                                                                                 ACCEPTED
                                                                            06-14-00182-CR
                                                                  SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                      4/16/2015 10:53:39 AM
                                                                            DEBBIE AUTREY
                                                                                     CLERK




                 ORAL ARGUMENT WAIVED
                                                           FILED IN
                                                    6th COURT OF APPEALS
                  CAUSE NO. 06-14-00182-CR            TEXARKANA, TEXAS
                                                    4/16/2015 10:53:39 AM
                            IN THE                       DEBBIE AUTREY
                                                             Clerk

                     COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

               ROBERT BRYAN FINCH, Appellant

                               V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
                   LAMAR COUNTY, TEXAS
   TRIAL COURT NO. 25677; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________

      APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

                    Gary D. Young, County and District Attorney
                    Lamar County and District Attorney’s Office
                    Lamar County Courthouse
                    119 North Main
                    Paris, Texas 75460
                    (903) 737-2470
                    (903) 737-2455 (fax)

                    ATTORNEYS FOR THE STATE OF TEXAS
                IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.




                                       -i-
                                TABLE OF CONTENTS

                                                                                     PAGE NO.:

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . .                                 i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .                  iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . .                     vii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . .                                          viii

ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . .                        ix

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . .                           13

ARGUMENT AND AUTHORITIES

        ISSUE PRESENTED IN REPLY NO. 1: WHEN
        POTENTIAL JURORS SAW FINCH UNDER PHYSICAL
        RESTRAINT OUTSIDE THE COURTROOM, THE
        TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
        DENYING THE APPELLANT’S MOTION FOR MISTRIAL
        BECAUSE SUCH AN ENCOUNTER WAS INADVERTENT,
        FORTUITOUS AND AWAY FROM THE COURTROOM;
        THERE WAS NO ERROR, AND THERE WAS
        NO HARM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                -ii-
                                                                                               PAGE NO:


         ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL
         COURT DID NOT ABUSE ITS DISCRETION IN
         DECIDING TO ADMIT THE TESTIMONY OF THE
         APPELLANT’S MOTHER, ANGIE ROSSON, BECAUSE
         IT BALANCED THE INTERESTS OF THE STATE
         AND THE ACCUSED, CONSIDERED ALTERNATIVE
         SANCTIONS AND CONSIDERED THE BENEFIT AND
         DETRIMENT ARISING FROM A DISQUALIFICATION
         IN LIGHT OF THE NATURE AND WEIGHT OF THE
         TESTIMONY TO BE OFFERED; IN THE ALTERNATIVE,
         FINCH COULD NOT SHOW HARM. . . . . . . . . . . . .                                          19

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         25

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . .                                26

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . .                           26




                                                     -iii-
                                INDEX OF AUTHORITIES

CASES:                                                                                          PAGE:

Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) . . . . . . . .                          20,22

Boyington v. State, 787 S.W.2d 469, 471 (Tex. App.--
     Houston [14th Dist.] 1990, pet. ref’d) . . . . . . . . . . . . . . . . . .                    18

Bryant v. State, 282 S.W.3d 156, 161, 162 (Tex. App.--Texarkana
     2009, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21, 22

Coleman v. State, 652 S.W.2d 205, 207 (Tex. App.--
     Houston [14th Dist.] 1982, pet. ref’d) . . . . . . . . . . . . . . . . . .                    17

Garza v. State, 10 S.W.3d 765, 767, 768 (Tex. App.--Corpus Christi
     2000, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       19

Guerra v. State, 771 S.W.2d 453, 474, 475 (Tex. Crim.
     App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    21,22

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.
     App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      15

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) . . . . . . .                              15

Martinez v. State, 186 S.W.3d 59, 65 (Tex. App.--Houston
      [1st Dist.] 2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21,22

Moore v. State, 882 S.W.2d 844, 848 (Tex. Crim. App. 1994) . . . .                                 20

Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.
     App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15,17,18
                                                                                            .

Pina v. State, 38 S.W.3d 730, 733, 740, 741 (Tex. App.--
      Texarkana 2001, pet. ref’d) . . . . . . . . . . . . . . . . . . 14,15,16,17,18,19



                                                   -iv-
CASES:                                                                                           PAGE:

Potter v. State, 74 S.W.3d 105, 110 (Tex. App.--Waco
      2002, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      21

Routier v. State, 112 S.W.3d 554, 590 (Tex. Crim. App. 2003),
      cert. denied, 541 U.S. 1040, 124 S.Ct. 2157, 158
      L.Ed.2d 728 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            23

Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim.
      App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      20

Taylor v. State, 173 S.W.3d 851, 853 (Tex. App.--Texarkana
      2005, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    21,22

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). . . . .                                15,18

Webb v. State, 766 S.W.2d 236, 240, 244 (Tex. Crim.
     App. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22,23

Wilson v. State, 179 S.W.3d 240, 248, 249 (Tex. App.--Texarkana
      2005, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   20, 22

Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) . . . . .                                  15




                                                    -v-
STATUTES:                                                                                        PAGE:

TEX. CODE CRIM. PROC. ANN. ART. 36.06 (Vernon 2007) . . .                                            21

TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West
     Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        4

TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        viii

TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                i

TEX. R. APP. P. 44.0(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           21

TEX. R. APP. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           24

TEX. R. EVID. 614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     20,21




                                                   -vi-
                       STATEMENT OF THE CASE

      This is a criminal appeal from the trial court’s final judgment of

conviction for the state-jail felony offense of theft of property of a value less

than $1,500.00 with two or more prior convictions. See CR, pgs. 109-110.

