## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00168

- CR

MARIA ALICIA GENOVESI , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 198th District Court

Kerr County, Texas Trial Court No. B22467

Befo re Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION A Kerr County jury found that Maria Alicia Genovesi threatened to commit a mass shooting at a local church and convicted her of terroristic threat , a third

- degree felony

. See T EX
. P ENAL C ODE A NN
. § 22.07(e)

. After she pled true to the State’s punishment

- enhancement allegation, the jury assessed a sentence of four years’ imprisonment. On appeal, Genovesi argues that t he trial court erred by allowin g an undisclosed witness to testify and by denying her motion for new trial without a hearing. 1
We find no abuse of discretion in the trial court’s decision s to al low testimony by the
State’s rebuttal witness and t o overrul e the mo tion for new trial with o u t a hearing. As a result, we overrule Genovesi’s points of error. Even so, we must modify the trial court’s judgment to reflect the proper degree of offense . As modified, we affirm the trial court’s judgment.
I. Allowing T estimony by the State’s Rebutta l Witness Was Not an Abuse of Discretion In her first point of error, Genovesi argues that the trial court erred by allowing the
State’s undisclosed witness, Greg Longenbaugh, an investigator with the Kerr County Sheriff ’ s Office (KCSO) , to rebut her de f ense th eory. We find no abuse of discretion in the trial court’s ruling.
A. Standard of Revie w and Relevant Caselaw Article 39.14(b) of the Texas Code of Criminal Procedure provides that, i n general and upon request, the State must provide the defendant w i th “ the name and address of each person

1 Originally appeal ed to the Fourth Court of Appeals , thi s case was transferred to this Court by the Texas Su preme Co urt pursuant to its docket equalization efforts. See T EX

. G OV ’ T C ODE A NN . § 73.001 (Supp.). We follow the precedent of t he Fourth C ourt of Appeals in decidi ng this case. S ee T EX

. R. A PP

. P

. 41. 3.3

the disclosing party may use at trial to present evidence

. ” T EX
. C ODE C RIM
. P ROC

. A NN
. art. 39.14(b) (Supp.) ; see Martinez v. State , 867 S.W.2d 30, 39 (Tex. Crim. App. 1993) ; Martinez
v. Sta te , 131 S.W.3d 2 2, 29 (T e x. App.

— San Antonio 2003 , no pet. )

. Although the de bate on whether Article 39.14(b) applies to a rebuttal witness has not yet been settled by the Texas Court of Criminal Appeals , we assume its application for the purposes of this an alysis

. See Dep ena v. State , 14 8 S.W.3d 461, 465 (Tex. App.

— Corpus Christi

– E dinburg 2004 , no pet. ) ; In re H.T.S

. , No. 04

- 11

- 00847

- CV, 2012 WL 6743562, at *3 (Tex. App.

— San Antonio Dec. 31, 2012 , pet

. denied ) (mem. op.) ( declining to decide the issue but finding no bad f aith in the Sta te’s lack of disclosure “even if Article 39.14(b) applies to rebuttal witnesses ” )

. If the trial court allows an undisclosed witness to testify, we review the decision for an
abuse of discretion. Martinez , 867 S.W.2d at 39; Martin ez , 131 S .W.3 d at 29 (ci ting Bridge v

. State , 726 S.W.2d 558, 566

– 67 (Tex. Crim. App. 1986))

. During our analysis , we “ answer two questions: (1) did the prosecutor act in bad faith by failing to disclose the names of the witnesses
ahead of time ; and ( 2) could the def e nda nt reas onably anticipat e that the witnesses would testify, although their names were not i ncluded on the witness list. ” Martinez , 131 S.W.3d at 29 ( citing Bridge , 726 S.W.2d at 566

– 67 ).
B. Factual and Procedural History
The evi dence a t trial s howe d t h at Genoves i’s name was wel l known to the Kerrville Police Department (KPD) dispatchers in Kerr County. Francisco Galvan, public safety communications manager for the KPD , testified that “ everybody in the dispatch circle ther e [wa s ] familiar w ith the frequent ca l ls from [Genov esi] .” According to Galvan, the KPD receive d4

calls from suicide prevention or crisis hotlines reporting on events related to Genovesi under

“ different aliases

. ” Lauren Scarlett, a dispatcher for the KCSO , t estified that sh e had prior
si mil ar calls relating to Genovesi , and J effrey Robitaille, an officer with the KPD , testified that
he had been dispatched as a result of previous calls related to Genovesi. Robitaill e also te sti fied
tha t Genovesi “had access to weap ons based on pre vious ca lls that dispatch looked at. ” The calls forming the basis of the offense in this case occurred on May 29, 2022, when

two people assisting the Suicide Crisis Hotline called the KP D and t he KCSO t o re port a threat.
The callers both stated that they flagge d a n online “ chatter ” who claimed to be suicidal , had “homicidal ideation towards two local churches,” and was on the way to the churches with a
sh otgun

