In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-24-00129-CR __________________
CALVIN CHARLES ROSETTE, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 23-04-05528-CR __________________________________________________________________
MEMORANDUM OPINION
A grand jury indicted Appellant Calvin Charles Rosette for aggravated
robbery with the use of a deadly weapon. See Tex. Penal Code Ann. § 29.03. The
indictment alleged two previous felony convictions as enhancements. Rosette
pleaded “not guilty,” but a jury found him guilty as charged in the indictment.
Rosette pleaded “true” to both enhancements, and after a hearing on punishment, the
trial court assessed punishment at fifty years of confinement. In a single issue on
appeal, Rosette complains about a video that was shown to the jury at trial, and he
1 alleges that the State failed in its duty to obtain and disclose the incriminating video
evidence before trial, and the video evidence should not have been admitted at trial
or the trial court should have declared a mistrial. We affirm.
Evidence at Trial
Testimony of “Amy”1
Amy testified that she is a nurse, and she works as the director of surgical
services at HCA Kingwood Hospital (“Kingwood Hospital”). Amy recalled that, on
April 12, 2023, she saw a “suspicious person” coming out of her office as she was
walking towards her office. She asked the managers in the office if they had seen the
person, and they had not, so she went to see where the person had gone. As she
looked for the person, she called security, the house supervisor, and the Houston
Police Department (“HPD”), and she advised employees to stay in their offices. At
some point, she heard a “huge smash” when the supply chain manager Tony ran into
the suspicious man and then the two men hit a wall. Amy testified that the unknown
man “had a knife in his hand and there was blood everywhere[,]” and Tony and
Ronan, another supervisor, held the man so he could not leave. According to Amy,
the man had cut himself, but hospital employees had gotten the knife from him, and
1 We use pseudonyms to refer to the alleged victims. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process.”). 2 when HPD arrived, they took over. Amy recalled that the man had taken the wallet
of Debra—a hospital employee—and the man said, “Let me go, I didn’t do anything,
let me go.” Amy agreed there was a surveillance camera at the end of one of the
hallways where the incident occurred. Amy identified the defendant as the man with
the wallet she saw at the hospital.
Testimony of “Marla”
Marla testified that she is a registered nurse, and she works as a manager of
perioperative services at Kingwood Hospital. She recalled there was an incident on
April 12, 2023, where “some theft was happening, and [] we chased down a guy in
the hallway and stopped him from leaving the building.” According to Marla, that
day she was sitting in her office with Ronan, one of the supervisors, and their director
came in and asked whether they had seen an unfamiliar man come into the office
suite. Marla recalled that one of the other employees had asked the man who he was
and what he was doing, and the man said he was with HVAC, but when Debra asked
to see his badge, the man did not have one, and Debra said she would have to get
someone to verify who he was. According to Marla, when the man turned, Debra
said, “He has my wallet in his hand[,]” and the man pushed through her and Debra
to run towards the exit. Marla recalled that she, Ronan, Tony, and some other
employees chased after the man and tried to keep the man in the building. Marla
testified that he had an open pocketknife, and the man had cut his hand. Marla
3 identified the defendant as the man who tussled with Tony that day and who had the
wallet. On cross-examination, she agreed there were security cameras in the hallway,
but she did not know where they were.
Discovery of Cell Phone Videos
After Marla testified, she emailed two videos and a screenshot to the
prosecutors that she had recorded on her cell phone directly from a hospital computer
after the incident occurred. The defense moved for a mistrial as follows:
[Defense counsel]: Your honor, I have to make a motion for mistrial. ... This is not the State’s fault. I’m not pointing the finger at [the prosecutor] or anyone in their office, but apparently there is surveillance video of this incident that one of the witnesses just alerted to the State.
[Prosecutor]: Judge, the witness that just got off the stand mentioned that she had a recording - - two separate recordings on her cell phone of the computer including a surveillance video that shows this defendant running out of the room. . . .
