                            NUMBER 13-06-00298-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

EUGENE MERCIER,                                                             Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


            MEMORANDUM OPINION ON REMAND
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
      Memorandum Opinion On Remand by Justice Benavides
      This appeal is before us for the third time.   See State v. Mercier, 164 S.W.3d 799

(Tex. App.—Corpus Christi 2005, pet. ref’d) (Mercier I); Mercier v. State, No.

13-06-00298, 2009 WL 2568592 (Tex. App.—Corpus Christi 2009), rev’d, 322 S.W.3d

258 (Tex. Crim. App. 2010) (Mercier II). In the second appeal, we concluded that the
State’s indictment was fatally defective, did not require a harm analysis, and accordingly,

reversed and rendered judgment that dismissed the State’s prosecution.                            See Mercier

II, 2009 WL 2568592, at **1–6.                  The Court of Criminal Appeals agreed with our

decision, insofar as concluding that the indictment’s defect was one of substance,

clarified the law, and remanded back to our Court to conduct a harm analysis on this

issue and to address the remaining issues should we find no harm. See Mercier II, 322

S.W.3d at 263–64.1 We affirm.

                             I.       LIMITATIONS ISSUE ON REMAND

        After concluding in Mercier II that the State’s indictment contained a substance

defect, we must now evaluate whether such a defect resulted in harm sufficient to

require reversal.       See TEX. R. APP. P. 44.2(b); Mercier II, 322 S.W.3d at 263–64; see

also 42 GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE &

PROCEDURE § 26:90 (3d ed. 2011) (recognizing that the court of criminal appeals

requires a rule 44.2(b) harm analysis for substance defects in charging instruments).

        Errors in criminal cases which are non-constitutional must be disregarded unless

they affect the substantial rights of the defendant.                      See TEX. R. APP. P. 44.2(b).

“Substantial rights” have been characterized into two components with regard to a

charging defect:        (1) the right to demand the nature and cause of the accusation; and

(2) the right to have this notice from the face of the charging instrument.                     See Adams v.


        1
           The procedural and factual histories of this case were set forth in our first and second opinions,
and we incorporate them herein. See State v. Mercier, 164 S.W.3d 799 (Tex. App.—Corpus Christi 2005,
pet. ref’d) (Mercier I); Mercier v. State, No. 13-06-00298, 2009 WL 2568592 (Tex. App.—Corpus Christi
2009), rev’d, 322 S.W.3d 258 (Tex. Crim. App. 2010) (Mercier II). Because this case is on remand, before
us for the third time, and the parties are familiar with the factual and procedural histories of this case, we will
not repeat them here except as necessary to advise the parties of the Court’s decision and the basic
reasons for it. See TEX. R. APP. P. 47.1, 47.4.


                                                        2
State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986) (en banc). These rights are not

independent, however, because the right to notice derives from the right to demand the

nature and cause of that accusation.            Id. A criminal defendant bears the burden of

explaining to a reviewing court which substantial rights were harmed, and how that harm

came about.       See G. DIX & J. SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE &

PROCEDURE § 26:89 (3d ed. 2011).2

        This requires our Court to review the record and determine whether a defendant

had adequate notice to prepare his defense.             Adams, 707 S.W.2d at 903.           If sufficient

notice is given, our inquiry ends.       Id. If not, we must decide whether the lack of notice

had an impact on the defendant’s ability to prepare a defense and finally, how great an

impact.     Id.; see Gollihar v. State, 46 S.W.3d 243, 247–48 (Tex. Crim. App. 2001)

(recognizing that in determining whether a defendant’s substantial rights have been

prejudiced in a notice-related problem, the appellate court must determine whether the

indictment, as written, informed the defendant of the charge against him sufficiently to

allow him to prepare an adequate defense at trial, and whether prosecution under the

deficiently drafted indictment would subject the defendant to the risk of being prosecuted

later for the same crime).

        In supplemental briefing—ordered by this Court following Mercier II—Mercier

essentially argues that allowing the State to prosecute him despite the indictment’s

substance defect skirts the Legislature’s mandate to bar certain offenses by limitation.

See TEX. CODE CRIM. PROC. ANN. art. 28.06 (West 2006). The statute of limitations “is

        2
         We recognize that the Court of Criminal Appeals has left the relationship between Adams v. State,
707 S.W.2d 900 (Tex. Crim. App. 1986), and Texas Rule of Appellate Procedure 44.2(b) uncertain. See
42 GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE & PROCEDURE § 26:90 (3d
ed. 2011). Until we receive further guidance on this issue, we will utilize Adams in our harm analysis.

