O'RARDEN v. State

recovery of possible waiver of full pellant’s is sus error four proceeds.7 Point of Lawrence Patrick it is

tained, point O’RARDEN, analysis Appellant, of this but to full appellant’s entitlement shown recovery questioned. is Texas, Appellee The STATE five, point appellant claims of error No. 05-88-00513-CR. pro- appellee the award to of the insurance unjust would constitute enrichment. ceeds Texas, Appeals of Court express- It is settled that “issues not well Dallas. ly presented to the trial court written Aug. 1989. motion, response or other shall answer Discretionary Review Refused appeal.” on Tex.R.Civ.P. be considered 20, 1989. 166a(c). Dec. unjust The issue of enrichment presented to the court below. was not

However, previous disposition quite clear that

points of error makes proceeds is un-

appellee’s possession of the guise

der the of a constructive trust. the circumstances

Restatement defines trust. Pursu- creates a constructive

ant to 160 of the Restatement: § holding property person

Where a title to convey equitable duty to an

is to another on the that would be permitted if he unjustly enriched were arises, it, a constructive trust

to retain added).

(emphasis

Consequently, equity acknowledges the

assignment’s validity imposes the con- unjust trust en-

structive basis of of error five is sustained.

richment. Point brings cross

Appellee forward one attorney’s

point regarding the award of This need not be addressed.

fees. reversed, summary judgment

When a parties are not limited to the theories original summary judg in their

asserted subsequent at a trial on the merits. (Tex. Wakefield,

Hudson

1986). is re- judgment of the trial court remanded. and the cause

versed $3,750 $400, exemp- plus up in an unused 522(d)(5), also known as the "wild Section 7. 522(d)(1). appellee did not Even if exempt exemption tion under allows the debtor to card” extent, the the fullest "wild card” to specific, property. In re utilize the any, opposed to appellant is Cir.1987). dispute Patterson, (7th parties as to whether are in Pursu- 825 F.2d 1140 $6,276.92. $7,846.15 or 522(d), may exempt up to recover a debtor entitled ant to section ON MOTION FOR REHEARING ROWE, Justice. jury

After a Patrick Lawrence aggravated O’Rarden was convicted of sex- against ual assault minor dating. daughter of a he had been divorcee jury thirty sentenced O’Rarden years’ unpub- confinement. In our opinion, lished we held that the child victim competent was but that the by denying court erred O’Rarden’s publish jury tape. Accord- video ingly, eighth point we sustained O’Rarden’s judg- error and reversed trial court’s rehearing, ment. On the State’s motion for portion prior opin- we withdraw that sustaining eighth ion error. We do not rule on this otherwise point, however, find alterna- because we tively that we must reverse the trial court’s judgment and remand case for a new upon trial based third and points fourth of error. points

In his third and fourth complains that the trial court in denying erred his motion for continuance and motion for mistrial based discovery favorable evi- dence. Prior to O’Rarden filed a mo- produce exculpatory tion to which thereto, granted. Pursuant prosecuting attorney required brought review all file or his attention and to make available to O’Rarden any evidence favorable to him. granted The trial court also two motions required for the State to produce following to O’Rarden the materi- al:

(1) Any any exculpa- and all evidence of nature, tory whether or orally, that would tend to form the basis of a defense for the Defendant in this case or to excuse the action of the Defendant in this case to miti- or gate any respect action Pierce, Plano, Jeff L. appellant. Defendant in this case. George Roland, McKinney, appellee. (2) Any reports by any expert all STEWART, Before witness, ROWE and examined who has' evi- OVARD, JJ. with this case and dence connected He stated handled the case. tor who report by other was Ra- Dr. Ashworth analyst. he understood trace evidence she had exam- and that pediatrician chael’s (3) all The names of witnesses date of days after the ined Rachael that have the State is aware of provided O’Rarden then offense. He complaining interviewed either from a list address witness, _; Rachael contained witness, names and addresses complaining mother of the recess granting a brief After _; file. State’s Christine or the father Ash- subpoena Dr. to O’Rarden witness, to allow complaining Thomas court witness, morning, the trial _; for the next worth outcry motion for continuance. Bradford, concerning any denied the Becky aspect subject either with its case proceeded The then State any ex- indictment or the Rachael’s solely of chief which consisted offense the State intends to traneous rested, the trial testimony. After the State introduce at the time of trial. proceed to upon the defense court called (4) expert wit- The list of names of all attempt to in chief. In an with its case nesses that have interviewed either defense called Jones impeach witness, complaining Rachael examination, the de- testify. During to its _; or the mother of the com- state- questioned fense Jones about _; witness, plaining Christine the date of Rachael made to her on complaining or the father of the wit- in an effort to show inconsist- the offense ness, Thomas_; outcry or the encies. The defense also examined Jones witness, Bradford, Becky concerning concerning allegations against other abuse the events set forth this indictment sister, Re- Rachael’s O’Rarden any extraneous offense that allegations dis- becca. These had been intends time of State to use at addition, In the de- missed as unfounded. trial, whether or not the State intends began develop evidence that both fense expert to call such witness at girls coached their father had been time of trial. babysitter.2 When court recessed that eve- completed its ning, defense had not day On the first O’Rarden of Jones. examination ceived for the first time the file of Donna Jones, Department the worker morning, allowed next (DHR) investigated Human Resources who interrupt examination of the defense to allegations.1 reviewing the abuse In this Dr. Ash- question Dr. Ashworth. Jones to file, discovered a reference to a in addition testimony revealed that worth’s by Dr. medical examination of Rachael Car- she was an being pediatrician, indicated olyn Ashworth. The reference sexual abuse and had in the area of child Rachael that Dr. Ashworth had examined testified in numerous cases. She testified symp- and concluded there were regular pedia- had that she toms of sexual abuse. she heard of trician since birth. When convinced Ra- allegations, her office questioned,