      A grand jury in Lamar County charged Finch with the offense of theft

of property of a value less than $1,500.00 with two (2) or more prior

convictions. See CR, pg. 5. After a jury trial, a petit jury found Finch guilty

of the offense, as alleged in the indictment. See RR, Vol. 6, pg. 133; CR, pg.

93. The jury also found all of the prior convictions were true, as alleged in

the indictment. See RR, Vol. 6, pg. 133.

      Following the punishment phase, the same petit jury assessed

punishment at two (2) confinement in the Texas Department of Criminal

Justice -- State Jail Division with a fine of $10,000.00. See RR, Vol. 6, pg.

234; CR, pg. 99. After the court pronounced sentence (RR, Vol. 6, pg. 236),

the trial court signed its Judgment of Conviction by Jury (CR, pgs. 109-110)

and its Certification of Defendant’s Right of Appeal. See CR, pg. 107.

      Finch filed his notice of appeal. See CR, pg. 104. By this appeal,

Finch brought two (2) issues/points of error.




                                      -vii-
    STATEMENT REGARDING ORAL ARGUMENT

The State will waive oral argument. See Tex. R. App. P. 38.2.




                             -viii-
             ISSUES PRESENTED IN REPLY

ISSUE PRESENTED IN REPLY NO. 1:  WHEN POTENTIAL
JURORS SAW FINCH UNDER PHYSICAL RESTRAINT OUTSIDE
THE COURTROOM, THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN DENYING THE APPELLANT’S MOTION FOR
MISTRIAL BECAUSE SUCH AN ENCOUNTER WAS
INADVERTENT, FORTUITOUS AND AWAY FROM THE
COURTROOM; THERE WAS NO ERROR, AND THERE WAS NO
HARM.

ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN DECIDING TO ADMIT THE
TESTIMONY OF THE APPELLANT’S MOTHER, ANGIE ROSSON,
BECAUSE IT BALANCED THE INTERESTS OF THE STATE AND
THE ACCUSED, CONSIDERED ALTERNATIVE SANCTIONS AND
CONSIDERED THE BENEFIT AND DETRIMENT ARISING FROM
A DISQUALIFICATION IN LIGHT OF THE NATURE AND
WEIGHT OF THE TESTIMONY TO BE OFFERED; IN THE
ALTERNATIVE, FINCH COULD NOT SHOW HARM.




                        -ix-
                       CAUSE NO. 06-14-00182-CR

                                   IN THE

                           COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                    ROBERT BRYAN FINCH, Appellant

                                      V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
                   LAMAR COUNTY, TEXAS
TRIAL COURT NO. 25677; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________

       APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

TO THE HONORABLE SIXTH COURT OF APPEALS:

      COMES NOW, the State of Texas, by and through the elected County

and District Attorney of Lamar County, Gary D. Young, and the Lamar

County and District Attorney’s Office, respectfully submits its Appellee’s

(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, Robert Bryan Finch will be referred to as

“the appellant” or “Finch” and the State of Texas as “the State.”


                                      -1-
                         STATEMENT OF FACTS

      Factual Background.

      On February 23, 2014, Dustin Calhoun (Calhoun), who worked for

Wal-Mart in asset protection for about a year and six months (RR, Vol. 6,

pg. 39), got a phone call that a cashier had “just seen someone take a chain

saw and run out the door.” See RR, Vol. 6, pg. 40. After they asked him for

a receipt, the suspect took off running. See RR, Vol. 6, pg. 40. Calhoun

“went and watched the videotape” and he saw that “the suspect came in,

under a minute, grabbed the chain saw, walked past the register and [took]

off running.” See RR, Vol. 6, pg. 41. See also RR, Vol. 6, pgs. 46-47, 53;

State’s Exhibits 1, 2 and 8. The suspect left in a red pickup. See RR, Vol. 6,

pgs. 47-48 (“He gets in it and leaves.”).

      Calhoun grabbed the cheapest chain saw and made a receipt for

$167.00. See RR, Vol. 6, pgs. 51-52; State’s Exhibit 3. The receipt was

evidence of how much it cost. See RR, Vol. 6, pg. 52.

      After Calhoun made the surveillance video, he “called the cops.” See

RR, Vol. 6, pg. 51. Officer Sean Upchurch, who worked for the Paris Police

Department for about “a year and a half,” (Officer Upchurch) was working

on February 23, 2014. See RR, Vol. 6, pg. 56. Officer Upchurch was


                                      -2-
dispatched to the theft of a chain saw. See RR, Vol. 6, pg. 57.

      Officer Upchurch arrived there and reviewed the surveillance video

and the still photos. See RR, Vol. 6, pgs. 51, 57, 64-65; State’s Exhibits 1, 2.