Defense counsel said surveillance video had been an issue “since the beginning[,]”
that he had subpoenaed any video, and he was told the State did not have any
surveillance video because the incident occurred in a blind spot in the hospital. The
prosecutor explained to the trial court that there were no surveillance videos “in the
system[,]” and the newly-discovered videos are from a witness’s personal cell
phone. After the trial court viewed the videos, defense counsel stated that the videos
were not provided to him and, “in all honesty, for the record, the State didn’t get
them until 15 minutes ago is my understanding[.]” The State assured the trial court 4 that it had requested surveillance video from the hospital. Defense counsel stated,
“I’m asking for a mistrial for this evidence not being produced. It could have been
instrumental in my client deciding to take a plea deal earlier in this case, and he’s
been prejudiced by this fact.” The State responded that, although it would like the
videos to be entered into evidence because they would be inculpatory, that the proper
remedy for late disclosure was to exclude the evidence under article 39.14 and not a
mistrial. The trial court described the videos as “filmed with a cell phone camera
while watching security footage on a computer[,]” and stated, “it appears [] that
everybody is in agreement that this was not some intentional Brady violation[,]” and
dismissed the jury for the day.
During further discussion at the bench, the prosecutor told the trial court that
the State understood that the hospital had a “30-day override period” and without a
request, surveillance video does not get saved. The prosecutor then explained that
the timestamp on the witness’s cell phone video was around 8:00 a.m. on the
morning after the incident. Defense counsel told the trial court that “even though it
wasn’t [] the State’s fault, it’s still a due process violation for [the defendant].”
The trial court stated that there did not appear to be any willful withholding
of evidence and gave the parties until 9:00 a.m. the next morning to review the
newly-discovered videos. The trial court stated, “I don’t know how they, the State,
could have anticipated that one of the witnesses would have a cell phone recording
5 of a security camera footage on [a hospital] computer.” Defense counsel told the trial
court, “And, Judge, I want to be abundantly clear on the record. I’m not accusing the
State of anything. I don’t think for a second that either [of the prosecutors] had any
idea that this existed until [] the conclusion of the witness’s testimony.” The trial
court concluded that the proper remedy was a continuance.
The following morning, defense counsel renewed its motion for mistrial,
arguing that the newly-discovered evidence violated the defendant’s due process
rights, it was “arguably inculpatory,” and it might have swayed the defendant’s
decision whether to accept a plea deal. The trial court overruled the objections and
concluded “it’s clear it was an unintentional and perhaps unavoidable discovery
violation[]” for which a short continuance was the appropriate remedy, but the trial
court denied the motion for a mistrial.
Testimony of “Paige”
Paige testified that she worked as the director of nursing at Kingwood
Hospital. Paige recalled that on April 12, 2023, she discovered a man in one of the
hospital offices who had a wallet that belonged to one of her colleagues. According
to Paige, the man told her he was checking the HVAC, she asked to see his badge,
and he showed her a CenterPoint Energy ID but not a vendor badge that the hospital
requires. Paige testified that the man then pushed past her to go out the way he came
in. Paige recalled that as the man pushed past her, Debra said, “He has my wallet.”
6 According to Paige, as Debra and Marla were trying to stop the man, Paige tried to
alert hospital security, and eventually the wallet and a phone fell to the floor. Paige
recalled that Tony and Ronan tackled the man, “his head went through the wall[,]”
and a “knife came out from his hand and flew across the floor.”
Testimony of “Oliver”
Oliver testified that he was the director of security for Kingwood Hospital.
