Opinion filed November 29, 2012



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00368

- CR

__________ DAVID LEE THOMISON, Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 39th District Court Haskell County, Texas Trial Court Cause No. 6401

M E M O R A N D U M O P I N I O N The jury convicted David Lee Thomison of the offense of hindering a secured creditor and assessed punishment at confinement for fifteen years . We affirm. Appellant presents three issues on appeal. In the first issue, he attacks the legal sufficiency of the evidence to support his conviction. Specifically, appellant contends that “the State did not prove that the Appellant sold or disposed of over $200,0 00 worth of secured catt le beyond a reasonable doubt.” To determine the legal sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution. Jackson v. Virginia , 443 U.S. 307, 319 (1979); Turner v.
State , 805 S.W.2d 42 3, 427 (Tex. Crim. App. 1991). We determine whether any rational jury2

could have found the elements of the offense beyond a reasonable doubt. Turner , 805 S.W.2d at
427. A person who has signed a security agreement, which creates a security interest in property, commits the offense of hindering a secured creditor if
, “with intent to hinder enforcement of that interest or lien, he destroys, removes, conceals, encumbers, or otherwise harms or reduces the value of the property.” T EX

. P ENAL C ODE A NN

. § 32.3 3(b) (West 2011 ). The State charged appellant with a fir st

- degree felony, and it had to prove that the value of the property involved was $200,000 or more. See i d. § 32.33(d)(7 ). We note that the statute requires
the State to prove that the value of the property was over $200,000
, not that appellant received more than $200,000 from the sale of that property. Capital Farm Credit 1 had a security interest in “ [ a ] ll livestock now owned, possessed and hereafter acquired including but not limited to : SEE SECURITY AGREEME NT

- EXHIBIT A

- LIVESTOCK , and including all proceeds from the sale or disp osition thereof.” Exhibit A listed the number, description, and classification of the livestock

. Randy Riley, a loan offic er for Capital Farm Credit
, inspecte d the property in July 2007 and prepared an evaluation of the
livestock pledged as collateral for the loan. The trial court admitted the valuation without obje ction by appellant. Riley estimated t he total value of the 573 head of livestock to be $330,140. When the bank demanded the return of the livestock
, however, appellant had only thirty

- four head of cattle out of the 573 head pledged

. Although he returned the thirty

- four
, appellant failed to account for the others

. While the loan officer admitted that he had not inspect ed all of the cattle , h is evaluation is some evidence of the value of the livestock, and it was reasonable for the jury to infer that the value of the missing livestock exceeded $200,000.
We ove rrule appellant’s first issue. In his second issue, appellant compla ins that Charles Fields, a witness who had been placed under the witness r ule , testified during the punishment phase after violating the rule. Appellant alleges that Fields’ s wife attended the trial
, took detailed notes of other witnesses’ testimony
, and shared them with Fields during recesses. The State contends that appellant failed to pre serve this issue for review, that he failed to show a violation of the rule, and that any
violation was harmless

. We note that appellant did not object to the wi tness’s testimony at trial;

1 Capital Farm Credit merged with First Ag Credit in October 2008 and assumed all of its liabilities. It has also been called Ag Credit of Texas an d Rolling Plains PCA.3

instead, he asserted this as a ground in his motion for new trial. Therefore, the issue before us is
whether the trial court abused its discretion when it den i ed his mot ion for new trial. The State argues that a ppellant waived t his complaint when he failed to object before, during, or after the conclusion of the witness’s testimony. To preserve a complaint for appellate review, the party must make a timely, specific obj ection and obtain an adverse ruling. T EX

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. A PP

. P

. 33.1. For errors that are not apparent from the record, a motion for new trial is a prerequisite “to adduce facts not in the record.” T EX

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. P

. 21.2. In the absence of evidence that appellant was aware of the violation of the rule at the time o f the questionable testimony, the motion for new trial was sufficient to pres erve the error for our review.
We review the denial of a motion for new trial for an abuse of discretion. Lewis v. State , 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Upon a party’s request , witnesses must be excluded from the courtroom during trial “so that they cannot hear the testimony of other witnesses.”
T EX

. R. E VID

. 614. The purpose behind the rule “is to prevent the testimony of one witness from influencing the testimony of another.” Bell v. State , 938 S.W.2d 35, 50 (Tex. Crim. App. 1996).
A “v iolation of the rule is not in itself reversible error, but only becomes so where the objected

- to testimony i s admitted ” and affects the substantial rights of an appellant. Webb v.
State , 766 S.W.2d 236, 240 (Tex. Crim. App. 1989); see also Russell v. State , 155 S.W.3d 176, 181 (Tex. Crim. App. 2005) (citing T EX

. R. A PP

. P. 44.2(b)). The test for an abuse of d iscretion
in this situation is whether “ the witness’s presence during other testimony resulted in injury to
the defendant.” Bell , 938 S.W.2d at 50. Our determination of prejudice depends on a showing
of two criteria: “ (a) did the witness actually confer with or hear the testimony of the other witness; and (b) did the witness’s testimony contradict the testimony of a witness from the opposing side or corroborate the testimony of another witness he had conferred with or had
otherwise actually heard.” Webb , 766 S.W.2d at 240.
We must consider the kind of witness, the nature of the testimony, and how it relat es to the case

- in

- chief. Guerra v. State , 771 S.W.2d 453, 476 (Tex. Crim. App. 1988) . For example, admitting testimony related to something other than guilt is unlikely to violate the rule because
, usually, that type of testimony neither corroborates nor contradicts another witness’s testimony.
Guerra , 771 S.W.2d at 476. I n Upton , the trial court permitted a witness to testify during the punishment phase after the rule had been invoked and after the witness had heard the guilt

- phase testimony. Upton v. State , 894 S.W.2d 426, 428 (Tex. App.

