### IN THE TENTH COURT OF APPEALS
No. 10
- 13
- 00137
- CR
MARVIN UTLEY , Appellant v. THE STATE OF TEXAS , Appellee

From the 12th District Court Walker County, Texas Trial Court No. 25,842

MEMORANDUM OPINION
In two issues, appellant, Marvin Utley, challenges his conviction for burglary of a habitation with intent to commit a felony, a first

- degree felony. See T EX
. P ENAL C ODE
A NN
. § 30.02 (a)(1), (d) (West 2011 ). We affirm.
I. B ACKGROUND Appellant’s conviction i n this case stems from altercations he had with Cynthia Dickey, his ex

- girlfriend, on or about February 11, 2012. Cynthia testified that appellant accompanied her, her sister, Ella Mae Dickey, and her sister’s boyfriend to The BallroomUtley v. State Page 2

night club in Hunts ville, Texas. While there, Cynthia and appellant got into an argument. According to Cynthia, appellant told her twice that she had disrespected him and subsequently hit her in the face and pushed her. Cynthia recounted that she tried to leave the nightc lub, but as she was entering the car, appellant tried to pull her out. Eventually, onlookers intervened; appellant left the night club and began walking toward Cynthia’s house. As she returned to her house, Cynthia saw appellant walking along the side of the road. After arriving at home, Cynthia called the police. Shortly thereafter, Cynthia testified that she heard breaking glass in her bedroom and discovered that appellant had entered the house while holding a knife in his hands. Cynthia stated that appellant did not have permission to be in her house that night and that appellant chased her around the house while holding the knife with the tip up. As they entered a common area, Cynthia’s mother, another resident of the house, jumped on appellant’s b ack to prevent him from attacking Cynthia. At this time, Cynthia opened the front door and found that Officer Keith Saraff of the Huntsville Police Department had responded to the scene. Officer Saraff eventually subdued appellant after having to: (1) u se his taser twice; (2) execute pain

- compliance moves; and (3) put appellant in a choke hold until he passed out. Officer Saraff testified that a knife was found near the couch where appellant was and that appellant made furtive gestures toward the knife, which required Officer Saraff to employ “extreme measures.” Appellant was charged by indictment with burglary of a habitation with intent to commit a felony

— namely, aggravated assault. The indictment also included enhancement paragraphs referencing appel lant’s felony convictions for possession of aUtley v. State Page 3

controlled substance in 1994 and delivery of a controlled substance in 2001. At the conclusion of the evidence, the jury found appellant guilty of the charged offense. After appellant pleaded “true” to the en hancement paragraphs contained in the indictment, the trial court sentenced appellant to thirty years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed motions for new trial and in arrest of judgment , both of which were overruled by operation of law. See
T EX
. R. A PP
. P. 21.8(a), (c). This appeal followed.
II. “T HE R ULE ” In his first issue, appellant argues that the trial court abused its discretion by failing to strike Cynthia’s testimony and declare a mistri al because Cynthia violated
“the Rule” by telling her sister about questions asked of her at trial.
A. Motion for Mistrial
We review the denial of a motion for mistrial under an abuse

- of

- discretion
standard. Archie v. State , 221 S.W.3d 695, 699

- 700 (Tex. Crim. App. 2007). Under this standard, we uphold the trial court’s ruling as long as the ruling is within the zone of reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditu re of further time and expense would be
wasteful and futile.’” Wood v. State , 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting
Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a narrow class of highly prejudicial an d incurable errors.” Id. ; see Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its discretion to declare a mistrial when, due to the error, “an impartial verdict cannot beUtley v. State Page 4

reached” or a conviction wo uld have to be reversed on appeal due to “an obvious procedural error.” Wood , 18 S.W.3d at 648; see Ladd , 3 S.W.3d at 567.
B. Texas Rule of Evidence 614 Texas Rule of Evidence 614, otherwise referred to as “the Rule,” provides for the
exclusion of witnesses from the courtroom during trial. T EX
. R. E VID
. 614. The purpose of Rule 614 is to prevent the testimony of one witness from influencing the testimony of
another. Russell v. State , 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). Once Rule 614 is invoked, w itnesses are instructed by the trial court that they cannot converse with one another or with any other person about the case, except by permission from the court, and the trial court must exclude witnesses from the courtroom during the testimony of
other witnesses. T EX
. R. E VID
. 614; see T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.06 (West 2007). If a witness violates Rule 614, the trial court still has discretion to allow the testimony from the witness. Bell v. State , 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). In reviewing the trial court’s decision to allow testimony, we determine whether the appellant was harmed or prejudiced by the witness’s violation. Id

. Harm is established by showing: (1) that the witness actually conferred with or heard testimony of other witnesses; and (2) that the witness’s testimony contradicted the testimony of a witness from the opposing side or corroborated testimony of a witness he or she had conferred
with or heard. Id.
C. Discussion In the instant case, appellant’s private investigator, Martin Jacobson, testified that he observed Cynthia talking on her cell phone just outside the courtroom. JacobsonUtley v. State Page 5

described Cynthia as very animated. Cynthia was then called to testify about her actions. Cynthia admitted to calling her sister, Ella Mae Dickey, and telling her about some of the questions that defense counsel asked. Cynthia noted that she was very upset by some of the questio ns asked of her. Thereafter, appellant moved for a mistrial,
which the trial court denied. On appeal, the parties agree that Cynthia violated “the Rule” by discussing the case with her sister; however, the parties differ on the harm resulting from the vio lation. Appellant asserts that the trial court should have granted his motion for mistrial
because his due

- process rights were violated when Cynthia tried to assist and influence
her sister in violation of “the Rule.” Based on our review of the record, we cannot say that appellant was harmed by Cynthia’s violation of “the Rule.” Specifically, Ella Mae Dickey was not included on any witness list, nor did appellant attempt to call her to testify at trial. In fact, defense counsel acknowledged the following while questioning appellant: Q [Defense counsel]: You know that Mr. Jacobson also talked with Ella Mae Dickey? A [Appellant]: Yes.