Officer Upchurch took Calhoun’s statement. See RR, Vol. 6, pg. 51. With

the still photos, Officer Upchurch sent an e-mail to all the officers with the

photographs to identify the suspect. See RR, Vol. 6, pg. 58.

      Unrelated Arrest of a Suspect on February 26, 2014.

      On the night of February 26, 2014, officer Upchurch arrested “Robert

Bryan Finch” on an unrelated charge. See RR, Vol. 6, pg. 58. While

speaking to him, officer Upchurch noticed a piece of yellow duct tape on his

eyeglasses. See RR, Vol. 6, pgs. 58, 65. “It appeared to be the same tape

that was on the glasses the night of the theft.” See RR, Vol. 6, pg. 58.

      Whenever officer Upchurch sent an e-mail to all the officers, he

received an e-mail back that named the suspect as “Robert Bryan Finch.”

See RR, Vol. 6, pg. 59. On the night of February 26th, officer Upchurch took

pictures of Finch. See RR, Vol. 6, pg. 59; State’s Exhibits 4-7. Also that

night, officer Upchurch took some photographs of a pickup. See RR, Vol. 6,

pgs. 60, 62; State’s Exhibit 6. Previously, officer Upchurch had seen the

truck in the videotape. See RR, Vol. 6, pg. 62.


                                      -3-
      Officer Upchurch read the Miranda rights, and Finch waived his

rights by agreeing to speak to officer Upchurch. See RR, Vol. 6, pg. 63.

That night, Finch did not admit to stealing the chain saw. See RR, Vol. 6,

pg. 63.

      On February 23rd, Tommy Moore, a detective at the Paris Police

Department for fifteen years, (Detective Moore) also spoke with Finch. See

RR, Vol. 6, pgs. 72-73. Detective Leigh Foreman actually read the Miranda

warnings; and again, Finch waived his rights. See RR, Vol. 6, pgs. 74-75.

The interview was recorded. See RR, Vol. 6, pgs. 75-76; State’s Exhibit 9.

During this interview with Detective Moore, Finch admitted to taking chain

saw because “[h]e needed gas money.” See RR, Vol. 6, pg. 87.

      Subsequently, a grand jury in Lamar County returned an original

indictment that charged Finch with theft of property less than $1,500.00 with

two prior convictions. See CR, pg. 5; RR, Vol. 6, pg. 30. See also Tex.

Penal Code Ann. § 31.03(e)(4)(D) (West Supp. 2014).

      Voir Dire Proceedings and Jury Trial.

      On September 29, 2014, the trial court called cause number 25677,

which was “set for jury trial this morning.” See RR, Vol. 5, pg. 4. After an

exchange with the defendant (Finch), the trial judge introduced himself to


                                     -4-
the venire panel as the judge for the County Court at Law but would be

presiding in court today for the 6th District Court. See RR, Vol. 5, pg. 14.

After hearing disqualifications, exemptions or excuses from individual

jurors (RR, Vol. 5, pgs. 14-43), the trial court instructed the remaining jurors

that “we’re going to have to put you back into the hallway and prepare a

seating chart.” See RR, Vol. 5, pg. 43. The jury panel was ushered out. See

RR, Vol. 5, pg. 44.

      Motion for Mistrial and Subsequent Hearing.

      While the jury panel was out in the hallway waiting to come into the

courtroom, the trial judge remarked that “when Mr. Finch was brought up

after lunch to come into the courtroom for jury selection, that he was

wearing handcuffs and leg irons and that he was moved through the jury

panel as it waited in the hallway from the elevator into the bailiff’s office.”

See RR, Vol. 5, pg. 47. When the trial court recognized “Mr. Turner” (i.e.

David C. Turner, Jr.) (RR, Vol. 5, pg. 2), defense counsel made a motion for

mistrial. See RR, Vol. 5, pg. 47.

      The trial court then proceeded “to take some testimony on this” (RR,

Vol. 5, pg. 47) and heard from two witnesses: (1) Sampson Peralta (Peralta),

a jailer with the Lamar County Sheriff’s Department, and (2) Ron Byers, the


                                      -5-
bailiff for the district court. See RR, Vol. 5, pgs. 48, 54. Both sides and the

trial judge asked questions of Peralta (RR, Vol. 5, pgs. 48-53) and of Byers.

See RR, Vol. 5, pgs. 54-56.

      After the trial court excused the witness (Byers), defense counsel for

Finch made a motion for mistrial again, and the State responded. See RR,

Vol. 5, pgs. 57-58. The trial court took the motion under advisement. See

RR, Vol. 5, pg. 58.

      The trial court brought the jury panel into the courtroom. See RR,

Vol. 5, pg. 59. The trial judge then asked the panel, as follows:

             I need to ask the panel a question, and you can just show
      me by raising your hand as way of response. How many of you
      saw the Defendant walking from the elevator to the bailiff’s
      office? Got a good look at him. Just raise your hand.

             Okay. I need everybody who raised their hand to stay
      here in the courtroom. I need everyone else who did not raise
      their hand to step out into the lobby. Don’t go far, okay, cause I
      think we’ll be back in here in a minute. But everyone who just
      raised their hand, stay here.

