Opinion
No. 05-10-01604-CR
08-13-2012
RICHIE LEE WILSON, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM;
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-01190-N
OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Myers
Appellant Richie Lee Wilson was convicted of aggravated assault on a public servant and sentenced to eight years in prison. In five points of error, he contends the trial court erred by (1) refusing to include a lesser included offense instruction in the jury charge; (2) including incorrect definitions of "intentionally" and "knowingly" in the jury charge; (3) failing to include the statutory definitions of "intentionally" and "knowingly" in the charge; (4) preventing Dr. Andrew Brylowski from testifying as a fact witness; and (5) excluding Dr. Brylowski from testifying as an expert witness. We affirm the trial court's judgment.
Background and Procedural History
On the morning of January 2, 2007, three Grand Prairie police officers executed an arrest warrant for appellant at his home on Ralph Street in Grand Prairie, Texas. The officers were Joel Handley, Jon Witherspoon, and the complainant, Ronald Siebert. They were wearing standard police uniforms.
When the officers knocked on the front door, a woman later identified as appellant's mother, Deborah Wilson (Wilson), asked them who they were and what they wanted. The officers identified themselves and told her they had a warrant for appellant's arrest. When Wilson eventually opened the door, one of the officers could see appellant standing behind her. Wilson tried to shut the door, and Siebert put his foot in the door to prevent it from closing. Then, according to Witherspoon and Handley, appellant reached over his mother's shoulder and punched Siebert in the head. Siebert fell backwards and tumbled off the porch. The other officers forced the door open and entered the house.
After entering the residence, Handley and Witherspoon asked for Siebert's assistance in handcuffing appellant and subduing Wilson, but Siebert just stood in the living room of the house with a pair of handcuffs in his hands, looking at the officers. Both Handley and Witherspoon noted this was not normal behavior for Siebert, who had been a police officer for over twenty-five years. Handley testified that Siebert seemed "disconnected mentally," and that Siebert had a "red mark" on the left side of his face. Witherspoon noticed Siebert "was loopy." Handley and Witherspoon used their tasers to subdue appellant.
After appellant was placed under arrest and driven to the jail, Siebert went to an urgent health care center in Grand Prairie on January 2, 2007, where he was examined by Dr. Richard Fleischer. Dr. Fleischer observed a mild swelling on Siebert's left cheek and chin area. Dr. Fleischer recommended Siebert not work until January 5, 2007. Dr. Fleischer also saw Siebert on January 3, 2007. The doctor ordered a CT scan, which showed no structural injuries, and diagnosed Siebert as having "concussion and post-concussion syndrome." Dr. Fleischer saw Siebert again two days later, on January 5, at which time he recommended Seibert not work until January 12. Dr. Fleischer noted that Siebert showed "continuing symptoms" of "memory loss" and "slow speech and confusion." Based on the symptoms he observed in Siebert, Dr. Fleischer referred him to a neurologist. On April 25, 2007, Dr. Fleischer also referred Seibert to Pate Rehabilitation Center.
Dr. Katherine Oden, Ph.D., was a neuropsychologist who worked at Pate Rehabilitation Center, in Dallas. She testified that Siebert was referred to the hospital for worker's compensation treatment because, after the incident, his friends noticed his behavior was "very different." Dr. Oden testified that she was familiar with the definition of "serious bodily injury" in the Texas Penal Code. According to Dr. Oden, the injury Siebert sustained from appellant's punch "fit the definition" in that it had a "prolonged effect" on his brain and would "not allow him to use his brain in a reasonable way any longer, following the injury."
Dr. Oden testified that, after the injury, Siebert was no longer "able to function like a normal man of his age." He had language and memory problems, had trouble paying his bills on time, was very uncomfortable driving a car, slept for large parts of the day, and did not keep himself properly bathed or groomed. Dr. Oden testified that Siebert had especially enjoyed country and western dancing, which "was his major form of recreation." But after the injury, Siebert was no longer able to dance because his "body rhythm was off," and because of his continuing language and memory problems. Siebert would also "forget to eat," and he lost approximately twenty pounds "because he just didn't eat." Dr. Oden observed that Siebert "was very sad and upset at times, and he just didn't care really whether he ate or not." Dr. Oden testified that these symptoms were consistent with having suffered a head injury.