. Both callers provided the cha tter ’ s IP address and mentioned other identifying information, including t w o phone numbers given by the chatter and a statement that the chatter
lived at the end of Lafayette Road. Galvan testified that di spatche rs had al read y associate d a La fayette Road addre ss with Genovesi. The IP address was traced to Genovesi’s place of
b u siness , which was o wned by Brent Bates, Genovesi’s foster father

. Dispatchers used the phone numbers to trace the phone’s physical loc ation. One number belonged to G enovesi, who
was lo cated across the street from her work , and another phone number bel ong ed to Ba tes

. According to Robitaille , “ Bates actually provided IP addresses and several other items, like his
Wi

- Fi router code s [,] to di spatchers wit h consent. ” Robita il le arrested Ge novesi at Bates’s
office

. Genovesi ’s defensive theory , discussed dur ing opening sta tements, argued “that IP addresses are easily spoofed ” and that “[s]omebody

-- almost assuredly [it was] her e x -5

husb and

. . . ha[ d] been spoofing her IP address, t ry ing to make it look like she [was] texting a
suicide ho tline so that the pol ice [ would ] come t o her house and harass her.” Lucas Flores, an investigator with the KCSO, testified that IP addresses and phon e numbers c ould be spoofed but
that “spoofi ng them bo th simultaneously . .

. would take a level of

. . . skill that [he had n ot ]
seen.” To suppor t th e defen sive theory, Genovesi included c all s h eet r eports dating back to 2018

s howing that pr ior ca l ls relate d to suicide attem pts by Genovesi had turned out to be false. Those reports included notes from responders stating that G eno vesi’s ex
- husband “ [ wa ] s cal li ng hotlines and 3rd parties to f a lsely report suspicious activity and welf are ch ecks o n [G enov esi]
with the inten t to harass or an noy [ her ]

. ” Genovesi also introduced evidence showing that , o n April 1, 2020, an IP address was traced to Genovesi’ s physica l address and that officers were dispatched there, but Genovesi, who was al one, said she did not contact the Suici de Crisis
Hotl ine. 2 To rebut the defensive theory, the State called Longenbaugh

. The State admitted that
L on g enbaugh was not named as a witnes s because t he State had not anticipated the introduction
of the d efense ex h ibit s relating to pri or calls. In response to the State’s argument that Longenbaugh’s absence from the witness list was not due to bad faith, Ge nov esi clarified that
she w as no t ac cu sing the State of any bad faith. Even so, Genov esi ob jected to Long enbaugh’s

tes timony , stating, “ [W] e were gi ven a document in our discovery portal that said prior reports,

2 Ge novesi does not contest the sufficiency of the evidenc e su pporting her conviction. As a result, we only discuss the facts known to the trial court at the time it decided to ad mi t Longenbaugh ’ s testimony.6

including reports of various other officers , a nd this witne ss was noticeab ly and gl ar ingly absent
from that. ” As a result , Geno vesi argue d that sh e di d not have adequate time to prepare

. The trial court decided to send the jury to an early lunch break to provide Genovesi with an opportunity to hea r Longenbaugh’s testimony and conduct an ex am ination outside of the jury’s presenc e. Th e c ourt th en f ound no evidence of bad faith on the St ate’s part and decided to permit Longenbaugh ’ s testimony.
In front of t he jury, Longenbaugh testified that he w ent to Genovesi’s house after a “[p] hone call ca me into the suicide hotline t hat Ms. Ge novesi allegedly con sumed 28 unknown pills. ” Longenbaugh testified that he conducted a welfare check and that Genovesi had slurred speech , was groggy, but otherwise app ear ed fine

. During cross

- examination, Genov es i established tha t Longe nbaugh ha d no way t o pr ove that Genovesi had ingested any pill s , that Genovesi’s slurred speech could have been the result of seizures she was known to have, and that there was no way t o d etermine whether Genovesi had placed the ca ll s to the suicide hotline.
C. Anal ysis
Here , Ge novesi cannot meet the first portion of the two

- part test because she did not assert that the State acted in bad faith by failing to list Longenbaugh as a witness

. Instead, she
affirmativel y stated that she w as not “ mak [ing] any accusat ions a s to the f irst ” portion of the test.
As for the second part of the test, the San Antonio Court of A p peals has examined three areas of inquiry: (1) the degree of surprise t o t he defendant; (2) the deg ree of disad va ntage inherent i n that surprise ( e.g., the defend ant was aware of what the witness would say , or the witness testified about cumulative or uncontested issues); (3) the degree to which the trial court was able to re med y that7

surprise (e.g., by granting th e defense a recess , postponement, o r cont inuance, o r by ordering the State to provid e the witn ess ’ criminal history).
Id. (citing Hardin v. Sta te , 20 S.W.3d 84, 88 (Tex. App.

