Kesha Michele Mitchell v. The State of Texas--Appeal from County Court at Law No 2 of Fort Bend County

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State: Texas

Court: Texas Northern District Court

Docket No: 14-08-00807-CR

Case Date: 12/22/2009

Plaintiff: Kesha Michele Mitchell

Defendant: The State of Texas--Appeal from County Court at Law No 2 of Fort Bend County

Preview:Affirmed and Memorandum Opinion filed December 22, 2009.

In The

Fourteenth Court of Appeals
NO. 14-08-00807-CR KESHA MICHELE MITCHELL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 2 Fort Bend County, Texas Trial Court Cause No. 130026

MEMORANDUM OPINION
Appellant Kesha Michele Mitchell appeals her conviction for misdemeanor theft. In her sole issue, appellant contends the trial court erred in allowing a witness who was not listed in the State`s discovery response to testify at trial over her objection. We affirm. BACKGROUND Appellant was arrested on March 2, 2007 for allegedly stealing four items of clothing from the Macy`s department store in Sugar Land. She was later charged with misdemeanor theft of merchandise valued at $50 or more but less than $500.

At trial, the State`s only witness during its case in chief was Moses Ramirez, the loss prevention manager for the Sugar Land Macy`s at the time of the incident. He testified that he noticed appellant was carrying a bag when she entered the store. Ramirez stated that because it is common practice for people to bring bags to the store as a way to conceal merchandise they intend to steal, he began video and visual surveillance of appellant. Ramirez watched appellant pick out several clothing items and take them into a fitting room. He waited outside the fitting room and asked Crystal Rodriguez-- another Macy`s loss prevention officer--to wait inside the fitting room while appellant was in a changing room. Ramirez stated that after appellant left the changing room, the bag she carried into the store was visibly larger than when she entered. Appellant returned a few items to the racks and then proceeded to the checkout line to pay for other items. Ramirez testified that he saw at least one item in appellant`s bag that she did not return to a rack and did not pay for. Once appellant left the store, Ramirez confronted her and identified himself as a loss prevention officer. He brought her back into the store, and the police were called. Ramirez recovered four articles of clothing with tags still attached in appellant`s bag that appellant had not purchased. Appellant claimed she had purchased the items from another Macy`s and produced receipts for the recovered items. Ramirez testified he inspected the receipts and found that the recovered merchandise and the receipts did not match. He also stated that appellant eventually admitted taking the merchandise without paying for it. Ramirez kept appellant in the store until the police arrived, at which point she was arrested. Appellant testified that she already owned each of the four items she was accused of stealing. She stated that she would occasionally bring items she had previously purchased into a store so that she could match them to new clothes. Appellant reasoned that her bag appeared larger when she left the fitting room because she did not re-fold her clothes. She also stated that she left all of the items she did not purchase in the changing 2

room and that the receipts she showed to Ramirez and Rodriguez were for the four recovered items. Appellant denied confessing to Ramirez and Rodriguez. The State then called Ramirez back to the stand in rebuttal. The State asked Ramirez whether any items matching the recovered merchandise were found in the fitting room after appellant exited. The trial court sustained appellant`s hearsay objection to this line of questioning since Ramirez never personally entered the changing room. Ramirez then testified that he asked Rodriguez to enter the changing room right after appellant exited. The State then called Rodriguez as a second rebuttal witness. Appellant objected to Rodriguez`s testimony because she had not been notified that Rodriguez would be called as a witness. The trial court overruled the objection and allowed Rodriguez to testify. Rodriguez testified that she had participated in the surveillance and apprehension of appellant at Macy`s. She stated that she waited for appellant to leave the changing room, and then entered and discovered that appellant had left several items of clothing in the room, none of which matched the four items eventually recovered from appellant. Rodriguez also recalled that appellant admitted stealing the recovered items. Rodriguez repeatedly stated that appellant removed the recovered items from racks in the store, took them into the fitting room, and then exited the store without paying for them. The jury found appellant guilty and the trial court sentenced appellant to 180 days in jail, probated for 15 months. Appellant`s sole issue on appeal is that the trial court improperly allowed Rodriguez to testify because she had not been disclosed as a potential State`s witness. The trial court issued a pre-trial discovery order requiring the State to disclose [a] list of all State`s witnesses in [State`s] case in chief and punishment to be filed in Court`s file ten (10) days before trial and a list of rebuttal witnesses when known by the State. It is undisputed that the State never provided written notification of Rodriguez`s identity as a possible witness.

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ANALYSIS The State should disclose witnesses in response to a discovery order if they will be used at any stage in the trial. Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. [Panel Op.] 1981). However, the State is not typically required to disclose rebuttal witnesses because it cannot foresee the theories or evidence the defense will present at trial. See Beets v. State, 767 S.W.2d 711, 747

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