      (A portion of the panel was ushered out at 2:24 p.m.)

      (Off-the-record discussion from 2:24 p.m. to 2:25 p.m.)

            THE COURT: All right. Let’s go back on the record.
      And the record should reflect -- and, Mr. Turner, you join me in
      this observation if you wish -- there are approximately 20
      people remaining in the courtroom who indicated they saw the
      Defendant walking from the elevator into the bailiff’s office.

                                      -6-
      Now I intend to talk to these individual -- these jurors
      individually to see if we have any issues.

             (Beginning of at-the-bench- discussions.)

See RR, Vol. 5, pg. 60.

      During “at-the-bench discussions,” the trial court conversed with

several venire persons. See RR, Vol. 5, pgs. 60-105. Afterwards, the trial

court asked “each of you to go stand back in the hallway again.” See RR,

Vol. 5, pg. 105. Through defense counsel, Finch renewed his motion for

mistrial (RR, Vol. 5, pg. 105), which the trial court then denied. See RR,

Vol. 5, pg. 106. Afterwards, the trial judge addressed the venire panel and

proceeded with jury selection on the afternoon of September 29, 2014. See

RR, Vol. 5, pgs. 106-107.

      At the end of the voir dire proceedings, the trial court impaneled a

petit jury of twelve jurors and two alternate jurors. See RR, Vol. 5, pgs.

131-132; CR, pg. 86. The trial court then dismissed the remaining venire

persons. See RR, Vol. 5, pg. 132.

      Guilt-Innocence Phase of the Jury Trial.

      On September 30, 2014, the trial court commenced the guilt-

innocence phase of the jury trial with instructions to the jury. See RR, Vol.

6, pgs. 23-29. The State read the charging instrument. See RR, Vol. 6, pgs.

                                     -7-
30-31. Finch entered a plea of “not guilty” and a plea of “not true” to the

enhancement allegations. See RR, Vol. 6, pg. 31. Later, Finch stipulated to

the admissibility of the two prior theft convictions. See RR, Vol. 6, pgs. 70-

72.

      During the direct-examination of officer Upchurch, he identified

Finch as the defendant in open court. See RR, Vol. 6, pg. 63. During the

testimony of Detective Foreman, the recorded interview of Finch was also

published to the jury. See RR, Vol. 6, pg. 85; State’s Exhibit 9.

      Following the testimony of Detective Foreman (RR, Vol. 6, pg. 89),

the State proffered a “Stipulation of Evidence” (State’s Exhibit 12) to prove

the two prior theft convictions, as alleged in the indictment. See CR, pg. 5.

The trial court admitted the “Stipulation of Evidence.” See RR, Vol. 6, pgs.

90-91; State’s Exhibit 12. The State then rested. See RR, Vol. 6, pg. 92.

      The defense also rested. See RR, Vol. 6, pg. 97. Both sides rested

and closed. See RR, Vol. 6, pg. 97.

      The trial court heard no objections to its jury charge (RR, Vol. 6, pg.

97), and proceeded to read the charge to the jury. See RR, Vol. 6, pgs. 99-

109; CR, pgs. 87-92. After closing arguments (RR, Vol. 6, pgs. 109-117),

the jury retired to begin its deliberations. See RR, Vol. 6, pg. 117.


                                       -8-
      Upon concluding its deliberations, the jury returned its verdict that

found Finch guilty of the offense of theft of property less than $1,500.00

with two prior convictions. See RR, Vol. 6, pg. 133; CR, pg. 93. The jury

also found all of the prior convictions were true, as alleged in the indictment.

See RR, Vol. 6, pg. 133.

      Punishment Phase.

      The trial court moved into the punishment phase of the trial. See RR,

Vol. 6, pg. 134. The State proffered the testimony of Kristin Moore Rosson

(RR, Vol. 6, pgs. 136-143), Detective Derek Belcher (RR, Vol. 6, pgs. 144-

148) and Angie Rosson (Angie Rosson). See RR, Vol. 6, pg. 148.

      When the State called Angie Rosson as a witness (RR, Vol. 6, pg.

148), the following exchange occurred:

             THE COURT: She was around here a moment ago.

             MS. HAIRSTON: No, she’s right there.

             MR. TURNER: Oh, is she? Well, then she’s in violation
      of the Rule, Your Honor. We’d object to any testimony of this
      woman. We put her under the Rule.

            THE COURT: And she’s been sitting here since the
      punishment phase began.

             MR. TURNER: She’s been sitting here apparently when
--


                                      -9-
             THE COURT: She’s your -- she’s your witness.

             MR. TURNER: I understand, Your Honor, but she’s
      calling the witness, and this was one of the reasons I wanted her
      under the Rule.

            THE COURT: I know, but she’s been sitting right
      behind your client for the better part of the past hour.

             MR. TURNER: And I was not aware of it, Your Honor.

             THE COURT: I’m going to overrule the objection.

See RR, Vol. 6, pg. 149.

