Charles S. McKissack, Jr. v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-23-00180-CR

Charles S. McKissack, Jr.,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
13th District Court of Navarro County, Texas
Judge James E. Lagomarsino, presiding
Trial Court Cause No. D40939-CR

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

Charles S. McKissack, Jr. was convicted of Driving While Intoxicated,

enhanced, see TEX. PENAL CODE § 49.09(b), and sentenced to 10 years in prison.

The trial court suspended his sentence and placed him on community

supervision for seven years. Because McKissack was not harmed by the

admission of evidence in violation of article 39.14(a) of the Texas Code of

Criminal Procedure and because there was no fatal variance between the
enhancement allegations and the proof at trial, the trial court’s judgment is

affirmed.

ARTICLE 39.14(a) OBJECTION

McKissack contends in his first issue that the trial court erred in

allowing the introduction of evidence and testimony about the Intoxilyzer 9000

over McKissack’s article 39.14(a) objection. He requests a new trial or an

acquittal.

At trial, prior to Department of Public Safety Trooper Matthew Ochoa’s

testimony, McKissack objected to Ochoa “testifying about anything in front of

the jury regarding the Intoxilyzer 9000” because McKissack had previously

requested Ochoa’s certification for operating the Intoxilyzer and the State

failed to turn it over. The State maintained that it was not required to provide

DPS documents to McKissack.

The trial court carried the objection until Ochoa’s testimony concerning

the Intoxilyzer and McKissack’s breath test. Prior to that testimony,

McKissack reiterated the same objection and asked for the testimony to be

excluded. After a brief recess, the trial court decided “to allow the testimony

regarding the Intoxilyzer” and gave McKissack a running objection.

McKissack also objected to the testimony of Scott Brown, the Regional

Manager for the Breath Alcohol Testing Program, before Brown’s testimony

McKissack v. State Page 2
regarding the breath test and the results because McKissack’s prior requested

discovery on the Intoxilyzer and its various maintenance reports had not been

turned over by the State. The State asserted it was not required to turn over

publicly available documents. The trial court provided the following ruling:

THE COURT: And I think y'all have heard my statement earlier,
which I will put that in a written Findings and Conclusions.

DEFENSE COUNSEL: And we would request that again if your
Ruling's going to be the same.

THE COURT: It'll be the same.

As amended by the Michael Morton Act in 2013, article 39.14(a) of the

Texas Code of Criminal Procedure requires the State to produce–upon timely

request and subject to the limitations set forth in article 39.15–"objects or other

tangible things not otherwise privileged that constitute or contain evidence

material to any matter involved in the action and that are in the possession,

custody, or control of the [S]tate or any person under contract with the [S]tate."

TEX. CODE CRIM. PROC. art. 39.14(a). Evidence is material if it has "a logical

connection to a consequential fact." See Watkins v. State, 619 S.W.3d 265, 290

(Tex. Crim. App. 2021).

These statutory requirements extend to documents, items, or

information in the possession of law enforcement "even if law enforcement's

possession of [that] evidence is unknown to counsel for the State." Heath v.

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State, 696 S.W.3d 677, 693 (Tex. Crim. App. 2024); see also TEX. CODE CRIM.

PROC. art. 2.1397 (recognizing that, effective September 1, 2021, the State's

duty to produce discoverable information extends beyond the prosecutor to

items in the possession of law enforcement by imposing written verification

obligation). "[J]ust as defense counsel has an obligation to investigate the case

before he goes to trial, the prosecutor has a duty to know what evidence is at

his disposal." Heath, 696 S.W.3d at 704 & n.122 (quoting Hollowell v. State,

571 S.W.2d 179, 180 (Tex. Crim. App. [Panel Op.] 1978)).

On appeal, the State admits that McKissack sent a request for the items

and the State did not provide them to McKissack. Further, the State does not

dispute the materiality of the items. Thus, the items requested by McKissack

pertaining to the Intoxilyzer and Trooper Ochoa’s certification should have

been produced, and the trial court erred in overruling McKissack’s objections.

The next question, however, is whether McKissack was harmed by the trial

court’s erroneous decision. See Watkins v. State, 619 S.W.3d 265, 291 (Tex.

Crim. App. 2021).

We review article 39.14(a)-error for non-constitutional harm pursuant to

Texas Rule of Appellate Procedure 44.2(b) because a violation of the discovery

production rules is a function of statutory, not constitutional, error. See TEX.

R. APP. P. 44.2(b); Watkins v. State, No. 10-16-00377-CR, 2022 Tex. App. LEXIS

McKissack v. State Page 4
228, at *3 (Tex. App.—Waco Jan. 12, 2022, pet. ref'd) (not designated for

publication). Thus, any error in admitting Ochoa’s and Brown’s testimony and

in admitting the results of the Intoxilyzer should be disregarded unless the

error affected McKissack's substantial rights. See TEX. R. APP. P. 44.2(b);

Washington v. State, 457 S.W.3d 634, 636 (Tex. App.—Waco 2015, no pet.).