Oliver recalled that, early in April of 2023, Debra alerted him that there was an
incident in progress and a man had stolen her purse. Oliver testified that Debra
pointed in the direction where the man was headed, and Oliver and his team went
after him. According to Oliver, another employee ran into the man, and the man
crashed into a wall. Oliver testified that, by the time he arrived, Tony and Ronan
were physically restraining the man, and Oliver’s team helped get the man to the
floor. Oliver recalled that, as they were taking the man to the floor, someone called
out, “Knife[,]” and the weapon fell. According to Oliver, the knife did not injure
anyone but the man. Oliver did not recall HPD or any employees asking him for
video of the incident afterwards. Oliver said he did not believe the hospital would
still have any video of the incident because the hospital’s camera system only has a
30-day retention period, after which video is deleted. On cross-examination, Oliver
testified that, at the time of the incident, certain authorized personnel could pull up
the security video on their computer, including the CEO and COO of the hospital.
7 Testimony of “Sherry”
Sherry testified that she is the operating room and endoscopy manager at
Kingwood Hospital. She identified the defendant as the man who was at the hospital
and pulled a knife on her team members. Sherry recalled that on April 12, 2023, she
was in her office with Marla and Ronan, and Maddie—a hospital director—came in
and asked them about a “suspicious” person who was in the office. Sherry testified
that she and Marla went to look for the man. Sherry recalled that at some point, the
man went into Debra’s office. Sherry testified that, during the search, she saw the
man running towards her. Sherry testified that Tony ran after the man, and when he
contacted the man, a “physical altercation went down and [] the knife was pulled.”
According to Sherry, it took two men—Tony and Ronan—to pull the man to the
floor. After Tony and the man ran into the wall, they were wrestling, and Sherry
testified “there was blood everywhere.” Sherry later learned that the man had cut
himself when he pulled out the knife. Sherry testified that after Tony and Ronan
subdued the man, security took the man to the ER because he had cut himself. On
cross-examination, Sherry agreed that after the incident, she asked to see
surveillance video of the event, and she and Marla watched it in the hospital on the
COO’s office computer. Sherry testified that she understood that copies of the
surveillance video were turned over to the prosecutors or the police.
8 Testimony of Officer Crystal Corona
Officer Crystal Corona, an officer for HPD, testified that she was a patrol
officer on April 12, 2023. She recalled getting a high priority call “for a citizen
holding suspect” at Kingwood Hospital. According to Corona, when she arrived at
the scene, the suspect was already detained. She agreed she was wearing a body
camera that day, and she identified State’s Exhibit 26 as footage from her body
camera, which was admitted and published to the jury. Corona testified that the video
shows the suspect being detained by another officer and analyzing his injuries, and
the suspect’s name was Calvin Charles Rosette. According to Corona, she learned
that the suspect had entered an employee’s office at Kingwood Hospital and stolen
the employee’s wallet, the suspect had a knife, and he shoved some of the employees.
Corona testified that taking the wallet along with using a knife is aggravated robbery.
Corona identified the defendant as the person who was arrested for aggravated
robbery. Corona testified that she received from another officer property that was
found on Rosette, which included a knife and several credit cards that did not belong
to Rosette. On cross-examination, Corona agreed that she did not look at any hospital
surveillance videos.
Testimony of “Debra”
Debra testified that she is the communication and community engagement
director for Kingwood Hospital. Debra recalled an incident from April 12, 2023,
9 when she heard someone say, “That’s him, that’s him[,]” and a man passed by her
and out of her office. According to Debra, she quizzed the man because not many
people show up to their office suites, and typically they would have a badge from
the hospital. Debra recalled that the man said he was there to fix the air conditioner,
and when another employee offered to take him to security to get a badge, Debra
noticed the man had her red wallet in his hand, which she previously had in her purse
underneath her desk. Debra remembered saying, “Oh, my God. He’s got my
wallet[,]” and then the man shoved her to the side to run past her, and she chased
after him. Debra testified that three or four hospital employees tackled the man, she
jumped on the man, and he dropped the wallet. On cross-examination, she agreed
she never saw the man with a knife in his hand. She also testified that she did not
see any surveillance video of the incident.