      Over Finch’s objection, the State proceeded with the direct

examination of Angie Rosson. See RR, Vol. 6, pg. 151. Following the

testimony of Angie Rosson (RR, Vol. 6, pgs. 151-167), the State recalled

Detective Moore as a witness. See RR, Vol. 6, pg. 167. Following the

testimony of Detective Moore (RR, Vol. 6, pgs. 167-172), the State

proffered State’s Exhibits 10, 11 and then 13 through 27, which the trial

court admitted. See RR, Vol. 6, pg. 172. After publishing these exhibits to

the jury, the State rested. See RR, Vol. 6, pg. 176.

      The defense began its case-in-chief by calling George Young as a

witness, who testified that he knew Finch. See RR, Vol. 6, pgs. 176-182.

Next, the defense called Allison Bunch Finch, who testified as the

appellant’s wife. See RR, Vol. 6, pgs. 182-187. Then, the defense called

                                      -10-
Mark Annette, who testified as a detention officer at the Lamar County jail.

See RR, Vol. 6, pgs. 188-191. The defense also called Matt Martin Mcada

as a witness. See RR, Vol. 6, pg. 191.

      After a brief recess of the trial proceedings, Finch testified on his own

behalf. See RR, Vol. 6, pg. 203. Following his testimony (RR, Vol. 6, pgs.

203-220), the defense rested. See RR, Vol. 6, pg. 220. With no rebuttal

evidence, the State rested and closed. See RR, Vol. 6, pg. 220.

      After hearing no objections, the trial court read its punishment charge

to the jury. See RR, Vol. 6, pgs. 221-225; CR, pgs. 96-98. Following

closing arguments (RR, Vol. 6, pgs. 226-229), the jury retired to begin its

deliberations.   See RR, Vol. 6, pg. 229.        Upon the conclusion of its

deliberations, the jury returned an unanimous verdict. See RR, Vol. 6, pgs.

234-235; CR, pg. 101.

      By its verdict, the jury assessed punishment at two (2) confinement in

the Texas Department of Criminal Justice -- State Jail Division with a fine of

$10,000.00. See RR, Vol. 6, pg. 234; CR, pg. 99. The trial court discharged

the jury at the conclusion of the jury trial. See RR, Vol. 6, pg. 235. The trial

court pronounced sentence. See RR, Vol. 6, pg. 236.

      On September 30, 2014, the trial court signed its Judgment of


                                      -11-
Conviction by Jury. See CR, pgs. 109-110. On the same day, the trial court

signed its Certification of Defendant’s Right of Appeal. See CR, pg. 107.

Finch also filed his notice of appeal. See CR, pg. 104.

      Proceedings in this Court of Appeals.

      On or about October 6, 2014, Finch filed his notice of appeal in this

Court. The District Clerk of Lamar County filed the Clerk’s Record on or

about November 7, 2014. The official court reporter filed a motion for

extension of time to file the Reporter’s Record, which this Court granted.

The court reporter then filed the Reporter’s Record on or about December

29, 2014. The exhibits were filed on or about January 5, 2015.

      With the filing of the appellate record, Finch filed his first (and only)

motion for extension of time to file his brief on January 26, 2015, which this

Court granted on February 3, 2015.          Finch filed his brief on or about

February 23, 2015.

      On or about March 25, 2015, the State filed its first (and only) motion

for extension of time to file its brief, which this Court granted on March 31,

2015. The State filed its brief on April 16, 2015.




                                     -12-
                   SUMMARY OF THE ARGUMENT

      With two (2) issues/points of error, Finch alleged that (1) the trial

court erred in failing to grant a mistrial after jurors saw Finch in shackles in

violation of his rights under the United States and Texas Constitutions; and

(2) the trial court erred when it allowed a State’s witness to testify who had

observed other testimony in violation of “the Rule.” This Court should

overrule the appellant’s, Finch’s, two issues/points of error, and affirm for

the following reasons:

      (1)   The trial court did not abuse its discretion in denying the

appellant’s motion for mistrial because Finch’s encounter with potential

jurors was “inadvertent, fortuitous and away from the courtroom.” There

was no error, and there was no harm.

      (2)    The trial court did not abuse its discretion in allowing the

appellant’s mother, Angie Rosson, to testify because the trial court balanced

the interests of the State and the accused, considered alternative sanctions

and considered the benefit and detriment of witness disqualification. Even if

Finch could prove both prejudice prongs, his substantial rights were not

affected, given his prior convictions and criminal history.



                                      -13-
       Therefore, the issues/points of error should be overruled. The trial

court’s final judgment of conviction should be affirmed.

                    ARGUMENT AND AUTHORITIES

ISSUE PRESENTED IN REPLY NO. 1:  WHEN POTENTIAL
JURORS SAW FINCH UNDER PHYSICAL RESTRAINT OUTSIDE
THE COURTROOM, THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN DENYING THE APPELLANT’S MOTION FOR
MISTRIAL BECAUSE SUCH AN ENCOUNTER WAS
INADVERTENT, FORTUITOUS AND AWAY FROM THE
COURTROOM; THERE WAS NO ERROR, AND THERE WAS NO
HARM.