                                                    3
an act of grace” for the benefit of potential defendants—that is, “a voluntary surrendering

by the people of their right to prosecute.”     Proctor v. State, 967 S.W.2d 840, 843 (Tex.

Crim. App. 1998) (en banc). The purposes served by this legislative act of grace are to

(1) protect defendants from having to defend themselves against charges when the

basic facts may—or may not—have become obscured by time; (2) prevent prosecution

of those who have been law-abiding for some years; and (3) lessen the possibility of

blackmail.   Id.   The statute of limitations is a rule of procedure, in the nature of a

defense, for the benefit of defendants.   Id.

       Here, the State’s initial indictment against Mercier was within the requisite

three-year statutory limitations period for charging.     See TEX. CODE CRIM. PROC. ANN.

art. 12.01(7) (West Supp. 2011) (articulating a three-year catch-all limitations provision

for all felonies not expressly listed). As noted in Mercier II, Mercier acknowledged that

the limitations period to prosecute him for the alleged offenses was October 1, 2000,

which made the State’s initial indictment on March 31, 2000 valid; but made the

re-indictment on December 19, 2001 invalid because the State did not plead tolling

factors to prevent the re-indictment from giving the appearance that the prosecution is

barred by a lapse of time.    Mercier II, 2009 WL 2568592 at *1; see TEX. CODE CRIM.

PROC. ANN. art. 27.08(2).

       However, despite the substance defect in the re-indictment, recognized by this

Court and affirmed by the Texas Court of Criminal Appeals, automatic reversal is not

warranted.   Instead, we must evaluate for harm.       See TEX. R. APP. P. 44.2(b); Mercier

II, 322 S.W.3d at 263–64. We begin our analysis by first determining whether Mercier

had adequate notice to prepare his defense despite the substance defect. See Adams,


                                                4
707 S.W.2d at 903. We conclude that he did.

       The record indicates that the initial indictment, filed on March 21, 2000, alleged by

two counts that Mercier entered into an agreement with Kent Plambeck on or about

September 30, 1997 to commit the felony of barratry.        These two counts were brought

forth again in the December 19, 2001 re-indictment and made the basis of this issue on

appeal.   Mercier fails to show how his substantial rights were prejudiced by this

re-indictment.   Instead, the record shows the contrary.        Mercier received adequate

notice of these counts prior to the re-indictment through the initial indictment.     See Ex

parte Smith, 178 S.W.3d 797, 805 (Tex. Crim. App. 2005) (acknowledging that despite

the State’s deficient job of pleading its tolling allegation, the defendant had “full

knowledge of the existence and content of the prior indictment which tolled the present

pleading”).

       We also note that the trial court instructed the jury to make a determination

whether the offense in the case was filed within three years of the date of the offense

alleged in the indictment. This instruction further supports that the defect was harmless

because Mercier’s limitations defense was also before the jury.            See Proctor, 967

S.W.2d at 844 (holding that a defendant may assert a limitations defense pre-trial

through a motion to dismiss, or at trial by requesting a jury instruction on limitations).   “If

there is some such evidence and the defendant requests a jury instruction on the

limitations defense, then the State must prove beyond a reasonable doubt that the

prosecution is not limitations-barred.”   Id.

       Accordingly, because we conclude that Mercier was on notice from the prior

indictment and not deprived of a meaningful limitations defense at trial, the State’s


                                                5
defective re-indictment on December 19, 2001 was harmless error that did not affect

Mercier’s substantial rights.            See TEX. R. APP. P. 44.2(b); Adams, 707 S.W.2d at 903.

Mercier’s first four issues are overruled.

                                         II.   REMAINING ISSUES

         We now address Mercier’s remaining issues on appeal, including the State’s

cross-appeal.

         By Mercier’s remaining issues, which we merge and reorganize as two,3 Mercier

contends that the trial court erred by (1) sentencing him in its March 23, 2006 orders; and

(2) in denying Mercier’s motion for new trial.4 The State files a cross-appeal in which it

asserts that the trial court erred in setting aside its original March 23, 2006 judgment and

resentencing Mercier to a lower sentence on May 26, 2006.