Additional Testimony of “Marla”
On further direct examination, Marla agreed that she had presented the State
with some new information after she testified—namely, security videos of the
incident. Marla recalled that she watched the video the day after the incident in the
assistant COO’s office. Marla identified State’s Exhibit 30 as a still photo and
Exhibit 29 was a video of the incident. At this point, the defense objected under
article 39.14 to the late disclosure of this information and asked the trial court to
10 exclude the exhibits, “[a]lthough it’s not the State’s fault[.]” The trial court overruled
the objection and admitted the exhibits.
Marla described the still photo in Exhibit 30 as the area where Ronan and
Tony had collided with the defendant. Marla testified that she believed that the
hospital had given the surveillance videos to the State. Exhibit 29—the video Marla
took with her cell phone—was published to the jury, and Marla testified that it shows
the defendant running out of Debra’s office and it shows her and others chasing after
the defendant.
Testimony of Officer Chad Thompson-Martin
Chad Thompson-Martin (“Martin”), a patrol officer with HPD, testified that
he was dispatched to Kingwood Hospital on April 12, 2023, for a report of a man
getting into vehicles or a robbery inside the hospital. Upon arrival, he found a man
lying on the floor inside the hospital and being held down by hospital staff. Martin
recognized State’s Exhibit 20 as video from the body camera he wore on the day of
the incident, and the exhibit was admitted into evidence and published to the jury.
Martin also testified that he took a statement from Tony, from which the officer
concluded that an aggravated robbery had occurred. Martin identified the defendant
as the person he arrested that day for the aggravated robbery. According to Martin,
the officers recovered a Buck knife and three credit cards registered to other people.
Martin identified State’s Exhibit 33 as the knife recovered at the hospital.
11 Testimony of “Tony”
Tony testified that he is the operating room manager at Kingwood Hospital,
and on April 12, 2023, he saw a commotion near the operating room, people were
yelling, “stop that guy[,]” a man tried to push Tony out of the way, and Tony tried
to hold the man. Tony recalled that the man said, “Let me go or I’m going to stab
you[,]” and Tony noticed that the man was holding a knife. According to Tony, the
man swung the knife at him, Tony grabbed the man, and other people came to help.
Tony identified the defendant as the man who swung a knife at him.
Testimony of “Ronan”
Ronan, a registered nurse at Kingwood Hospital, testified that on April 12,
2023, he encountered someone who intended to steal from hospital employees, and
he chased after the man. According to Ronan, he initially heard other employees
yelling at the man, Ronan chased after the man, and Ronan caught up with the man
after the man collided with Tony. Ronan recalled that when he and Tony held the
man down, Ronan saw that the man had a knife, and Ronan took the knife away from
the man. Ronan identified the defendant as the man with the knife that day.
After the State rested, the defense called no witnesses and rested. The jury
found Rosette guilty as charged in the indictment. In a hearing on punishment,
Rosette pleaded “true” to two prior felony convictions. After hearing evidence, the
12 trial court found the enhancements true and assessed punishment at fifty years of
confinement. Rosette timely filed a Notice of Appeal.
Issue
Appellant argues that the State willfully withheld videos from a key witness,
even though Appellant had requested video evidence before trial. According to
Appellant, even though the video was mailed to the prosecutor after trial began, the
prosecutor had a duty to disclose knowledge of the video to the defense. Appellant
argues that the prosecutor had a duty to obtain the video under article 39.14(h) of the
Texas Code of Criminal Procedure and “[p]resumably if [the prosecutor] had asked
the witness during their meeting two weeks prior to trial, she could have had the
video two weeks earlier.” Appellant concedes that the trial court did not abuse its
discretion in admitting the video into evidence, but Appellant argues that the court’s
ruling admitting the evidence was based on “erroneous information” that the
prosecutor failed to correct. Appellant argues that error occurred “because of the
State’s malfeasance[]”—the State’s failure to correct the trial court’s
misapprehension that the State only learned of the video after trial began—and the
remedy is for this Court to reverse and remand. Appellant also argues that the trial
court erred by denying his motion for mistrial.
