                                                                                               ACCEPTED
                                                                                           06-15-00011-CR
                                                                                SIXTH COURT OF APPEALS
                                                                                      TEXARKANA, TEXAS
                                                                                      9/30/2015 9:48:09 PM
                            No. 06-15-00011-CR                                            DEBBIE AUTREY
                                                                                                    CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS          TEXARKANA, TEXAS
                                                                   10/1/2015 8:56:00 AM
Terrence Lavon Davis,                                                 DEBBIE   AUTREY
                                                                             Appellant
                                                                           Clerk


v.

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




                       BRIEF FOR THE STATE
                   The State Does Not Request Oral Argument

                                            Respectfully submitted:

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


Terrence Lavon Davis,                       §                 Nos. 06-15-00011-CR
            Appellant                       §
                                            §
v.                                          §
                                            §
The State of Texas,                         §
             State                          §               BRIEF FOR THE STATE
                                            §


                                Identity of the Parties

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

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

Procedure:

     1. Defendant and Appellant:

        Terrence Lavon Davis

     2. Attorneys for Appellant on appeal:

        Alwin A. Smith
        602 Pine Street
        Texarkana, Texas 75503


     3. Attorneys for Appellant at trial:

        Rick Shumaker
        Public Defender’s Office



                                                i
4. Attorney for the State of Texas at trial:

   Michael Shepherd
   Lauren Sutton
   Assistant District Attorneys
   Bowie County, Texas
   601 Main Street
   Texarkana, Texas 75501

5. Attorney for the State of Texas on appeal:

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

6. Presiding Judge at trial:

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




                                       ii
                                               Table of Contents

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

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

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

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

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

Argument.............................................................................................................. 3-18

                   Reply to Point of Error Number One ................................................ 3-7
                   The accomplice witness testimony was sufficiently corroborated
                   by other testimony and evidence.

                   Reply to Point of Error Number Two ............................................. 7-14
                   The jury was properly instructed on accomplice witness
                   testimony, but any error in the charge did not egregiously harm
                   the Appellant

                   Reply to Point of Error Number Three ......................................... 15-18
                   The trial court did not abuse its discretion in denying the
                   Appellant’s motion for continuance.


Prayer for Relief ....................................................................................................... 19

Certificate of Compliance ........................................................................................ 20

Certificate of Service ............................................................................................... 21




                                                            iii
                                     Index of Authorities

Cases

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1984)..............................8,10,11

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g)8,10,11,12,13

Bailey v. State, 867 S.W.2d 42 (Tex.Crim.App.1993) ............................................ 11

Boones v. State, 170 S.W.3d 653 (Tex. App.—Texarkana 2005, no pet. ............... 11

Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ....................................... 8

Dowhitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)....................................... 4

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) ........................................ 15

Gill v. State, 873 S.W.2d 45 (Tex. Crim. App. 1994) ............................................ 3,4

Hall v. State, 161 S.W.3d 142 (Tex. App.—Texarkana 2005, pet. ref’d) ................. 4

Hamann v. State, 428 S.W.3d 221 (Tex. App.–Houston [1st Dist.] 2014, pet. ref d)17

Holladay v. State, 709 S.W.2d 194 (Tex.Crim.App.1986)...................................... 10

Hutch v. State, 922 S.W.2d 116 (Tex. Crim. App. 1996) ...................................12,13

Munoz v. State, 853 S.W.2d 558 (Tex. Crim. App. 1993)......................................... 4

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ............................................. 8

Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988)............................................ 4

Rudd v. State, 921 S.W.2d 370 (Tex. App. – Texarkana 1996, pet. ref’d) .............. 11

Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991)................................... 11




                                                iv
Texas Code of Criminal Procedure

Tex. Code Crim. Proc. art. 38.14 ............................................................................... 3




                                                        v
                             Statement of the Case

      Appellant, Terrence Lavon Davis was found guilty by a jury of aggravated

robbery, a first degree felony. The jury assessed punishment at fifty-five (55) years

to be served consecutively in the Texas Department of Criminal Justice-

Institutional Division, and a $10,000 fine. The Judge sentenced the Appellant

accordingly. Appellant then perfected appeal to this Honorable Court. He now

appeals the punishment verdict of the trial court on three points of error.