Dr. Oden authenticated a medical report from the neurologist, Dr. Frederick Todd, who had been treating Siebert for headaches prior to the incident. Dr. Todd conducted a neurological evaluation of Siebert on January 10, 2007, and diagnosed Siebert as having a "cerebral concussion with no intra-cranial injury identified." Dr. Todd recommended Siebert remain "in off-work status."
After a March 12, 2007 follow-up visit, Dr. Todd's diagnosis was that Siebert suffered a "[s]evere closed-head injury and cerebral contusion." The State also offered the testimony of Officer David Schinpaugh, a friend of Siebert's, who described Siebert as "police officer's police officer." Schinpaugh testified that Siebert had memory, grooming, and concentration problems after January 2, 2007, but did not suffer from such problems prior to that date. Siebert died of myelodysplastic syndrome, a blood disorder, in 2009.
The defense offered testimony from several doctors. In addition to Dr. Fleischer, appellant presented the testimony of Dr. Nivens, who treated Siebert in 2004, and in 2007 and 2008, for chronic insomnia. Dr. Nivens prescribed a number of medications for Siebert, including Doxepin, Diazepam, Hydrocodone, Vicoprofen, as well as Levaquin and Clindamycin, which are antibiotic medications. Dr. Nivens noted that Siebert had a long history of suffering from cluster headaches.
He is identified in the record as "Dr. Nivens."
Dr. Nivens ordered blood tests on Siebert in April of 2004 and November of 2005. Dr. Nivens testified that the April 2004 blood test showed Siebert's monocytes and his platelet count were "out of range," as were Siebert's white blood cells, red blood cells, neutrophils, lymphocytes, monocytes, and platelets in the November 2005 test. Dr. Nivens testified that after each blood test, Siebert was instructed to return in one month to repeat the testing, but Siebert did not return for the follow-up testing. Dr. Nivens also examined Siebert in April of 2007, at which time he ordered another blood test that showed the values for Siebert's white blood cells, red blood cells, hemoglobin, MCV, and platelets were outside of the normal range. As a result of these findings, Dr. Nivens referred Siebert to Dr. Gerald Edelman, a hematologist/oncologist. Dr. Nivens did not have an opinion, based on his observation and treatment of Siebert, whether the officer had suffered serious bodily injury, nor did he have an opinion as to whether Siebert had suffered a brain injury.
Dr. James Alman, who first treated Siebert in 2005 for cluster headaches, testified that Siebert was diagnosed as suffering from headaches at nineteen years of age. Dr. Alman testified that Siebert told him he had been prescribed Tramacet, Xanax, Imitrex, and "sometimes had been given Demerol." Dr. Alman testified that the Xanax was prescribed for sleep, Imitrex was for migraine headaches, and Demerol is a pain medication. Dr. Alman ordered a blood test for Siebert that showed Siebert's white blood cell and platelet counts were "low." Dr. Alman contacted Siebert and asked him to come in for another appointment, but Siebert did not do so. Dr. Alman referred Siebert to Dr. Kevin Conner, a neurologist, for treatment of the headaches.
Dr. Kevin Conner treated Siebert for cluster headaches from 2005 to 2008. Dr. Conner testified that Siebert complained of having cluster headaches since he had been in the Navy thirty- three years earlier. Siebert told Dr. Conner he had suffered three concussions in the previous ten years. When Dr. Conner started treating Siebert, the officer also said he had been prescribed Imitrex, Xanax, Darvocet, and Demerol. Dr. Conner explained that Imitrex is used for treating cluster and migraine headaches, Xanax is for anxiety, Darvocet is for headache relief, and Demerol is a pain medication. Dr. Conner continued prescribing these medications to Siebert.
