                                                                              ACCEPTED
                                                                          04-14-00678-CR
                                                              FOURTH COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                                                                     5/18/2015 4:15:15 PM
                                                                           KEITH HOTTLE
                                                                                   CLERK

                    NO. 04-14-00678-CR

         IN THE COURT OF APPEALS FOR THE
             FOURTH DISTRICT OF TEXAS
                 SAN ANTONIO, TEXAS
             ______________________________

                 RONJEE MIDDLETON,
                      Appellant

                             v.

                 THE STATE OF TEXAS,
                        Appellee
             ______________________________

ON APPEAL FROM THE 227TH JUDICIAL DISTRICT COURT
             OF BEXAR COUNTY, TEXAS
            CAUSE NUMBER 2013-CR-0666
           ______________________________

                 BRIEF FOR THE STATE
             ______________________________

              NICHOLAS “NICO” LAHOOD
                Criminal District Attorney
                  Bexar County, Texas

                    Jennifer D. Rossmeier
             Assistant Criminal District Attorney
                     Bexar County, Texas
                     Paul Elizondo Tower
                     101 W. Nueva Street
                  San Antonio, Texas 78205
 Phone: (210) 335-2734; Email: jennifer.rossmeier@bexar.org
                    State Bar No. 24079247

              Attorneys for the State of Texas

            ORAL ARGUMENT REQUESTED
                     IDENTITY OF THE PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.2(a), the appellee supplements the appellant‟s list of
parties as follows:


APPELLATE STATE’S                      Jennifer D. Rossmeier
ATTORNEY                               State Bar No. 24079247
                                       Assistant Criminal District Attorney
                                       Paul Elizondo Tower
                                       101 W. Nueva Street
                                       San Antonio, Texas 78205
                                       (210) 335-2734
                                       Email: jennifer.rossmeier@bexar.org




                                                                                   ii
                                             TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL .................................................................. ii
TABLE OF CONTENTS ................................................................................................ iii
TABLE OF AUTHORITIES ..............................................................................................v
BRIEF FOR THE STATE .................................................................................................1
STATEMENT REGARDING ORAL ARGUMENT ...............................................................1
STATEMENT OF THE CASE ...........................................................................................1
STATEMENT OF THE FACTS ..........................................................................................2
SUMMARY OF THE ARGUMENT ....................................................................................3
ARGUMENT .................................................................................................................4
   First Point of Error: .....Appellant alleges that the trial court erred in overruling
   Appellant‟s objection to the jury shuffle under Batson v. Kentucky. ....................4
   State’s Response: ...... Batson v. Kentucky does not apply to jury shuffles, and as
   such, the trial court did not err in overruling Appellant‟s objection to the State‟s
   request for a jury shuffle.........................................................................................4
      Standard of Review: Error Analysis ...................................................................4
      Applicable Law....................................................................................................4
      Application of Law to the Present Record ..........................................................5
   Second Point of Error: ........... Appellant alleges the trial court erred in denying
   Appellant‟s motion for a mistrial after the State‟s witness testified about the
   Defendant‟s “prior charge.”..................................................................................10
   State’s Response: The trial court did not err in denying Appellant‟s motion for a
   mistrial.       ...................................................................................................10
      Standard of Review and Applicable Law ..........................................................10
   Third Point of Error: ......Appellant alleges the trial court erred in excluding the
   testimony of Appellant‟s witness and that this error had a substantial and
   injurious effect or influence in determining the jury‟s verdict.............................12
   State’s Response: The trial court did not err in excluding testimony from one of
   Appellant‟s witness under Rule 614, and further, any error resulting from same is
   harmless.        ..................................................................................................12
      Relevant Facts ...................................................................................................12
      Standard of Review and Applicable Law ..........................................................15

                                                                                                                        iii
      Application of Law to the Present Record ........................................................16
PRAYER .....................................................................................................................22
CERTIFICATE OF SERVICE AND COMPLIANCE ............................................................24




                                                                                                                           iv
                                      TABLE OF AUTHORITIES
Cases
Batson v. Kentucky 476 U.S. 79 (1986) ........................................................ 5, 6, 8, 9

Bell v. State, 938 S.W.3d 35 (Tex. Crim. App. 1996) .............................................15

Blanton v. State, 2004 WL 3093219, at *1 (Tex. Crim. App. 2004) .........................5

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ........................................16

Chappell v. State, 850 S.W.2d 508 (Tex. Crim. App. 1993) .....................................4

Garrett v. State, No. 05-94-01144-CR, 1996 WL 283271, at *1 (Tex. App.—
 Dallas May 29, 1996, pet. ref‟d) (mem. op., not designated for publication)........6

Gray v. State, 233 S.W.3d 295 (Tex. Crim. App. 2007) ...........................................8