       A.      Standard of Review: Abuse of Discretion.

       With his first issue on appeal, Finch alleged that the trial court erred in

failing to grant a mistrial after jurors saw him in shackles in violation of his

rights under the United States and Texas Constitutions.           See generally

Appellant’s Brief, pgs. 11-14. However, the trial court did not abuse its

discretion because jurors saw Finch under physical restraint outside the

courtroom. See Pina v. State, 38 S.W.3d 730 (Tex. App.--Texarkana 2001,

pet. ref’d).

       A trial court’s denial of a mistrial is reviewed for an abuse of

discretion. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).

An appellate court views the evidence in the light most favorable to the trial

court’s ruling, considering only those arguments before the court at the time

                                       -14-
of the ruling. See id (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim.

App. 2004)).     The ruling must be upheld if it was within the zone of

reasonable disagreement. See id.

      A mistrial is an appropriate remedy in “extreme circumstances” for a

narrow class of highly prejudicial and incurable errors. See id (reference to

footnote omitted) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.

App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). A

mistrial halts trial proceedings when error is so prejudicial that expenditure

of further time and expense would be wasteful and futile. See Ocon, 284

S.W.3d at 884 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999)). Whether an error requires a mistrial must be determined by the

particular facts of the case. See id.

     B.    The Trial Court Did Not Abuse its Discretion in Denying
the Appellant’s, Finch’s, Motion for Mistrial.

      In Pina, a capital murder case, the appellant “was taken from the

courthouse in handcuffs and taken through a number of jurors.” See Pina,

38 S.W.3d at 740. In Pina, the appellant made an oral motion for mistrial

during voir dire, which the trial court denied. See id. In the last of six (6)

issues on appeal in Pina, the appellant contended that the trial court erred in

denying his motion for a mistrial. See id. at 733, 740.

                                        -15-
      In Pina, this Court affirmed and found “no basis to conclude that the

trial court abused its discretion.” See id. at 741. This Court reasoned:


             There was no obvious physical restraint on Pina in the
      courtroom during the trial in the presence of the jury. The rules
      are different where jurors see a defendant under physical
      restraint outside the courtroom. If such encounters are
      inadvertent, fortuitous, and away from the courtroom, there is
      no error. . . .

             We also find no harm. The two jurors who said they saw
      Pina outside the courtroom in handcuffs were removed from the
      panel. Since the other two testified that they did not see Pina in
      handcuffs outside the courtroom, there was no harm in failing
      to disqualify them. No other jurors were questioned, and no
      further relief was requested.

See id. at 741 (italics added in the opinion).

      In applying the Pina rationale to the present facts and circumstances,

Finch’s first issue/point of error should be overruled for two (2) reasons:

     1.     Finch’s Encounter with Potential Jurors Was “Inadvertent,
Fortuitous, and Away from the Courtroom,” So There Was No Error.

      As the first reason, there was no obvious physical restraint on Finch in

the courtroom during the trial in the presence of the jury. See id. As this

Court stated in Pina, “[t]he rules are different where jurors see a defendant

under physical restraint outside the courtroom.” See id (italics added in the

opinion).


                                      -16-
      Here, Finch was under physical restraint outside the courtroom. See

id (italics added in the opinion). In this appellate record, the trial judge

remarked that Finch “was wearing handcuffs and leg irons and [] he was

moved through the jury panel as it waited in the hallway from the elevator

into the bailiff’s office.” See RR, Vol. 5, pg. 47. Sampson Peralta, the jailer

with the Lamar County Sheriff’s Department, testified that it was “a minute”

between the time he left the elevator and the time he went inside the bailiff’s

office. See RR, Vol. 5, pg. 53. By this evidence, such an encounter with

potential jurors was outside the courtroom and was “inadvertent, fortuitous,

and away from the courtroom,” so there was no error. See Pina, 38 S.W.3d

at 741. See also Coleman v. State, 652 S.W.2d 205, 207 (Tex. App.--

Houston [14th Dist.] 1982, pet. ref’d) (juror noticed appellant being brought

out of the elevator in handcuffs but the “accidental glimpse” was not of such

prejudicial effect as to have deprived appellant of a fair trial).

      In conclusion, the trial court did not abuse its discretion in denying

Finch’s motion for mistrial. See Ocon, 284 S.W.3d at 884. Viewing the

evidence in the light most favorable to the trial court’s ruling, the trial court

could have found that Finch’s encounter with potential jurors was

“inadvertent, fortuitous and away from the courtroom”, so there was no


                                       -17-
error. See Pina, 38 S.W.3d at 741. Thus, the trial court’s ruling in denying

Finch’s motion for mistrial was certainly within the zone of reasonable

disagreement, and should be upheld. See Ocon, 284 S.W.3d at 884 (citing

Wead, 129 S.W.3d at 129).

      2.     No Harm.

      As the second reason, Finch could not show harm. See id. In his

brief, Finch alleged that “[f]ive of the jurors chosen--nearly half of the jury--

saw Finch in shackles. See Appellant’s Brief, pgs. 13-14. But prior to jury

selection, the trial court exercised its discretion and allowed both sides to

interview jurors prior to the trial to determine which members had witnessed

Finch in handcuffs. See RR, Vol. 5, pg. 60 (“And the record should reflect -

- and, Mr. Turner, you join me in this observation if you wish -- there are

approximately 20 people remaining in the courtroom who indicated they saw

the Defendant walking from the elevator into the bailiff’s office.”). See also

Boyington v. State, 787 S.W.2d 469, 471 (Tex. App.--Houston [14th Dist.]

