Devenport III, Howard v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Memorandum Opinion filed January 30, 2003

Affirmed and Memorandum Opinion filed January 30, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00275-CR

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HOWARD DEVENPORT, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from 185th District Court

Harris County, Texas

Trial Court Cause No. 876,084

M E M O R A N D U M O P I N I O N

Appellant, Howard Devenport, III, was found guilty of burglary and, with enhancements, was sentenced to twenty-eight years= imprisonment. In three issues, he contends that: (1) the evidence was legally insufficient; (2) the evidence was factually insufficient; and (3) the trial court erred in disallowing defense counsel to view a witness=s statement immediately after the State=s direct examination. We affirm.

Background

Chad Ellis, the victim in this case and a Houston police officer, left his garage door open one night while he visited a friend=s home. Upon returning home, he noticed that a motion-activated light was on in his garage and a weed trimmer was missing. After confirming that his wife and child had not recently entered the garage, he noticed a man crouched across the street, weed trimmer in hand. Ellis retrieved a handgun, ran after the man, and found him entering a car parked around the corner. Two weed trimmers were in the car; one belonged to Ellis. The man in the car, Devenport, ran a short distance, but then returned to the car. He pleaded with Ellis to let him go and offered Ellis money. When Ellis identified himself as a police officer and accused Devenport of entering his home, Devenport replied, AI didn=t go into your home, sir. I just went into your garage.@

Sufficiency of the Evidence

In his first two issues, Devenport challenges the legal and factual sufficiency of the evidence to support his conviction. Specifically, he argues that he was wearing a dark blue shirt on the night of the burglary, though Ellis described the burglar as wearing a white shirt.

When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We accord great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@ Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id.

In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if Aproof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We review the fact finder=s weighing of the evidence and are authorized to disagree with the fact finder=s determination. Clewis, 922 S.W.2d at 133. Our review, however, must be appropriately deferential so as to avoid substituting our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

In this case, Ellis specifically identified Devenport as the man he saw crouched across the street and as the man who admitted entering his garage. Taken in the light most favorable to the verdict, Ellis=s testimony is legally sufficient evidence to support identification of Devenport as the burglar. Reviewing all the evidence in a neutral light, Ellis also testified as follows regarding the burglar=s clothing color:

Q: And how was the person dressed?

A: I think a white top and a Bthe bottom wasB I want to say it was blue, maybe a satiny or shiny material. It was blue.

Q: Blue pants, you mean?

A: I don=t recall if it was shorts or long pants. I can=t recall. I want to say a white, maybe a t-shirt, and then blue bottoms.

Devenport introduced the blue shirt and blue jeans he wore that night, which had been in police custody since his arrest. He also testified that a stranded motorist, whom he had offered a ride, stole the weed trimmers but ran away when Devenport protested. Devenport testified that this unknown man wore a beige or white shirt. Devenport also admitted to four previous burglary convictions, which the State argued damaged his credibility. During deliberations, the jury requested that Ellis=s testimony about the color of the burglar=s clothing be read. Apparently, the jurors concluded that the discrepancy regarding clothing color was not fatal to Ellis=s identification of Devenport. Because the credibility of proffered testimony is within the jury=s province, Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999), and because the jury apparently disbelieved Devenport=s version, see Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (jury may choose to disbelieve any portion of witnesses= testimony), we defer to its finding. There is factually sufficient evidence identifying Devenport as the burglar. Accordingly, we overrule issues one and two.

Witness Statement

In his third issue, Devenport contends the trial court violated Texas Rule of Evidence 615 in failing to require the State to produce Chad Ellis=s witness statement immediately after he testified in the State=s case-in-chief. Ellis testified that after the burglary, he typed a witness statement on a computer in the sheriff=s office. Defense counsel requested the statement, but the State did not have it in the courtroom. The trial court refused to suspend trial while the statement was located. Instead, she instructed defense counsel to begin cross-examination on Ellis=s trial testimony while the statement was located.[1] Devenport=s counsel refused to cross-examine without first obtaining the statement. He later called Ellis during Devenport=s case-in-chief, although it is unclear from the record whether he had obtained Ellis=s statement by then.

If requested, the trial court must order production of a witness statement after the witness has testified on direct examination. See Tex. R. Evid. 615(a). In this case, the trial court clearly said that the State was to do its Avery best to find the statement . . . .@ Further, A[u]pon delivery of the statement to the moving party, the court . . . shall recess proceedings in the trial for a reasonable examination of such statement and for preparation for its use in the trial.@ Tex. R. Evid. 615(d). Here, the trial court refused to recess while the statement was located, although it is unclear (1) whether the statement was ultimately located; or (2) that Devenport was not given time to examine it.

Assuming that the trial court violated Rule 615, Devenport must show harm. Jenkins v. State, 912 S.W.2d 793, 804 (Tex. Crim. App. 1993). Devenport contends he was harmed because the trial court implied, in the jury=s presence, that his counsel was obstructionist. He further claims the net effect of the trial court=s refusal to recess and to ask the State to abide by the rules in equal measure prejudiced the jury against him. However, in determining harm from a violation of Rule 615, Awe must determine whether the accused was denied effective cross-examination or possible impeachment of a witness.@ Mayfield v. State, 758 S.W.2d 371, 375 (Tex. App.CAmarillo 1988, no pet.). There is no harm when a witness=s statement is consistent with the witness=s testimony. Cullen v. State, 719 S.W.2d 195, 199 (Tex. Crim. App. 1986). Further, to demonstrate harm, the appellant must provide the alleged statement in the record, Williams v. State, 940 S.W.2d 802, 806 (Tex. App.CFort Worth 1997, pet. ref=d), or show that he was denied the opportunity to make the statement a part of the record. Johnson v. State, 919 S.W.2d 473, 479 (Tex. App.CFort Worth 1996, pet. ref=d). Devenport has done neither; thus, he presents nothing for review. Accordingly, we overrule issue three.

Having overruled all three issues, we affirm the trial court=s judgment.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed January 30, 2003.

Panel consists of Justices Edelman, Seymore and Guzman.

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

[1] The trial court stated, AWe=ll see if we can=t find the statement.@ The trial court also instructed Devenport=s counsel, AWe=re going to find it. Go ahead and start your cross-examination.@