Robert Bryan Finch v. State

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

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

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________

ROBERT BRYAN FINCH, Appellant

V.

THE STATE OF TEXAS, Appellee ____________________________________________________________

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

APPELLEE’S (STATE’S) BRIEF ____________________________________________________________

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

ATTORNEYS FOR THE STATE OF TEXAS

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and counsel is not required to supplement or correct the appellant’s list.

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TABLE OF CONTENTS

PAGE NO.: IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . i TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . viii ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . . ix INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT AND AUTHORITIES

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

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PAGE NO:

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

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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INDEX OF AUTHORITIES

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

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

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

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

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

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

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

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

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

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

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

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

-iv-CASES: PAGE:

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

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

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

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

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

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

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

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

-v-STATUTES: PAGE: TEX. CODE CRIM. PROC. ANN. ART. 36.06 (Vernon 2007) . . . 21

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

TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TEX. R. APP. P. 44.0(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 TEX. R. APP. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 TEX. R. EVID. 614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21

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STATEMENT OF THE CASE

This is a criminal appeal from the trial court’s final judgment of conviction for the state-jail felony offense of theft of property of a value less than $1,500.00 with two or more prior convictions. See CR, pgs. 109-110.

A grand jury in Lamar County charged Finch with the offense of theft of property of a value less than $1,500.00 with two (2) or more prior convictions. See CR, pg. 5. After a jury trial, a petit jury found Finch guilty of the offense, as alleged in the indictment. See RR, Vol. 6, pg. 133; CR, pg. 93. The jury also found all of the prior convictions were true, as alleged in the indictment. See RR, Vol. 6, pg. 133.

Following the punishment phase, the same petit jury assessed punishment at two (2) confinement in the Texas Department of Criminal Justice -- State Jail Division with a fine of $10,000.00. See RR, Vol. 6, pg. 234; CR, pg. 99. After the court pronounced sentence (RR, Vol. 6, pg. 236), the trial court signed its Judgment of Conviction by Jury (CR, pgs. 109-110) and its Certification of Defendant’s Right of Appeal. See CR, pg. 107.

Finch filed his notice of appeal. See CR, pg. 104. By this appeal, Finch brought two (2) issues/points of error.

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STATEMENT REGARDING ORAL ARGUMENT

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

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ISSUES PRESENTED IN REPLY

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

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

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CAUSE NO. 06-14-00182-CR

IN THE

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________

ROBERT BRYAN FINCH, Appellant

V.

THE STATE OF TEXAS, Appellee ____________________________________________________________

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

APPELLEE’S (STATE’S) BRIEF ____________________________________________________________

TO THE HONORABLE SIXTH COURT OF APPEALS:

COMES NOW, the State of Texas, by and through the elected County and District Attorney of Lamar County, Gary D. Young, and the Lamar County and District Attorney’s Office, respectfully submits its Appellee’s (State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.

Unless otherwise indicated, Robert Bryan Finch will be referred to as “the appellant” or “Finch” and the State of Texas as “the State.”

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STATEMENT OF FACTS

Factual Background.

On February 23, 2014, Dustin Calhoun (Calhoun), who worked for Wal-Mart in asset protection for about a year and six months (RR, Vol. 6, pg. 39), got a phone call that a cashier had “just seen someone take a chain saw and run out the door.” See RR, Vol. 6, pg. 40. After they asked him for a receipt, the suspect took off running. See RR, Vol. 6, pg. 40. Calhoun “went and watched the videotape” and he saw that “the suspect came in, under a minute, grabbed the chain saw, walked past the register and [took] off running.” See RR, Vol. 6, pg. 41. See also RR, Vol. 6, pgs. 46-47, 53; State’s Exhibits 1, 2 and 8. The suspect left in a red pickup. See RR, Vol. 6, pgs. 47-48 (“He gets in it and leaves.”).

Calhoun grabbed the cheapest chain saw and made a receipt for $167.00. See RR, Vol. 6, pgs. 51-52; State’s Exhibit 3. The receipt was evidence of how much it cost. See RR, Vol. 6, pg. 52.

