Kelvin Hutchings, Jr. v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-02-00100-CR
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KELVIN FLEONY HUTCHINGS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 29351-B
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Kelvin Fleony Hutchings, Jr., appeals his conviction by a jury for burglary of a habitation. The jury assessed his punishment at nine years' imprisonment.

Hutchings contends the trial court erred in admitting testimony about his juvenile record at the punishment phase of his trial. As we read his brief, he is actually making two complaints. First, he contends the trial court should not have let his juvenile probation officer testify because the State failed to give adequate notice of his testimony. He also contends the State's notice regarding his juvenile record was insufficient under Texas Rule of Evidence 404(b).

The latter contention is not preserved because Hutchings did not object at trial. See Tex. R. App. P. 33.1(a). The record shows Hutchings objected only to the testimony of Namon Ridgeway, his juvenile probation officer, but did not object to the form or sufficiency of the notice regarding his juvenile record. In fact, Hutchings indicated to the trial court he was not objecting to "the adjudication order, the disposition order and the modifications [of Hutchings' juvenile probation] that were signed by the Court."

Regarding the former contention, the record shows Hutchings filed a pretrial motion requesting a list only of the State's expert witnesses. He did not specifically request a list of all State witnesses. Nevertheless, 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 testimony by a witness not on the State's witness list, we review that decision for abuse of discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993). Our review encompasses two factors: (1) whether the State's actions constituted bad faith, and (2) whether the defendant could have reasonably anticipated the witness would testify. Nobles v. State, 843 S.W.2d 503, 514-15 (Tex. Crim. App. 1992).

In the present case, there is no indication the State acted in bad faith. As mentioned previously, Hutchings did not ask the trial court to order production of the State's witness list, and the record shows no such order. The record does show, however, the State supplied Hutchings with a list of its witnesses.

In response to Hutchings' objection to Ridgeway's testimony, the State asserted that, about a week before trial, it orally disclosed to defense counsel its intent to call Ridgeway. Hutchings' attorney asserted he recalled having a conversation with the prosecutor about "the case and about witnesses and about experts," but did not recall anything in the conversation about Ridgeway being a potential witness.

Hutchings, however, should have reasonably anticipated the State would call Ridgeway, his juvenile probation officer. As mentioned previously, he was aware of the State's intent to introduce evidence regarding his juvenile record. He filed an application for community supervision. It was reasonable for him to assume the State would present testimony about his performance while on juvenile probation in an effort to show his suitability for community supervision in the present case. Accordingly, we find no abuse of discretion in the trial judge allowing Ridgeway to testify.

We affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: January 2, 2003

Date Decided: February 6, 2003

 

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