Before witnesses were bring Rachael chael’s mother orally moved for a continuance pretext of a routine examination under this on the revealed no check-up. Her examination ques- evidence so that he could locate Ash- signs of sexual abuse. When prosecutor replied tion Dr. Ashworth. The about the abuse questioned Rachael had re- worth that he had assumed O’Rarden touch- denied prior prosecu- allegations, Rachael everything from the ceived file, girls’ father subpoenaed defense later showed had and it was 2. The 1. O'Rarden shortly day investigation produced instigated of trial. The entire after on the first day spent mother, gone of trial was on the voir dire first the on a girls, had their and O'Rarden illness, jury panel. prosecutor’s Due to the Thanksgiving together weekend. vacation over granted a one recess the trial which trial resumed. ing.” examination, persons knowledge From this Ash- other case. prosecutor also stated his under worth stated that she that no was satisfied standing of Dr. Ashworth’s connection with abuse had occurred. Moreover, file contained ease. Jones’s Later in the O’Rarden moved specific ex reference to Dr. Ashworth’s suppression mistrial based on the of Rachael. also testified amination contending that she understood that Dr. Ashworth timely disclosure of such evidence would signs found no of sexual abuse. Under significantly have changed his trial strate- Jones, in facts of this it is clear that gy. particular, O’Rarden stated that he capacity investigator, as a DHR theory would not have the same operating agent as an enforcement law of defense and would not have called Jones “prosecution and as a member of the about the extraneous abuse alle- Cates team.” Cf. sister, gations concerning Rachael’s Rebec- 1989) (DHR (Tex.Crim.App., 172-173 inves ca. The trial court denied this motion. Miranda tigator required give warnings Regardless good faith or bad acting purely capacity). unless in civil We prosecution, prosecution’s faith of the the prosecution suppressed the conclude that suppression of evidence favorable of Dr. examina Ashworth’s defendant violates due where such tion of Rachael. guilt evidence is material either to or to must next determine such We whether Bagley, United States v. punishment. 473 evidence was favorable to the defendant. 667, 669, 3375, 3376-77, 105 U.S. S.Ct. 87 evidence, Impeachment exculpa- as as well (1985); Brady Maryland, v. L.Ed.2d 481 tory falls within the definition of 83, 87, 1194, 1196, 373 U.S. 83 S.Ct. 10 because, if favorable evidence disclosed Adams, parte Ex L.Ed.2d 215 768 effectively, may dif- and used make the 281, 288 This acquittal. ference between conviction and rule can be broken into three down distinct 3380; 676, Bagley, 473 U.S. at 105 at S.Ct. 1) suppression factors: of evidence States, 150, Giglio see United 405 U.S. 2) prosecution;3 the favorable charac 763, 766, 154, 92 S.Ct. 31 L.Ed.2d 104 defendant; ter of such evidence for the case, (1972). In this Dr. Ashworth’s testi- 3) of the evidence. Butler mony materiality clearly was favorable to O’Rarden. (Tex.Crim. 670 First, signs she found no of sexual App.1987). We must reverse the conviction days alleged after the offense. Id. only all if three factors exist. Second, Rachael denied she testified that touching.” prior This statement pros if The first factor exists inconsistent her by Rachael was both with actively suppresses evidence or ecution testimony and with state- negligently inadvertently fails to dis to Jones. We conclude the evi- Butler, close it. See 736 S.W.2d at 670. Dr. examination dence of Ashworth’s was “prosecution” includes all members favorable to O’Rarden. “prosecution investigative team” —both prosecutorial no distinction is inquiry is such evi- Our next whether —and agencies different under drawn between is material dence is material. government. United States the same probability only if there is a reasonable Antone, Cir.1979); (5th defense, 603 F.2d disclosed to the Adams, proceeding 768 S.W.2d at 292. would have the result Bagley, prosecutor produced 473 U.S. at been different. 3383; Adams, at address from a list in his file at name and S.Ct. proba- probability” is a included the names and addresses of 291. A “reasonable 106-07, Agurs, recently, prosecution’s United States v. 3. Until courts treated the 2392, 2398-99, (1976). differently We duty L.Ed.2d 342 to disclose in situations where specific pretrial rejected distinction in favor of had made a have now the defendant Bagley, quest opposed approach. 473 U.S. at to situa- for certain evidence uniform Adams, 3383; S.W.2d at 289. no such made. See tions where was 105 S.Ct. hold that there suppressed evidence. We bility sufficient to undermine confidence to undermine probability 473 U.S. sufficient Bagley, of the trial. the outcome 3383; Adams, of the trial that outcome 105 S.Ct. at confidence adversely af- only wit- timing S.W.2d at 291. Since State’s of the disclosure Rachael, credibility presen- ness and relia- preparation was fected bility testimony a critical issue of her was his case. tation of testimony clearly at trial. Dr. Ashworth’s pros- Likewise, that had conclude we factors. If this evidence eroded both these evi- timely disclosed the ecution throughout had remained secret defense, there is a reasonable dence to the materi- we would have no doubt that it was proceed- the result of the probability that al. ing have been different. Viewed would during Since this evidence was disclosed testimony entirety, Jones’s bolstered trial, however, the course of must as- As a impeaching rather than it. proba- sess whether there is a reasonable team, prosecution Jones member of timing bility that the of the disclosure ad- certainly More- was an adverse witness. versely preparation affected the defense’s over, it seems clear from her presentation Bagley, of its case. See firmly that O’Rarden had that she believed Prior to 473 U.S. at 105 S.Ct. at 3384. part based at least abused specifically requested cer- prior allegations respect to her evidence, including informa- tain favorable hand, Ashworth, Dr. on the other sister. Although the tion on witnesses. relatively unbiased. We conclude examination did evidence of testified, totality if had not not fall the strictest construction of within have presented at trial would requests, requests certainly significantly in O’Rarden’s favor. shifted put prosecution on notice of the value Accordingly, there is a we conclude that placed O’Rarden on such evidence. The probability to undermine our con- sufficient requests more the defense cer- specifically that, of the trial had fidence the outcome evidence, tain the more reasonable it is for prosecution timely the favor- disclosed the defense to assume from the nondisclo- proceeding result of the able sure that such evidence does not exist and different. We sustain would have been pretrial to make and trial decisions on that points of error. third and fourth 682-83, Bagley, 473 at basis. U.S. argues The State that O’Rarden at 3383-84. filing preserve by error a properly failed to At O’Rarden this contention raised motion for continuance. sworn written specifically in his motion for mistrial and rule, agree general a a While delayed described how the disclosure af- continuance must be motion for particular, strategy. fected his defense person having personal to a and sworn asserted O’Rarden that he would have knowledge of the facts relied for called Jones to and would not have continuance, this rule is not absolute. questioned allegations the abuse about for party makes an oral motion aWhen record, it is Rebecca. From the continuance, statutory a such motion is not clear that but, rather, eq is addressed to the one more favorable to O’Rarden than Jones’s powers Darty of the trial court. uitable testimony. O’Rarden called Jones to When State, 149 Tex.Crim. opportunity testify, yet he had not had an State, Daigle investigate thoroughly to (Tex.App. no time, At the connection to this case. — Beaumont pet.). Such an oral motion only expert witness who was the available of discretion. only for abuse is reviewable impeach might have able 775; Darty, 193 see Daigle, S.W.2d totality of testimony. Our review of the the circumstances S.W.2d at 195. When change a record convinces us that such of an surrounding denial the trial court’s strategy would have been a reasonable ato for amount oral motion continuance response timely to the disclosure offered, improper denial of the rudiments of due re dence. When quired urged in promptly under both our State and federal must be constitutions, ap adequate such denial is give order to the trial court an pellate relief, review. See Brown v. grant any appropriate opportunity to (Tex.App. Worth excluding giving such as the evidence — Fort pet.). to dis jury any necessary instructions regard. This is likewise true of various In this O’Rarden’s oral motion other trial errors. was based on his after trial com grant menced of a urged certain favorable evidence which prosecution suppressed. pros discovering promptly continuance duty ecution’s to disclose evidence favor This mo- some of the evidence. able to the accused is on the due apprised tion the trial court O’Rarden’s process requirement of a fair trial. Bag complaint oppor- the court an afforded ley, 473 3379-80. S.Ct. at relief at that tunity grant appropriate continuance, By denying his motion for mistrial, for time. O’Rarden’s later motion opportunity trial court denied being predicate for other rather than a adequately the exact determine nature a to the merely served as reminder prepare of the favorable evidence and to coupled complaint, such, accordingly. case As denial relief that updated for the with an of his oral motion for continuance was tan appropriate. As we view had then become tamount to a denial of a fair trial. it, for mistrial was a O’Rarden’s motion attempt, made af- follow-up commendable preserve complaint ap In order to for injury obvi- ter the extent of actual became review, pellate party present must ous, cure the initial to have the trial court timely request, objection, trial court a mistrial, wrong. Due to the nature of stating specific grounds motion of his relief granting effect such would 52(a). complaint. A re See TEX.R.APP.P. urged had O’Rarden have been no different quest, objection, or motion is sufficient to circumstances, a it earlier. Under the preserve complaint appellate if review prerequisite not a timely more motion was appellate record shows that the trial question. preserving judge opposing apprised counsel were appellant’s substance com motion for re- the State’s We overrule State, plaint. 723 S.W.2d See Thomas v. judgment re- prior hearing. This Court’s 696, (Tex.Crim.App.1986); 700-01 Trifoves court and of the trial versing judgment State, 507, (Tex.App.— ti v. 759 S.W.2d 508 for a new trial remanding cause this 1988, ref’d). record, pet. From Dallas and effect. in full force mains judge is clear both trial and the prosecutor aware of the were substance OVARD, J., dissents. complaint. particu Under the Justice, dissenting. OVARD, case, of this think that the oral lar facts motion for continuance was sufficient to majority re- respectfully I dissent. respect prosecu preserve error with upon case based verses and remands suppression of tion’s favorable evidence. points of error. fourth O’Rarden’sthird and that the points shows analysis An of these O’Rar- The State also contends that court did not err. untimely for mistrial was den’s motion three, argues immediately In urged since it was not overruling erred Thompson testified. v. that the trial court Ashworth’s he made State, 627, (Tex.Crim.App. oral motion for continuance 691 S.W.2d 635 exculpatory evidence. 1985), discovering proposition is cited for the to be- after process due He that he was denied timely, an must be made as soon asserts law; rule, application general apparent. The is of As as the becomes discre- however, left to the sound for continuance is Thompson, sue in involved court, appears alleged improper of certain evi tion of the trial and unless admission