Dr. Conner testified that two of the medications he prescribed for Siebert-Xanax and Demerol-are the types of medications to which a patient may become addicted. Dr. Conner stated that taking Demerol and Xanax in excess would make a person "sluggish, kind of lethargic, and maybe slow your speech a little," and could impact the person's thinking process. Dr. Conner testified that, at times, he had concerns Siebert was taking his medication in excess. But Dr. Conner also testified that "we would have discussions and quantities were watched very closely with him. And he actually abided by the quantity restrictions that I put into place." Dr. Conner stopped writing Demerol prescriptions for Siebert some time in October of 2006, when he referred Siebert to a pain management physician, Dr. Berlin. Dr. Conner saw Siebert again on April 6, 2007, after the injury, at which point he observed Siebert had "stuttered speech." Dr. Conner testified that someone taking an excessive amount of narcotics would typically have slurred, not stuttered speech. Dr. Conner's notes from the examination also indicate Siebert was "[s]lowly getting better," used a notebook, was "doing okay with coordination," and had "essentially stopped all of his outside activities for two months." He was "[e]asily overwhelmed." Siebert "[d]rove to the office and that's the most he's driven so far."
Dr. Conner explained that pain management involves "more aggressive pain management with patients. They will do procedures, nerve blocks, write the narcotics and just continue with the pain management aspect."
In January of 2007, Dr. Michael Todora, a radiologist, was asked to interpret an MRI taken of Siebert. Dr. Todora testified the MRI showed no evidence of trauma, but did show "white matter abnormalities," which Dr. Todora noted are "generally unspecific." Dr. Todora did not find any evidence of a concussion. On cross-examination, Dr. Todora agreed there are differences between structural and functional brain injuries, and the fact that an MRI reveals no trauma does not mean a person does not have a concussion--one could suffer a concussion with no indication of trauma on an MRI. Dr. Todora had no clinical opinion as to whether Siebert had suffered a concussion. Dr. Todora added, however, that he "would have expected to see at least something abnormal on the MRI, but I didn't."
In the summer of 2007, Dr. Gerald Edelman, an oncologist and hemotologist, diagnosed Siebert as suffering from myelodysplastic syndrome. Dr. Edelman testified that it was impossible to determine when the officer first acquired the blood disorder. On cross-examination, Dr. Edelman agreed myelodysplastic syndrome would not cause problems with memory loss, speech, driving, writing, or multitasking. Dr. Edelman also agreed that myelodysplastic syndrome would not cause a person to not remember to bathe; have difficulty dancing where that person had been a good dancer; or be unable to catch a ball with two hands. On redirect examination, Dr. Edelman agreed that a diagnosis of a disease like cancer could cause a person to become depressed, and that a depressed person could become fatigued and experience problems with memory or "those kinds of things."
In his brief, appellant quotes testimony from Dr. Edelman that "disease fatigue" is a "presenting symptom" of myelodysplastic syndrome. Dr. Edelman offered this testimony at a sub rosa examination outside of the jury's presence; he did not provide such testimony before the jury.
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Appellant was indicted for aggravated assault on a public servant. The indictment alleged that on or about January 2, 2007, he:
did unlawfully then and there intentionally, knowingly and recklessly cause serious bodily injury to another, namely, R. Siebert, hereinafter called complainant, by STRIKING COMPLAINANT WITH DEFENDANT'S HAND, and said complainant was at the time of the offense a public servant, namely: a City of GRAND PRAIRIE Police Officer, engaged in the lawful discharge of an official duty, and said defendant knew that the said complainant was a public servant[.]The jury convicted appellant and the trial court sentenced him to eight years in prison. This appeal followed.
Discussion
Lesser Included Offense
The court overruled the objection and submitted a charge to the jury that only included the offense of aggravated assault on a public servant.
In his first point of error, appellant contends the trial court erred by refusing to include a lesser included offense instruction in the jury charge.
After both sides rested, the court asked counsel if they had any objections to the charge. The defense made the following objection: Yes, Your Honor. We object to the exclusion of a lesser included offense. In terms of the element of serious bodily injury, we believe that evidence has raised the distinction to the doctor's testimony that the symptoms that Officer Siebert was showing were from disease and drug use and not from injury.