1990, pet. ref’d).

      Both sides questioned these potential jurors (RR, Vol. 5, pgs. 60-105)

for the purpose of excluding any members who may have viewed him in




                                      -18-
handcuffs or shackles. See Garza v. State, 10 S.W.3d 765, 767 (Tex. App.--

Corpus Christi 2000, pet. ref’d).

      Subsequently, however, Finch did not attempt any showing of harm or

prejudice, see id, by requesting additional strikes or other relief prior to “five

of the jurors [being] chosen.”      See Appellant’s Brief, pg. 13; Pina, 38

S.W.3d at 741 (“[n]o other jurors were questioned, and no further relief was

requested.”).     Further, Finch did not attempt any showing of harm or

prejudice by making a “request to have an instruction given to the jury

panel, or the jury after it was impaneled.” See Garza, 10 S.W.3d at 767-68.

      In conclusion, (1) there was no error; and (2) there was no harm. For

either of these reasons, Finch’s first issue/point of error should be overruled.

ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN DECIDING TO ADMIT THE
TESTIMONY OF THE APPELLANT’S MOTHER, ANGIE ROSSON,
BECAUSE IT BALANCED THE INTERESTS OF THE STATE AND
THE ACCUSED, CONSIDERED ALTERNATIVE SANCTIONS AND
CONSIDERED THE BENEFIT AND DETRIMENT ARISING FROM
A DISQUALIFICATION IN LIGHT OF THE NATURE AND
WEIGHT OF THE TESTIMONY TO BE OFFERED; IN THE
ALTERNATIVE, FINCH COULD NOT SHOW HARM.

      A.        Standard of Review: Abuse of Discretion.

      When the State called Angie Rosson as a witness during the

punishment phase, Finch objected on the basis that “Well, then she’s in


                                       -19-
violation of the Rule, Your Honor. We’d object to any testimony of this

woman.” See RR, Vol. 6, pg. 149. In overruling this specific objection (RR,

Vol. 6, pg. 149), the trial court did not abuse its discretion because if a

witness violated the witness sequestration rule, the trial court still had

discretion to allow testimony from the witness. See Martinez v. State, 186

S.W.3d 59, 65 (Tex. App.--Houston [1st Dist.] 2005, pet. ref’d) (citing Bell v.

State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996)).

      B.   The “Witness Sequestration Rule” and Article 36.06 of the
Texas Code of Criminal Procedure.

      Rule 614 of the Texas Rules of Evidence provided in pertinent part

that “[a]t a party’s request, the court must order witnesses excluded so that

they cannot hear other witnesses’ testimony[,] [o]r the court may do so on its

own.” See Tex. R. Evid. 614. This “witness sequestration rule” was once

discretionary with trial court, but its application is now mandatory upon

proper request. See Bryant v. State, 282 S.W.3d 156, 161 (Tex. App.--

Texarkana 2009, pet. ref’d); Wilson v. State, 179 S.W.3d 240, 248 (Tex.

App.--Texarkana 2005, no pet.) (citing Moore v. State, 882 S.W.2d 844, 848

(Tex. Crim. App. 1994)). A trial court errs if it fails to enforce a proper

invocation of the witness sequestration rule. See Bryant, 282 S.W.3d at 161

(citing Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim. App. 2005)).

                                     -20-
However, if error is shown, it is a “violation of an evidentiary rule, the error

is non-constitutional, and will be disregarded unless it affected the

appellant’s substantial rights.” See id (citing Tex. R. App. P. 44.2(b)).

       Once Rule 614 is invoked, witnesses are instructed by the court that

they cannot converse with one another or with any other person about the

case, except by permission from the court. See Martinez, 186 S.W.3d at 65.

See also Tex. Code Crim. Proc. Ann. art. 36.06 (Vernon 2007). Again, a

trial court’s decision to admit testimony from a witness (even if that witness

has heard others testify during the trial in violation of the witness

sequestration rule) is reviewed for abuse of discretion. See Bryant, 282

S.W.3d at 161 (citing Guerra v. State, 771 S.W.2d 453, 474 (Tex. Crim.

App. 1988); Taylor v. State, 173 S.W.3d 851, 853 (Tex. App.--Texarkana

2005, no pet.); Potter v. State, 74 S.W.3d 105, 110 (Tex. App.--Waco 2002,

no pet.)).

