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William Darwin Brown Jr. v. The State of Texas
Case Number: 09-17-00403-CR
Judge: STEVE McKEITHEN
Court: Court of Appeals Ninth District of Texas at Beaumont
Plaintiff's Attorney: William J. Delmore III
Defendant's Attorney: Ronald Voyles II
A grand jury indicted Brown for the felony offense of driving while
intoxicated. The indictment alleged that Brown had two prior convictions for
driving while intoxicated and two prior felony convictions. Brown pleaded not
guilty at the trial. The jury found Brown guilty of the offense of driving while
intoxicated – 3rd or more, found the two enhancement paragraphs to be true, and
assessed punishment at sixty years of confinement. Brown appealed.
In issue one, Brown argues that the trial court erred by allowing the
testimony of a fingerprint expert whom the State failed to designate under either
the trial court’s standing discovery order or article 39.14(b) of the Texas Code of
Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 39.14(b) (West Supp.
2018) (providing that upon request, a party who receives a request shall disclose
the name and address of each person the disclosing party may use at trial to present
expert testimony under Rule 702, 703, and 705 of the Texas Rules of Evidence).
Brown complains that it was error for the trial court to allow the expert fingerprint
testimony of Kyle Koonce, because the State did not include Koonce on its list of
potential expert witnesses. Brown asserts that he was unable to investigate
Koonce’s background as an expert witness. Although Brown objected to the late
designation before Koonce testified, the trial court overruled the objection and
allowed Koonce to testify. Upon request by the defense, notice of the State’s
witnesses shall be given. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App.
1993). We review a trial court’s decision to allow an undesignated expert to testify
for an abuse of discretion. See Nobles v. State, 843 S.W.2d 503, 514-15 (Tex.
Crim. App. 1992); Branum v. State, 535 S.W.3d 217, 226 (Tex. App.—Fort Worth
2017, no pet.). In determining whether an abuse of discretion occurred, we
consider whether there is any showing of bad faith on the part of the prosecutor in
failing to provide the name of the witness, and whether the defendant could have
reasonably anticipated that a fingerprint witness would testify. See Branum, 535
S.W.3d at 226; Gowin v. State, 760 S.W.2d 672, 674 (Tex. App.—Tyler 1988, no
pet.). In determining whether the defense could have reasonably anticipated that
the State would call the witness, we examine the degree of surprise to the defense,
the degree of disadvantage inherent in that surprise, and the degree to which the
trial court was able to remedy that surprise. Hamann v. State, 428 S.W.3d 221, 228
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
The record shows that the trial court’s standing discovery order provides that
on or before the twenty-first day before trial, the State is ordered to furnish the
names, addresses, telephone numbers, and areas of expertise of each person whom
it intends to use at trial to present evidence under Rules 702, 703, and 705 of the
Texas Rules of Evidence. See Tex. Code Crim. Proc. Ann. art. 39.14(b) (West
Supp. 2018). The State’s response to the trial court’s standing discovery order
included a list of anticipated trial witnesses, including experts in fingerprint and
handwriting comparison and analysis. The State’s response included an unnamed
fingerprint and handwriting expert from the Montgomery County Sheriff’s Office,
as well as named investigators from the Montgomery County District Attorney’s
Office who were designated fingerprint experts.
During trial, the State called Kyle Koonce, a crime scene investigator and
latent print examiner with the Montgomery County Sheriff’s Office. Prior to
Koonce testifying, defense counsel objected based on surprise because the State
had failed to disclose Koonce’s name, address, and phone number as required by
the trial court’s standing discovery order. Defense counsel further objected that he
had been unable to research Koonce’s history as an expert. The prosecutor
informed the trial court that, although Koonce had not been identified by name on
the State’s list of witnesses, the State had filed a notice that it would use fingerprint
experts from the Montgomery County Sheriff’s office and the Montgomery County
District Attorney’s office. The prosecutor explained that Koonce would be
testifying solely to prove that the fingerprints on the judgments relevant to
Brown’s prior convictions, were Brown’s, and that this testimony would be the
same as the testimony from the experts the County had timely designated. For
those reasons, the prosecutor claimed Brown would not be harmed. The trial court
overruled defense counsel’s objections, and allowed Koonce to testify and noted
that defense counsel had neither complained that the State’s discovery was
inadequate nor requested a hearing seeking additional information.
The record does not show that the State failed to disclose Koonce in bad
faith. See Branum, 535 S.W.3d at 226. The indictment charged Brown with having
incurred two prior convictions on charges of driving while intoxicated; thus,
defense counsel was on notice that the State would be seeking to prove that he had
incurred the previous convictions when the case went to trial. See Gowin, 760
S.W.2d at 674. Given the response the State filed to the trial court’s standing
discovery order, it would have been reasonable for Brown to anticipate that the
prosecutor would call a Montgomery County employee as a fingerprint
identification expert in Brown’s trial. See Hamann, 428 S.W.3d at 228; Gowin, 760
S.W.2d at 674. Additionally, Brown failed to request a continuance based on the
State’s failure to timely disclose Koonce’s identity, rendering any error harmless.
See Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994); Branum, 535
S.W.3d at 226. Considering the relevant factors, we conclude that the trial court
did not abuse its discretion by allowing Koonce to testify. See Branum, 535
S.W.3d at 226; Gowin, 760 S.W.2d at 674. We overrule issue one.
In issue two, Brown contends that he was entitled to have the jury consider
convicting him on a charge of misdemeanor DWI because the trial court should
have accepted his claim that it was a lesser-included offense of felony DWI under
the facts and circumstances raised by the evidence in his trial.