Hatcher v. State, 43 Tex.Cr.R. 237, 65 S.W. 97 (1901) ..........................................11

Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) ...............................................5

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) ....................................20

Lockhart v. United States, 476 U.S. 162 (1986) ........................................................8

Miller-el v. Dretke, 545 U.S. 231 (2005) ...................................................................7

Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) .........................................10

Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000) .........................................10

Reynolds v. State, 03-10-00215-CR, 2010 WL 4670209, at *1 (Tex. App.—Austin
  November 17, 2010, pet. dsm‟d) (mem. op., not designated for publication) .......6

Roberts v. State, 77 S.W.3d 837 (Tex. Crim. App. 2002) .........................................5

Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003)......................................15

Russell v. State, 155 S.W.3d 176 (Tex. Crim. App. 2005) ........................................4


                                                                                                           v
Russell v. State, 181S.W.3d 176 (Tex. Crim. App. 2005) .......................................15

Sims v. State, 05-96-01395-CR, 1998 WL 744675, at *1
  (Tex. App.—Dallas October 27, 1998) ..................................................................6

State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005) ....................................21

Urbano v. State, 808 S.W.2d 519
(Tex. App.—Houston [14th Dist.] 1991, no pet.) .......................................................5

Waldo v. State, 746 S.W.2d 750 (Tex. Crim. App. 1988) ................................ 10, 11

Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) .....................................16

Wamsley v. State, 2-06-089-CR, 2008 WL 706610, at *1 (Tex. App.—Fort Worth
 March 13, 2008, pet. ref‟d) (mem. op., not designated for publication) ................6

Watkins v. State, 245 S.W.3d 444 (Tex. Crim. App. 2008) .......................................7

Webb v. State, 766 S.W.2d 236 (Tex. Crim. App. 1989) ........................................15

Williams v. State, No. 02-13-00040-CR, 2014 WL 584892, at *1 (Tex. App.—Fort
 Worth February 13, 2014, no pet.) (mem. op., not designated for publication) ....6
Statutes
TEX. CODE CRIM. PROC. ANN. ART. 35.11 (West 2013) ............................................4
Rules
Tex. R. App. P. 38.2(a) ............................................................................................. ii

Tex. R. Crim. Evid. 403 ...........................................................................................21

Tex. R. Crim. Evid. 404(a)(3) ..................................................................................20

Tex. R. Crim. Evid. 614 ...........................................................................................15




                                                                                                                     vi
                                NO. 04-14-00678-CR

                                        §      IN THE FOURTH DISTRICT
RONJEE MIDDLETON,                       §
            APPELLANT                   §
        VS.                             §      COURT OF APPEALS
                                        §
THE STATE OF TEXAS,                     §
             APPELLEE                   §      SAN ANTONIO, TEXAS

                                BRIEF FOR THE STATE

To the Honorable Fourth Court:

      Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar

County, Texas, and files this brief for the State.

                    STATEMENT REGARDING ORAL ARGUMENT

      The undersigned counsel has not yet had an opportunity to participate in oral

argument before this Court and would respectfully request oral argument in the

instant appeal for the purpose of gaining professional experience. Counsel also

wants to ensure that this Court has a full and complete understanding of the facts

and issues presented in this case.

                              STATEMENT OF THE CASE

      Ronjee Middleton (“Appellant”) was indicted on one count of aggravated

assault with a deadly weapon. (1 CR at 8) Appellant was tried by a jury and

convicted of aggravated assault with a deadly weapon. (5 RR at 86) After a brief

punishment hearing, the jury assessed Appellant‟s punishment at imprisonment for


                                                                                   1
twenty-seven years. (1 CR at 215-16) Appellant timely filed a notice of appeal (1

CR at 211), and the trial court certified his right to appeal. (1 CR at 210)


                             STATEMENT OF THE FACTS

      Although the State does not endorse Appellant‟s “Statement of Facts,” the

State does not put forth its own factual assertions. See Tex. R. App. P.

38.2(a)(1)(B). The facts found in the State‟s response to Appellant‟s points of

error are referenced from the clerk‟s record and the reporter‟s record.




                                                                                    2
                         SUMMARY OF THE ARGUMENT

First Point of Error:    Appellant alleges that the trial court erred in overruling
                         Appellant‟s objection to the jury shuffle under Batson v.
                         Kentucky.

State’s Response:        Batson v. Kentucky does not apply to jury shuffles, and as
                         such, the trial court did not err in overruling Appellant‟s
                         objection to the State‟s request for a jury shuffle.



Second Point of Error: Appellant alleges the trial court erred in denying
                       Appellant‟s motion for a mistrial after the State‟s witness
                       testified about the Defendant‟s “prior charge.”

State’s Response:        The trial court did not err in denying Appellant‟s motion
                         for a mistrial.


