Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 66th District Court Hill County, Texas Trial
Court Nos. 38, 865 and 38, 866, Honorable Alan M. Mayfield,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. Campbell Justice
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.
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,  and tampering with or fabricating physical
evidence.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.
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.
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
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
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.
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.
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).
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). We note also that by its
2013 amendments, the Legislature retained in article 39.14(a)
the concept that discovery applies to items
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. 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, 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