461 A motion discretion with Court’s review. abused thereto, respect writing error can be shown. and must be required no is be 406, State, 145 Tex.Crim. 168 v. Williams CRIM.PROC.ANN. TEX.CODE sworn. 261, A criminal (App.1943). 263 S.W.2d 1987). (Vernon art. 29.06 art. 29.03 and may the written action be continued on a mo apply whether requirements These party. motion of either TEX.CODE CRIM. or after is made before tion for continuance 29.03, (Vernon 1987); PROC.ANN. art. State, 505 Allen v. the trial commences. (Tex. State, 748, 615 749 Minx v. S.W.2d 923, (Tex.Crim.App.1974); S.W.2d Crim.App.1981). Texas Code of Criminal 563, (Tex. State, v. 457 S.W.2d Stubbs provides Procedure article 29.08 that all State, 439 Crim.App.1970); see Juarez v. motions for continuance must be sworn (Tex.Crim.App.1969). person having personal knowledge of by a by no of discretion There was the facts relied for the continuance. trial court. Minx, the mo 615 S.W.2d at 749. Where is neither in tion for continuance relies on cases majority several sworn, nothing nor for review. suppression of Dr. proposition Minx, State, 749; Lopez 615 S.W.2d at by exculpatory evidence Ashworth’s 535 S.W.2d due and re State denies O’Rarden trial, They error. their filed motions re- sults reversible base Prior to exculpatory questing any evidence. These reasoning set out in Butler v. on factors granted by motions were (Tex.Crim.App. prior day to the first of trial. On the first 1987). They attempt posi to reinforce this trial, selection, day during jury O’Rar- citing Bagley, tion United States den read a DHR file that when Dr. 87 L.Ed.2d 481 physical conducted Ashworth examina- (1985); 373 U.S. Brady Maryland, complainant days tion of the after the 1194, 1196, 10 L.Ed.2d 215 83 S.Ct. offense, alleged complainant showed Adams, Ex Parte symptoms of sexual abuse. O’Rarden then (Tex.Crim.App.1989). These cases are continuance, presented an oral motion for because, distinguishable in each readily any opening presenta- statement or case, exculpatory discov evidence was tion of evidence. The trial court over- completed. trial was ered after the ruled his oral motion for continuance. Ad- exculpatory evidence was dis ditionally, during the Dr. Ashworth closed to the defense on first complainant testified that had denied during the trial. trial and touching.” con- Dr. Ashworth no sexual occurred. cluded that abuse had is discovered When previous- The record showed that the State during a different prior to or ly of Dr. was aware exists, in this particularly, as situation examination, finding sexu- symptoms of actually receives the jury where showing There al abuse. was no factor, exculpatory An essential evidence. knowledge complain- previous of State Butler, is no materiality, as enumerated touching” or Dr. Ash- ant’s denial of “bad State, 683 longer applicable. See Coe of the absence of sexual worth’s conclusion (Tex.Crim.App.1984). jury received Dr. Ashworth’s abuse. error should be point third of exculpatory testimony these overruled. no motions or matters. O’Rarden made error, Ash- requests point the conclusion of Dr. In his fourth testimony. argues that He now worth’s erred in over- contends that findings of the doctor’s the late disclosure for mistrial because ruling his motion by adversely affect- caused O’Rarden harm exculpatory evi- presentation the late ing strategy. his trial to his denial of reference dence. He makes exculpatory effective use O’Rarden’s oral motion three. argued point properly preserve error for this did not complaint ap- preserve order to review, present- FRANCIS, pellate party must have Appellant, William S.W. timely request, objec- ed trial court a tion, 52(a). TEX.R.APP.P. To motion. JOHNSON, Johnny Johnny d/b/a timely, request, be or motion Backhoe Service Johnson ground must be made as soon as the be- Garcia, Appellees. Ramon apparent. Thompson comes See No. 08-89-00091-CV. Texas, O’Rarden became aware of Dr. Ash- Appeals Court of examination, physical showing no worth’s El Paso. abuse,