Third Point of Error:    Appellant alleges the trial court erred in excluding the
                         testimony of Appellant‟s witness and that this error had a
                         substantial and injurious effect or influence in
                         determining the jury‟s verdict.

State’s Response:        The trial court did not err in excluding testimony from
                         one of Appellant‟s witness under Rule 614, and further,
                         any error resulting from same is harmless.




                                                                                  3
                                     ARGUMENT

First Point of Error:      Appellant alleges that the trial court erred in overruling
                           Appellant‟s objection to the jury shuffle under Batson v.
                           Kentucky.

State’s Response:          Batson v. Kentucky does not apply to jury shuffles, and as
                           such, the trial court did not err in overruling Appellant‟s
                           objection to the State‟s request for a jury shuffle.

      Standard of Review: Error Analysis

      Purported error concerning a jury shuffle is reviewed under the non-

constitutional error analysis. Pursuant to Rule of Appellate Procedure 44.2(b), all

nonconstitutional errors that do not affect the appellant's substantial rights are

disregarded. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). A

substantial right is affected "when the error has a substantial and injurious effect or

influence in determining the jury's verdict." Id.

      Applicable Law

      The Texas Code of Criminal Procedure allows for the random reseating of

jury panelists at either the request of the state or the defendant. TEX. CODE CRIM.

PROC. ANN. ART. 35.11 (West 2013) Article 35.11 does not require the party

requesting the shuffle to provide a reason for same. Id. Absent a showing of

misconduct, only one shuffle is authorized under Article 35.11. Chappell v. State,

850 S.W.2d 508, 511 (Tex. Crim. App. 1993). Although a jury shuffle is

sometimes used strategically, its purpose is to ensure that members of the venire


                                                                                      4
panel are seated in a random order. Roberts v. State, 77 S.W.3d 837, 838 (Tex.

Crim. App. 2002).

      Application of Law to the Present Record

      Appellant urges this court to hold that the three step analysis established in

Batson v. Kentucky 476 U.S. 79 (1986), applies to jury shuffles. (Appellant‟s Brief

at 22) Appellant recognizes that “[n]o Texas appellate court has ruled that Batson

applies to jury shuffles,” but further states “[t]he issue remains open to definitive

resolution.” (Appellant‟s Brief at 19) The issue, however, does not remain open to

definitive resolution. The Court of Criminal Appeals has clearly expressed, albeit

in dicta, that it does not endorse the argument that Batson extends to jury shuffles.

Ladd v. State, 3 S.W.3d 547, 563 n.9 (Tex. Crim. App. 1999) (“One scholar has

argued that, logically, Batson should extend to jury shuffles… We wish to make it

clear, however, that we do not endorse such a view.”); see also Blanton v. State,

2004 WL 3093219, at *28 n.17, (Tex. Crim. App. 2004) (mem. op., not designated

for publication) (citing to Ladd when addressing Blanton‟s argument regarding the

extension of Batson to jury shuffles).

      No intermediate appellate court that has considered this issue has agreed

with Appellant either. See Urbano v. State, 808 S.W.2d 519, 520 (Tex. App.—

Houston [14th Dist.] 1991, no pet.) (court was reluctant to expand Batson to jury

shuffles generally, and more reluctant to do so where appellant had not requested


                                                                                   5
the jury be reshuffled); Garrett v. State, No. 05-94-01144-CR, 1996 WL 283271,

at *7 (Tex. App.—Dallas May 29, 1996, pet. ref‟d) (mem. op., not designated for

publication) (holding that protections under Batson do not extend to jury shuffles);

Sims v. State, 05-96-01395-CR, 1998 WL 744675, at *2-3 (Tex. App.—Dallas

October 27, 1998) (stating Batson does not apply to jury shuffles and

acknowledging that appellant did not exercise his right a shuffle); Wamsley v.

State, 2-06-089-CR, 2008 WL 706610, at *20-21 (Tex. App.—Fort Worth March

13, 2008, pet. ref‟d) (holding that no precedent supports an extension of Batson to

jury shuffles); Reynolds v. State, 03-10-00215-CR, 2010 WL 4670209, at *5 (Tex.

App.—Austin November 17, 2010, pet. dsm‟d) (mem. op., not designated for

publication) (noting that the Court of Criminal Appeals has expressed its

disapproval of extending Batson to the jury shuffle); and Williams v. State, No. 02-

13-00040-CR, 2014 WL 584892, at *3 (Tex. App.—Fort Worth February 13,

2014, no pet.) (mem. op., not designated for publication) (holding that Batson has

not been extended to jury shuffles). It is clear that the authority in Texas does not

lend itself to an extension of Batson to jury shuffles.

      Appellant maintains that while Batson does not apply to jury shuffles, his

rights under Batson were violated when the trial court granted the State‟s request to

shuffle the jury and three African American males moved to the back of the venire.