After Calhoun made the surveillance video, he “called the cops.” See RR, Vol. 6, pg. 51. Officer Sean Upchurch, who worked for the Paris Police Department for about “a year and a half,” (Officer Upchurch) was working on February 23, 2014. See RR, Vol. 6, pg. 56. Officer Upchurch was

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

Officer Upchurch arrived there and reviewed the surveillance video and the still photos. See RR, Vol. 6, pgs. 51, 57, 64-65; State’s Exhibits 1, 2. Officer Upchurch took Calhoun’s statement. See RR, Vol. 6, pg. 51. With the still photos, Officer Upchurch sent an e-mail to all the officers with the photographs to identify the suspect. See RR, Vol. 6, pg. 58.

Unrelated Arrest of a Suspect on February 26, 2014.

On the night of February 26, 2014, officer Upchurch arrested “Robert Bryan Finch” on an unrelated charge. See RR, Vol. 6, pg. 58. While speaking to him, officer Upchurch noticed a piece of yellow duct tape on his eyeglasses. See RR, Vol. 6, pgs. 58, 65. “It appeared to be the same tape that was on the glasses the night of the theft.” See RR, Vol. 6, pg. 58.

Whenever officer Upchurch sent an e-mail to all the officers, he received an e-mail back that named the suspect as “Robert Bryan Finch.” See RR, Vol. 6, pg. 59. On the night of February 26th, officer Upchurch took pictures of Finch. See RR, Vol. 6, pg. 59; State’s Exhibits 4-7. Also that night, officer Upchurch took some photographs of a pickup. See RR, Vol. 6, pgs. 60, 62; State’s Exhibit 6. Previously, officer Upchurch had seen the truck in the videotape. See RR, Vol. 6, pg. 62.

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Officer Upchurch read the Miranda rights, and Finch waived his rights by agreeing to speak to officer Upchurch. See RR, Vol. 6, pg. 63. That night, Finch did not admit to stealing the chain saw. See RR, Vol. 6, pg. 63.

On February 23rd, Tommy Moore, a detective at the Paris Police Department for fifteen years, (Detective Moore) also spoke with Finch. See RR, Vol. 6, pgs. 72-73. Detective Leigh Foreman actually read the Miranda warnings; and again, Finch waived his rights. See RR, Vol. 6, pgs. 74-75. The interview was recorded. See RR, Vol. 6, pgs. 75-76; State’s Exhibit 9. During this interview with Detective Moore, Finch admitted to taking chain saw because “[h]e needed gas money.” See RR, Vol. 6, pg. 87.

Subsequently, a grand jury in Lamar County returned an original indictment that charged Finch with theft of property less than $1,500.00 with two prior convictions. See CR, pg. 5; RR, Vol. 6, pg. 30. See also Tex. Penal Code Ann. § 31.03(e)(4)(D) (West Supp. 2014).

Voir Dire Proceedings and Jury Trial.

On September 29, 2014, the trial court called cause number 25677, which was “set for jury trial this morning.” See RR, Vol. 5, pg. 4. After an exchange with the defendant (Finch), the trial judge introduced himself to

-4-the venire panel as the judge for the County Court at Law but would be presiding in court today for the 6th District Court. See RR, Vol. 5, pg. 14. After hearing disqualifications, exemptions or excuses from individual jurors (RR, Vol. 5, pgs. 14-43), the trial court instructed the remaining jurors that “we’re going to have to put you back into the hallway and prepare a seating chart.” See RR, Vol. 5, pg. 43. The jury panel was ushered out. See RR, Vol. 5, pg. 44.

Motion for Mistrial and Subsequent Hearing.

While the jury panel was out in the hallway waiting to come into the courtroom, the trial judge remarked that “when Mr. Finch was brought up after lunch to come into the courtroom for jury selection, that he was wearing handcuffs and leg irons and that he was moved through the jury panel as it waited in the hallway from the elevator into the bailiff’s office.” See RR, Vol. 5, pg. 47. When the trial court recognized “Mr. Turner” (i.e. David C. Turner, Jr.) (RR, Vol. 5, pg. 2), defense counsel made a motion for mistrial. See RR, Vol. 5, pg. 47.

