                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00137-CR

MARVIN UTLEY,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 12th District Court
                              Walker County, Texas
                              Trial Court No. 25,842


                          MEMORANDUM OPINION


      In two issues, appellant, Marvin Utley, challenges his conviction for burglary of a

habitation with intent to commit a felony, a first-degree felony. See TEX. PENAL CODE

ANN. § 30.02(a)(1), (d) (West 2011). We affirm.

                                    I.    BACKGROUND

      Appellant’s conviction in this case stems from altercations he had with Cynthia

Dickey, his ex-girlfriend, on or about February 11, 2012. Cynthia testified that appellant

accompanied her, her sister, Ella Mae Dickey, and her sister’s boyfriend to The Ballroom
night club in Huntsville, Texas.     While there, Cynthia and appellant got into an

argument. According to Cynthia, appellant told her twice that she had disrespected

him and subsequently hit her in the face and pushed her. Cynthia recounted that she

tried to leave the nightclub, but as she was entering the car, appellant tried to pull her

out. Eventually, onlookers intervened; appellant left the night club and began walking

toward Cynthia’s house. As she returned to her house, Cynthia saw appellant walking

along the side of the road. After arriving at home, Cynthia called the police. Shortly

thereafter, Cynthia testified that she heard breaking glass in her bedroom and

discovered that appellant had entered the house while holding a knife in his hands.

Cynthia stated that appellant did not have permission to be in her house that night and

that appellant chased her around the house while holding the knife with the tip up. As

they entered a common area, Cynthia’s mother, another resident of the house, jumped

on appellant’s back to prevent him from attacking Cynthia. At this time, Cynthia

opened the front door and found that Officer Keith Saraff of the Huntsville Police

Department had responded to the scene. Officer Saraff eventually subdued appellant

after having to: (1) use his taser twice; (2) execute pain-compliance moves; and (3) put

appellant in a choke hold until he passed out. Officer Saraff testified that a knife was

found near the couch where appellant was and that appellant made furtive gestures

toward the knife, which required Officer Saraff to employ “extreme measures.”

        Appellant was charged by indictment with burglary of a habitation with intent to

commit a felony—namely, aggravated assault.             The indictment also included

enhancement paragraphs referencing appellant’s felony convictions for possession of a

Utley v. State                                                                      Page 2
controlled substance in 1994 and delivery of a controlled substance in 2001. At the

conclusion of the evidence, the jury found appellant guilty of the charged offense. After

appellant pleaded “true” to the enhancement paragraphs contained in the indictment,

the trial court sentenced appellant to thirty years’ incarceration in the Institutional

Division of the Texas Department of Criminal Justice. Appellant filed motions for new

trial and in arrest of judgment, both of which were overruled by operation of law. See

TEX. R. APP. P. 21.8(a), (c). This appeal followed.

                                      II.    “THE RULE”

        In his first issue, appellant argues that the trial court abused its discretion by

failing to strike Cynthia’s testimony and declare a mistrial because Cynthia violated

“the Rule” by telling her sister about questions asked of her at trial.

A.      Motion for Mistrial

        We review the denial of a motion for mistrial under an abuse-of-discretion

standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this

standard, we uphold the trial court’s ruling as long as the ruling is within the zone of

reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings

when error is so prejudicial that expenditure of further time and expense would be

wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a

narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135

S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its

discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be

Utley v. State                                                                      Page 3
reached” or a conviction would have to be reversed on appeal due to “an obvious

procedural error.” Wood, 18 S.W.3d at 648; see Ladd, 3 S.W.3d at 567.

B.      Texas Rule of Evidence 614

        Texas Rule of Evidence 614, otherwise referred to as “the Rule,” provides for the

exclusion of witnesses from the courtroom during trial. TEX. R. EVID. 614. The purpose

of Rule 614 is to prevent the testimony of one witness from influencing the testimony of

another. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). Once Rule 614 is

invoked, witnesses are instructed by the trial court that they cannot converse with one

another or with any other person about the case, except by permission from the court,

and the trial court must exclude witnesses from the courtroom during the testimony of

other witnesses. TEX. R. EVID. 614; see TEX. CODE CRIM. PROC. ANN. art. 36.06 (West

2007). If a witness violates Rule 614, the trial court still has discretion to allow the

testimony from the witness. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). In

reviewing the trial court’s decision to allow testimony, we determine whether the

appellant was harmed or prejudiced by the witness’s violation. Id. Harm is established

by showing: (1) that the witness actually conferred with or heard testimony of other

witnesses; and (2) that the witness’s testimony contradicted the testimony of a witness

from the opposing side or corroborated testimony of a witness he or she had conferred

with or heard. Id.

C.      Discussion

        In the instant case, appellant’s private investigator, Martin Jacobson, testified

that he observed Cynthia talking on her cell phone just outside the courtroom. Jacobson

Utley v. State                                                                     Page 4
described Cynthia as very animated. Cynthia was then called to testify about her

actions. Cynthia admitted to calling her sister, Ella Mae Dickey, and telling her about

some of the questions that defense counsel asked. Cynthia noted that she was very

upset by some of the questions asked of her. Thereafter, appellant moved for a mistrial,

which the trial court denied.

        On appeal, the parties agree that Cynthia violated “the Rule” by discussing the

case with her sister; however, the parties differ on the harm resulting from the violation.

Appellant asserts that the trial court should have granted his motion for mistrial

because his due-process rights were violated when Cynthia tried to assist and influence

her sister in violation of “the Rule.”