                                          1
                    Reply to Points of Error

              REPLY TO POINT OF ERROR NUMBER ONE:

The accomplice witness testimony was sufficiently corroborated by
other testimony and evidence.


              REPLY TO POINT OF ERROR NUMBER TWO:

The jury was properly instructed on accomplice witness testimony,
but any error in the charge did not egregiously harm the Appellant.



             REPLY TO POINT OF ERROR NUMBER THREE:

The trial court did not abuse its discretion in denying the Appellant’s
motion for continuance.




                                  2
                                            Argument

                                 Reply to Point of Error One

         The accomplice witness testimony was sufficiently corroborated by
         other testimony and evidence.


         In point of error number one, the Appellant argues that the State failed to

corroborate the testimony of the accomplice with sufficient evidence. However,

viewing the evidence presented at trial in a light most favorable to the jury verdict

and eliminating the accomplice’s testimony, the corroboration of the accomplice

testimony is sufficient. The non-accomplice evidence tends to connect the

Appellant to the commission of the aggravated robbery.

                                  Argument and Authorities

A. Standard of Review

         Under the accomplice witness rule, one cannot be convicted on the

testimony of an accomplice unless that testimony is corroborated by other evidence

tending to connect the defendant with the offense committed.1 To determine the

sufficiency of corroboration, the reviewing court must view the corroborating

evidence in the light most favorable to the jury’s verdict.2 The test for weighing the

sufficiency of corroborating evidence is to eliminate from consideration the

accomplice’s testimony, and then examine the remaining testimony and evidence

1
    Texas Code Crim. Proc. art. 38.14.
2
    Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).
                                                 3
to determine if there is evidence that tends to connect the defendant with the

commission of the offense.3 The nonaccomplice evidence does not have to directly

link the accused to the crime, does not have to establish guilt beyond a reasonable

doubt, and need not prove all the elements of the alleged offense.4 Such evidence

may be either direct or circumstantial.5

       Article 38.14 requires the corroboration of an accomplice’s testimony, but it

does not define the quality or quantity of evidence required to satisfy the

corroboration requirement.6 Texas courts have ultimately concluded that all that is

required is “some non-accomplice evidence which tends to connect the accused to

the commission of the offense alleged in the indictment.”7

B. Application of Law to Facts

       Viewing the evidence presented at trial in a light most favorable to the jury

verdict and eliminating the accomplice’s testimony, the corroboration of the

accomplice testimony was sufficient.

       At trial, Calvin Whaley testified that he and the Appellant committed an

armed robbery of the convenience store together. (R.R. Vol. 3, p. 60). Whaley

stated that he and the Appellant went to “hit a lick,” or commit a robbery. (R.R.


3
  Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Hall v. State, 161 S.W.3d 142,
149 (Tex. App.—Texarkana 2005, pet. ref’d).
4
  Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559.
5
  Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).
6
  Dowhitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
7
  Gill, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).
                                              4
Vol. 3, p. 75). The two men travelled to the E-Z Mart convenience store. (R.R.

Vol. 3, p. 77). Then, once inside the store, the Appellant went to the counter and

purchased some candy, then pulled out a firearm and pointed it at the clerk. (R.R.

Vol. 3, p. 77-78). The surveillance video from the convenience store introduced

into evidence, depicting two men robbing the store, in the manner which Whaley

testified to. (R.R. Vol. 5, State’s Exhibit 3).

      As non-accomplice evidence tending to connect the Appellant to the offense,

the State presented the testimony of the Appellant’s girlfriend, Toni Rutledge. The

State also introduced into evidence the pants the Appellant was wearing when he

was arrested for the jury to view and make any comparisons with the pants worn

by the man depicted in the surveillance video. (R.R. Vol. 5, State’s Exhibits 10-13;

15). Still photographs from the surveillance video were also introduced into

evidence for comparison with the defendant. (R.R. Vol. 5, State’s Exhibit 14).

