Choice v. State

883 S.W.2d 325, 1994 Tex. App. LEXIS 2029, 1994 WL 417466
CourtCourt of Appeals of Texas
DecidedAugust 11, 1994
DocketNo. 12-93-00190-CR
StatusPublished
Cited by9 cases

This text of 883 S.W.2d 325 (Choice v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Choice v. State, 883 S.W.2d 325, 1994 Tex. App. LEXIS 2029, 1994 WL 417466 (Tex. Ct. App. 1994).

Opinion

HOLCOMB, Justice.

A jury convicted Appellant of forgery by passing and assessed his punishment at 30 years in prison. Appellant challenges his conviction in five points of error. In the first two points, he contends that the court erred when it allowed the State to re-open the evidence after Appellant moved for an instructed verdict, and when it allowed a witness to testify in violation of “the rule.” In points three, four, and five, Appellant challenges the sufficiency of the evidence to support his conviction. We will affirm.

In December 1992, Rose Warren discovered her home had been burglarized and her checkbook stolen. The burglary occurred the Sunday after Warren had refused to assist Appellant with food and money. On December 9, 1992, Appellant presented one of Warren’s checks to Nelda Loudamy, who owned a meat market, and asked her to cash it. The check was made payable to “Larry Cooks.” Appellant claimed to be Cooks but could not produce any identification when Loudamy requested it. Nevertheless, Appellant endorsed the name “Larry Cooks” on the back of the check and gave it to Louda-my, who became suspicious. Loudamy left Appellant standing at the counter while she went to a nearby office to call the bank on which the check was written. When the bank informed her that the check was stolen, Loudamy immediately called the police and told them that Appellant had just given her a stolen check. As she gave police Appellant’s description, he left the store.

Officer Charles Barber soon arrived and saw Appellant walking near the meat market. He stopped him and asked for identification. Appellant, who matched Loudamy’s description, gave Barber his true name, Jerry Don Choice. When Barber informed Appellant that he was going to be detained because he matched the forgery suspect’s description, he bolted and ran. Officer Barber found Appellant hiding in a repair garage and returned him to the meat market, where Loudamy identified him for police. Loudamy and Barber both identified Appellant at trial. Rose Warren testified that she did not sign the stolen check and did not authorize anyone else to sign it.

In his first point of error, Appellant contends that the court erred when it permitted the State to re-open and introduce additional testimony after “resting” its case. After the State rested, Appellant moved for an instructed verdict on the ground that Louda-my had failed to identify the original check Appellant had presented to her. Appellant argues that the court abused its discretion because the State had ample opportunity during its case-in-chief to have Loudamy [327]*327identify the cheek, and by allowing the State to re-open, the court abandoned its judicial impartiality and gave the State an unfair advantage. We do not agree.

The trial court may allow additional testimony to be introduced at any time prior to the conclusion of arguments if the testimony appears to be necessary to the due administration of justice. Tex.Code CrimProc. Ann. art. 36.02 (Vernon 1981). Its decision is reviewable on appeal by an abuse of discretion standard. Sims v. State, 833 S.W.2d 281 (Tex.App.—Houston [14th Dist.] 1992, pet. ref'd). In the present case, Appellant has failed to show how he was harmed or prejudiced by the court’s action in allowing the State to recall Loudamy to identify the original cheek after she had already identified a copy. See Boyd v. State, 774 S.W.2d 37 (Tex.App.—Beaumont 1989, pet. ref'd). Accordingly, the court did not abuse its discretion. Appellant’s first point of error is overruled.

After Loudamy testified, both the State and the defense agreed that she could be released from “the rule,” and she sat in the courtroom while Barber was testifying. Appellant objected to Loudamy’s testimony after she was recalled because she had listened to Barber’s testimony. His objection was overruled.

By his second point, Appellant complains that the trial court erred when it overruled his objection. Appellant argues that the Texas Code of CRIMINAL PROCEDURE specifically reads that “in no case where the witnesses are under the rule shall they be allowed to hear any testimony in the case.” Tex.Code CrimPROC. aft. 36.05. He also refers us to Rule 613 of the Texas Rules of CRIMINAL Evidence which provides that the court shall order witnesses excluded so that, testimony of other witnesses cannot be heard. Tex.R.CRIM.Evid. 613. Appellant claims that he was harmed when the trial court allowed Loudamy to be recalled after the State re-opened its case. He argues that by having listened to testimony and arguments of counsel introduced after she testified, Loudamy would have clearly understood that she was being recalled for the purpose of identifying the actual check rather than merely a copy of it. In support of his contention, Appellant cites Tijerina v. State, 460 S.W.2d 123, 124 (Tex.Cr.App.1970), and Webb v. State, 766 S.W.2d 236, 240 (Tex.Cr.App.1989). We distinguish the cases Appellant cites by noting that all of the witnesses in those cases were not allowed to testify because they were still under “the rule.” In contrast, Loudamy testified after she was released from “the rule.”

First, we point out that a violation of “the rule” by a witness is not in itself reversible error. Archer v. State, 703 S.W.2d 664 (Tex.Cr.App.1986). It only becomes reversible error when the questioned testimony is admitted and the complaining party is harmed. Guerra v. State, 771 S.W.2d 453 (Tex.Cr.App.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3260, 106 L.Ed.2d 606 (1989). Injury or prejudice to a party occurs when (a) the witness conferred with or heard testimony of another witness, and (b) the witness’s testimony contradicts the testimony of another witness that supports the opposing side or corroborates the testimony of another witness. Webb, 766 S.W.2d at 240. In this ease, both the State and the defense released Lou-damy from “the rule” prior to the court allowing her to listen to any other witnesses’ testimony. Our reading of the record leads us to believe that Loudamy did not hear testimony that was crucial to the defense. She only heard the testimony of Officer Barber, who identified Appellant and explained to the jury the circumstances under which he was arrested. When Loudamy was subsequently called back to the stand to testify, she was only asked to identify the original check that Appellant had given to her. We cannot see how Officer Barber’s testimony influenced any of Ms. Loudamy’s answers to the detriment of Appellant. Appellant has failed to show how he was harmed when the court allowed the State to recall Loudamy to identify the original check after she had already identified a copy. Without clear evidence of harm to Appellant, the State and the defense cannot agree to excuse a witness from “the rule” and object later to subsequent testimony given by that same witness. Finding no harm to Appellant, and no abuse [328]*328of discretion by the court, this point of error is overruled.

Points of error three, four, and five all deal with the legal and factual sufficiency of the evidence and will be discussed together.

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Bluebook (online)
883 S.W.2d 325, 1994 Tex. App. LEXIS 2029, 1994 WL 417466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/choice-v-state-texapp-1994.