         1. The March 23, 2006 and May 26, 2006 Sentencing Orders

         Mercier asserts that the trial court was obligated by Texas law to reinstate the

jury’s verdict—pursuant to this Court’s mandate in Mercier I—prior to sentencing him on

March 23, 2006 (the March 23 order).              He further asserts that the trial court’s error on

March 23 makes it void, and the trial court’s order on May 26, 2006 (the May 26 order)

controls. On the other side, the State contends that the trial court’s plenary power

expired before the May 25, 2006 hearing, and therefore, the March 23 order controls

because the May 26 order is void.

         A defendant’s sentence begins to run on the day it is pronounced by the trial

court.       See TEX. CODE CRIM. PROC. ANN. art. 42.09 § 1 (West 2006); State v. Aguilera,
         3
             See TEX. R. APP. P. 47.1.
         4
          Mercier’s remaining contentions and arguments are waived for inadequate briefing. See TEX. R.
APP. P. 38.1(i) (requiring that an appellant’s brief must contain a clear and concise argument for contentions
made, with appropriate citations to authorities and to the record).

                                                      6
165 S.W.3d 695, 697 (Tex. Crim. App. 2005) (en banc). When the oral pronouncement

of sentence and the written judgment vary, the oral pronouncement controls because the

imposition of sentence is the crucial moment when all of the parties are physically

present at the sentencing hearing and able to hear and respond to the imposition of

sentence. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).

      On March 23, 2006, on remand from this Court in Mercier I, the trial court made

the following oral pronouncement:

      THE COURT:           All right. It is the judgment of the Court that [Mercier
                           is] guilty of that conspiracy. It’s the further judgment
                           of the Court that you be confined in a state jail for a
                           period of two years, the State of Texas do have [sic]
                           and recover of you all costs on this behalf expended.
                           The Court will suspend the imposition of that
                           sentence, place you on probation for five years with a
                           $7500.00 fine, and the conditions reflected in the
                           State’s judgment including a $40.00 per month
                           supervisory fee, 240 hours of community service
                           restitution.

At that point in the proceedings, Mercier’s counsel immediately moved for the trial court

to reduce its sentence imposed against Mercier, citing Aguilera. See 165 S.W.3d at

697. The trial court took the issue under advisement.

      Based on the record, we conclude that the trial court properly reinstated the 2002

jury verdict, properly found Mercier guilty pursuant to the underlying jury verdict from

2002, and properly imposed judgment on Mercier on March 23, 2006.         See TEX. CODE

CRIM. PROC. ANN. art. 42.09 § 1; Aguilera, 165 S.W.3d at 697.

      Following this order, the trial court reconvened for hearings on May 16, 2006 and

May 25, 2006 to address Mercier’s motion to reduce the sentenced imposed on March

23, 2006.    At the May 25, 2006 hearing, the trial court made the following oral


                                           7
pronouncement:

        THE COURT:           All right. All right. Let’s just do this formally. I am
                             reinstating the jury’s finding of guilty on the count that
                             they found. I am sentencing you to six months in the
                             state jail facility probated for two years.

By this oral pronouncement, the trial court effectively modified Mercier’s sentence from

two years’ imprisonment to six months’ imprisonment and reduced the suspended

probationary period from five years to two years.

        A defendant may file a motion in arrest of judgment before, but no later than, thirty

days after the trial court imposes or suspends sentence in open court.        TEX. R. APP. P.

22.3.   Here, we conclude that the trial court properly imposed Mercier’s sentence on

March 23, 2006, and Mercier timely filed a motion which requested that the trial court

modify its previous sentence.    The record shows that the trial court did not immediately

rule.   However, at a minimum, a trial court retains plenary power to modify its sentence

if a motion for new trial or a motion in arrest of judgment is filed within thirty days of

sentencing.    Aguilera, 165 S.W.3d at 697–98.      In this case, Mercier’s amended motion

for new trial was filed within thirty days of the March 23 order, and thereby timely.

Accordingly, it gave the trial court plenary power to modify the sentence on May 26,

2006.    See TEX. R. APP. P. 21.4.

        Moreover, the trial court’s modified sentence remained within the statutory

punishment range of a state jail felony, see Harris v. State, 153 S.W.3d 394, 396, n.4

(Tex. Crim. App. 2005); TEX. PENAL CODE ANN. § 12.35(a), and was pronounced in open

court in the presence of Mercier, his attorney, and counsel for the State.     See Aguilera,

165 S.W.3d at 698; TEX. CODE CRIM. PROC. ANN. art. 42.03 § 1(a) (West 2006).

Accordingly, we conclude that the trial court did not err in either its March 23, 2006 or

                                              8
May 26, 2006 ruling because it acted with proper authority, in compliance with the

appropriate rules, and within its plenary power to modify Mercier’s sentence.                            See

TEX. CODE CRIM. PROC. ANN. art. 42.09 § 1; Aguilera, 165 S.W.3d at 697–98.                        Mercier’s

first issue is sustained, in part, and overruled, in part, and the State’s cross-issue on

appeal is overruled.