13 Standard of Review and Applicable Law
We review a trial court’s ruling on the admission or exclusion of evidence
under an abuse of discretion standard. Bowley v. State, 310 S.W.3d 431, 434 (Tex.
Crim. App. 2010). If the trial court’s decision was within the bounds of reasonable
disagreement, the appellate court should not disturb it. Shuffield v. State, 189 S.W.3d
782, 793 (Tex. Crim. App. 2006). We will sustain the trial court’s decision if it was
correct on any applicable theory of law. Prystash v. State, 3 S.W.3d 522, 527 (Tex.
Crim. App. 1999).
“A mistrial is a device used to halt trial proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful and
futile.” Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). A mistrial is
required only in extreme circumstances where the prejudice is incurable because it
“is of such character as to suggest the impossibility of withdrawing the impression
produced on the minds of the jurors.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
App. 1999); see also Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005).
A mistrial should be granted only when residual prejudice remains after less drastic
alternatives are explored. Ocon v. State, 284 S.W.3d 880, 884-85 (Tex. Crim. App.
2009).
A trial judge’s denial of a motion for mistrial is reviewed under an abuse of
discretion standard. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).
14 We uphold the trial court’s ruling if it was within the zone of reasonable
disagreement. Id. We view the evidence in the light most favorable to the trial court’s
ruling and consider only the arguments that were before the trial court at the time of
its ruling. Ocon, 284 S.W.3d at 884.
Article 39.14 of the Texas Code of Criminal Procedure requires, in relevant
part, the State to produce “as soon as practicable after receiving a timely request” to
the defendant “evidence material to any matter involved in the action and that are in
the possession, custody, or control of the state or any person under contract with the
state.” Tex. Code Crim. Proc. Ann. art. 39.14(a); see also State v. Heath, 696 S.W.3d
677, 683 (Tex. Crim. App. 2024). “[I]tems in the possession, control, or custody of
‘the state,’ include[s] items in the possession of law enforcement.” Heath, 696
S.W.3d at 693.
Analysis
We first note that Appellant’s argument on appeal does not comport with his
objection at trial. The record reflects that during the trial, the defense repeatedly told
the trial court that it was not the State’s fault that the cell phone video was not
discovered or produced before trial. By contrast, on appeal, Appellant argues that
“the State failed to correct the Court’s misapprehension that the video was known
about only after trial began[]” and that the State committed “malfeasance” and had
willfully violated article 39.14 of the Texas Code of Criminal Procedure. An
15 appellant’s point of error on appeal must comport with the objection he raised in the
trial court, or else the issue is not preserved for appeal. Bekendam v. State, 441
S.W.3d 295, 300 (Tex. Crim. App. 2014); see also Tex. R. App. P. 33.1(a)
(preserving error for appellate review requires the complaining party to show that he
presented his complaint to the trial court in a timely request, objection, or motion
and that the trial court ruled on the request). Appellant’s brief fails to cite to record
evidence showing that the State “willfully withheld” the cell phone video before trial
or that the State knew about the cell phone video before trial. See Tex. R. App. P.
38.1(i) (requiring an appellate brief to cite to the record and to applicable authority).
And we find no evidence in the record suggesting that the State knew of Marla’s cell
phone video before trial but failed to produce it. Marla testified that she gave the
video on her cell phone to the State after she testified on the first day of trial, and
there was no contradictory testimony on this point.
But even assuming without deciding that Appellant preserved error, we find
no abuse of discretion. Appellant concedes that the trial court did not abuse its
discretion when admitting the cell phone video into evidence, so we limit our further
analysis to whether the trial court abused its discretion by denying the motion for
mistrial.
