Kesha Michele Mitchell v. State ( 2009 )

Affirmed and Memorandum Opinion filed December 22, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00807-CR

Kesha Michele Mitchell, Appellant

v.

The State of Texas, Appellee

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Cause No. 130026

MEMORANDUM OPINION

Appellant Kesha Michele Mitchell appeals her conviction for misdemeanor theft.  In her sole issue, appellant contends the trial court erred in allowing a witness who was not listed in the State’s discovery response to testify at trial over her objection.  We affirm. 

BACKGROUND

Appellant was arrested on March 2, 2007 for allegedly stealing four items of clothing from the Macy’s department store in Sugar Land. She was later charged with misdemeanor theft of merchandise valued at $50 or more but less than $500. 

At trial, the State’s only witness during its case in chief was Moses Ramirez, the loss prevention manager for the Sugar Land Macy’s at the time of the incident.  He testified that he noticed appellant was carrying a bag when she entered the store.  Ramirez stated that because it is common practice for people to bring bags to the store as a way to conceal merchandise they intend to steal, he began video and visual surveillance of appellant.  Ramirez watched appellant pick out several clothing items and take them into a fitting room.  He waited outside the fitting room and asked Crystal Rodriguez—another Macy’s loss prevention officer—to wait inside the fitting room while appellant was in a changing room.  Ramirez stated that after appellant left the changing room, the bag she carried into the store was “visibly larger” than when she entered.  Appellant returned a few items to the racks and then proceeded to the checkout line to pay for other items.  Ramirez testified that he saw at least one item in appellant’s bag that she did not return to a rack and did not pay for. 

Once appellant left the store, Ramirez confronted her and identified himself as a loss prevention officer.  He brought her back into the store, and the police were called.  Ramirez recovered four articles of clothing with tags still attached in appellant’s bag that appellant had not purchased.  Appellant claimed she had purchased the items from another Macy’s and produced receipts for the recovered items.  Ramirez testified he inspected the receipts and found that the recovered merchandise and the receipts did not match.  He also stated that appellant eventually admitted taking the merchandise without paying for it.  Ramirez kept appellant in the store until the police arrived, at which point she was arrested. 

Appellant testified that she already owned each of the four items she was accused of stealing.  She stated that she would occasionally bring items she had previously purchased into a store so that she could match them to new clothes.  Appellant reasoned that her bag appeared larger when she left the fitting room because she did not re-fold her clothes. She also stated that she left all of the items she did not purchase in the changing room and that the receipts she showed to Ramirez and Rodriguez were for the four recovered items.  Appellant denied confessing to Ramirez and Rodriguez. 

The State then called Ramirez back to the stand in rebuttal.  The State asked Ramirez whether any items matching the recovered merchandise were found in the fitting room after appellant exited.  The trial court sustained appellant’s hearsay objection to this line of questioning since Ramirez never personally entered the changing room.  Ramirez then testified that he asked Rodriguez to enter the changing room right after appellant exited. 

The State then called Rodriguez as a second rebuttal witness.  Appellant objected to Rodriguez’s testimony because she had not been notified that Rodriguez would be called as a witness.  The trial court overruled the objection and allowed Rodriguez to testify.  Rodriguez testified that she had participated in the surveillance and apprehension of appellant at Macy’s.  She stated that she waited for appellant to leave the changing room, and then entered and discovered that appellant had left several items of clothing in the room, none of which matched the four items eventually recovered from appellant.  Rodriguez also recalled that appellant admitted stealing the recovered items.  Rodriguez repeatedly stated that appellant removed the recovered items from racks in the store, took them into the fitting room, and then exited the store without paying for them. 

The jury found appellant guilty and the trial court sentenced appellant to 180 days in jail, probated for 15 months.  Appellant’s sole issue on appeal is that the trial court improperly allowed Rodriguez to testify because she had not been disclosed as a potential State’s witness.  The trial court issued a pre-trial discovery order requiring the State to disclose “[a] list of all State’s witnesses in [State’s] case in chief and punishment to be filed in Court’s file ten (10) days before trial and a list of rebuttal witnesses when known by the State.”  It is undisputed that the State never provided written notification of Rodriguez’s identity as a possible witness. 