We apply a two-step test to determine whether a trial court is required to
give a requested instruction on a lesser-included offense. Bullock v. State, 509
S.W.3d 921, 924 (Tex. Crim. App. 2016). The first step is to determine whether the
requested instruction pertains to an offense that is a lesser-included offense of the
charged offense. Id. An offense is a lesser-included offense if (1) it is established
by proof of the same or less than all the facts required to establish the commission
of the offense charged, (2) it differs from the offense charged only in the respect
that a less serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission, (3) it differs from the charged offense
only in the respect that a less culpable mental state suffices to establish its
commission, or (4) it consists of an attempt to commit the charged offense or
otherwise included offense. See Tex. Code Crim. Ann. Proc. art. 37.09 (West
2006); see also Hall v. State, 225 S.W.3d 524, 527 (Tex. Crim. App. 2007).
The record shows that there was no dispute that a misdemeanor driving
while intoxicated offense is a lesser-included offense of a felony driving while
intoxicated offense. Felony driving while intoxicated is nothing more than the
misdemeanor offense enhanced by proof of two prior convictions for driving while
intoxicated. See Tex. Penal Code. Ann. §§ 49.04, 49.09(b); Guess v. State, 419
S.W.3d 361, 367 (Tex. App.—Tyler 2010, pet. ref’d). In this case, the focus of our
analysis is on the second part of the test, which is whether there is some evidence
in the record that would permit a rational jury to find that, if Brown is guilty, he is
guilty only of the lesser-included offense. See Bullock, 509 S.W.3d at 924.
The second step requires that we examine all the evidence admitted at trial.
Id. Anything more than a scintilla of evidence is sufficient to entitle a defendant to
a charge on the lesser offense. Hall, 225 S.W.3d at 536. However, “it is not enough
that the jury may disbelieve crucial evidence pertaining to the greater offense, but
rather, there must be some evidence directly germane to the lesser-included offense
for the finder of fact to consider before an instruction on a lesser-included offense
is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). “If
the evidence raises the issue of a lesser[-]included offense, a jury charge must be
given irrespective of who introduced the evidence and irrespective of whether it is
“strong, weak, unimpeached, or contradicted.’” Guess, 419 S.W.3d at 367 (quoting
Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)).
According to Brown, the jury could have found that the prior judgments
were deficient and that he only committed the lesser-included offense of
misdemeanor driving while intoxicated. The pertinent question is whether there is
evidence from any source that negates or refutes the element establishing the
greater offense, or if the evidence showing the additional element is so weak that it
is subject to more than one reasonable inference. See Schweinle v. State, 915
S.W.2d 17, 19 (Tex. Crim. App. 1996). It is not enough that Brown denied the
additional element of the offense or that the jury could have possibly disbelieved
the State’s evidence. See Hampton, 109 S.W.3d at 441; Guess, 419 S.W.3d at 367.
To prove a prior conviction of an offense, the State must establish, beyond a
reasonable doubt, that a prior conviction exists and the defendant is linked to that
conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). While
evidence of a certified copy of a final judgment and sentence may be a preferred
means to prove these two elements, no specific document or mode of proof is
required. Id. The State may prove these elements in different ways, such as
including fingerprints supported by expert testimony matching them to the
defendants, by offering the defendant’s stipulations or judicial admissions, or by
offering the defendant’s photograph in a penitentiary packet. Id. at 924.
During Brown’s trial, the State offered certified copies of judgments and
sentences from two prior convictions for driving while intoxicated. Koonce
testified that State’s exhibit 29 is an exemplar of fingerprints of Brown that
Koonce made and that State’s exhibit 21 is a judgment which included identifiable
fingerprints that Koonce used to conduct a fingerprint analysis. Koonce explained
that he conducted an analysis and comparison of the fingerprint on State’s exhibit
21 with the known sample of Brown that Koonce took and concluded that exhibit
21 was Brown’s fingerprint. Koonce testified that State’s exhibit 21 is a judgment
showing that William Darwin Brown was convicted of driving while intoxicated, a
Class B misdemeanor.
Concerning State’s exhibit 23, a judgment of conviction for driving with a
child under fifteen years of age while intoxicated, Koonce testified that he was
unable to make a positive identification based on the fingerprint on State’s exhibit
23 because the print recorded was not suitable for comparison. However, Koonce
explained that there was other identifying information on the judgment, including a
Texas state identification number, that helped him to determine that convicted
defendant reflected on exhibit 23 was Brown. Koonce further testified that State’s
exhibit 26, which is Brown’s penitentiary packet, includes the prison system’s set
of Brown’s fingerprints and a copy of the judgment in State’s exhibit 23. Koonce
explained that he analyzed the fingerprints in Brown’s penitentiary packet and
compared them with the fingerprints he took and concluded that they were
After the defense cross-examined Koonce, the State offered Brown’s
penitentiary packet into evidence, which the trial court admitted. Brown’s
penitentiary packet included a photograph, a state identification number,
fingerprints, and State’s exhibit 23. Koonce testified that he used the identifying
information in Brown’s penitentiary packet to identify Brown as the defendant who
had been convicted for driving with a child while intoxicated in April 2013.
Additionally, Brown’s daughter testified that she knew that Brown had been
convicted twice for driving while intoxicated, that one of the convictions involved
a child, and that Brown went to prison in 2013 for the conviction involving the
Because the certified copies of the judgments and sentences were adequate
to establish Brown’s prior convictions beyond a reasonable doubt, we conclude
that there is no evidence from which a jury could rationally conclude that Brown
was only guilty of the lesser-included offense. See Bullock, 509 S.W.3d at 924;
Flowers, 220 S.W.3d at 921, 924; Schweinle, 915 S.W.2d at 19. We further
conclude that the trial court did not err by denying Brown’s request to instruct the
jury on the lesser-included offense of misdemeanor driving while intoxicated.
Outcome: We overrule issue two and affirm the trial court’s judgment.