Our first duty in analyzing a jury charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citations omitted). If we find error, we analyze that error for harm. Id. The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. Under Almanza, jury charge error requires reversal when the defendant properly objected to the charge and we find "some harm" to his rights. Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).
To determine whether the lesser included offense instruction requested by appellant should have been given, we follow a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (plurality op. on reh'g).
The first step asks whether the lesser included offense is included within the proof necessary to establish the offense charged. McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). We compare the statutory elements and any descriptive averments in the indictment for the greater offense with the statutory elements of the lesser offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010); Ex parte Watson, 306 S.W.3d 259, 263 (Tex. Crim. App. 2009); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007); see also Tex. Code Crim. Proc. Ann. art. 37.09. This step is a question of law. Hall, 225 S.W.3d at 535.
The second step is to determine if there is some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of only the lesser included offense. Guzman v. State, 188 S.W.3d 185, 188-89 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). The evidence must establish the lesser included offense as "a valid rational alternative to the charged offense." Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008); see also Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011). We review all of the evidence presented at trial. Hayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 673. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). But in determining whether the evidence raises the requested lesser included offense, we do not consider the credibility of the evidence or whether it conflicts with other evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).
Here, only the second step of the analysis is in dispute. A person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1). Assault is a third degree felony if committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. Id. § 22.01(b)(1). Section 22.02 of the penal code defines an aggravated assault as one in which the person commits assault under 22.01 and causes serious bodily injury or uses or exhibits a deadly weapon during the assault. Id. § 22.02(a). Aggravated assault is a first degree felony if committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. Id. § 22.02(b)(2)(B). "Assault by committing bodily injury is a lesser-included offense of aggravated assault by inflicting serious bodily injury." Hall, 225 S.W.3d at 531.
To be entitled to an instruction on the lesser included offense of assault on a public servant, however, some evidence must show that, if appellant is guilty, he is guilty of only the lesser included offense. The record does not contain such evidence. Appellant argues he presented evidence that Siebert's symptoms were caused by the officer's myelodysplastic syndrome, and/or by the abuse of prescription drugs. But appellant did not present evidence that the symptoms the State attributed to brain injury were actually caused by an undiagnosed cancer or "disease fatigue." Appellant also failed to present evidence that Siebert's symptoms were caused by the abuse of prescription drugs. There is, for example, no evidence Siebert actually abused his medications or took them in excess. While the evidence shows Siebert took a number of prescription medications over the course of his medical treatment, it does not show what quantities of medication he took at a given time; what specific side effects he experienced; or that he exhibited symptoms of prescription drug abuse prior to January 2, 2007. Moreover, the evidence regarding potential side effects of Siebert's prescription medications does not account for all of the symptoms he experienced after January 2, 2007, such as deficits in memory and visual functioning, inability to follow complex commands, and inability to dance--activities that, according to testimony, Siebert had no difficulty with prior to January 2, 2007. As for appellant's contention that the punch did not cause Siebert serious bodily injury, while there is evidence that the initial outward physical manifestations of the punch were mild, we see no evidence that would permit a rational jury to find appellant caused Siebert only bodily injury.
The evidence in this case simply does not establish assault on a public servant as "a valid rational alternative to the charged offense." Segundo, 270 S.W.3d at 91. Based on all the evidence presented, we therefore conclude the trial court did not err by not instructing the jury on the lesser included offense. We overrule appellant's first point of error.
"Intentionally" and "Knowingly"
In his second point of error, appellant contends "[t]he trial court erred by including incorrect definitions of 'intentionally' and 'knowingly' in the jury charge," and that appellant suffered egregious harm because of this error. In his third point, appellant argues "[t]he trial court erred by failing to include the statutory definitions of 'intentionally' and 'knowingly' in the jury charge," and that appellant was likewise egregiously harmed by this error. In reviewing a claim of jury charge error, we first decide whether error actually exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If we find that error exists, we analyze the error for harm. Id. But when the defendant failed to object to the charge error, we will not reverse unless the record shows .egregious harm" to the defendant. Id. at 743-44 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).