The trial court then proceeded “to take some testimony on this” (RR, Vol. 5, pg. 47) and heard from two witnesses: (1) Sampson Peralta (Peralta), a jailer with the Lamar County Sheriff’s Department, and (2) Ron Byers, the

-5-bailiff for the district court. See RR, Vol. 5, pgs. 48, 54. Both sides and the trial judge asked questions of Peralta (RR, Vol. 5, pgs. 48-53) and of Byers. See RR, Vol. 5, pgs. 54-56.

After the trial court excused the witness (Byers), defense counsel for Finch made a motion for mistrial again, and the State responded. See RR, Vol. 5, pgs. 57-58. The trial court took the motion under advisement. See RR, Vol. 5, pg. 58.

The trial court brought the jury panel into the courtroom. See RR, Vol. 5, pg. 59. The trial judge then asked the panel, as follows:

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

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

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

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

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

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

(Beginning of at-the-bench- discussions.) See RR, Vol. 5, pg. 60.

During “at-the-bench discussions,” the trial court conversed with several venire persons. See RR, Vol. 5, pgs. 60-105. Afterwards, the trial court asked “each of you to go stand back in the hallway again.” See RR, Vol. 5, pg. 105. Through defense counsel, Finch renewed his motion for mistrial (RR, Vol. 5, pg. 105), which the trial court then denied. See RR, Vol. 5, pg. 106. Afterwards, the trial judge addressed the venire panel and proceeded with jury selection on the afternoon of September 29, 2014. See RR, Vol. 5, pgs. 106-107.

At the end of the voir dire proceedings, the trial court impaneled a petit jury of twelve jurors and two alternate jurors. See RR, Vol. 5, pgs. 131-132; CR, pg. 86. The trial court then dismissed the remaining venire persons. See RR, Vol. 5, pg. 132.

Guilt-Innocence Phase of the Jury Trial.

On September 30, 2014, the trial court commenced the guilt-innocence phase of the jury trial with instructions to the jury. See RR, Vol. 6, pgs. 23-29. The State read the charging instrument. See RR, Vol. 6, pgs.

-7-30-31. Finch entered a plea of “not guilty” and a plea of “not true” to the enhancement allegations. See RR, Vol. 6, pg. 31. Later, Finch stipulated to the admissibility of the two prior theft convictions. See RR, Vol. 6, pgs. 70-72.

During the direct-examination of officer Upchurch, he identified Finch as the defendant in open court. See RR, Vol. 6, pg. 63. During the testimony of Detective Foreman, the recorded interview of Finch was also published to the jury. See RR, Vol. 6, pg. 85; State’s Exhibit 9.

Following the testimony of Detective Foreman (RR, Vol. 6, pg. 89), the State proffered a “Stipulation of Evidence” (State’s Exhibit 12) to prove the two prior theft convictions, as alleged in the indictment. See CR, pg. 5. The trial court admitted the “Stipulation of Evidence.” See RR, Vol. 6, pgs. 90-91; State’s Exhibit 12. The State then rested. See RR, Vol. 6, pg. 92.

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

The trial court heard no objections to its jury charge (RR, Vol. 6, pg. 97), and proceeded to read the charge to the jury. See RR, Vol. 6, pgs. 99-109; CR, pgs. 87-92. After closing arguments (RR, Vol. 6, pgs. 109-117), the jury retired to begin its deliberations. See RR, Vol. 6, pg. 117.

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Upon concluding its deliberations, the jury returned its verdict that found Finch guilty of the offense of theft of property less than $1,500.00 with two prior convictions. See RR, Vol. 6, pg. 133; CR, pg. 93. The jury also found all of the prior convictions were true, as alleged in the indictment. See RR, Vol. 6, pg. 133.

Punishment Phase.

The trial court moved into the punishment phase of the trial. See RR, Vol. 6, pg. 134. The State proffered the testimony of Kristin Moore Rosson (RR, Vol. 6, pgs. 136-143), Detective Derek Belcher (RR, Vol. 6, pgs. 144-148) and Angie Rosson (Angie Rosson). See RR, Vol. 6, pg. 148.

When the State called Angie Rosson as a witness (RR, Vol. 6, pg. 148), the following exchange occurred:

THE COURT: She was around here a moment ago.

MS. HAIRSTON: No, she’s right there.

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

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

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

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

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

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

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

THE COURT: I’m going to overrule the objection. See RR, Vol. 6, pg. 149.