— Texarkana 2000, pet. ref ’ d) )

. Here,
wh ile there m a y have been some surprise to G enovesi , it was al leviated when the t rial court too k
a lunch break to allow Genovesi to hear the substance of Longenbaugh ’ s testimony outside of the jury’s presence. After, Genovesi did not argue that she needed a ddi tional time to prepare

. S ee Barnes v. State , 8 76 S.W.2d 3 16, 328 (Tex. Crim. App. 1994 ) (p er curiam) (finding that a claim of surprise over an undisclosed witness is harmless if a defendant fai l s to move for a
continuance )

. Moreover, the record shows tha t Genovesi w as able to ade quately cros s
- examine Longenbaugh about the su bs tance of his t esti mony. We conclude the two

- part test reveals that the trial court did not abuse its discretion by
adm itting Longenbaugh ’ s testimony. As a result, we overrule Gen ov esi’s first poi nt of error.
II. Deci ding Against a Mot io n for New Tri al Hearing Was N ot a n Abuse of Discretion In her second point of error, Genovesi argues that the trial court erred by deny ing her
motion for new trial based on juror disa bility wi tho ut holding a hearing. Because we find t hat
Genovesi’s mot io n, and the af fi davit supporti ng i t, failed to show reasonable grounds to hold a hearing, we find no abuse of discretion in the trial cou rt’s decision to forego a hea ring.
A. Factual B ackground
G en ovesi timely filed a motion for new tria l based on discove ry that a juror suffer ed

“ fr om a mental disability and brain damage due to a head injury.” Genovesi’s motion for new8

trial was s upported by the affidavit of Robert W. Carey, Jr. 3 Car ey said t hat h e was at the Kerrville Elks Lodge when h e met the j u ror, wh o said th at h e was discharged from the Navy “for medical reasons, with a permanent disability , ” after hitting his head a gainst a submari ne on numerous occasions and suffering a cardiac arrest. Ac co rding to Carey, the juror told him that , du r ing his service, h e suffered “brain damage and a permanent disability ” and that cardiac
“defibrillation caused him to be unab le to think cate gorically and discern information necessary
to be able to perform h is d uties onboard the nuclear submarine.” I n a concluso ry m anner , Carey also opined that the juror “should have been disqualified for consideration as a juror.” 4
Genovesi argued in her motion that the juror was disabled and req uested the t rial court t o

con duct a hearing

. Without a heari n g, the trial co u rt d enied the moti on for new trial by written
order.
B . Standard of Review and Applicable Law

“ We review th e trial court ’ s denial of a hearing on a motion for new trial for ab use of
discr etion. ” Cyr , 30 8 S.W.3d at 30 (citing Smith v. State , 286 S.W.3d 333, 339 (Tex. Cri m
. App.
2009 ) ). “ [ A ] hearing on a motion for n ew trial

. . . is not an absolute right.” Id. (citation omitted)

. Rather, the movant must “establish[] the exi stence of ‘ reasonable gr ou nds ’ showing
th at [s]he could b e en titled to relief .” Id. ( qu oting Sm it h , 286 S.W.3d at 339).
Section 62.102 contains the g eneral q ualificati ons for j ury s ervice. T EX
. G OV ’ T C ODE
A NN
. § 62.102. Be cause being “ of sound min d ” i s among the list of requ ir eme nts for jury

3 Carey described himse lf as a person w ho wa s part of Genovesi’s “support network.”

4 “ [ A ] motio n for ne w trial

. . . must be supported by the affidavit of . . . [someone] who was in a position to know the facts .” Cyr v. S tate , 308 S.W.3d 19, 30 (Tex. App.

— San Antonio 200 9 , no pet. ) (quoting Ba ldo nado v. State , 745 S.W.2d 491, 493 (Tex. App.

— Co rp us Christi

– Edinburg 1988, pet. ref ’ d ) )

.9

service , T E X
. G OV ’ T C ODE A NN
. § 62. 102( 5 ) , “[a] juror is absolutely disqualified only when it appears that he or she is insane , ” Scaggs v. State , 18 S.W.3d 277, 283 (Tex. App.