Appellant‟s argument is misplaced. As previously mentioned, the law is clear that


                                                                                   6
Batson does not apply to jury shuffles. While a jury shuffle is one element a court

can consider in assessing discriminatory intent in jury selection, Appellant admits

he is not accusing the State of having racially motivated reasons for requesting a

jury shuffle in this case. (Appellant‟s Brief at 23); see Miller-el v. Dretke, 545 U.S.

231 (2005) (finding the State‟s use of a jury shuffle evidence of a broader pattern

of racial discrimination in jury selection). There is nothing in the record detailing

the racial composition of the venire or the jurors who were selected and

Appellant‟s trial counsel did not challenge any of the State‟s preemptory strikes

under Batson. The record simply does not support a finding that the State‟s request

was motivated by discriminatory intent.

      Appellant distinguishes the instant case from Miller-El and Watkins v. State,

245 S.W.3d 444 (Tex. Crim. App. 2008), by asserting that the jury shuffle in this

case made it impossible to make a standard Batson challenge as to three African

American males in the venire. It appears, then, that Appellant‟s primary issue on

appeal is the way in which the venire was reordered after the shuffle—something

neither the State nor trial court control. While Appellant would argue otherwise,

jurors outside of the so-called “strike zone” at the start of voir dire can still be

selected for jury service. During voir dire, trial counsel often exercise challenges

for cause and veniremen provide other reasons to be excused from jury service.

While the individuals toward the front of a venire might be more likely to serve as


                                                                                     7
jurors, the process of voir dire often changes the location of the “strike zone.”

Thus, it is always possible that panel members toward the back of the venire may

be selected for the jury. Even if members of the venire who were of the same

gender and racially similar to Appellant were shuffled to the back,1 this was not

error—it is simply the way a jury shuffle works. As discussed above, merely being

moved to the back of the panel did not exclude these individuals from potential

jury service.

            Further, the Sixth Amendment guarantees the defendant only that the

assembled venire panel will represent a “fair cross-section of the community.”

Gray v. State, 233 S.W.3d 295, 299 (Tex. Crim. App. 2007) (citing Lockhart v.

United States, 476 U.S. 162, 174 (1986)). This right does not extend to the make-

up of the petit jury. Id. Further, a defendant is not “entitled to a jury of any

particular composition.” Id. at 301. Because Appellant's venire was comprised of

an adequate number of qualified persons to seat a jury, the trial court did not err in

granting the State‟s request to shuffle the jury.

            Preemptory challenges and jury shuffles are fundamentally different, and for

that reason, Batson should not extend to jury shuffles. While the purpose of a

preemptory challenge is to foreclose a prospective juror‟s service, a jury shuffle‟s

only purpose is to guarantee that members of a venire are seated in a random order.


1
    Again, the record is silent as to the race and gender of the rest of the venire.

                                                                                       8
A jury shuffle does not prevent an individual from being selected for jury service,

and as such, exercising the right to a jury shuffle does not invoke a defendant‟s

Equal Protection Rights in the same way as the exercise of a preemptory strike.

Because the effect of a jury shuffle is not analogous to that of a preemptory strike,

it is proper to afford a defendant Batson protections with regard to preemptory

challenges and decline to extend those same protections to the defendant when a

party exercises its right to a jury shuffle.

      Appellant also complains of the trial court‟s failure to inquire as to the

State‟s motives in requesting a jury shuffle. As previously mentioned, no reason

need be given for a jury shuffle and further, Batson does not apply to jury shuffles.

As such, the State was not required to provide, nor was the trial court required to

request, a reason for the jury shuffle.

      Appellant argues that the appropriate remedy is to remand the case to the

trial court for a Batson hearing. This is not the proper remedy for several reasons.

First, Batson does not apply to jury shuffles, thus the three step analysis is not

relevant to the State‟s request for a shuffle. Second, this is an unreasonable demand

in that Appellant is asking this Court to require the State to recall why they

requested a jury shuffle in a case from almost a year ago. Either party has a right to

demand a jury shuffle and the trial court did not err in granting the State‟s request

for same. It is worth noting that the trial court gave Appellant an opportunity to


                                                                                    9
reshuffle the panel and he declined. (3 RR at 37) There was no error associated

with the trial court‟s grant of the State‟s request and any error this Court might find

was harmless as the full venire always remained available for selection to the petit

jury.

Second Point of Error: Appellant alleges the trial court erred in denying
                       Appellant‟s motion for a mistrial after the State‟s witness
                       testified about the Defendant‟s “prior charge.”

State’s Response:           The trial court did not err in denying Appellant‟s motion
                            for a mistrial.

        Standard of Review and Applicable Law

        A trial court‟s denial of a mistrial is reviewed for an abuse of discretion.

Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Evidence is viewed in

the light most favorable to the trial court‟s ruling and only those arguments before

the court at the time of its ruling are considered. Id. The trial court‟s decision to

deny a mistrial will be upheld so long as it falls within the zone of reasonable

disagreement. Id.

        A mistrial is an extreme remedy, and as such, should only be granted when

an error is highly prejudicial and incurable. Id. “Ordinarily, a prompt instruction to

disregard will cure error associated with an improper question and answer, even

one regarding extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.

Crim. App. 2000); see also Waldo v. State, 746 S.W.2d 750, 752 (Tex. Crim. App.


                                                                                        10
1988). It is presumed that an instruction to disregard is effective, “unless

consideration of the facts of the particular case „suggest[s] the impossibility of

withdrawing the impression produced on the minds of the jury.‟” Waldo, 746

S.W.2d at 754 (quoting Hatcher v. State, 43 Tex.Cr.R. 237, 65 S.W. 97, 98

(1901)).

      Application of Law to the Present Record

      On direct examination, the State and Noel Smith (“Mr. Smith”) had the
following exchange—

      [State:] Okay. What was Ronjee doing at this point?
      [Mr. Smith:] Well, he was in the store. He was in there talking to them.
      [State:] He was talking to the police?
      [Mr. Smith:] It was the same cops that arrested us to our prior -- our prior
      charge. That's how we remembered them. But, you know… (4 RR at 86)

      The State then asked to approach the bench. (4 RR at 86) During the ensuing

bench conference, Appellant objected to Mr. Smith‟s statement and the trial court

excused the jury. (4 RR at 86-87) After the jury had been removed, the trial court

sustained Appellant‟s objection regarding the extraneous offense. (4 RR at 90)

Outside the presence of the jury, the court instructed Mr. Smith not to mention any

“arrests or any conduct that is separate and apart from the alleged shooting in this

case.” (4 RR at 90) When the jury returned to the courtroom, the trial court said—

      If you will remember from the initial instructions that I read to you, ladies
      and gentlemen, there will be -- or might be times when I would ask you to
      consider -- either to consider testimony only for a limited purpose or there
      might be times when I would instruct you to disregard certain things that
      happened in the courtroom. This is going to be one of those times, and I will
                                                                                     11
      tell you, ladies and gentlemen, regarding what I just said, please disregard
      any testimony there may have been about any prior arrests occurring before
      the arrest for the conduct which is the subject of this trial.

      Appellant then moved for a mistrial, which was denied by the trial court. (4

RR at 92)

      Here, the trial court‟s denial of the mistrial was proper. After Mr. Smith

made the spontaneous statement regarding Appellant‟s prior charge, the State

promptly approached the bench. There was no further discussion regarding the

“prior charge” in the presence of the jury and there are no details in the record

regarding the offense. Immediately after the jury returned to the courtroom, they

were given an instruction to disregard the statement. Since it is presumed that the

jury follows such instructions, any error created by Mr. Smith‟s inadvertent

reference to the prior charge was cured, rendering a mistrial unnecessary.

Third Point of Error:      Appellant alleges the trial court erred in excluding the
                           testimony of Appellant‟s witness and that this error had a
                           substantial and injurious effect or influence in
                           determining the jury‟s verdict.

State’s Response:          The trial court did not err in excluding testimony from
                           one of Appellant‟s witness under Rule 614, and further,
                           any error resulting from same is harmless.
      Relevant Facts

      Misti Smith (“Ms. Smith”) accompanied Mr. Smith to the trial. (5 RR at 31)

She entered the courtroom during the testimony of Danielle Barron (“Ms.

Barron”), and the bailiff asked her if she intended to be a witness at trial. (5 RR at

                                                                                      12
33-34) Ms. Smith responded that the prosecutor told her she could be in the

courtroom. (5 RR at 34) The bailiff again asked if she was going to be a witness

and Ms. Smith said, “[n]o, I am here for my husband.” (5 RR at 34) Based on her

representation that she was not a witness, the bailiff permitted Ms. Smith to remain

in the courtroom. (5 RR at 34)

        Prior to beginning testimony, the court administered an oath to both Ms.

Barron and Mr. Smith. In addition to swearing them in, he admonished them

regarding the Rule. (4 RR at 18-19 and 65-66) At the conclusion of their

testimony, the court reminded the witnesses of his prior instructions regarding the

Rule. (4 RR at 65 and 4 RR at 99) Ms. Smith listened to the testimony of both Ms.

