Hardin v. State

• Decision Date: 24 March 2000
• Docket Number: No. 06-99-00023-CR,06-99-00023-CR
• Citation: 20 S.W.3d 84
• Parties: (Tex.App.-Texarkana 2000) FRANCIS M. HARDIN, JR., Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 84

20 S.W.3d 84 (Tex.App.-Texarkana 2000)

FRANCIS M. HARDIN, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 06-99-00023-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted February 29, 2000

Decided March 24, 2000

On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 98F0390-102

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Justice Ross

Francis M. Hardin, Jr. was convicted of sexual assault of a child, a felony of the second degree.¹ The victim was his stepdaughter, Kristy Brown (a pseudonym).

After filing an election for the jury to assess punishment and an application for community supervision, Hardin entered a plea of guilty. The trial court duly admonished him and accepted his plea. He again pled guilty before the jury, and at the conclusion of this unitary trial, the court instructed the jury to find Hardin guilty and to assess his punishment within the range prescribed by law. The jury found Hardin guilty and assessed the maximum confinement of twenty years, making him ineligible for community supervision.²

Hardin now appeals, alleging that the trial court erred by:

(1) allowing an expert witness to testify without sufficient notice to the defense, in violation of his right to due process;

(2) allowing an expert witness to testify without sufficient notice to the defense, depriving him of effective assistance of counsel;

(3) admitting inadmissible testimony;

(4) admitting testimony of an unqualified expert; and

(5) failing to grant his motion for mistrial after the State asked a witness an improper question.

Much of the controversy in this case centers around the State's use of an expert witness in rebuttal to Hardin's evidence that he would not be a future threat to society if given community supervision. The expert witness, San Thomason, a Bowie County Community Supervision officer who supervises sex offenders released on probation, testified about the characteristics of sex offenders, the most common requirements of community supervision for sex offenders, the likelihood that sex offenders will reoffend, and that in her expert opinion, Hardin fit the profile of a child molester.

In his first two points of error, Hardin contends that the trial court erred by allowing Thomason to testify without sufficient notice to the defense. He contends that such error violates his right to due process and to effective assistance of counsel.

The record reveals that on November 11, 1998, Hardin filed a discovery motion requesting, in part, that the trial court order the State to produce, "A list of names and addresses of the witnesses to be called by the prosecution in this instant case, and whether or not they are to be called as direct or rebuttal witnesses." The clerk's record does not reveal whether the trial court ruled on the defendant's motion, but at trial both the State's attorney and Hardin's attorney discussed a hearing, apparently on January 14, at which the judge ordered the State to provide a witness list.

On Friday, January 15, the State provided a witness list to Hardin's attorney. This list did not include Thomason's name. On the same day, but apparently after the State sent its witness list, Hardin filed his application for community supervision. On Tuesday morning, January 19, the first working day of that week, Hardin entered his plea of guilty and was duly admonished by the court. A jury was selected on the afternoon of the same date. Trial was then recessed until Thursday, January 21.

On Wednesday, January 20, the State notified Hardin of its intent to call Thomason as a witness. During trial the next day, the State called Thomason in rebuttal to Hardin's witnesses, who testified that he would not be a future danger to society. Hardin objected on the ground that he did not have the opportunity to voir dire the jury about Thomason.

Hardin contends that the State knew on January 15, the date he filed his application for community supervision, that he would put on evidence about his suitability for community supervision. He further contends that the State knew at least by January 19 that it would call Thomason as a witness and should have informed Hardin on that date before the jury was selected. He also argues that he could not have anticipated the State calling Thomason because Thomason had never met Hardin or interviewed him.

The State contends that it notified Hardin's attorney "as soon as it had determined [Thomason] would be a potential witness, after [Hardin] changed the course of the trial at the last minute." It also contends that Hardin should have expected the State to call a rebuttal witness to counter his claim that he is suitable for community supervision.

The State should disclose witnesses 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); Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977). The State also has a continuing burden of disclosure once the trial court grants a discovery motion. Crane v. State, 786 S.W.2d 338, 348 (Tex. Crim. App. 1990).