Over Finch’s objection, the State proceeded with the direct examination of Angie Rosson. See RR, Vol. 6, pg. 151. Following the testimony of Angie Rosson (RR, Vol. 6, pgs. 151-167), the State recalled Detective Moore as a witness. See RR, Vol. 6, pg. 167. Following the testimony of Detective Moore (RR, Vol. 6, pgs. 167-172), the State proffered State’s Exhibits 10, 11 and then 13 through 27, which the trial court admitted. See RR, Vol. 6, pg. 172. After publishing these exhibits to the jury, the State rested. See RR, Vol. 6, pg. 176.

The defense began its case-in-chief by calling George Young as a witness, who testified that he knew Finch. See RR, Vol. 6, pgs. 176-182. Next, the defense called Allison Bunch Finch, who testified as the appellant’s wife. See RR, Vol. 6, pgs. 182-187. Then, the defense called

-10-Mark Annette, who testified as a detention officer at the Lamar County jail. See RR, Vol. 6, pgs. 188-191. The defense also called Matt Martin Mcada as a witness. See RR, Vol. 6, pg. 191.

After a brief recess of the trial proceedings, Finch testified on his own behalf. See RR, Vol. 6, pg. 203. Following his testimony (RR, Vol. 6, pgs. 203-220), the defense rested. See RR, Vol. 6, pg. 220. With no rebuttal evidence, the State rested and closed. See RR, Vol. 6, pg. 220.

After hearing no objections, the trial court read its punishment charge to the jury. See RR, Vol. 6, pgs. 221-225; CR, pgs. 96-98. Following closing arguments (RR, Vol. 6, pgs. 226-229), the jury retired to begin its deliberations. See RR, Vol. 6, pg. 229. Upon the conclusion of its deliberations, the jury returned an unanimous verdict. See RR, Vol. 6, pgs. 234-235; CR, pg. 101.

By its verdict, the jury assessed punishment at two (2) confinement in the Texas Department of Criminal Justice -- State Jail Division with a fine of $10,000.00. See RR, Vol. 6, pg. 234; CR, pg. 99. The trial court discharged the jury at the conclusion of the jury trial. See RR, Vol. 6, pg. 235. The trial court pronounced sentence. See RR, Vol. 6, pg. 236.

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

-11-Conviction by Jury. See CR, pgs. 109-110. On the same day, the trial court signed its Certification of Defendant’s Right of Appeal. See CR, pg. 107. Finch also filed his notice of appeal. See CR, pg. 104.

Proceedings in this Court of Appeals.

On or about October 6, 2014, Finch filed his notice of appeal in this Court. The District Clerk of Lamar County filed the Clerk’s Record on or about November 7, 2014. The official court reporter filed a motion for extension of time to file the Reporter’s Record, which this Court granted. The court reporter then filed the Reporter’s Record on or about December 29, 2014. The exhibits were filed on or about January 5, 2015.

With the filing of the appellate record, Finch filed his first (and only) motion for extension of time to file his brief on January 26, 2015, which this Court granted on February 3, 2015. Finch filed his brief on or about February 23, 2015.

On or about March 25, 2015, the State filed its first (and only) motion for extension of time to file its brief, which this Court granted on March 31, 2015. The State filed its brief on April 16, 2015.

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SUMMARY OF THE ARGUMENT

With two (2) issues/points of error, Finch alleged that (1) the trial court erred in failing to grant a mistrial after jurors saw Finch in shackles in violation of his rights under the United States and Texas Constitutions; and (2) the trial court erred when it allowed a State’s witness to testify who had observed other testimony in violation of “the Rule.” This Court should overrule the appellant’s, Finch’s, two issues/points of error, and affirm for the following reasons:

(1) The trial court did not abuse its discretion in denying the appellant’s motion for mistrial because Finch’s encounter with potential jurors was “inadvertent, fortuitous and away from the courtroom.” There was no error, and there was no harm.

(2) The trial court did not abuse its discretion in allowing the appellant’s mother, Angie Rosson, to testify because the trial court balanced the interests of the State and the accused, considered alternative sanctions and considered the benefit and detriment of witness disqualification. Even if Finch could prove both prejudice prongs, his substantial rights were not affected, given his prior convictions and criminal history.