Section 6.03 of the penal code "delineates three 'conduct elements' which may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct." Cook v. State, 884 S.W.3d 485, 487 (Tex. Crim. App. 1994). Aggravated assault by causing serious bodily injury is a result-oriented offense. See, e.g., Johnson v. State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012); Landrian v. State, 268 S.W.3d 532, 533 (Tex. Crim. App. 2008); Johnson v. State, 271 S.W.3d 756, 761 (Tex. App.--Waco 2008, pet. ref'd); see also Peterson v. State, 836 S.W.2d 760, 765 (Tex. App.--El Paso 1992, pet. ref'd) (aggravated assault on peace officer "is considered a 'result' type crime"). The culpable mental state definitions in the charge must be tailored to the conduct elements of the offense. Cook, 884 S.W.2d at 487. "It is error for a trial judge to not limit the definitions of the culpable mental states as they relate to the conduct elements involved in the particular offense." Id. at 491. In this case, the abstract portion of the court's charge defined "intentionally" and "knowingly" as follows:
A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct.See Tex. Penal Code Ann. § 6.03(a), (b). The State does not dispute that the court's charge incorrectly defined "intentionally" and "knowingly." Appellant was charged with a "result of conduct" offense. The trial court should not have defined the culpable mental states in terms of the "nature of his conduct." See Cook, 884 S.W.2d at 491. But appellant did not object to the charge error, so we review the record to determine whether the error could have caused "egregious harm" to appellant. Almanza, 686 S.W.2d at 171. To meet this standard, the error must be so harmful it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). We consider (1) the entire jury charge, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. See Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); Almanza, 686 S.W.2d at 171.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist (emphasis added).
The application paragraph of the charge reads as follows:
If you find and believe from the evidence beyond a reasonable doubt that the defendant, Richie Lee Wilson, on or about January 2, 2007, in Dallas County, Texas, did then and there intentionally or knowingly cause serious bodily injury to another, namely R. Siebert, hereinafter called complainant, by striking complainant with defendant's hand, and said complainant was at the time of the offense a public servant, namely: a City of Grand Prairie Police Officer, engaged in the lawful discharge of an official duty, and said defendant knew that the said complainant was a public servant, you will find Richie Lee Wilson guilty of aggravated assault of a public servant, as charged in the indictment. If you do not so find, or if you have a reasonable doubt, you will find the defendant not guilty.
The court of criminal appeals has noted that when, as in this case, the application paragraph in the charge correctly instructs the jury, an error in the abstract paragraph is not egregious. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Hogg v. State, No. 05-10-00231-CR, 2011 WL 2685968, at *4 (Tex. App.--Dallas July 12, 2011, pet. ref'd) (not designated for publication). In a per curium, unpublished opinion, the court later concluded that an appellate court improperly limits its harm analysis when it does so without addressing the other Almanza factors. See Dougherty v. State, No. PD-1411-05, 2006 WL 475802 at *1 (Tex. Crim. App. March 1, 2006) (per curium) (not designated for publication) (citing Almanza, 686 S.W.2d at 157). In Dougherty, the appellate court had determined that error in the abstract portion of the charge did not cause egregious harm because the application paragraph properly instructed the jury. The court of criminal appeals concluded the appellate court correctly set forth the standard of review for assessing harm, but a harm analysis based on charge error could not be based only on the jury charge, and must include consideration of all the Almanza factors. Id. But see Dougherty v. State, 188 S.W.3d 670, 670-71 (Tex. Crim. App. 2006) (Keller, P. J., dissenting) (concluding erroneous abstract paragraph remedied by proper application paragraph without necessity of considering all Almanza factors). Therefore, we turn our attention to the four Almanza factors. See Almanza, 886 S.W.2d at 171.