      Toni Rutledge testified that she was in a relationship with the Appellant for

nine years and is the father of her two children. (R.R. Vol. 3, p. 110-11). After

being shown the surveillance video in open court, Ms. Rutledge testified that she

recognized Terrance’s voice to be the man holding the gun and threatening the

clerk. (R.R. Vol. 3, p. 115). She further testified that Terrance is left-handed and

the man with the gun held it in his left hand. (R.R. Vol. 3, p. 116). Ms. Rutledge

also stated that she recognized the clothing that the Appellant was wearing in the


                                            5
video and that the pants were distinctive because of their back pockets. (R.R. Vol.

3, p. 116-18). She also stated she recognized the Appellant in the video by the way

he walks. (R.R. Vol. 3, p. 120-21). Ms. Rutledge was positive that it was the

Appellant in the video. (R.R. Vol. 3, p. 121). Detective Brad Thacker testified that

the pants the Appellant was wearing when he was arrested were similar and

consistent with the pants worn by the suspect with the gun in the surveillance

video. (R.R. Vol. 3, p. 141). During Thacker’s testimony, a video was played

which included a portion of the Appellant’s interview after he was arrested and

then an audio clip taken from the surveillance video. (R.R. Vol. 3, p. 153-54).

During the interview with Appellant, Detective Thacker has asked him to repeat a

specific phrase used by the suspect with the gun in the surveillance video. (R.R.

Vol. 3, p. 154). From this testimony and evidence, the jury was able to make a

comparison on their own and come to a determination as to whether or not the

voice of the suspect in the video was the Appellant’s voice. Detective Thacker also

testified that after conducting the interview with Appellant and hearing the

Appellant repeat the specific phrase, it was Thacker’s opinion that the Appellant’s

voice matched that of the suspect on the video. (R.R. Vol. 3, p. 156).

      Eliminating the testimony of the accomplice, Calvin Whaley, and examining

the remaining testimony and evidence, there is some evidence which tends to

connect the Appellant to the commission of the crime.


                                          6
C. Conclusion

      While the nonaccomplice evidence may not establish guilt beyond a

reasonable doubt, or may not prove all of the elements of the alleged offense by

itself, it does tend to connect the Appellant with the commission of the offense as

required. Therefore, the nonaccomplice evidence is sufficient to corroborate the

accomplice testimony.

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



                          Reply to Point of Error Two

      The jury was properly instructed on accomplice witness testimony, but
      any error in the charge did not egregiously harm the Appellant


      In point of error number two, Appellant argues the trial court’s instructions

to the jury on accomplice testimony was insufficient. However, the court’s

instruction was sufficient and the Appellant made no objections to the jury charge

as submitted. Taking into account the charge itself, the state of the evidence

including contested issues and the weight of the probative evidence, arguments of

counsel, and any other relevant information revealed by the record of the trial as a

whole, the Appellant did not suffer egregious harm.




                                         7
                               Argument and Authorities

A. Standard of Review

    Appellate review of a purported error in the jury charge involves a two-step

process. 8 First, the reviewing court must determine whether the jury instruction is

erroneous.9 Second, if error occurred, then an appellate court must analyze that

error for harm.10 In examining the charge for possible error, reviewing courts

“must examine the charge as a whole instead of a series of isolated and unrelated

statements.”11

       When jury instruction errors occur, review of the charge is under the

Almanza standard.12       An erroneous jury charge does not result in automatic

reversal of the conviction or punishment.13 Instead, sufficient harm must have

resulted from the error to require reversal.14

B. Application of Law to Facts

       A jury instruction on corroboration of accomplice witness testimony was

given to the jury in the court’s charge:


8
  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), overruled on
other grounds by Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988).
9
  Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
10
   Id. at 744.
11
   Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).
12
   Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
13
   Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1984).
14
   Id. at 731-32; Almanza, 686 S.W.2d at 171.
                                               8
      “The witness, Calvin Whaley, is an accomplice, if an offense was

committed, and you cannot convict the defendant upon his testimony unless you

first believe that his testimony is true and shows that the defendant is guilty as

charged, and then you cannot convict the defendant upon said testimony unless you

further believe that there is other testimony in the case, outside the evidence of

Calvin Whaley tending to connect the defendant with the offense committed, if you

find that an offense was committed, and the corroboration is not sufficient if it

merely shows the commission of the offense, but it must also tend to connect the

defendant with its commission, and then from all of the evidence you must believe

beyond a reasonable doubt that the defendant is guilty of the offense charged

against him. (C.R. p. 71).

