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Davy v. State

Court of Appeals of Texas, Seventh District, Amarillo

May 5, 2017

LONNIE DOUGLAS DAVY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

         On Appeal from the 66th District Court Hill County, Texas Trial Court Nos. 38, 865 and 38, 866, Honorable Alan M. Mayfield, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          OPINION

          James T. Campbell Justice

         Through four issues appellant Lonnie Douglas Davy appeals his sentences for possession of methamphetamine and tampering with physical evidence. Three of his issues deal with the State's proof of punishment enhancements; the fourth addresses a statement made by the trial judge. We will overrule each of appellant's issues and affirm the judgments of the trial court.

         Background

         By separate indictments appellant was charged with the felony offenses of possession of a controlled substance, methamphetamine, in an amount more than one gram but less than four grams, [1] and tampering with or fabricating physical evidence.[2]Both offenses were alleged to have been committed in August 2015. Both indictments contained two enhancement paragraphs alleging appellant was previously convicted of two felonies.[3]

         The cases were tried together before a jury, and appellant was convicted of both charges. At the punishment phase, appellant plead "not true" to the two enhancement paragraphs. The truth of the enhancement allegations was therefore submitted to the jury. The charge on punishment in each case informed the jury that the indictment alleged "prior to the commission of the offense alleged to have been committed in the Indictment [appellant] was finally convicted of the felony offense of Burglary of Habitation . . . on the 28th day of February, 2002 . . . . [and appellant] was finally convicted of the felony offense of Unlawful Possession Firearm by Felon . . . on the 15th day of January, 2004." Appellant did not object to either charge. In both cases the jury found the enhancements true. It assessed appellant's punishment at forty years' confinement on the possession charge and twenty-five years' on the tampering charge. The trial court imposed the sentences accordingly and ordered that the sentences run concurrently.

         Analysis

         Second Issue

         By his second issue, appellant argues the trial court abused its discretion by admitting punishment evidence not produced by the State, in violation of the Michael Morton Act.[4] The specific item of evidence challenged was appellant's penitentiary packet marked as State's Exhibit 20. It contained a custodian's affidavit, photographs of appellant, two prior judgments of conviction, and a fingerprint card. The first judgment, in McLennan County cause number 2000-580-C, was signed on February 28, 2002, and states it revoked a term of probation for the April 14, 2000 offense of burglary of a habitation. The judgment specifies that on February 28, 2002, a sentence of five years' confinement in prison and a fine of $500 was imposed. Appellant's punishment, according to the terms of the judgment, commenced on February 28, 2002. The judgment also contains the date of appellant's burglary conviction and probation order, that being November 28, 2000. The second judgment, in cause number 2003-1053-C, also from McLennan County, documents appellant's January 15, 2004 conviction for the July 7, 2003 offense of unlawful possession of a firearm by a felon. The judgment specifies that on January 15, 2004, a sentence of two years' confinement in prison was imposed.

         An investigator testifying for the State took appellant's fingerprints during trial and later testified to his opinion the prints on the card in State's Exhibit 20 and the prints he obtained from appellant were "one and the same." The investigator gave the additional opinion, based on his observations of appellant, that the photographs in State's Exhibit 20 were of appellant.

         Appellant objected to the admission of the penitentiary packet on the ground that it had not been produced in response to his discovery request under Code of Criminal Procedure article 39.14. The State argued it described the judgments in its notice of extraneous acts it intended to prove at trial. The court overruled appellant's objection and admitted State's Exhibit 20.

         We review a trial court's ruling on the admission of evidence using an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001). The trial court's evidentiary ruling must be upheld if it is within the "zone of reasonable disagreement." Id.; Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex. Crim. App. 1991) (op. on reh'g).

         The 2013 amendments to Texas Code of Criminal Procedure article 39.14 identified as the Michael Morton Act made significant changes to procedures for discovery in criminal cases. Gonzales v. State, No. 04-14-00222-CR, 2015 Tex.App. LEXIS 7267 (Tex. App.-San Antonio 2015, no pet.) (not designated for publication) (noting Act applies to litigation of offenses that occurred on or after January 1, 2014). As the Fourteenth Court of Appeals has observed, the disclosure requirements described in article 39.14(a) "are triggered only after receiving a timely request from the defendant." Glover v. State, 496 S.W.3d 812, 815 (Tex. App.-Houston [14th Dist.] 2016, pet. refused) (internal quotation marks omitted).[5] We note also that by its 2013 amendments, the Legislature retained in article 39.14(a) the concept that discovery applies to items "designated."

         With regard to appellant's request for discovery in this case, appellant points us only to a motion for continuance appellant filed, which contains a discussion of discovery materials made available by the State. The motion notes that appellant had "requested discovery under Texas Code of Criminal Procedure Article 39.14." But the appellate record does not contain a copy of appellant's discovery request.[6] Without a record showing the items of which appellant sought discovery under article 39.14(a), we are unable to say the trial court abused its discretion by admitting his penitentiary packet as punishment evidence. We overrule appellant's second issue.

         First Issue

         In his first issue, appellant asserts the trial court erred by failing to define the words "final" and "finally, " as applied to the February 28, 2002, and January 15, 2004 judgments, in the punishment-phase jury charges. Appellant is concerned that a juror might have misperceived ...


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