Kenneth James Hookman v. The State of Texas--Appeal from County Court at Law of Kerr County

MEMORANDUM OPINION
No. 04-02-00688-CR
Kenneth James HOOKMAN,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law of Kerr County, Texas
Trial Court No. CR01-0435
Honorable James M. Simmonds, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 11, 2003

AFFIRMED

Defendant Kenneth James Hookman was convicted of the offense of cruelty to animals, sentenced to one year in jail, which was suspended for twenty-four months, and fined $4,000, $2500 of which was also suspended. In two issues on appeal, defendant complains the trial court erred when it allowed the prosecution to offer evidence which had not previously been disclosed to defendant, and when it refused to accept the jury's verdict and instead instructed the jury return to deliberations so they could assess a term of confinement. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. 47.4. We affirm.

Statement of Facts

Defendant was employed by Diane Fischer to train her dog. On March 6, 2001, while walking the dog, a witness saw defendant pull the dog up by the leash until it was hanging from the ground. The witness also testified that she saw defendant kick the dog two or three times, while it was suspended in the air. Defendant apparently kept the dog hanging on the leash for several minutes until it started to choke. The veterinarian who examined the dog found that its eyes had hemorrhaged due to choking. Defendant was charged with cruelty to animals and convicted by a jury. Defendant was sentenced to one year imprisonment and fined $4000, but both of those penalties were probated. Defendant now appeals.

Admission of Evidence

In his first issue, defendant argues the trial court erred by admitting five photographs that were not disclosed during pre-trial discovery. We review the trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). "The trial court abuses its discretion when it acts without reference to any guiding rules and principles, or acts in a manner that is arbitrary or capricious." Lam v. State, 25 S.W.3d 233, 236-37 (Tex. App.--San Antonio 2000, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991 (op. on reh'g)). We will uphold the trial court's decision if it is within "the zone of reasonable disagreement." Salazar, 38 S.W.3d at 153-54.

The trial court granted defendant's pre-trial discovery motion, which asked the State to make available for inspection several types of information, including "all photographs, motion pictures or videotapes taken in connection with the case." The motion was filed pursuant to Texas Code of Criminal Procedure article 39.14, which provides that

Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action . . . to produce any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies.

Tex. Code. Crim. Proc. Ann. art. 39.14 (Vernon 1979). In addition, article 39.14 states that "[n]othing in this Act shall authorize the removal of such evidence from the State ..., and any inspection shall be in the presence of a representative of the State." Id.

At the pre-trial motion hearing, defendant informed the court that the State allowed defendant to inspect the files and that copies of the files were sent to him. However, at trial, when the State introduced several photographs of the dog, defendant objected arguing that the photographs were not disclosed during discovery. The State responded that the photographs were in its files, which were available for defendant's inspection, but it was not obligated to make copies and send them to defendant. The trial court overruled defendant's objections. On appeal, defendant argues these photographs were not turned over, but he does not dispute that the files were made available for inspection. Further, defendant does not offer any evidence that the State concealed the photographs or prohibited him from inspecting its files. Accordingly, there is no evidence that the State failed to comply with the trial court's order or that it willfully withheld the evidence. Accordingly, we overrule defendant's first issue. See Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978) (holding that evidence will only be excluded if the court finds that evidence was willfully withheld from disclosure under a discovery order); Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.--Austin 2001, no pet.).

Trial Court's Refusal to Accept the Jury's Initial Verdict

In his second issue, defendant contends the trial court erred when it refused the jury's initial verdict and sent it back to assess a term of confinement. However, we hold that because defendant waived any alleged error, there is nothing for us to review.

When the jury returned the verdict form at the punishment phase, the trial court noticed that, although the jury had recommended that defendant's imprisonment be probated for twenty-four months, it had left the question asking for the number of years of confinement blank. Because the answers were inconsistent, the trial court informed the jury that if it had intended to probate the sentence, it would have to first determine a sentence and then assess the number of years it wanted to probate. Otherwise, there would be nothing from which to give defendant probation. At the time the trial court discussed this error with the jurors, defendant's counsel was present but did not object. As a general rule, a defendant may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise such error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). Because defendant failed to object at trial, he waived his complaint; we, therefore, overrule his second issue.

CONCLUSION

We affirm the trial court's judgment.

Sandee Bryan Marion, Justice

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