texas Court of Criminal Appeals first

looked to the requirements for a motion for continuance set out in Articles 29.03 and 29.08 of the

Texas Code of Criminal Procedure. Article 29.03 states: ―A criminal action may be continued

on the written motion of the State or of the defendant, upon sufficient cause shown; which cause

shall be fully set forth in the motion. A continuance may only be for as long as necessary.‖ TEX.

CODE CRIM. PROC. ANN. art. 29.03 (Vernon 2006).

        Article 29.08 states: ―All motions for continuance must be sworn to by a person having

personal knowledge of the facts relied on for the continuance.‖ TEX. CODE CRIM. PROC. ANN. art.

29.08 (Vernon 2006).

        In holding there is no ―due process‖ exception to the preservation requirements governing

continuance motions in Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure, the

Texas Court of Criminal Appeals determined that, in making an unsworn oral motion for

continuance, Anderson failed to preserve his claim. 12 Anderson, 2009 WL 3837335, at *3.


11
 Anderson v. State, 268 S.W.3d 130, 133 (Tex. App.—Corpus Christi 2008), rev’d, No. PD-1441-08, 2009 WL
3837335 (Tex. Crim. App. Nov. 18, 2009).
12
  The court recognized that, when rules of procedural default come into play, the type of rule involved must be
identified to determine whether it is subject to forfeiture. Anderson, 2009 WL 3837335, at *2. ―A defendant’s
constitutional right to a meaningful opportunity to present a complete defense is rooted in the Fourteenth
Amendment’s Due Process Clause and the Sixth Amendment’s Compulsory Process and Confrontation Clauses.‖ Id.
(citing Crane v. Kentucky, 476 U.S. 683, 690 (1986)). ―Confrontation and compulsory process rights are subject to
procedural default.‖ Id. (citing Taylor v. Illinois, 484 U.S. 400, 410 (1988)).

                                                       9
Here, Wilkins likewise relies on a due-process argument to support his position that a continuance

was required. In light of the holding in Anderson, we find that in making an unsworn oral motion

for continuance, Wilkins has preserved nothing for review on this issue.13 The trial court did not

abuse its discretion in overruling Wilkins’ unsworn, oral motion for continuance.14

(3)      The Evidence Is Legally Sufficient to Support Wilkins’ Conviction

         In his second point of error, Wilkins complains that the evidence is legally insufficient to

show beyond a reasonable doubt that he caused Reichle’s injuries. This point of contention is

based on the premise that, while the testimony of Reichle and Petersen point to Wilkins as the

person who assaulted Reichle, the tardily produced evidence of the assault charge against Reichle

by Petersen calls into question the identity of the person who committed the assault. This

evidence, he contends, gives rise to an inference that Reichle’s injuries were caused by Petersen in

a separate altercation.

         In determining the legal sufficiency of the evidence, we view all the evidence in the light


13
 Like many other rights, the right to timely disclosure of exculpatory evidence may be lost by procedural default.
Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999).
14
  Even if error had been preserved, the outcome here would not differ. When, as in this case, the evidence in question
is discovered during trial, the initial inquiry is whether the appellant was prejudiced by the delayed disclosure.
Palmer v. State, 902 S.W.2d 561, 565 (Tex. App.—Houston [1st Dist.] 1995, no writ). To show prejudice, Wilkins
would be required to show a reasonable probability that, had the evidence been disclosed to the defense earlier, the
result of the proceeding would have been different. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).
Wilkins has made no such showing, and none appears. On the contrary, Wilkins was able to effectively use the
tardily produced evidence at trial, and the jury was able to use the testimony of Reichle and Petersen (regarding
Reichle’s criminal history report) in assessing the credibility of those witnesses. Therefore, even if Wilkins’ unsworn
oral motion for continuance had been sufficient to preserve this point for review, we cannot say the delay encountered
in production of the requested information undermines our confidence in the outcome of the trial.


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most favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We defer to the jury on

determinations of the credibility of witnesses and the weight to be accorded conflicting evidence.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

        Here, the jury was able to weigh the credibility of Wilkins, Reichle, and Petersen with the

benefit of the knowledge of Reichle’s criminal history. We defer to the jury’s determination of

credibility questions and the weight to be accorded conflicting evidence. When viewing all of the

evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Accordingly, we

overrule this point of error.

        We affirm the judgment of the trial court.




                                                     Josh R. Morriss, III
                                                     Chief Justice

Date Submitted:         March 1, 2010
Date Decided:           March 9, 2010

Do Not Publish




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