      The Appellant complains on appeal that the instruction was erroneous

because it limited the jury’s inquiry as to the corroboration required to “other

testimony” instead of to “other evidence.” Appellant asserts that the instruction

focused on whether there was other “testimony,” and therefore, in effect, the trial

court in told the jury that it must find the Appellant guilty because of the testimony

of Toni Rutledge. However, as previously discussed in point of error number one,

there was also testimony presented from Detective Brad Thacker that it was his

opinion the voice of the Appellant matched that of the suspect in the video.




                                          9
       The Texas Court of Criminal Appeals has held an accomplice witness

instruction is sufficient if it instructs the jury that, “before it could find the

appellant guilty of the offense ..., it had to find (1) that the offense itself had been

committed; (2) that the accomplice witness['s] testimony was truthful; (3) that [the

accomplice witness's] testimony itself showed that the appellant was guilty of the

offense ...; (4) that there was other evidence, outside of [the accomplice witness's]

testimony, that tended to connect the appellant to the commission of the offense ...;

and (5) from all of the evidence, including the accomplice witness' testimony, it

believed that the appellant was guilty beyond a reasonable doubt of committing the

offense....”15 This test is met by the trial court's instruction in this case. Therefore,

there was no error in the jury charge.

C. Harm Analysis

       However, assuming arguendo, this Court finds there was a jury charge error,

review of the charge is under the Almanza standard.16 An erroneous jury charge

does not result in automatic reversal of the conviction or punishment.17 Instead,

sufficient harm must have resulted from the error to require reversal.18

       The level of harm an appellant must demonstrate as having resulted from the

erroneous jury instruction depends on whether the appellant properly objected to

15
   Holladay v. State, 709 S.W.2d 194, 201-02 (Tex. Crim. App. 1986).
16
   Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
17
   Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1984).
18
   Id. at 731-32; Almanza, 686 S.W.2d at 171.
                                              10
the error.19 When a proper objection is made at trial, reversal is required if the error

is “calculated to injure the rights of defendant”—the appellant need only

demonstrate “some harm” on appeal.20 In the case of unpreserved error, reversal is

required only when “the error is so egregious and created such harm that he ‘has

not had a fair and impartial trial’—in short ‘egregious harm.’”21 “Egregious harm”

results from errors affecting the very basis of the case or that deprive the defendant

of a valuable right, vitally affect a defensive theory, or make the case for

conviction or punishment clearly and significantly more persuasive.22

       In either event, when conducting a harm analysis the reviewing court may

consider the following four factors: 1) the charge itself; 2) the state of the evidence

including contested issues and the weight of the probative evidence; 3) arguments

of counsel; and, 4) any other relevant information revealed by the record of the

trial as a whole.23

       At trial, when asked if the defense had any objections to the charge,

Appellant’s counsel stated, “The only objection we would have, Judge, is that

there’s no evidence to warrant the submission of this case to the jury again, that

there’s no evidence to warrant the submission of an accomplice corroboration

19
   Abdnor, 871 S.W.2d at 732.
20
   Id.; see also Almanza, 686 S.W.2d at 171.
21
   Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana
1996, pet. ref’d).
22
   Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991); Boones v. State, 170 S.W.3d
653, 660 (Tex. App.—Texarkana 2005, no pet.).
23
   Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App.1993) (citing Almanza).
                                             11
instructions.” (R.R. Vol. 4, p. 6). The objection was not that the accomplice

instruction was insufficient or lacking in any way, but rather that the State had not

presented sufficient evidence to warrant submission of the case to the jury.

Therefore, the defendant did not properly object to the jury charge.