The trial court concluded that it did not appear that the State willfully withheld
evidence, and the appropriate remedy was to give a short continuance for the defense
16 to review the newly-discovered cell phone video. We use a three-part test to
determine whether a prosecutor’s actions violated due process: (1) whether the
prosecutor failed to disclose evidence (2) that is favorable to the accused and (3) the
evidence is material, meaning there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.
Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). In this case, the
evidence was not favorable to the defense, and the defense attorney agreed the video
was “arguably inculpatory,” so the second prong is not satisfied because the cell
phone video was not favorable to the accused. Further, Appellant does not
demonstrate that, had the evidence been disclosed to the defense before trial, there
is a reasonable probability that the result at trial would have been different. Rather,
the defense argued in the trial court that if defendant had known about the cell phone
video before trial, he might not have turned down the State’s last plea offer.
A defendant does not have an absolute right to enter into a plea bargain. See
Gaal v. State, 332 S.W.3d 448, 457 (Tex. Crim. App. 2011) (explaining that a
defendant does not have an absolute right to enter into a plea bargain) (citing Morano
v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. [Panel Op.] 1978)); Garza v. State,
No. 09-23-00122-CR, 2025 Tex. App. LEXIS 811, at *19 (Tex. App.—Beaumont
Feb. 12, 2025, no pet.) (mem. op., not designated for publication) (“A criminal
defendant does not have a constitutional or statutory right to a plea bargain.”) (citing
17 Perkins v. Ct. of Appeals for Third Supreme Jud. Dist., 738 S.W.2d 276, 282 (Tex.
Crim. App. 1987)). Although “the more information the defendant has, the more
aware he is of the likely consequences of a plea, waiver, or decision, and the wiser
that decision will likely be[,] the Constitution does not require the prosecutor to share
all useful information with the defendant.” U.S. v. Ruiz, 536 U.S. 622, 629, 633
(2002) (concluding that the Constitution does not require the government to disclose
material impeachment evidence before entering into a plea agreement with a
criminal defendant) (citing Weatherford v. Bursey, 429 U.S. 545, 559 (1977)).
“Sufficient awareness of the factual circumstances surrounding a plea, as opposed
to complete knowledge, is required when a plea is entered.” Ex parte Broussard, 517
S.W.3d 814, 817 (Tex. Crim. App. 2017). “A defendant may have a sufficient factual
awareness despite laboring under misapprehensions.” Id.
The trial court determined that a short continuance was the appropriate
remedy because there was no evidence the State willfully withheld the contested
evidence. Appellant does not argue on appeal that the short continuance that the trial
court granted was not sufficient to permit him to review or use the cell phone video
effectively at trial. Cf. Little, 991 S.W.2d at 866-67 (no prejudice for tardy disclosure
of impeachment evidence where defendant received the information in time to use it
at trial but neglected to do so); Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App.
1999) (even where exculpatory evidence is not disclosed until trial, an appellant
18 must show the State’s tardy disclosure prejudiced him). Amy, Marla, Paige, and
Debra testified that they saw the defendant fleeing with the wallet. Oliver, Sherry,
Tony, and Ronan testified that they saw the defendant fleeing and with a knife.
Appellant has failed to show that the circumstances at trial were so extraordinary
that residual prejudice remained after the less drastic remedy of a continuance was
granted. See Ocon, 284 S.W.3d at 884-85. Nor has Appellant shown he was denied
any process that was due. See Gaal, 332 S.W.3d at 457; Morano, 572 S.W.2d at 551;
Garza, 2025 Tex. App. LEXIS 811, at *19. We conclude that the trial court did not
abuse its discretion by denying Appellant’s motion for mistrial, and we overrule
Appellant’s issue. See Coble, 330 S.W.3d at 292.
Having overruled Appellant’s issue, we affirm the trial court’s judgment of
conviction.
AFFIRMED.
LEANNE JOHNSON Justice
Submitted on May 19, 2025 Opinion Delivered July 23, 2025 Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.