symptoms the first Aug. 1989. recess, day’s of trial. After a he called 18, 1989. Rehearing Denied Oct. DHR his worker Jones as first witness. testimony, During a recess in Jones’s apparently spoke counsel permitted

Dr. Ashworth. He was

present concluding

jury prior to Jones her testimo-

ny. At the conclusion of the doctor’s testi-

mony, he made no motion or

trial court. After Dr. Ashworth’s testimo-

ny, O’Rarden recalled Jones witnesses, himself, including additional

five urging for mistrial his motion exculpato- tardy on the disclosure of

ry process requires O’Rar- evidence. Due urge remedy

den to his when the apparent. Thompson, 691

becomes per-

S.W.2d at 635. Due does original strategy, him pursue

mit

then, elects, that he obtain a

mistrial. Point of error four should be

overruled. process,

Under due remedies were avail- He did not move for a

able O’Rarden. writing. timely

continuance in He did not jury for a mistrial. Since the heard

move per- I am not

suaded that a different result was rea- Finding probability.

sonable no reversible points

error in of O’Rarden’s judgment of the trial

I would affirm the

court.

Case Details

Case Name: O'RARDEN v. State

Court Name: Court of Appeals of Texas

Date Published: Dec 20, 1989

Citation: 777 S.W.2d 455

Docket Number: 05-88-00513-CR

Court Abbreviation: Tex. App.