— Austin 2000, pet. ref ’ d) ( citing T EX
. C ODE C RIM
. P ROC

. A NN
. ar t s
. 3 5.19, 35.1 6 (a ) ( 4 ) )

. Und er Art icle 44.46,
A con viction in a crim inal case may be reversed on appeal on the ground that a juror in the case was absol utely disqualified from service under Article 35.19 of this code only if: (1) the defendant raises the dis qu ali fication before the verd ict is entered; or (2) the disqualification was not discovered or brought to the attention of the trial court until after the v erdict was entered and the defendant makes a showing of significant ha rm by th e service o f the disquali fi ed juror.
T EX
. C ODE C RIM
. P ROC

. A NN
. art. 44.46 ( emphasis added). Als o, “ [a] lthough not absolutely disqualified, a person who has a bodily or mental defect that would render them unfit for jury service may on voir dire be chall enged for c ause. ” Scaggs , 18 S.W.3d at 283 (citing T EX
. C O DE C RIM
. P ROC

. A NN
. ar t. 3 5.16 (a) ( 5) )

. C. Application Carey’s affidavit contained no facts suggesting that the juror was insane. Perhaps for that

reason, Genovesi did not argue in her motion for new tr ial that the juror w as absolutely disqualified from service. In stead, she ar gue d that the juror wa s “disabled.” Yet, Carey’s
affidavit did not say how long ago the juror had s uffered a brain injury , what the brain i nj ury
was, or how it impacted the juror’s life, if at all , fol lowi ng his medical discharg e from th e Navy. Further, even though C arey said the juror had suffered “brain damage and a permanent disability ” (emphasis added), nothing sho wed that the bra in inju ry , as opposed to some other medical condition, was perm a ne nt. A ju ror can become disabled by a “ p hysical illness , ment al10

condition, or emotional state which hinders one ’ s ability to perform one ’ s duties as a juror. ”
Landrum v. Sta te , 788 S.W. 2d 5 77, 579 (Tex. Crim. App. 1990) (per curiam) . Although Carey’s

a ff ida vit spoke to the juro r’s ability to p erform on a nuc lear s ubmarine , it contained nothing suggesting that the juror was unable to perform his duties as a juror. In fact, he was elect ed by
the o ther members of the jury to serve as the foreperson.
Sim pl y p ut, Carey’s affidavit failed to show “ that the juror was a bsolutel y disqualified or otherwise legally unqualified to serve as a juror. ” Scaggs , 18 S.W.3d at 283. As a result, the

t ri al court was free to find that Genovesi’s motion for new trial and af fid avit s fail ed to show reasonable groun ds requiring th e tria l court to hold a hearing. See i d. Accordingly, we hold that
the trial court’s decision to forego a hearing on Genovesi’s moti on for new trial was not an abuse
of discretion.
III. We Modi fy th e Ju dgment to Reflect the Proper Degree o f Offense
This C ourt has the power to “reform the judgment

. . . [when] the necessary information
is available for us to do so.” Rodriguez v . Sta te , 6 75 S.W.3d 54, 57 (Tex. App.

— San Antonio
2023 , no pe t. ) (ci ti ng T EX
. R. A PP
. P. 43. 2 (b )); see Bigley v . State , 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)

. “ Th is authority to reform incorrect judgments is not dependent upon a party ’ s request, no r d oes it depe nd on a party ’ s objection at trial. ” Williams v. State , 9 11 S. W.2d 788,
791 (Tex . App.

— San Anton io 1995 , no pet. ) (citin g Asberry v. State , 813 S.W.2d 526, 529

– 30 (Tex. App.

— Dallas 1991, pet. ref ’ d)). The State charged Genovesi with terror ist ic threat, which is a third

- degree felony. T EX
. P ENAL C ODE A NN
. § 22 .0 7(e ). Under the head ing “ Degree of O ffense ,” the jud gment co ntains11

the phras e “3 RD DEGREE FELONY ENHANCED TO 2 nd DEG REE FELONY.” Although the
State included a punis hment enhancement a llegation , it only allowed Genovesi to “be punished for a felony of t he se cond d egree.” T EX
. P E NAL C ODE A NN
. § 12.42(a) (em phasis a dded ). In other words, w hile the enhancement allegation w as used to elevate Genovesi’ s punishment
range, it did not chang e the classif ication of the underlying offense. See id

. ; Ford v. State , 334
S.W .3 d 230, 234

– 35 (T ex. Crim. App. 2011); State v. Rosse au , 398 S.W.3d 769, 776 (Tex. App.

— San Antonio 2011) (citin g Calton v. State , 176 S.W.3d 231, 233 (Tex. Crim. App. 2005) ) ,

a ff ’ d , 396 S .W.3d 550 (Tex. Crim. A pp. 2013)

. As a result, the judgme nt ’ s reci tation that
Genovesi’ s degree of offense was a s econd

- de gree felony is incorrect, and we must modify the
trial cour t ’ s judgment to reflect the proper degree of offense.
IV. Dispo si tion
We modify the trial court ’ s judgment to refl ect that Genovesi w as convic ted of a third

degree felony. As modified, we affirm the trial court ’ s judgment.

Jeff Rambin Justice
D ate Submitted: February 7 , 2024 Date Decided: February 28 , 202 4
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