— Amarillo 1995, pet. ref’d). The4

witness had no personal knowledge of the char ged crime; instead, her testimony concern ed the defendant’s need for continued counseling. Id. The trial court did not abuse its discretion when it admitted the testimony because the testimony did not corroborate or contradict “evidence serving to establish or refute an element of the crime.” Id. In this case, t he State called Fields after the jury had determined appellant’s guilt. Fields had cosigned for a loan made to appellant prior to th e loan here , and as the cosigner, he satisfied
th e note when appellant later defaulted and filed for bankruptcy. Although appellant had pledged cattle as collateral for that loan as well, Fields had no personal knowledge of what happened to the cattle and did not speculate. No other witnesses testified to facts surrounding
that transaction. Fields’ s testimony did not contradict or corroborate any other evidence, and it was given during the punishment phase. Under these circumstances, we cannot say that the trial court abused its discretion when it denied appellant’s motion for new trial on this ground. Appellant’s second issue is overruled. In his third issue, appellant contends that he is entitled to a new trial because the jury
received evidence after it retir ed to deliberate on guilt/innocence . Appellant complains that the jury inadvertently received the State’s copy of the jury charge, w hich included the prosecutor’s notes in the margin s

. During deliberat ions , the trial court received a note from the jury, which
asked
, “Are we supposed to have this?” The trial court responded, “ N o” to the jury’s question

. Although appellant did not req uest that the trial court instruct the jury to disregard, he did request a mistrial, which the trial court denied. Appellant asserted this ground in his motion for new
trial. The trial court conducted a hearing, heard evidence, and denied the motion for new trial

. We review the denial of a motion for new trial for an abuse of discretion. Lewis , 911
S.W.2d at 7. “The defendant must be granted a new trial . . . when, after retiring to deliberate, the jury has received other evidence.” T EX

. R. A PP

. P. 21.3(f). To be entitled to a new trial, the
record must show both (1) that the jury actually received the evidence and (2) that the evidence

was detriment al or adverse to the defendant. Bustamante v. State , 106 S.W.3d 738, 743 (Tex. Crim. App. 2003). We determin e whether the jury “ received ” other evidence by consider ing how extensively the jury examined the evidence and whether the jury was instructed to disregard
the evidence

. Bustamante , 106 S.W.3d at 743. To determine whether evidence was detrimen tal or adverse, we consider its character in light of the issue before the jury rather than its actual
effect. Garza v. State , 630 S.W.2d 272, 274 (Tex. Crim. App. [Panel Op.] 1981). In most cases,5

t he evidence that has been considered detri mental contained new information that damaged the
defendant because it has not been admitted during the trial. Compare Carroll v. State , 990
S.W.2d 761 , 761

– 62 (Tex. App.

— Austin, 1999, no pet.) (mug shot indicated prior arrest )
, and In
re M.A.F. , 966 S.W.2d 448, 449 (Tex. 1998) (jury discovered marijuana cigarette in p ocket of defendant’s clothes), with Juarez v. State , No. 13

- 02

- 186

- CR
, 2003 WL 21686193, at *1 (Tex. App.

— Corpus Christi July 18, 2003, no pet.) (memo. op., not designated for publication) (pros ecutor’s checklist of the elements of the offense and list of admitted exhibits added no new
facts or information )

. We need not decide whether the State’s copy of the charge was “other” evidence “received” by the jury. The State’s copy of the charge was an exact copy of the court’s charge
that had been submitted to the jury for deliberations , which included three alternate ways of proving the charged crime . The only difference was that the State’s counsel had noted the
manner and means in shorthand next to each of the three relevant paragraph s

. The notes did not
add additional facts ; they were merely shorthand for what had been alleged

. In fact, the exact handwritten words and phrases noted by the prosecutor were contained within each adjacent paragraph

. We agree with the S tate that the jurors likely did not know who had made the notes ; they were not biased or inflammatory. We do not believe that the State’s copy of the charge with
the handwritten notes w as of such character to be adverse or detrimental to appellant during jury
deliberations. W e hold that the trial court did not abuse its discretion when it denied appellant’s
motion for new trial on this ground . We ove rrule appellant’s third issue.
The judgment of the trial court is affirmed.

JIM R. WRIGHT
CHIEF JUSTICE November 29, 2012 Do not publish. See T EX

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. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Gray, C.J., 10th Court of Appeals. 2

2 Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment to the 11th Court of Appeals.