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Therefore, the issues/points of error should be overruled. The trial court’s final judgment of conviction should be affirmed.

ARGUMENT AND AUTHORITIES

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

A. Standard of Review: Abuse of Discretion.

With his first issue on appeal, Finch alleged that the trial court erred in failing to grant a mistrial after jurors saw him in shackles in violation of his rights under the United States and Texas Constitutions. See generally Appellant’s Brief, pgs. 11-14. However, the trial court did not abuse its discretion because jurors saw Finch under physical restraint outside the courtroom. See Pina v. State, 38 S.W.3d 730 (Tex. App.--Texarkana 2001, pet. ref’d).

A trial court’s denial of a mistrial is reviewed for an abuse of discretion. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). An appellate court views the evidence in the light most favorable to the trial court’s ruling, considering only those arguments before the court at the time

-14-of the ruling. See id (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The ruling must be upheld if it was within the zone of reasonable disagreement. See id.

A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class of highly prejudicial and incurable errors. See id (reference to footnote omitted) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). A mistrial halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. See Ocon, 284 S.W.3d at 884 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Whether an error requires a mistrial must be determined by the particular facts of the case. See id.

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

In Pina, a capital murder case, the appellant “was taken from the courthouse in handcuffs and taken through a number of jurors.” See Pina, 38 S.W.3d at 740. In Pina, the appellant made an oral motion for mistrial during voir dire, which the trial court denied. See id. In the last of six (6) issues on appeal in Pina, the appellant contended that the trial court erred in denying his motion for a mistrial. See id. at 733, 740.

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In Pina, this Court affirmed and found “no basis to conclude that the trial court abused its discretion.” See id. at 741. This Court reasoned:

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

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

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

In applying the Pina rationale to the present facts and circumstances, Finch’s first issue/point of error should be overruled for two (2) reasons:

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

As the first reason, there was no obvious physical restraint on Finch in the courtroom during the trial in the presence of the jury. See id. As this Court stated in Pina, “[t]he rules are different where jurors see a defendant under physical restraint outside the courtroom.” See id (italics added in the opinion).

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Here, Finch was under physical restraint outside the courtroom. See id (italics added in the opinion). In this appellate record, the trial judge remarked that Finch “was wearing handcuffs and leg irons and [] he was moved through the jury panel as it waited in the hallway from the elevator into the bailiff’s office.” See RR, Vol. 5, pg. 47. Sampson Peralta, the jailer with the Lamar County Sheriff’s Department, testified that it was “a minute” between the time he left the elevator and the time he went inside the bailiff’s office. See RR, Vol. 5, pg. 53. By this evidence, such an encounter with potential jurors was outside the courtroom and was “inadvertent, fortuitous, and away from the courtroom,” so there was no error. See Pina, 38 S.W.3d at 741. See also Coleman v. State, 652 S.W.2d 205, 207 (Tex. App.--Houston [14th Dist.] 1982, pet. ref’d) (juror noticed appellant being brought out of the elevator in handcuffs but the “accidental glimpse” was not of such prejudicial effect as to have deprived appellant of a fair trial).

In conclusion, the trial court did not abuse its discretion in denying Finch’s motion for mistrial. See Ocon, 284 S.W.3d at 884. Viewing the evidence in the light most favorable to the trial court’s ruling, the trial court could have found that Finch’s encounter with potential jurors was “inadvertent, fortuitous and away from the courtroom”, so there was no

-17-error. See Pina, 38 S.W.3d at 741. Thus, the trial court’s ruling in denying Finch’s motion for mistrial was certainly within the zone of reasonable disagreement, and should be upheld. See Ocon, 284 S.W.3d at 884 (citing Wead, 129 S.W.3d at 129).

2. No Harm.

As the second reason, Finch could not show harm. See id. In his brief, Finch alleged that “[f]ive of the jurors chosen--nearly half of the jury--saw Finch in shackles. See Appellant’s Brief, pgs. 13-14. But prior to jury selection, the trial court exercised its discretion and allowed both sides to interview jurors prior to the trial to determine which members had witnessed Finch in handcuffs. See RR, Vol. 5, pg. 60 (“And the record should reflect -- and, Mr. Turner, you join me in this observation if you wish -- there are approximately 20 people remaining in the courtroom who indicated they saw the Defendant walking from the elevator into the bailiff’s office.”). See also Boyington v. State, 787 S.W.2d 469, 471 (Tex. App.--Houston [14th Dist.] 1990, pet. ref’d).

