NO. 07-05-0196-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B DECEMBER 11 , 2006

______________________________ SAMMY R ICHARD M ARTINEZ, Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 251 ST DISTRIC T COURT O F RANDALL COUNTY; NO. 16213-C; HON. PATRICK A. PIRTLE , PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant, Sammy Richard Martinez, appeals his convicti on for aggra vated robb ery. His two iss ues concern the trial cour t’s ref usal to bar from testifying a witness who was omitted from the State’s w itness lis t and its denial of his oral moti on for continuance. We affirm the judgment. Motion for Continuance Regarding appellant’s motion fo r continuance, it was an oral motion mad e at trial. Being oral as opp o sed to wr itten, it pr eserved nothi ng for rev iew. Dewberry v. State, 42

S.W.3d 735, 755 (Tex. Crim. App. 1999) ; Dixon v. Stat e, 64 S.W.3d 469, 472 (Tex. App.– Amarillo 2001, pet. ref’d). So, we overrule this i ssue. Undisclosed Witness Whether a trial court erred in allowing a witness, who was omitted from a witness list, to testify de pends on whether it abused its

discretion

. Stoker v. Stat e, 788 S.W.2d 1,15 (Tex. Crim. App. 1989). And, whether the trial court abu sed its dis cretion depends upon whether i ts decision fell outside the zone of reasonabl e disagreement

. Montgomery
v. State , 810 S.W.2d 372, 391-92 (Tex. Crim. App. 199 1) (stating that a trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement). Next, while i t is true tha tthe State must di sclose the w itnesses it intends to call w hen the defendant solicit

s the informati o n, the duty does not encom pass rebuttal witnesses. DePena v. State , 148 S.W.3d 461, 465 (Tex. App.–Corpus Christi 2004, no pet.). Indeed, in Hoagland v. Stat

e , 494 S.W .2d 186 (Tex. Crim . App. 1973), our Co urt of Criminal Appeals stated that

“[t]o req uire the State to anticipate any possible defense of an accused and t o furnish names of all possible w itnesses and have the court re fuse to permit them to testify if their names w ere not l isted woul d be to requi re an impracti cal and undue burden.” Id. at 189. According to t he r ecord befo re us, the State deliver ed t o appellant

its wi tness list on the morning trial beg an. It did not contain the nam e of Craig Allen, a witness

the State called to tes tify about theexistenceof a particular tattoo on the hand of “Sal” Pena. The tattoo in dispu te was that of a pair of dice, and it was w orn by the assailant. Appellant had s uch a tattoo on hi s hand, as the State established du ring its
case -in -ch ief. Yet , during cro ss- exa mina tion of a State’s witness , appellant’s counsel3

bro ached whether

Pena had a simil ar tattoo on his hand. This ques tion most likely was asked in effort to create do ubt about whether appellan t was the actual assaila nt. To resolve t hat doubt, the State called Alle n to testify b efore it closed the presentation of its case. W hen appellant objecte d, the prosecutor stated th at Allen was “a rebuttal witness

. . . .” So to o did she argue that th e “State was not aware until the trial bega n and th rough the cross-examination . . . of our witnesses, that [app ellant was] going to try to indicate that this entire event . . . was not committed by [appellant], but

instead by Mr. Pena . . . .” She continued by uttering that “. . . in his cross -examinati on and extensi ve questi oning about the tatt oo on [app ella nt’s ] han d and wh at they did or did not see, we realized that that is going to be their i ssue, that they believe t hat . . . Pena commi tted this offense.” Given this explanation, the trial court allowed Allen totestify as a rebuttal witness about the absence of the tattoo in q uestion on Pena’s hand. Inte rest ingly, the information pr ovided by

Allen was not acquired until after the State tendered its wi tness list and the first day of testimony ha d ended. At th at time, Allen apparently traveled to a South Texas penal f acility to inspectPena’s hands. Theneed for Allen to make the trip and acquir e the data arose w hen appellant asked, during a hearing
o n his motion to s uppress, about w hether Pena had suc h a tattoo. That hearing wa s conducted on the day

trial beg an but before the jur y was selected. In view of the foregoing, we cannot say that the trial court abused its discretion in treating Allen as a rebuttal w itness and all owing hi m to testify. The State did not have the information offered through Al len until midw ay into trial. A nd, t hough the topic encompassed by Allen’s testimony was first raised by appellant shortly before the jury was selected, its sig nificance accor di ng t o the prosecutor

was not made c lear until appellant4

cross-examined various State witnesses. Thus, we cannot s ay that holdi ng Allen to be a rebuttal witnesswas a decision fall ing outside the zone of reasonable dis agreement. No r can we say

that permitti ng him to test ify as one dur ing the State’ s case-in- chief tainted the decision. See Wilson v. State , No. 14-03-01 73-CR, 200 4 Te x. App. L EXIS 1589 at *7-8 (Tex. App.–Houston [14 th Dist.], F ebruary 19, 2004, pet. re f’d) (not desi gnated for publication)

(noting th at it wasnot error to permit the State to call a rebuttal w itness duri ng its case-in-chief). So, we overrule this issue as well. The judgment of the tr ial court i s affirmed.

Brian Quinn Chi ef Justice Do not publish

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