The first Almanza factor requires consideration of the entire jury charge. See id. Although the abstract portion of the charge erroneously defined .intentionally. and .knowingly,. the application paragraph correctly limited the culpable mental states to the appropriate conduct element. See Medina 7 S.W.3d at 640; see also Urquiza v. State, No. 08-08-00016-CR, 2010 WL 1230664, at *2 (Tex. App.--El Paso March 31, 2010, no pet.) (not designated for publication) (despite incorrect definition of "knowingly" in charge's abstract, application paragraph correctly applied the law); Taylor v. State, No. 05-01-00197-CR, 2003 WL 22449157, at *3 (Tex. App.--Dallas Oct. 29, 2003, no pet.) (not designated for publication) (assuming without deciding that charge erroneously defined "intentionally" and "knowingly," application paragraph correctly limited applicable mental states to appropriate conduct element). Appellant does not contend the application paragraph incorrectly applied the law. We presume the jury followed the instruction in the charge; appellant has failed to argue or show otherwise. See Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996). The charge as a whole does not weigh in favor of egregious harm. With respect to the second Almanza factor to be considered, the .state of the evidence,. the defense at trial was that the punch did not cause Siebert's brain injury, not that appellant did not intentionally or knowingly cause injury. Appellant did not argue he lacked the requisite culpable mental state to commit the charged offense. This factor does not suggest appellant was egregiously harmed.
As to the third Almanza factor, .arguments of counsel,. although the prosecutor briefly mentioned "intentionally" and "knowingly. at the beginning of her argument, the erroneous instructions were not highlighted or relied on by the State. Instead, both sides focused on whether appellant's punch caused Siebert serious bodily injury. We find nothing in the closing arguments to indicate appellant was egregiously harmed.
Finally, with regard to the final Almanza factor, appellant has not identified and we are not aware of any .other relevant information. we should consider. Thus, in light of the Almanza factors, we are unable to conclude appellant suffered egregious harm. Appellant's second and third points are overruled.
Dr. Andrew Brylowski
In his fourth point of error, appellant argues the trial court abused its discretion by preventing Dr. Andrew Brylowski from testifying at trial as a fact witness. In his fifth point, appellant contends that if Dr. Brylowski was offered by the defense as an expert, the trial court abused its discretion by excluding his testimony.
Prior to the start of trial, the State filed a motion to disclose experts under article 39.14(b) of the code of criminal procedure. Article 39.14(b) provides as follows:
On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins.Tex. Code Crim. Proc. Ann. art. 39.14(b). The trial court granted the State's motion, ordering disclosure of names, addresses, and telephone numbers "of each person who the Defendant and the attorney for the Defendant may use to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence."
During its case-in-chief, the defense sought to present testimony from Dr. Andrew Brylowski, who testified out of the jury's presence that he examined Siebert in 2008 as part of the officer's worker's compensation claim. The defense did not ask Dr. Brylowski specific questions regarding qualifications or specialized knowledge, but Dr. Brylowski described himself as a "psychiatry and pain management physician," and testified that he conducted a neurological, "general physical," and "musculoskeletal" examination of Siebert. After examining Siebert, Dr. Brylowski had to assess the officer's "date of maximum medical improvement," then "determine any impairment rating" based on "formulas that are statutorily applied." Dr. Brylowski found Siebert at "maximum medical improvement" on April 7, 2008, and determined the officer's impairment "was 5 percent whole person impairment," based on "mild speech reception/expression deficits." Dr. Brylowski estimated he spent "about an hour" with Siebert "[f]ace-to-face."
The State objected to Dr. Brylowski's testimony on the grounds that the defense failed to comply with the court's pretrial order requiring disclosure of all expert witnesses. The relevant portion of the record reads as follows:
[PROSECUTOR]: . . . The State had filed a request to notice potential defense experts. Defense counsel complied and filed his potential defense experts on October 20, 2009. Dr. Brylowski is not on this list. Based on that, I would argue that he should not be allowed to testify.
There is case law that states even with no showing of bad faith the trial judge may refuse to permit an expert to testify when the defense has not given the required notice of the expert's identity to the State before trial.
THE COURT: Response from [defense counsel].