Both sides questioned these potential jurors (RR, Vol. 5, pgs. 60-105) for the purpose of excluding any members who may have viewed him in

-18-handcuffs or shackles. See Garza v. State, 10 S.W.3d 765, 767 (Tex. App.--Corpus Christi 2000, pet. ref’d).

Subsequently, however, Finch did not attempt any showing of harm or prejudice, see id, by requesting additional strikes or other relief prior to “five of the jurors [being] chosen.” See Appellant’s Brief, pg. 13; Pina, 38 S.W.3d at 741 (“[n]o other jurors were questioned, and no further relief was requested.”). Further, Finch did not attempt any showing of harm or prejudice by making a “request to have an instruction given to the jury panel, or the jury after it was impaneled.” See Garza, 10 S.W.3d at 767-68.

In conclusion, (1) there was no error; and (2) there was no harm. For either of these reasons, Finch’s first issue/point of error should be overruled.

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

A. Standard of Review: Abuse of Discretion.

When the State called Angie Rosson as a witness during the punishment phase, Finch objected on the basis that “Well, then she’s in

-19-violation of the Rule, Your Honor. We’d object to any testimony of this woman.” See RR, Vol. 6, pg. 149. In overruling this specific objection (RR, Vol. 6, pg. 149), the trial court did not abuse its discretion because if a witness violated the witness sequestration rule, the trial court still had discretion to allow testimony from the witness. See Martinez v. State, 186 S.W.3d 59, 65 (Tex. App.--Houston [1st Dist.] 2005, pet. ref’d) (citing Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996)).

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

Rule 614 of the Texas Rules of Evidence provided in pertinent part that “[a]t a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony[,] [o]r the court may do so on its own.” See Tex. R. Evid. 614. This “witness sequestration rule” was once discretionary with trial court, but its application is now mandatory upon proper request. See Bryant v. State, 282 S.W.3d 156, 161 (Tex. App.--Texarkana 2009, pet. ref’d); Wilson v. State, 179 S.W.3d 240, 248 (Tex. App.--Texarkana 2005, no pet.) (citing Moore v. State, 882 S.W.2d 844, 848 (Tex. Crim. App. 1994)). A trial court errs if it fails to enforce a proper invocation of the witness sequestration rule. See Bryant, 282 S.W.3d at 161 (citing Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim. App. 2005)).

-20-However, if error is shown, it is a “violation of an evidentiary rule, the error is non-constitutional, and will be disregarded unless it affected the appellant’s substantial rights.” See id (citing Tex. R. App. P. 44.2(b)).

Once Rule 614 is invoked, witnesses are instructed by the court that they cannot converse with one another or with any other person about the case, except by permission from the court. See Martinez, 186 S.W.3d at 65. See also Tex. Code Crim. Proc. Ann. art. 36.06 (Vernon 2007). Again, a trial court’s decision to admit testimony from a witness (even if that witness has heard others testify during the trial in violation of the witness sequestration rule) is reviewed for abuse of discretion. See Bryant, 282 S.W.3d at 161 (citing Guerra v. State, 771 S.W.2d 453, 474 (Tex. Crim. App. 1988); Taylor v. State, 173 S.W.3d 851, 853 (Tex. App.--Texarkana 2005, no pet.); Potter v. State, 74 S.W.3d 105, 110 (Tex. App.--Waco 2002, no pet.)).

D. Determining Harm or Prejudice.

Determining harm or prejudice by a witness’s violation of Rule 614 is based on whether the witness’s presence during other testimony resulted in harm to the defendant. See Bryant, 282 S.W.3d at 161 (citing Webb v. State, 766 S.W.2d 236, 240 (Tex. Crim. App. 1989); Guerra, 771 S.W.2d at 474-

-21-75; Wilson, 179 S.W.3d at 248-49)). “Injury to the defendant is shown when two criteria are met: (a) whether the witness actually conferred with or heard testimony of other witnesses, and (b) whether the witness’ testimony contradicted testimony of a witness from the opposing side or corroborated testimony of a witness with whom he or she had conferred or heard.” See Bryant, 282 S.W.3d at 161-62 (quoting Webb, 766 S.W.2d at 240). The appellant has the burden to demonstrate the record supports a finding under both prongs. See Bryant, 282 S.W.3d at 162 (citing Taylor, 173 S.W.3d at 853).