ANALYSIS

            The State should disclose witnesses in response to a discovery order if they will be used at any stage in the trial.  Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. [Panel Op.] 1981).  However, the State is not typically required to disclose rebuttal witnesses because it cannot foresee the theories or evidence the defense will present at trial.  See Beets v. State, 767 S.W.2d 711, 747–48 (Tex. Crim. App. 1987) (op. on reh’g); Hoagland v. State, 494 S.W.2d 186, 188–89 (Tex. Crim. App. 1973).  We review a trial court’s decision to allow an undisclosed witness to testify for an abuse of discretion.  Bridge v. State, 726 S.W.2d 558, 566 (Tex. Crim. App. 1986); Cureton v. State, 800 S.W.2d 259, 262 (Tex. App.—Houston [14th Dist.] 1990, no pet.).  Absent a showing of bad faith, a trial court does not abuse its discretion by allowing the State to call an undisclosed witness for the sole purpose of rebutting unforeseen testimony.  Marx v. State, 953 S.W.2d 321, 338 (Tex. App.—Austin 1997), aff’d, 987 S.W.2d 577 (Tex. Crim. App. 1999).

            We consider two factors when determining whether the trial court abused its discretion in allowing an undisclosed witness to testify: (1) whether the prosecutor acted in bad faith in failing to provide the defense with the witness’s name and (2) whether the defendant could have reasonably anticipated that the witness would testify despite the State’s failure to disclose the name.  Cureton, 800 S.W.2d at 262.  Absent appellant’s ability to show these factors on appeal, the trial court’s decision allowing the testimony will not be disturbed.  Castaneda v. State, 28 S.W.3d 216, 223 (Tex. App.—El Paso 2000, pet. ref’d). 

            In considering whether the State acted in bad faith, reviewing courts have considered the following three areas of inquiry: (1) whether the defense shows that the State intended to deceive; (2) whether the State’s notice left the defense adequate time to prepare; and (3) whether the State freely provided the defense with information (e.g., by promptly notifying the defense of new witnesses, by providing updated witnesses lists, or by maintaining an open file policy).  Martinez v. State, 131 S.W.3d 22, 29 (Tex. App.—San Antonio 2003, no pet.). 

Here, the record does not establish that the State acted in bad faith.  First, appellant has not shown in the record that the State’s failure to disclose Rodriguez’s identity was an intentional effort to deceive.  Appellant points to no evidence that the State intended to call Rodriguez as a rebuttal witness and consciously declined to disclose her identity.  When Rodriguez was called to testify, appellant failed to develop facts or obtain the State’s explanation for why Rodriguez’s identity was not disclosed.[1] Appellant also fails to demonstrate in the record that the State’s notice left the defense inadequate time to prepare or that the State failed to freely provide the defense with information.  At trial, appellant’s counsel stated that “we only found out a short time ago that [Rodriguez] is here,” but never stated she did not have adequate time to prepare for Rodriguez’s testimony.  Nor does appellant point to any facts in the record that would indicate the State failed to freely provide information to appellant.  Appellant simply contends that “[a]t some point, even if it was only in the last moments prior to Ms. Rodriguez’s testimony, the State must have acted in bad faith in failing to notify [a]ppellant of the State’s intention to call Ms. Rodriguez as a witness.”[2] We find that appellant has not demonstrated that the State acted in bad faith in not disclosing Rodriguez’s identity prior to her rebuttal testimony. 

            Next, in considering whether the defendant could have reasonably anticipated that the witness would testify despite the State’s failure to disclose the name, reviewing courts have considered: (1) the degree of surprise to the defendant; (2) the degree of disadvantage inherent in that surprise (e.g., the defendant was aware of what the witness would say, or the witness testified about cumulative or uncontested issues); and (3) the degree to which the trial court was able to remedy that surprise (e.g., by granting the defense a recess, postponement, or continuance, or by ordering the State to provide the witness’s criminal history).  Id.  Whether the defendant could have reasonably anticipated the witness’s testimony is only a factor to be considered and is not determinative of whether the trial court abused its discretion.  Depena v. State, 148 S.W.3d 461, 467–68 (Tex. App.—Corpus Christi 2004, no pet.).