. . . . Q: All right. Strategically, you understand those people are available, we could call them. I do not believe that to be wise right now. Okay. Do you agree with that?
A: I agree.Utley v. State Page 6

Nevertheless, defense counsel represented to the trial court that a subpoena had been issued for Ella Mae Dickey but that he had not served it on her. The record does not
contain any such subpoena for Ella Mae Dickey. Instead, the record includes unexecuted subpoenas for only Wesley Jones and Aaron Humphrey. Because Ella Mae Dickey did not testify, and because the record does not support appellant’s assertion that he intended to call Ella Mae Dickey to testify at trial, we fail to see how appellant was harmed by Cynthia’s violation of “the Rule.” See Bell , 938 S.W.2d at 50. More specifically, because Ella Mae Dickey did not testify, appellant has not satisfied the second prong o utlined by the Bell court

— “whether the witness’s testimony contradicted testimony of a witness from the opposing side or corroborated testimony of a witness he had conferred with or heard.” Id. Accordingly, we cannot say that the trial court abused its d iscretion in failing to exclude Cynthia’s testimony or grant appellant’s motion for mistrial. See id. ; see also Archie , 221 S.W.3d at 699

- 700; Wood , 18 S.W.3d at 648. As such, we overrule appellant’s first issue.
III. C YNTHIA ’ S T ESTIMONY In his second issue, appellant contends that the trial court abused its discretion by failing to conclude that Cynthia was an incompetent witness and, in turn, failing to grant his motion for mistrial.
A. Applicable Law We review a trial court’s competency determination for an abuse of discretion. Rodriguez v. State , 772 S.W.2d 167, 170 (Tex. App.

— Houston [14th Dist.] 1989, pet. ref’d);
Beavers v. State , 634 S.W.2d 893, 895 (Tex. App.

— Houston [1st Dist.] 1982, pet. ref’d ).Utley v. State Page 7

Further, in reviewing a trial court’s competency ruling, we consider the entire record, including the witness’s trial testimony. See Hernandez v. State , 643 S.W.2d 397, 400 (Tex. Crim. App. 1982). “The burden of raising and proving incompetency is on the party alleging it, and the showing must be by a preponderance of the evidence.” Beavers , 634
S.W.2d at 895. Generally, every person is presumed compe tent to testify. See T EX
. R. E VID
. 601(a). A person is not competent to testify if, after an examination by the trial court, the person does not appear “to possess sufficient intellect to relate transactions with respect to which [she is] interrogated.” Id. at R. 601(a)(2). The court will consider whether the witness possesses: (1) the ability to intelligently observe the events in question at the time of the occurrence; (2) the capacity to recollect the events; and (3) the capacity to narrate the even ts. Rodriguez , 772 S.W.2d at 170 (citing Watson v. State , 596 S.W.2d 867, 870 (Tex. Crim. App. 1980)). The third element involves the ability to understand the moral responsibility to tell the truth, to understand the questions posed,
and to frame intell igent answers. Id. (citing Watson , 596 S.W.2d at 870).
B. Discussion A review of the record shows that Cynthia possessed the ability to observe the events in question, recall those events, and narrate to the jury her observations. Specifically, on the firs t day of trial, Cynthia testified about the details of the alleged offense, including where the offense occurred, who committed the offense, where she was before the offense happened, who she was with that evening, where she lived, and
evidence collected b y officers. Nevertheless, on cross

- examination, Cynthia frequentlyUtley v. State Page 8

could not remember many of the specifics referenced by defense counsel. In his brief, appellant lists the numerous questions to which Cynthia responded that she could not
remember. And b ased on this list, appellant asserts that Cynthia was incompetent. We believe that appellant’s list references various inconsistent statements made by Cynthia, which bears upon her credibility as a witness, not her competency. See
Lewis v. State , 126 S. W.3d 572, 576 (Tex. App.

— Texarkana 2004, pet. ref’d) (“Regardless of any inconsistent statements as to the details of the offense, such discrepancies reflect on a witness’ credibility, a matter singularly within the purview of the fact

- finder.”); see also Chambers v. State , 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (noting that it is within the province of the fact

- finder to judge the credibility of the witnesses; the fact

- finder is entitled to believe all, some, or none of the testimony provided by the pa rties). In addition, Cynthia testified that the experience of testifying was “horrible,” which implies that she was likely nervous and anxious while testifying. Moreover, appellant did not object to Cynthia’s competency as a witness until the second day of her testimony. In any event, based on our review of the record, we cannot say that the trial court abused its discretion in determining Cynthia to be a competent witness. See T EX
. R.
E VID
. 601; see also Hernandez , 643 S.W.2d at 400; Rodriguez , 772 S. W.3d at 170; Beavers , 634 S.W.2d at 895. And as such, we cannot conclude that the trial court abused its discretion by denying appellant’s motion for mistrial. See Archie , 221 S.W.3d at 699

- 700;
see also Wood , 18 S.W.3d at 648. We overrule appellant’s s econd issue.Utley v. State Page 9 IV. C ONCLUSION Having overruled both of appellant’s issues on appeal, we affirm the judgment
of the trial court.

AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed January 9, 2014 Do not publish [CRPM ]