Jake Williams v. The State of Texas--Appeal from 218th Judicial District Court of Karnes County

MEMORANDUM OPINION
No. 04-06-00797-CR
Jake WILLIAMS,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Karnes County, Texas
Trial Court No. 06-02-00018-CRK
Honorable Ron Carr, Judge Presiding (1)

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: October 31, 2007

 

AFFIRMED

Jake Williams appeals his conviction for assault of a public servant, raising three issues: (1) the trial court erred by failing to grant a mistrial; (2) trial court erred by allowing an undisclosed expert witness to testify; and (3) the State improperly commented on his failure to testify. We affirm the judgment.

Factual and Procedural Background

Because the historical facts have no bearing on our disposition of the appeal, we will not recount them at length. Williams was incarcerated in the Connally Unit of the Texas Department of Criminal Justice-Institutional Division. As correctional officers were returning inmates to their cells after a meal, an officer noticed Williams alone in the day room. The officer instructed Williams to return to his cell, but Williams said he had a problem and needed to speak to a sergeant. Sergeant Michael Huser responded to the request and suggested that he and Williams talk about the problem as they walked to Williams's cell. Williams then hit and punched Sergeant Huser in the head and Sergeant Huser fell to the floor. Several officers ultimately subdued Williams.

The State indicted Williams for assault on a public servant. Williams was found guilty by a jury, and after he pled true to an enhancement paragraph, the trial court sentenced him to confinement for ten years. This appeal followed.

Failure to Grant Mistrial

Williams complains the trial court erred by failing to grant his motion for a mistrial. After the jury was seated, the prosecutor read the indictment and the court asked Williams to enter his plea before the jury. In response, Williams stated "Not guilty, by reason of insanity." None of the trial participants made any comment or had any other immediate reaction to the plea. A short time later, the prosecutor requested a conference with the court outside the presence of the jury. When the jury was removed, defense counsel informed the court he was unaware of Williams's intent to enter an insanity plea. In response to questions by the court, counsel indicated his belief that Williams was competent to stand trial. Defense counsel requested the trial court instruct the jury to disregard Williams's statement and moved for a mistrial because "the jury has been tainted by the defendant's statement." The trial court granted the request for a jury instruction but denied the motion for mistrial. Upon the jurors' return to the courtroom, the court instructed them as follows:

At the time the indictment was read, the defendant entered a plea before the jury. The plea that the defendant [ ] entered before the Court was not guilty. The plea that the defendant entered before the jury was not guilty by reason of insanity. The Court held a hearing to determine what the appropriate plea was, and the Court has determined that the appropriate plea on behalf of the defendant is not guilty, so the Court will admonish you to disregard the defendant's plea of not guilty by reason of insanity, and the Court on behalf of the defendant enters a plea of not guilty, period.

Williams did not object to the instruction nor did he request any further instructions or relief.

On appeal, Williams contends his own conduct caused the jury to be "prejudiced" and "a mistrial was necessary to cure the prejudice created by declaring actual guilt and an improper violation of his right against self-incrimination as he could have been called to testify at any time." Appellant has waived his latter complaint as his only objection at trial was that the jury had been "tainted." See Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997); Tex. R. App. P 33.1. As to the "prejudice" created by his own actions, it is well-settled that our courts will not allow a litigant to "invite" an error or engage in conduct and later claim trial error based on such activity. See Prystash v. State, 3 S.W.3d 522, 530-32 (Tex. Crim. App. 1999) (holding that "law of invited error estops a party from making an appellate error of an action it induced"), cert. denied, 529 U.S. 1102 (2000); Chamberlain v. State, 453 S.W.2d 490 (Tex. Crim. App. 1970) (holding no error in denying mistrial where defendant had physical altercation with bailiff in front of jury). Because appellant's complaint arises from his own actions, we overrule the issue.

Failure to Exclude Witness

Williams next complains the trial court erred by allowing the testimony of an expert witness who was not on the State's witness list. Williams relies on article 39.14(b) of the Texas Code of Criminal Procedure, which states in pertinent part:

On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.

Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon Supp. 2006) (emphasis added). Although Williams filed a pretrial motion to require the State to disclose its witnesses, the trial court did not rule on the motion. Citing Stoker v. State, 788 S.W.2d 1 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951 (1990), Williams contends he was nevertheless entitled to a witness list because "upon request from defense, the State must disclose witnesses who will be used at any stage of the trial." We disagree. In Stoker, the trial court had granted a pretrial motion to require the State to produce a witness list. 788 S.W.2d at 14. The court did not hold the State was required to disclose its witnesses in the absence of a court order. See id. Unlike the notice provisions of Rule 404(b) of the Texas Rules of Evidence, where the State's obligation to give notice of intent to use extraneous acts is triggered by a mere defense request, the State's obligation to disclose its expert witnesses under article 39.14(b) of Code of Criminal Procedure is triggered only by a court order. (2) Compare Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993) with Tex. Code Crim. Proc. Ann. art. 39.14(b). Because no such order was entered in this case, the trial court did not err in allowing the witness to testify.

Improper Jury Argument

Finally, Williams contends the State violated his Fifth Amendment right against self-incrimination in its final argument during the guilt-innocence phase by purportedly commenting on his failure to testify. Williams concedes he did not object to the State's argument. Assuming without deciding that the State's argument was in fact a comment on Williams's failure to testify, Williams forfeited his right to complain on appeal by failing to object. See Wead v. State, 129 S.W.3d 126, 129-130 (Tex. Crim. App. 2004) (holding appellate court erred in considering appellant's complaint that prosecutor improperly commented on appellant's failure to testify because trial objection did not comport with complaint on appeal); Tex. R. App. P. 33.1; see also Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (recognizing that even constitutional rights may be forfeited by failure to object). Accordingly, we overrule the issue.

Conclusion

Having overruled all of appellant's complaints, we affirm the trial court's judgment.

 

Steven C. Hilbig, Justice

Do not publish

1. Senior judge sitting by assignment.

2. Of course, the State is required to disclose any witness that would fall within the dictates of Brady v. Maryland. See 373 U.S. 83, 84-86 (1963). However, appellant asserts no Brady violation.