        2. Motion for New Trial

        In his final issue, Mercier contends that the trial court erred when it overruled his

2006 motion for new trial by operation of law.5 More specifically, Mercier argues that

the State withheld evidence favorable to his defense, which would establish that his

alleged co-conspirator, Kenneth Plambeck, paid the State’s witnesses Charlie Mora and

Angelica Rhodes to illegally solicit accident victims in a manner and means unknown to

Mercier before, during, or after September 1997.                     Mercier argues further that the

withheld evidence would have allowed the trial court to properly rule on Rhodes’s

purported accomplice status and this would have enabled Mercier to argue that

insufficient evidence existed to corroborate either accomplice in violation of his due

process rights as articulated in Brady v. Maryland.              See 373 U.S. 83, 87 (1963).

        a. Hearing Testimony

        At Mercier’s motion for new trial hearing, the following witnesses testified:                     (1)

Texas Ranger Rodolfo C. Jaramillo; (2) Texas Ranger Israel Pacheco; (3) defense

counsel Ricardo Salinas; and (4) State’s prosecutor Sofia Arizpe. Ranger Jaramillo

testified about his bribery investigation of Rhodes, who formerly worked for Mercier.


        5
           As noted in the previous section, we concluded that Mercier’s motion for new trial was filed timely
within thirty days of the trial court’s March 23, 2006 order. Accordingly, we disagree with the State’s
arguments which contend that Mercier’s 2006 motion for new trial was untimely. See TEX. R. APP. P. 21.4.

                                                      9
        Ranger Jaramillo based much of his testimony on his report of investigation (ROI)

of Rhodes from August 1997.          Ranger Jaramillo testified that he learned during the

course of his investigation that Ranger Pacheco conducted a similar investigation of

Rhodes involving telemarketers, attorneys, doctors, and chiropractors related to traffic

accidents. Therefore, the two officers met to discuss their respective investigations.

Ranger Jaramillo indicated that his investigation covered mostly Cameron County,

Texas while Ranger Pacheco’s investigation covered Hidalgo County, Texas.          Ranger

Jaramillo testified that during his discussion with Ranger Pacheco, chiropractor Kenneth

Plambeck’s name surfaced, but Mercier’s did not.       Ranger Jaramillo denied knowledge

about an alleged meeting between Mercier and Plambeck on September 30, 1997, made

the basis of Mercier’s indictment.    Ranger Jaramillo asserted that he had no knowledge

about Mercier during the course of his investigation—he only knew of Plambeck and

later, Mora.   Ranger Jaramillo testified that his investigation of Rhodes was turned over

only to the Cameron County District Attorney’s Office.

        Ranger Pacheco testified that he investigated Mora after learning about his

alleged illegalities following Rhodes’s arrest for bribery of a public official in December

1998.    Ranger Pacheco testified that he never used Rhodes’s cooperation to gather

information against Mercier.

        Defense attorney Ricardo Salinas testified that had the defense had access to

Ranger Jaramillo’s ROI on Rhodes prior to Mercier’s conviction, the trial’s result would

have been different. Attorney Salinas testified that he remembered “a good portion” of

the pre-trial discovery was in the Hidalgo County District Attorney’s office and that he

went to the DA’s office for several hours over several days to review the evidence.


                                              10
Salinas testified that he recalled discussing the Rhodes case in Cameron County, as well

as Mora’s pending indictment, with the prosecutor’s office.           However, Salinas’s

testimony indicates that he did not remember a lot of specifics regarding the Rhodes

case in Cameron County.      Salinas testified that looking back at the evidence, there is

clear evidence that all of the “things that were being done were being done by

[Plambeck]. . . .”   Salinas contended that had this Brady evidence been introduced, the

jury would have seen that no barratry was being committed by Mercier, but rather that

Plambeck was violating a statute pertaining to telemarketers and chiropractors.