Barron and Mr. Smith before leaving the courtroom. (5 RR at 31 and 34-35) At

some point,2 Ms. Smith approached Appellant‟s trial counsel and told him she had

information regarding the case. (5 RR at 29) At the conclusion of the State‟s case,

Appellant informed the court of his intent to call Ms. Smith as a witness. (5 RR at

28)

        In addition to objecting to the proposed testimony under Rule 614, the State

also objected to Ms. Smith‟s testimony under Texas Rules of Evidence Rules 401,

402, 403, 404, and 608. (5 RR at 47) After hearing from the State, Appellant‟s

trial counsel, and the bailiff, the trial court sustained the State‟s objection to Ms.

2
 The record is unclear as to when Ms. Smith approached Appellant‟s counsel. The record does reflect, however, that
she was present during the testimony of both Ms. Barron and Mr. Smith. (5 RR at 31 and 34-35)

                                                                                                               13
Smith‟s testimony and denied Appellant‟s request to permit her to testify in

violation of the Rule. (5 RR at 48)

      For purposes of the record, Appellant made an offer of proof of Ms. Smith‟s

proposed testimony. Ms. Smith testified she was present at the party on October

27, 2012. (5 RR at 42) When asked if she knew Ms. Barron, Ms. Smith responded,

“[n]o sir. I—I‟ve seen her. Me and her were talking, but I didn‟t know her

personally.” (5 RR at 43-44) Ms. Smith testified that Ms. Barron, “was drinking a

lot of alcohol… [and] had a bottle of liquor in her hand.” (5 RR at 44) Ms. Smith

did not remember what kind of liquor Ms. Barron was drinking but knew the bottle

contained hard liquor. (5 RR at 44)

      Ms. Smith did not see how much liquor Ms. Barron consumed, but observed

that she was stumbling and falling. (5 RR at 45) Ms. Smith further testified—

      [Appellant:] Did you see anything else --
      [Ms. Smith:] Yes, sir.
      [Appellant:] -- on her part, that would lead you to believe that she might
      have been intoxicated?
      [Ms. Smith:] Yes, sir. Like I said, I saw her fall. And then I saw her take two
      pills while she was drinking.
      [Appellant:] All right. Did you recognize the pills?
      [Ms. Smith:] Yes, sir.
      [Appellant:] To the best of your knowledge, what were they?
      [Ms. Smith:] Ecstasy. (5 RR at 45)

      Ms. Smith never saw an altercation between Appellant and Jose Gonzales

(“Mr. Gonzales”). (5 RR at 46) Ms. Smith maintained that if there had been an

incident outside the home, she would have heard it before she left. (5 RR at 46)
                                                                                    14
Ms. Smith, however, did not hear or see any gunfire after the party and indicated,

“[t]hey said that I pulled off right before the gunshots had started.”(5 RR at 46-47)


      Standard of Review and Applicable Law

      Texas Rules of Evidence Rule 614

      The purpose of Rule of Evidence 614 (“the Rule”) is to safeguard the

testimony of one witness from influence by the testimony of another witness.

Russell v. State, 181S.W.3d 176, 181 (Tex. Crim. App. 2005). While application of

the Rule is mandatory upon request, the trial court‟s decision to allow testimony

from a witness who has violated the Rule is discretionary. See Tex. R. Crim. Evid.

614; see also Bell v. State, 938 S.W.3d 35, 50 (Tex. Crim. App. 1996).

      When a trial court considers disqualifying a defense witness for violation of

the Rule, it must weigh both the interests of the state as well as the defendant‟s

right to defend himself. Routier v. State, 112 S.W.3d 554, 589 (Tex. Crim. App.

2003) (citing Webb v. State, 766 S.W.2d 236, 244 (Tex. Crim. App. 1989)). When

reviewing the trial court‟s decision to disqualify a witness, this Court applies the

test established in Webb to determine:

      (1) if the rule was violated and the witness disqualified, were there particular
      circumstances, other than the mere fact of the violation, which would tend to
      show the defendant or his counsel consented, procured or otherwise had
      knowledge of the witness's presence in the courtroom, together with
      knowledge of the content of that witness's testimony; and (2) if no particular
      circumstances existed to justify disqualification, was the excluded testimony
      crucial to the defense. Id.

                                                                                     15
      Harm Analysis

      The erroneous exclusion of evidence is generally nonconstitutional error and

subject to analysis under Rule of Appellate Procedure 44.2(b). Walters v. State,

247 S.W.3d 204, 219 (Tex. Crim. App. 2007). Nonconstitutional error which does

not affect a defendant‟s substantial rights is disregarded. Casey v. State, 215

S.W.3d 870, 885 (Tex. Crim. App. 2007). A conviction will not be reversed for

nonconstitutional error if the appellate court, after examining the record as a

whole, has fair assurance that the error did not have a substantial and injurious

effect or influence in determining the jury‟s verdict. Id.