            Appellant has not shown she could not have reasonably anticipated that Rodriguez would testify. Though she may not have known that Rodriguez would testify as a rebuttal witness or exactly what her testimony would be, appellant had reason to anticipate her testimony after Ramirez’s and appellant’s testimony.  Appellant heard Ramirez testify that he sent Rodriguez into the changing room to check for all the merchandise appellant took into the room.  We fail to see how appellant could truly be surprised that Rodriguez would be called to rebut her contention that she left all the items she did not purchase in the fitting room.  Further, appellant makes no showing that the trial court was unable to remedy any surprise because she did not ask for a recess or continuance to interview Rodriguez to determine what her testimony would be.  We find appellant has not shown that she could not have reasonably anticipated Rodriguez’s rebuttal testimony. 

            Appellant has not shown that the State acted in bad faith by not disclosing Rodriguez’s identity as a witness prior to calling her at trial or that appellant could not have reasonably anticipated Rodriguez’s testimony.  Therefore, the trial court did not abuse its discretion by allowing Rodriguez to testify as a rebuttal witness. See Marx, 953 S.W.2d at 338. 

However, even if the trial court abused its discretion by allowing Rodriguez to testify, any error would be harmless because appellant failed to move for a continuance.  See Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.—Texarkana 2000, pet. ref’d).  If, despite a court order, the State does not furnish a witness’s name before trial, “any error in allowing that witness to testify over a claim of surprise is ‘made harmless’ by defendant’s failure to object or move for a continuance.”  Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994) (quoting Youens v. State, 742 S.W.2d 855, 860 (Tex. App.—Beaumont 1987, pet ref’d)); see also Hubbard v. State, 496 S.W.2d 924, 926 (Tex. Crim. App. 1973).  At trial, appellant’s counsel objected once Rodriguez was called because “she was not listed in the State’s Discovery Response . . . nor was she ever subpoenaed by the State, and we only found out a short time ago that she is here.”  Appellant failed to seek a recess or continuance in her objection and failed to state how she would be harmed by Rodriguez’s testimony.  Her failure to do so “deprived the trial court of an opportunity to properly remedy the surprise complained of.”  Quinones v. State, 592 S.W.2d 933, 946 (Tex. Crim. App. 1980).[3]

            For the foregoing reasons, we overrule appellant’s sole issue on appeal and affirm the trial court’s judgment.

                                                                        /s/        Leslie B. Yates

                                                                                    Justice

Panel consists of Justices Yates, Frost, and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] The record is completely silent on this issue until closing argument.  The prosecutor stated that Rodriguez was not called during the State’s case in chief because it had difficulty finding her and because it didn’t think her testimony would be necessary.  No further explanation was given. 

[2] Appellant states that merely “[w]aiting until the last minute before a witness’[s] testimony indicates an intent to deceive and suggests the State acted in bad faith.”  See Depena v. State, 148 S.W.3d 461, 467 (Tex. App.—Corpus Christi 2004, no pet.).  However, Depena involved the State’s specific duty to disclose the identity of expert rebuttal witnesses and therefore does not apply in this case.  See id. at 465–67.  Also, appellant provides no facts in support of this “suggestion” that the State acted in bad faith. 

[3] We note that the trial court made no determination as to whether the State violated the discovery order by not disclosing Rodriguez’s identity as a rebuttal witness “when known.”  We note further that the admissibility of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion.  Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002).  Therefore, after determining that the trial court did not abuse its discretion by allowing Rodriguez to testify, our outcome would not change even if we determined the State violated the discovery order.  See Murillo v. State, 839 S.W.2d 485, 493–94 (Tex. App.—El Paso 1992, no pet.) (holding trial court did not abuse its discretion in allowing the State to call a rebuttal witness who had not been disclosed in contravention of court’s order requiring disclosure of all prosecution witnesses, including rebuttal witnesses).