If the trial court allows a witness who is not on the State's list to testify, we review that decision for abuse of discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Lafayette v. State, 835 S.W.2d 131, 132-33 (Tex. App.-Texarkana 1992, no pet.). Our review encompasses two factors: (1) whether the State's actions constituted bad faith, and (2) whether Hardin could have reasonably anticipated that Thomason would testify. Nobles v. State, 843 S.W.2d 503, 514-15 (Tex. Crim. App. 1992); Lafayette, 835 S.W.2d at 132-33. Any error in allowing the witness to testify over a claim of surprise is made harmless by the defendant's failure to object or move for a continuance. Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994).

In determining whether the State acted in bad faith, reviewing courts have examined at least three areas of inquiry:

(1) whether the defense shows that the State intended to deceive; see Nobles, 843 S.W.2d at 515; Richardson v. State, 744 S.W.2d 65, 78 (Tex. Crim. App. 1987), vacated & remanded on other grounds, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 (1989);

(2) whether the State's notice left the defense adequate time to prepare; see Hernandez v. State, 819 S.W.2d 806, 816 (Tex. Crim. App. 1991); Nobles, 843 S.W.2d at 515; and

(3) whether the State freely provided the defense with information (e.g., by maintaining an open files policy, by providing updated witness lists, or by promptly notifying the defense of new witnesses). See Richardson, 744 S.W.2d at 78; Pinkerton v. State, 660 S.W.2d 58, 64 (Tex. Crim. App. 1983).

Similarly, in determining whether the defense could have anticipated the State's witness, reviewing courts also have examined three areas of inquiry:

(1) the degree of surprise to the defendant; see Martinez, 867 S.W.2d at 39; Nobles, 843 S.W.2d at 515; Hightower, 629 S.W.2d at 925;

(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); see Hernandez, 819 S.W.2d at 816; Goodley v. State, 457 S.W.2d 294, 296 (Tex. Crim. App. 1970); 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' criminal history). See Hernandez, 819 S.W.2d at 816; Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989); Richardson, 744 S.W.2d at 77; Bridge v. State, 726 S.W.2d 558, 566-67 (Tex. Crim. App. 1986); Pinkerton, 660 S.W.2d at 64.

From the record, it does not appear that the State acted in bad faith. The record does not clearly establish that the State knew that it intended to call Thomason as a rebuttal witness and willfully refused to disclose it to Hardin. The State informed Hardin that it intended to call Thomason to testify two working days after Hardin filed his application for community supervision, and one day before commencement of the trial following jury selection. Hardin presented no evidence to refute the State's assertion that this notice was "as soon as it had determined [Thomason] would be a potential witness . . . ." At the time Hardin received this notice, he still had one day to prepare for his cross-examination and could have requested a recess or continuance if he needed more time.

Deciding whether Hardin could have anticipated that the State would call Thomason is more problematic. Hardin should have been able to anticipate that the State would attempt to rebut any testimony concerning his suitability for community supervision. Again, he also did not request more time to prepare once he learned of the State's intention to call Thomason.³

In contrast to almost every other Texas case on this issue, however, Hardin does not claim that he was disadvantaged by having insufficient time to prepare for cross-examination; rather, he contends that he was unable to voir dire the jury panel about Thomason. In the only two cases to address this issue directly, the reviewing court affirmed the trial court's decision to allow the witness to testify. Hernandez, 819 S.W.2d at 816; Salinas v. State, 625 S.W.2d 397, 401-02 (Tex. App.-San Antonio 1981, no pet.). In Hernandez, the court's analysis centered around the absence of evidence showing that the State acted in bad faith. Hernandez, 819 S.W.2d at 816. In Salinas, the court cited the lack of evidence showing the defendant was harmed, whether by a motion for new trial, bill of exception, or otherwise. Salinas, 625 S.W.2d at 401-02. The court also looked at the cumulative nature of the witness' testimony. Id.

It is important to note that the inability to voir dire the jury about a surprise witness is inherent in most, if not all, such ca...