       Appellant argues that he properly objected to the jury charge error. The

Appellant’s argument on appeal is that the jury charge misstated the law. However,

at trial, the Appellant’s objection was not that the charge misstated the law. In fact,

the Appellant was objecting because she felt the evidence was insufficient to

warrant submission of the case to the jury. Appellant also failed to object during

the court’s reading of the charge the jury that it was a misstatement of the law.

       Since error was not preserved, reversal is not required unless “the error is so

egregious and created such harm that [the defendant] ‘has not had a fair and

impartial trial’ – in short ‘egregious harm.’”24 “Errors which result in egregious

harm are those which affect ‘the very basis of the case,’ deprive the defendant of a

‘valuable right,’ or ‘vitally affect a defensive theory’.” 25 Egregious harm is a

difficult standard to prove and such a determination must be done on a case-by-

case basis.26




24
   Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App. – Texarkana
1996, pet. ref’d).
25
   Hutch v. State, 922 S.W.2d 116, 171 (Tex. Crim. App. 1996)(quoting Almanza)
26
   Id.
                                             12
       The charge itself laid out the properly applicable law and required the jury

to find all of the elements of the crime were proven beyond a reasonable doubt. As

previously addressed in point of error number one, the State presented testimony of

Toni Rutledge, Detective Brad Thacker, and also introduced exhibits into evidence

which enabled the jury to make its own determination of identity.

The State emphasized during closing argument what was required to corroborate

accomplice testimony:

      “The law does not require that, absent Calvin’s testimony, the other evidence

we present prove to you beyond a reasonable doubt. That’s not what the law is.

The law says that if you believe Calvin’s testimony and that there is other

evidence, any evidence, which we’ve presented to you, then you consider all the

evidence, and using all of the evidence, if you’re convinced beyond a reasonable

doubt of his guilt, then a conviction can stand.” (R.R. Vol. 4, p. 19).

      The defense counsel addressed accomplice testimony in his closing

argument in the following way:

      “This evidence that tends to connect him to the commission of the offense

has still got to be competent, credible and believable. They just ccan’t get Calvin

Whaley and say, okay, he did it, and then bring somebody in here that’s not

competent, credible and worthy of believing and say, oh, yeah, that’s his voice on

tape. You still have to believe it, and you have to find it competent and credible.”


                                          13
(R.R. Vol. 4, p. 23). The defense counsel further stated, “They must have other

evidence that tends to connect Mr. Davis with the commission of this offense.”

(R.R. Vol. 4, p .25).

      Evaluating the charge itself. the state of the evidence including contested

issues and the weight of the probative evidence, arguments of counsel; and any

other relevant information revealed by the record of the trial as a whole, this Court

can be assured any error in the jury charge did not result in egregious harm to the

Appellant.

C. Conclusion

      The accomplice witness instruction given to the jury was sufficient. Because

the Appellant failed to object to the jury charge, if there was any error in the

charge, he must have suffered egregious harm as a result to warrant reversal.

However, a review of the record and evidence presented at trial demonstrates the

Appellant was not egregiously harmed.

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




                                         14
                               Reply to Point of Error Three

         The trial court did not abuse its discretion in denying the Appellant’s
         motion for continuance.


         In point of error number three, Appellant argues the trial court erred in

denying his motion for continuance. Appellant alleges prosecutorial misconduct in

the form of misleading defense counsel regarding the testimony of the witness

Toni Rutledge. However, the State gave notice to the defense counsel that Ms.

Rutledge was a witness. Because the defense has failed to show he was actually

prejudiced by the trial court’s ruling, it was not an abuse of discretion for the court

to deny the motion for continuance.

                                 Argument and Authorities

A. Standard of Review

         A trial court’s decision to deny a motion for continuance is reviewed under

an abuse of discretion standard.27 To establish an abuse of discretion when the trial

court denies a motion for continuance, there must be a showing that the defendant

was actually prejudiced by the denial of his motion.28

B. Application of Law to Facts

         At trial, Defense counsel stated they received the State’s witness list on

November 20, 2014, which listed Toni Rutledge as the defendant’s girlfriend.

27
     Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007).
28
     Id.
                                                15
(R.R. Vol. 3, p. 7; R.R. Vol. 5, p. 64-Defense Exhibit 1). Likewise, defense

counsel said they had previously made attempts to contact Ms. Rutledge to speak

with her, but that she had refused to speak to them. (R.R. Vol. 3, p. 53).