Application of Law to the Present Record

      Appellant argues that Ms. Smith should have been permitted to testify in

violation of the Rule. (Appellant‟s Brief at 35) While the first Webb factor is not

met in this case, the second factor is dispositive, and as such, the trial court‟s

decision to exclude Ms. Smith‟s testimony was proper. Further, assuming the trial

court erred in excluding same, any error is harmless and does not warrant reversal.

      The Webb Test: The First Factor

      Appellant‟s attorney informed the court that he “didn‟t know of [Ms.

Smith‟s] identity or even her existence until she showed up in the courtroom…

[and he] didn‟t know who she was or what she had to offer until the horse was out


                                                                                      16
of the barn, so to speak.” (5 RR at 30) It appears that while Appellant‟s counsel

knew Ms. Smith was in the courtroom, he knew neither her identity nor the

significance of her presence in the courtroom. As such, there is nothing in the

record to reflect that Appellant or his counsel had knowledge of the substance of

Ms. Smith‟s testimony and consented to or procured her presence in the courtroom

in violation of the Rule.

      The Webb Test: The Second Factor

      Appellant maintains that Ms. Barron‟s testimony was central to proving the

State‟s case and as such, her credibility should have been subject to attack by Ms.

Smith‟s testimony. (Appellant‟s Brief at 35) Ms. Smith‟s limited testimony was not

crucial to the defense, however, and its exclusion was proper. While Ms. Barron‟s

testimony was important, testimony from other witnesses at trial provided

substantial evidence of Appellant‟s guilt.

      Kayla Edgmon (“Ms. Edgmon”) threw the party that Appellant, Mr.

Gonzales, the complainant, and Ms. Barron attended. (4 RR at 131) When Ms.

Edgmon asked Appellant and his friends to leave the party, Appellant lifted his

shirt, showing her a handgun in his waistband. (4 RR at 136) About twenty

minutes after Appellant and his friends left the party, Ms. Edgmon heard multiple

gunshots. (4 RR at 138)




                                                                                    17
      Mr. Gonzales, the complainant, indicated that Appellant approached him

when he was leaving the party. (4 RR at102-03) Appellant asked Ms. Gonzales

“where the party was” and Mr. Gonzales sarcastically replied, “to the south side.”

(4 RR at 103) Appellant then pulled out a handgun and pointed it at Mr. Gonzales.

(4 RR at 104) After Mr. Gonzales “backed off,” Appellant hit him in the lip with

the butt of the gun. (4 RR at 105) As Mr. Gonzales reached up to cover his face, he

heard gunshots. (4 RR at 105-106) Mr. Gonzales testified that the gunshots were

aimed in his direction and one of the gunshots hit a vehicle next to him. (4 RR at

106) Mr. Gonzales heard four or five gunshots. (4 RR at 106)

      Angela Salvatierra (“CSI Salvatierra”), a crime scene investigator with the

San Antonio Police Department (“SAPD”), collected evidence at the scene. (4 RR

at 151-52) CSI Salvatierra collected five spent shell casings—consistent with the

five gunshots Ms. Barron and Mr. Gonzales heard. (4 RR at 40, 106, and 157) She

further collected a gunshot residue (“GSR”) kit from Appellant shortly after the

incident. (4 RR at 159-60) CSI Salvatierra also collected a red and white bandanna

and a .380 firearm from the passenger side of a vehicle in which Appellant had

been riding. (4 RR at 79-80, 93-94, and 162-63) Both Ms. Edgmon and Ms.

Barron testified that Appellant had been wearing a red and white bandanna on

October 27, 2012. (4 RR at 41 and 138)




                                                                                     18
      Glenn Michalek, a Uniformed Evidence Detective with SAPD, collected a

GSR kit from Mr. Smith and Brandon Linson. (5 RR at 10-11) Michael Martinez

(“Mr. Martinez”), a trace evidence supervisor for the Bexar County Crime Lab

(“crime lab”), tested all three GSR kits. (5 RR at 15-16) The results of the GSR

tests were negative for both Mr. Smith and Brandon Linson. (5 RR at 17-18) The

GSR test was positive for both of Appellant‟s hands, allowing Mr. Martinez to

conclude that Appellant “may have discharged a firearm, handled a discharged

firearm, or was in close proximity to a discharged firearm” on the night in

question. (5 RR at 20)

      Tammi Sligh (“Ms. Sligh”), a fire and tool mark examiner with the crime

lab, also testified at trial. Ms. Sligh tested the .380 collected by CSI Salvatierra and

introduced into evidence at trial. (4 RR at 190) Ms. Sligh verified the firearm was

operable and testified that, in her expert opinion, all five cartridge cases collected

at the scene had been fired from the .380. (4 RR at 191-93) Mr. Smith testified that

Appellant owned a .380 firearm. (4 RR at 84)

      In light of the evidence presented by the State at trial, Ms. Smith‟s proposed

testimony was not crucial to Appellant‟s defense. The substance of Ms. Smith‟s

testimony only established that she saw Ms. Barron drinking and ingesting what

she “knew” to be ecstasy. Ms. Smith could not offer anything relevant to the




                                                                                         19
ultimate issue of guilt in this case as she had not seen nor heard the disturbance

after the party. Therefore, it was not error for the trial court to exclude same.