[DEFENSE COUNSEL]: Your Honor, Dr. Brylowski has actually had contact and done an examination of the complainant in this case, and we would offer his testimony in terms of that rather than asking--
THE COURT: But the State's complainant [sic] is notice. So the Court would be interested in your response concerning lack of notice that the State has requested.
[DEFENSE COUNSEL]: I'm not sure that there is any, Your Honor. Notice in terms of Dr. Brylowski has been subpoenaed the last two times.
THE COURT: But the State requested notice of defense experts, is what they indicate.
[DEFENSE COUNSEL]: I understand.
THE COURT: So the Court is interested in your response. I think you just said there is none.
[DEFENSE COUNSEL]: In terms of amending the list of experts, no, I did not.
THE COURT: Is there any compelling reason the Court should entertain the testimony of this witness since he was not given to the State in terms of notice?
[DEFENSE COUNSEL]: Judge, I believe Dr. Brylowski can bring insight in the same way the State has offered Dr. Oden; to look at--to both assess the person and look at the records in terms of the defense wishing to present an expert doing the same thing. I would suggest to the Court that that would be a compelling reason in terms of parody [sic] or due process.
THE COURT: Response from the State.
[PROSECUTOR]: Judge, I can argue that actually his testimony is cumulative. He gives--although he gives different percentages of impairment rendered Ronald Siebert to be permanently impaired due to the work related injury. Proper notice was not given. His testimony is only going to mislead the jury as to the ultimate issue that they are here to decide.
THE COURT: The State's objection is sustained.
We review a trial court's decision to admit or exclude evidence, including the determination of whether a witness is qualified to testify as an expert, under an abuse of discretion standard. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995); Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989), abrogated on other grounds, Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998); Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.--Austin 2001), aff'd on other grounds, 92 S.W.3d 531 (Tex. Crim. App. 2002). The trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). We will uphold the court's decision if it is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). And we may uphold the trial court's ruling if it is correct under any theory of law applicable to the case. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 1988).
Beginning with appellant's argument that the trial court abused its discretion by refusing to allow Dr. Brylowski to testify as a fact witness, appellant appears to argue that Dr. Brylowski was not an expert witness. But defense counsel's sub rosa examination of Dr. Brylowski shows that Dr. Brylowski was being offered as an expert. Defense counsel told the court Dr. Brylowski "can bring insight in the same way the State has offered Dr. Oden; to look at--to both assess the person and look at the records in terms of the defense wishing to present an expert doing the same thing." (emphasis added). Appellant has not shown the trial court abused its discretion by excluding Dr. Brylowski from testifying as a fact witness.
Turning to appellant's fifth point, he does not dispute the lack of notice to the State, but argues the trial court abused its discretion by preventing Dr. Brylowski from testifying as an expert because (1) the failure to disclose did not constitute bad faith; (2) the State reasonably could have anticipated Dr. Brylowski would testify. See Johnson v. State, 233 S.W.3d 109, 115 (Tex. App.--Houston [14th Dist. ] 2007, no pet.) (setting forth two factors for appellate court to consider in determining whether trial court abused its discretion in excluding testimony on grounds of failure to timely disclose expert witness).
There is no indication defense counsel acted in bad faith by not disclosing Dr. Brylowski to the State. But as to the second factor, although appellant asserts the State could have anticipated Dr. Brylowski's testimony because the defense twice subpoenaed him, there has been no showing the State was aware of the prior subpoenas, received copies of them, or was otherwise notified. In addition, appellant failed to establish that Dr. Brylowski was an expert. Dr. Brylowski did not testify regarding his educational background, quantify his experience, or identify specific training or experience that would qualify him to testify as an expert. We conclude the trial court did not abuse its discretion by excluding Dr. Brylowski from testifying as an expert. We overrule appellant's fourth and fifth points of error.
We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101604F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICHIE LEE WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01604-CR
Appeal from the 195th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 07- 01190-N).
Opinion delivered by Justice Myers, Justices Morris and Moseley participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 13, 2012.
LANA MYERS
JUSTICE