       On December 3, 2014, Appellant filed a “Formal Request for Compliance

with Article 39.14 of the Texas Code of Criminal Procedure.” (C.R. p. 47). The

following day, on December 4, 2014, the Appellant filed an Amended request,

with the only addition being a item “J”- a request for the disclosure of the “name,

address and telephone number of any person or persons who may attempt to testify

to an in-court or out of court identification of the Defendant and the basis for

such.” (C.R. p. 49). On December 9, 2014, prior to jury selection, the trial counsel

took up the defense’s motion in limine (R.R. Vol. 2, p. 5). In that motion, the

defense sought to prohibit the State from calling any witness in an attempt to

identify any voiced on the audio tape from the E-Z Mart surveillance video. (R.R.

Vol. 2, p. 5).

       The defendant was clearly aware witnesses would be making identifications

of the Defendant, as evidenced by the addition of the additional request. The State

did provide the defendant with the name, address and phone number of Ms.

Rutledge. The witness list also indicated Ms. Rutledge was the Appellant’s

girlfriend. It is reasonable to conclude that a woman in a relationship with the

Appellant would have a sufficient, personal knowledge basis for identifying him.


                                          16
The State did not intentionally deceive the defense counsel as to the testimony of

Ms. Rutledge. Simply because the Appellant claims he did not receive sufficient

notice of the substance of Ms. Rutledge’s testimony, does not mean he could not

have anticipated such. Additionally, even when an Appellant argues he could not

anticipate the witnesses' testimony, that factor is not, by itself, determinative of

whether the trial court abused its discretion.

          In examining whether the defense reasonably could have anticipated the

witness's testimony, the reviewing court will generally consider the degrees of

surprise to the defendant, disadvantage inherent in that surprise, and the trial

court's ability to remedy the issue, such as by granting a recess or postponement.29

          The Appellant was not surprised that Ms. Rutledge was to be called as a

witness as she was listed on the State’s witness list. The Appellant is arguing that

he was surprised by the content of her testimony. However, as previously

discussed, based on the filings of defense counsel and arguments made at trial, it is

evident there was awareness that witnesses would be identifying the Appellant.

          Appellant argues that the State intentionally misinformed the Appellant what

Ms. Rutledge would only be testifying for a limited purpose. This is simply

incorrect. Ms. Rutledge is listed on the witness list, along with all of the other

State’s witnesses. Ms. Rutledge is listed as a witness to an extraneous offense in


29
     Hamann v. State, 428 S.W.3d 221, 228 (Tex. App.–Houston [1st Dist.] 2014, pet. ref d).
                                                 17
the State’s notice of intention to use extraneous offenses at trial. But there is

nothing in the record or on file which indicates that Ms. Rutledge would only be

testifying to the singular extraneous offense. Appellant claims that had the State

not misinformed defense counsel as to Ms. Rutledge’s testimony, he would have

pursued an interview with the witness. The defense counsel did pursue an

interview with the witness, and the witness chose not to speak with defense

counsel. (R.R. Vol. 2, p. 53). Additionally, the Appellant was given the

opportunity to cross-examine Ms. Rutledge on the sufficiency of her identification

of the Appellant and her credibility. (R.R. Vol. 4, p. 122-29).

C. Conclusion

      Upon a review of the record, this Court can conclude that the trial court did

not abuse its discretion in denying appellant's motion for continuance. Appellant's

contention that he was harmed due to alleged prosecutorial misconduct related to

disclosure of witness testimony is without merit.

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




                                          18
                                  Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and

competent evidence sufficient to justify the conviction and punishment assessed in

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

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

and sentence of the trial court below.



                                               Respectfully Submitted:

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



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

                                               Attorneys for the State




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                             Certificate of Compliance

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

Appellate Procedure, Appellee’s Brief contains 3,702 words, exclusive of the

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

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

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

service, certification, certificate of compliance, and appendix.



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




                                          20
                              Certificate of Service

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

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

the 30th day of September, 2015.



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




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