      Further, even if this Court finds that the trial court erred in excluding Ms.

Smith‟s testimony, any error from its exclusion would be harmless. An

examination of the entire record does not support the proposition that excluding

Ms. Smith‟s testimony had a substantial and injurious effect or influence in

determining the jury‟s verdict.

      Other Objections

      It appears from the record the trial court sustained the State‟s objection to

Ms. Smith‟s testimony under Rule 614. Because the record is not definitive as to

this point, the State‟s other objections will be dealt with herein.

      Character Evidence: Rules 404 and Rule 608(b)

      Here, Appellant sought to introduce character evidence of a witness, and as

such, Rule 608 controls. See Tex. R. Crim. Evid. 404(a)(3). Generally, any attempt

to impeach a witness through specific instances of conduct is improper under Rule

608(b). It is permissible, however, to impeach a witness for lack of capacity.

Lagrone v. State, 942 S.W.2d 602, 612-13 (Tex. Crim. App. 1997). The proponent

of such evidence must prove that the witness‟s capacity to perceive the events was

physically impaired by intoxication at the time of his or observation of the

witnessed events. Id.(emphasis added)


                                                                                      20
      Ms. Smith‟s testimony did not establish that Ms. Barron‟s capacity was

impaired by intoxication at the time of her observation of the events recounted in

her testimony. At best, Ms. Smith‟s vague testimony established that, at some point

during the evening, Ms. Barron drank hard liquor from a bottle and took two pills

known to Ms. Smith to be ecstasy. Ms. Smith offered no additional details,

including any information about the timing of these acts. Ms. Smith left the scene

before the shooting, and as such, could not and did not testify as to Ms. Barron‟s

condition immediately before or contemporaneous with the incident. Thus, her

testimony could not affirmatively establish that Ms. Barron‟s perception was

impaired by intoxication at the time she witnessed Appellant shooting at Mr.

Gonzales.

      Rule 403

      Rule 403 provides a list of exceptions that might prevent otherwise relevant

evidence from admission at trial. Rule 403 asks the trial court to weigh the

probative value of proffered evidence against, among other things, the dangers of

confusion of the issues or misleading the jury. Tex. R. Crim. Evid. 403. The trial

court‟s decision to exclude evidence on the basis of Rule 403 is reviewed for abuse

of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The

relevant inquiry for the reviewing courts are—(1) the probative value of the

evidence; (2) the potential to impress the jury in some irrational yet indelible way;


                                                                                     21
(3) the time needed to develop the evidence; and (4) the proponent's need for the

evidence. Id. at 440.

      While relevant, Ms. Smith‟s testimony was not probative of Appellant‟s

innocence and the evidence was not crucial to his defense, as demonstrated above.

The evidence does not appear to be of the character to impress the jury in an

irrational yet indelible way, though it had potential to confuse the jury if

introduced. If the trial court had permitted Ms. Smith to testify, the State would

have likely inquired as to her violation of the Rule and surrounding circumstances

on cross-examination, which may have confused the issues in the case or misled

jurors. As such, the trial court did not abuse its discretion in excluding Ms. Smith‟s

proposed testimony under Rule 403.

      Harm Analysis

      Should the court find that the trial court erred in excluding Ms. Smith‟s

proposed testimony, any error resulting from same is harmless. An examination of

the entire record does not support the proposition that the exclusion of Ms. Smith‟s

limited testimony had a substantial and injurious effect or influence in determining

the jury‟s verdict.

                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that

the judgment of the trial court should, in all things, be AFFIRMED.


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Respectfully submitted,

NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas

/s/ Jennifer D. Rossmeier
______________________________
Jennifer D. Rossmeier
Assistant Criminal District Attorney
Bexar County, Texas
Paul Elizondo Tower
101 W. Nueva Street
 San Antonio, Texas 78205
Phone: (210) 335-2734
Email: jennifer.rossmeier@bexar.org
State Bar No. 24079247

Attorneys for the State




                                  23
                   CERTIFICATE OF SERVICE AND COMPLIANCE

      I, Jennifer D. Rossmeier, hereby certify that the total number of words in

appellee‟s brief is 6,127. I also certify that a true and correct copy of the above

and foregoing brief was served via electric service to Michael D. Robbins at

mrobbins@bexar.org on the 18th day of May, 2015.




                                               /s/ Jennifer D. Rossmeier
                                               ____________________________
                                               Jennifer D. Rossmeier
                                               Assistant Criminal District Attorney




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