       Prosecutor Sofia Arizpe testified that she believed the Jaramillo and Pacheco

ROIs were irrelevant to Mercier’s prosecution.     Arizpe indicated that she did not know

the full facts of the Rhodes bribery investigation, did not believe that Mercier was

involved in that investigation, and thus did not classify it as Brady material. Arizpe also

testified that she did not believe the Pacheco report was Brady material.            Arizpe

testified that the information Rhodes provided to the grand jury which indicted Mercier

was provided to the defense, but that she was unaware of the Jaramillo ROI to give to

the defense.

       b. Discussion

       The grant or denial of a motion for new trial rests solely within the trial court’s

discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995) (en banc); Young v.

State, 177 S.W.3d 136, 140 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d). “We do

not substitute our judgment for that of the trial court, but rather decide whether the trial

court's decision was arbitrary or unreasonable.”   Lewis, 911 S.W.2d at 7.

       A prosecutor has an affirmative duty to turn over material, favorable evidence to


                                            11
the defense. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). To succeed

on a Brady claim, courts use a three-part test. We determine whether the prosecutor

(1) failed to disclose evidence (2) favorable to the accused and (3) the evidence is

material, meaning there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.       Id.;

see U.S. v. Bagley, 473 U.S. 667, 678–83 (1985).

       A Brady claim fails if evidence was turned over in time for the defendant to use in

his defense.   Little, 991 S.W.2d at 866. (citing Juarez v. State, 439 S.W.2d 346, 348

(Tex. Crim. App. 1969)).    Therefore, we must first determine whether the prosecutor

failed to disclose evidence.    See id.   Here, Mercier argues that the Jaramillo and

Pacheco ROIs were not disclosed, while the State argues that its duty to disclose exists

only if the State has control over, access to, or at least knowledge of the evidence.   See

Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011) (holding that Brady does not

require prosecuting authorities to disclose exculpatory information that the State does

not have in its possession and that is not known to exist). We agree with the State.

The State’s prosecutor testified that she was not aware of the information Rhodes had

given to Cameron County investigators and, thus, was under no duty to give it to the

defense. See Pena, 353 S.W.3d at 810; Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim.

App. 2000).

       Even if we assume arguendo that the State failed to disclose these reports to

Mercier, the trial court may nonetheless have viewed the complained-of evidence as

unfavorable to Mercier. Favorable evidence is any evidence that, if disclosed and used

effectively, may make the difference between conviction and acquittal.    Id.; see Thomas


                                            12
v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (en banc) (citing Bagley, 473 U.S.

at 678–83).    This evidence may include both exculpatory evidence and impeachment

evidence.     Pena, 353 S.W3d at 811. To distinguish the two, “exculpatory” evidence is

testimony or other evidence which “tends to justify, excuse or clear the defendant from

alleged fault or guilt,” whereas impeachment evidence is used to “dispute, disparage,

deny, or contradict.”   Thomas, 841 S.W.2d at 404.    The disputed evidence would most

likely have benefitted the prosecution rather than the defense.              The Rhodes

investigation shows that she was Mercier’s employee at the time the Texas Rangers

arrested her for paying Department of Public Safety employees $15.00 per accident

report. When this evidence is examined against the allegations against Mercier, a trial

court may view this evidence in its discretion as unfavorable to Mercier.   See id.

       Again, assuming for argument’s sake that the withheld evidence was favorable to

Mercier, the trial court could have determined within its discretion that in reasonable

probability had the evidence been disclosed to the defense, the result of the proceeding

would not have been different.    Mercier argues that had the jury been aware of that

Plambeck, Mora, and Rhodes were allegedly bribing officials to obtain traffic reports

unbeknownst to Mercier, it is reasonably likely that there would have been a different

verdict because the jury would have acquitted him as it did on the barratry counts.

Mercier argues further that this evidence would have strengthened his defense of not

knowing, knowingly participating in, intentionally joining the conspiracy charged, or

committing the alleged act. The trial court was within its discretion to find that this

purported Brady evidence would have either (1) weakened Mercier’s case; or (2) been

ignored partly or completely by the jury since it involves charges outside Mercier’s


                                           13
indictment. We conclude that the trial court did not abuse its discretion in denying

Mercier’s 2006 motion for new trial. Mercier’s final issue is overruled.

                                  III.   CONCLUSION

       We affirm the trial court’s judgment.



                                                       __________________________
                                                       GINA M. BENAVIDES,
                                                       Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
30th day of August, 2012.




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