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

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

Even if “the Rule” was violated, the trial court still had discretion to allow testimony from this witness. See Martinez, 186 S.W.3d at 65 (citing Bell, 938 S.W.2d at 50). In Webb, the Texas Court of Criminal Appeals explained that when a trial court decides whether to disqualify a witness under the Rule, the trial court must balance the interests of the State and the accused, consider alternative sanctions, and consider the benefit and detriment arising from a disqualification in light of the nature and weight of

-22-the testimony to be offered. See Webb, 766 S.W.2d at 244. See also Routier v. State, 112 S.W.3d 554, 590 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1040, 124 S.Ct. 2157, 158 L.Ed.2d 728 (2004).

In the present case, the violation of “the Rule” involved Angie Rosson, who the trial judge knew as the appellant’s mother because she wanted to watch the jury selection. See RR, Vol. 5, pg. 45. Here, the trial court was also “aware of her presence in the courtroom,” as Finch contended in his brief, because the trial judge remarked, “[s]he was around here a moment ago” and “she’s been sitting here since the punishment phase began.” See RR, Vol. 6, pg. 149; Appellant’s Brief, pg. 13. However, the trial court could have still decided to admit the testimony from Angie Rosson, after balancing the interests of the State and the accused. See Webb, 766 S.W.2d at 244; Routier v. State, 112 S.W.3d at 590. The trial court could have balanced the interests of the State, which called Angie Rosson as a witness, and the accused, who may have relied on his mother’s testimony as potential mitigation evidence. See id.

In allowing Angie Rosson to testify, the trial court could have considered alternative sanctions to disqualification because practically speaking, the jury would have wanted to hear testimony from Finch’s

-23-mother during the punishment phase. See id; RR, Vol. 6, pg. 149. In considering the benefit and detriment arising from a disqualification of Angie Rosson as a witness, the trial court could have decided, in the exercise of its sound discretion, not to deprive Finch of potential mitigation evidence from the appellant’s mother during the punishment phase of the trial. See id. This decision should not be disturbed merely because the State was “calling the witness, and this was one of the reasons [defense counsel] wanted her under the Rule.” See RR, Vol. 6, pg. 149.

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

Even if Finch carried his burden to support a finding of harm under both prongs, see appellant’s brief, pgs. 16-17, the theft of the power drill was merely one extraneous offense, when compared to a “Stipulation of Evidence” that proved two (2) prior theft convictions beyond a reasonable doubt. See RR, Vol. 6, pgs. 90-91; State’s Exhibit 12. Aside from the theft of the power drill, the State introduced Finch’s other convictions, so it would be difficult to articulate how the extraneous theft offense of the power drill affected the appellant’s substantial rights, when compared to Finch’s other convictions. See Tex. R. App. P. 44.2(b). Because the extraneous offense involving the theft of the power drill did not affect the appellant’s substantial

-24-rights, Finch could not show harm. Accordingly, the appellant’s, Finch’s, second issue/point of error should be overruled.

PRAYER

WHEREFORE PREMISES CONSIDERED, the State of Texas prays that upon final submission without oral argument, this Court order the trial court clerk to supplement the appellate record to include a certified bill of costs; and then affirm the trial court’s final judgment of conviction, adjudge court costs against the appellant, and for such other and further relief, both at law and in equity, to which it may be justly and legally entitled.

Respectfully submitted,

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

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

ATTORNEYS FOR STATE OF TEXAS

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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the “Appellee’s (State’s) Brief” was a computer-generated document and contained 6491 words--not including the Appendix, if any. The undersigned attorney certified that he relied on the word count of the computer program, which was used to prepare this document.

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

CERTIFICATE OF SERVICE

This is to certify that in accordance with Tex. R. App. P. 9.5, a true copy of the “Appellee’s (State’s) Brief” has been served on the 16th day of April, 2015 upon the following:

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

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

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