Dunlap v. State

I respectfully dissent. The majority, in discussing point of error number one cites Gomez v. State, 709 S.W.2d 351 (Tex.App.—Houston [14th Dist.] 1986, pet. ref d), which states, in absolute terms, a two-part test, i.e., bad faith and surprise, in determining whether an abuse of discretion has occurred. In Gomez, the court states:

Abuse of discretion has a two part test: 1) did the State act in bad faith by calling the witnesses after failing to list them; 2) could appellant have reasonably anticipated that the witnesses would testify even though they were not listed?

Id. at 353. It is…