       D.    Determining Harm or Prejudice.

       Determining harm or prejudice by a witness’s violation of Rule 614 is

based on whether the witness’s presence during other testimony resulted in

harm to the defendant. See Bryant, 282 S.W.3d at 161 (citing Webb v. State,

766 S.W.2d 236, 240 (Tex. Crim. App. 1989); Guerra, 771 S.W.2d at 474-


                                      -21-
75; Wilson, 179 S.W.3d at 248-49)). “Injury to the defendant is shown when

two criteria are met: (a) whether the witness actually conferred with or

heard testimony of other witnesses, and (b) whether the witness’ testimony

contradicted testimony of a witness from the opposing side or corroborated

testimony of a witness with whom he or she had conferred or heard.” See

Bryant, 282 S.W.3d at 161-62 (quoting Webb, 766 S.W.2d at 240). The

appellant has the burden to demonstrate the record supports a finding under

both prongs. See Bryant, 282 S.W.3d at 162 (citing Taylor, 173 S.W.3d at

853).

     E.     Application of Law to the Alleged Violation of the Witness
Sequestration Rule in the Present Case.

      1.   The Trial Court Did Not Abuse its Discretion in Admitting
Testimony from Angie Rosson.

        Even if “the Rule” was violated, the trial court still had discretion to

allow testimony from this witness. See Martinez, 186 S.W.3d at 65 (citing

Bell, 938 S.W.2d at 50). In Webb, the Texas Court of Criminal Appeals

explained that when a trial court decides whether to disqualify a witness

under the Rule, the trial court must balance the interests of the State and the

accused, consider alternative sanctions, and consider the benefit and

detriment arising from a disqualification in light of the nature and weight of


                                      -22-
the testimony to be offered. See Webb, 766 S.W.2d at 244. See also Routier

v. State, 112 S.W.3d 554, 590 (Tex. Crim. App. 2003), cert. denied, 541

U.S. 1040, 124 S.Ct. 2157, 158 L.Ed.2d 728 (2004).

      In the present case, the violation of “the Rule” involved Angie

Rosson, who the trial judge knew as the appellant’s mother because she

wanted to watch the jury selection. See RR, Vol. 5, pg. 45. Here, the trial

court was also “aware of her presence in the courtroom,” as Finch contended

in his brief, because the trial judge remarked, “[s]he was around here a

moment ago” and “she’s been sitting here since the punishment phase

began.” See RR, Vol. 6, pg. 149; Appellant’s Brief, pg. 13. However, the

trial court could have still decided to admit the testimony from Angie

Rosson, after balancing the interests of the State and the accused. See Webb,

766 S.W.2d at 244; Routier v. State, 112 S.W.3d at 590. The trial court

could have balanced the interests of the State, which called Angie Rosson as

a witness, and the accused, who may have relied on his mother’s testimony

as potential mitigation evidence. See id.

      In allowing Angie Rosson to testify, the trial court could have

considered alternative sanctions to disqualification because practically

speaking, the jury would have wanted to hear testimony from Finch’s


                                     -23-
mother during the punishment phase. See id; RR, Vol. 6, pg. 149. In

considering the benefit and detriment arising from a disqualification of

Angie Rosson as a witness, the trial court could have decided, in the exercise

of its sound discretion, not to deprive Finch of potential mitigation evidence

from the appellant’s mother during the punishment phase of the trial. See id.

This decision should not be disturbed merely because the State was “calling

the witness, and this was one of the reasons [defense counsel] wanted her

under the Rule.” See RR, Vol. 6, pg. 149.

      2.   In the Alternative, Finch Could Not Show Harm, Given his
Prior Convictions and Criminal History.

      Even if Finch carried his burden to support a finding of harm under

both prongs, see appellant’s brief, pgs. 16-17, the theft of the power drill was

merely one extraneous offense, when compared to a “Stipulation of

Evidence” that proved two (2) prior theft convictions beyond a reasonable

doubt. See RR, Vol. 6, pgs. 90-91; State’s Exhibit 12. Aside from the theft

of the power drill, the State introduced Finch’s other convictions, so it would

be difficult to articulate how the extraneous theft offense of the power drill

affected the appellant’s substantial rights, when compared to Finch’s other

convictions. See Tex. R. App. P. 44.2(b). Because the extraneous offense

involving the theft of the power drill did not affect the appellant’s substantial

                                      -24-
rights, Finch could not show harm. Accordingly, the appellant’s, Finch’s,

second issue/point of error should be overruled.

                                   PRAYER

      WHEREFORE PREMISES CONSIDERED, the State of Texas prays

that upon final submission without oral argument, this Court order the trial

court clerk to supplement the appellate record to include a certified bill of

costs; and then affirm the trial court’s final judgment of conviction, adjudge

court costs against the appellant, and for such other and further relief, both at

law and in equity, to which it may be justly and legally entitled.

                                 Respectfully submitted,

                                 Gary D. Young
                                 Lamar County & District Attorney
                                 Lamar County Courthouse
                                 119 North Main
                                 Paris, Texas 75460
                                 (903) 737-2470
                                 (903) 737-2455 (fax)


                                 By:________________________________
                                      Gary D. Young, County Attorney
                                      SBN# 00785298

                                 ATTORNEYS FOR STATE OF TEXAS




                                      -25-
                  CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellee’s (State’s) Brief” was a computer-generated document and

contained 6491 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us

                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellee’s (State’s) Brief” has been served on the 16th day of

April, 2015 upon the following:

            Don Biard
            McLaughlin Hutchison & Biard LLP
            38 First Northwest
            Paris, TX 75460

                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us




                                    -26-