        Based on our review of the record, we cannot say that appellant was harmed by

Cynthia’s violation of “the Rule.” Specifically, Ella Mae Dickey was not included on

any witness list, nor did appellant attempt to call her to testify at trial. In fact, defense

counsel acknowledged the following while questioning appellant:

        Q [Defense counsel]:        You know that Mr. Jacobson also talked with
                                    Ella Mae Dickey?

        A [Appellant]:              Yes.

                 ....

        Q:                          All right. Strategically, you understand those
                                    people are available, we could call them. I do
                                    not believe that to be wise right now. Okay.
                                    Do you agree with that?

        A:                          I agree.




Utley v. State                                                                         Page 5
Nevertheless, defense counsel represented to the trial court that a subpoena had been

issued for Ella Mae Dickey but that he had not served it on her. The record does not

contain any such subpoena for Ella Mae Dickey.               Instead, the record includes

unexecuted subpoenas for only Wesley Jones and Aaron Humphrey.

        Because Ella Mae Dickey did not testify, and because the record does not support

appellant’s assertion that he intended to call Ella Mae Dickey to testify at trial, we fail to

see how appellant was harmed by Cynthia’s violation of “the Rule.” See Bell, 938

S.W.2d at 50. More specifically, because Ella Mae Dickey did not testify, appellant has

not satisfied the second prong outlined by the Bell court—“whether the witness’s

testimony contradicted testimony of a witness from the opposing side or corroborated

testimony of a witness he had conferred with or heard.” Id. Accordingly, we cannot

say that the trial court abused its discretion in failing to exclude Cynthia’s testimony or

grant appellant’s motion for mistrial. See id.; see also Archie, 221 S.W.3d at 699-700; Wood,

18 S.W.3d at 648. As such, we overrule appellant’s first issue.

                                 III.   CYNTHIA’S TESTIMONY

        In his second issue, appellant contends that the trial court abused its discretion

by failing to conclude that Cynthia was an incompetent witness and, in turn, failing to

grant his motion for mistrial.

A.      Applicable Law

        We review a trial court’s competency determination for an abuse of discretion.

Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d);

Beavers v. State, 634 S.W.2d 893, 895 (Tex. App.—Houston [1st Dist.] 1982, pet. ref’d).

Utley v. State                                                                          Page 6
Further, in reviewing a trial court’s competency ruling, we consider the entire record,

including the witness’s trial testimony. See Hernandez v. State, 643 S.W.2d 397, 400 (Tex.

Crim. App. 1982). “The burden of raising and proving incompetency is on the party

alleging it, and the showing must be by a preponderance of the evidence.” Beavers, 634

S.W.2d at 895.

        Generally, every person is presumed competent to testify. See TEX. R. EVID.

601(a). A person is not competent to testify if, after an examination by the trial court,

the person does not appear “to possess sufficient intellect to relate transactions with

respect to which [she is] interrogated.” Id. at R. 601(a)(2). The court will consider

whether the witness possesses: (1) the ability to intelligently observe the events in

question at the time of the occurrence; (2) the capacity to recollect the events; and (3) the

capacity to narrate the events. Rodriguez, 772 S.W.2d at 170 (citing Watson v. State, 596

S.W.2d 867, 870 (Tex. Crim. App. 1980)). The third element involves the ability to

understand the moral responsibility to tell the truth, to understand the questions posed,

and to frame intelligent answers. Id. (citing Watson, 596 S.W.2d at 870).

B.      Discussion

        A review of the record shows that Cynthia possessed the ability to observe the

events in question, recall those events, and narrate to the jury her observations.

Specifically, on the first day of trial, Cynthia testified about the details of the alleged

offense, including where the offense occurred, who committed the offense, where she

was before the offense happened, who she was with that evening, where she lived, and

evidence collected by officers. Nevertheless, on cross-examination, Cynthia frequently

Utley v. State                                                                         Page 7
could not remember many of the specifics referenced by defense counsel. In his brief,

appellant lists the numerous questions to which Cynthia responded that she could not

remember. And based on this list, appellant asserts that Cynthia was incompetent.

        We believe that appellant’s list references various inconsistent statements made

by Cynthia, which bears upon her credibility as a witness, not her competency. See

Lewis v. State, 126 S.W.3d 572, 576 (Tex. App.—Texarkana 2004, pet. ref’d) (“Regardless

of any inconsistent statements as to the details of the offense, such discrepancies reflect

on a witness’ credibility, a matter singularly within the purview of the fact-finder.”); see

also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (noting that it is within

the province of the fact-finder to judge the credibility of the witnesses; the fact-finder is

entitled to believe all, some, or none of the testimony provided by the parties). In

addition, Cynthia testified that the experience of testifying was “horrible,” which

implies that she was likely nervous and anxious while testifying. Moreover, appellant

did not object to Cynthia’s competency as a witness until the second day of her

testimony.

        In any event, based on our review of the record, we cannot say that the trial court

abused its discretion in determining Cynthia to be a competent witness. See TEX. R.

EVID. 601; see also Hernandez, 643 S.W.2d at 400; Rodriguez, 772 S.W.3d at 170; Beavers, 634

S.W.2d at 895.     And as such, we cannot conclude that the trial court abused its

discretion by denying appellant’s motion for mistrial. See Archie, 221 S.W.3d at 699-700;

see also Wood, 18 S.W.3d at 648. We overrule appellant’s second issue.



Utley v. State                                                                         Page 8
                                   IV.   CONCLUSION

        Having overruled both of appellant’s issues on appeal, we affirm the judgment

of the trial court.




                                              AL SCOGGINS
                                              Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 9, 2014
Do not publish
[CRPM]




Utley v. State                                                                 Page 9