"[S]ubstantial rights are not affected by the erroneous admission of evidence

'if the appellate court, after examining the record as a whole, has fair assurance

that the error did not influence the jury, or had but a slight effect.'" Solomon

v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (quoting Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).

In reviewing the record in this case, we find that testimony regarding

the Intoxilyzer instrument and its results was not the only evidence of

McKissack’s intoxication. Ochoa happened upon McKissack as McKissack was

attempting to pick up his motorcycle after laying it over in the middle of the

street while trying to park it. Ochoa noticed McKissack’s thick-tongued and

slurred speech and his bloodshot and glossy eyes. He also noticed an odor of

alcohol. McKissack admitted to Ochoa to being intoxicated and having had two

shots of tequila and three beers within the last four hours. He also admitted

that he doubted he could pass a breath test. Further, Ochoa observed four of

six HGN-test clues of intoxication, with four being the arrest decision point,

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and four of eight walk-and-turn-test clues of intoxication, with two clues being

the arrest decision point. Moreover, the jury was charged on intoxication by

not having the normal use of mental or physical faculties by the reason of the

introduction of alcohol as well as by having an alcohol concentration of 0.08 or

more.

Thus, after examining the record as a whole, we cannot say any error in

admitting testimony regarding the Intoxilyzer instrument and the test results

influenced the jury or had more than a slight effect on the jury.

Accordingly, McKissack was not harmed, and his first issue is

overruled. 1

VARIANCE

In his second issue, McKissack complains the evidence is insufficient to

support his conviction because there was a fatal variance between the

pleadings and the proof at trial. Specifically, he complains the date of

conviction listed in one of the three enhancement allegations was different

than the date proved at trial, the variance was fatal, and, thus, the evidence

was insufficient.

As the record reflects, the indictment in this case alleged a prior

conviction “in cause number 43727 in the County Court of Navarro County,

1
Despite the State’s failure to abide by the Michael Morton Act, we are constrained to do anything
about that failure in this case.

McKissack v. State Page 6
Texas…of an offense relating to the operating of a motor vehicle while

intoxicated.” The date of conviction alleged was January 23, 1997. At trial, it

was shown that the date of conviction was April 11, 1997. 2 The discrepancy

was not noticed until after the close of the evidence. After McKissack raised a

motion for directed verdict, which was denied, the State made an oral motion

to amend the indictment due to the date discrepancy. Arguing against the

motion to amend, McKissack essentially responded that the State should not

be allowed to amend because the State had the burden to prove the date; not

the defendant. 3 After an overnight recess, the trial court overruled the State’s

motion to amend.

It is well settled that it is not necessary to allege prior convictions for the

purpose of enhancement with the same particularity as is required in charging

the primary offense. Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986);

Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. 1981). The purpose of an

enhancement allegation is to provide the accused with notice of the prior

conviction relied upon by the State. Cole, 611 S.W.2d at 82. Only if such a

variance misled or surprised the defendant to his prejudice would it be found

2
Evidence showed the January date was the date of the offense.

3
E.g., “If I had known about this for two years and sat on it, I would still be justified in Directive
Verdict, because they didn't prove their case.”

McKissack v. State Page 7
material and require reversal. Freda, 704 S.W.2d at 42, 43 (Tex. Crim. App.

1986). A mere or slight variance between the indictment's allegations and the

proof at trial will not render evidence insufficient to sustain the conviction. See

Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988).

In this case, the enhancement paragraph contained the cause number of

the prior conviction, the court in which the conviction was obtained, and a

description of the offense. McKissack also admitted to Trooper Ochoa that he

had two prior driving while intoxicated convictions. This admission was

captured on a body-cam video which had been made available to McKissack

prior to trial. Accordingly, even though the enhancement paragraph alleged

the date of the offense rather than the date of the conviction, it provided notice

to McKissack of the conviction on which the State was relying. And despite

McKissack’s contention in his brief to the contrary, we cannot say that, at trial,

he showed such surprise or prejudice as to make this discrepancy a fatal

variance. See Cole v. State, 611 S.W.2d 79, 82 (Tex. Crim. App. 1981).

Thus, there was no fatal variance, and the evidence was sufficient to

prove the enhancement allegation. McKissack’s second issue is overruled.

CONCLUSION

Having overruled each issue on appeal, we affirm the trial court’s

judgment.

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McKissack v. State Page 9
LEE HARRIS
Justice

OPINION DELIVERED and FILED: April 10, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do Not Publish
[CR25]

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