in Re: Joe L. Lovell, Relator

• Court: Court of Appeals of Texas
• Decided: March 22, 2002
• Docket: 07-02-00088-CV
• Status: Published

Opinion

NO. 07-02-0088-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

MARCH 22, 2002

______________________________

IN RE JOE L. LOVELL

_________________________________

Before BOYD, C.J., and DODSON and DICKENSON, JJ. ⁽¹⁾

ON MOTION TO VACATE OR MODIFY STAY

Relator Joe L. Lovell filed a petition for an extraordinary writ seeking to have this court direct the Honorable Bill Sheehan to vacate a judgment and certain orders in the underlying original cause and certain orders in a severed cause, as well as to disqualify him from conducting further proceedings in the underlying matters. Relator then filed a motion for temporary relief in which he sought a stay of all further proceedings in the underlying causes until this court has completed its review of the petition for extraordinary relief. On February 20, 2002, that motion was granted to the extent that no further proceedings be taken in the underlying cases pending receipt of the response to the motion for temporary relief and the court's ruling on that motion.

Trustee Floyd Holder, plaintiff in the underlying causes of action, has now filed a motion to vacate or modify that temporary stay. In doing so, he asserts that the only matter pending at the time of relator's filing of his motion for temporary relief was a hearing on relator's motions to recuse Judge Sheehan pursuant to Rule 18a(d) of the Rules of Civil Procedure because all other matters pending before Judge Sheehan had been previously stayed. The trustee asserts that if any of the motions to recuse are granted, then relator's petition before this court will be rendered moot.

We also find in the documents before us a letter from Judge Kelly G. Moore to the parties in which these assertions appear to be confirmed. Thus, a granting of the motions to recuse should at least limit if not remove all of the issues before this court.

Accordingly, the motion to modify our temporary stay is granted in part, and our temporary stay is vacated to the extent necessary to permit Kelly Moore, Presiding Judge of the Ninth Administrative Judicial Region, to hear and rule upon defendants' motion to recuse Judge Sheehan. We ask Judge Moore to conduct that hearing at his earliest convenience and to forward a certified copy of his ruling on that motion to the clerk of this court.

Per Curiam

Do not publish.

1. Carlton B. Dodson and Bob Dickenson, retired Justices, sitting by assignment.

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NO. 07-10-0078-CR

    IN THE COURT OF APPEALS

   FOR THE SEVENTH DISTRICT OF TEXAS

PANEL B

       FEBRUARY 8, 2011

                                             ___________________________

         NEIL CURRAN, 

Appellant

                                                                         v.

THE STATE OF TEXAS, 

Appellee

FROM THE COUNTY COURT AT LAW NO 1 OF LUBBOCK COUNTY;

       NO. 2009-456,362; HONORABLE LARRY B. "RUSTY" LADD, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

            Neil Curran was convicted of operating a vehicle at an unsafe speed.  He raises six issues in which he seeks to overturn that conviction. Finding no merit to those issues, we affirm the judgment.

Background

            On November 4, 2008, appellant, who was a Texas Tech student, and three fellow students, Chris Parker, Andrew Mosley, and Nathaniel Colon, were involved in a single car rollover accident on North County Road 2000 near FM 1294 in Lubbock County.  Colon was injured but the other three boys were unharmed.  When Deputy Scott Duncan arrived, he asked the three uninjured boys who had been driving the car.  Appellant took out his license and claimed responsibility, though the car belonged to appellant’s father. 

            When Trooper Jerry Johnson arrived at the scene, he again inquired about the driver’s identity and was informed by appellant that he was the driver of the car.  Appellant also told the trooper that he believed he had been traveling approximately 75 m.p.h.  Appellant then called Colon’s sister, whom he was dating, and told her that her brother had been injured in an accident, that he (appellant) was the driver, and that he had been driving too fast.  Several days later, appellant and Parker told Trooper Johnson that Parker was the driver of the vehicle, though appellant had been the one who received the ticket. 

            Issue 1 – Admission of Speed

            In his first issue, appellant complains of the trial court’s admission into evidence of the statement made to Trooper Johnson as to the speed that appellant believed he had been going at the time of the accident.  Appellant argues that it was opinion evidence that must be proffered by a properly qualified expert only after it has been shown to be reliable.  We overrule the issue.

            We review the trial court’s admission of evidence for abuse of discretion.  Rodriguez v. State, 280 S.W.3d 288, 289 (Tex. App.–Amarillo 2007, no pet.).  Moreover, we may uphold the ruling if the evidence is admissible for any purpose.  McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997).  

            Appellant assumes that his statement consisted of expert testimony.  However, one may offer testimony based on actual knowledge as well as his lay opinion if that opinion is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a determination of a fact in issue.  Tex. R. Evid. 701; see King v. State, 129 S.W.3d 680, 683-84 (Tex. App.–Waco 2004, pet. ref’d).  Speed is one area in which lay opinions may be offered.  McMillan v. State, 754 S.W.2d 422, 425 (Tex. App.–Eastland 1988, pet. ref’d).  Given that appellant admitted several times he was driving the vehicle, the trial court reasonably could have inferred that he had a factual basis from which to estimate his speed at the time of the accident.  At least, we cannot say that such an inference would fall outside the zone of reasonable disagreement.

            Issue 2 – Subpoenas

            Next, appellant argues the trial court erred in quashing subpoenas he had issued for representatives of General Motors and Vericom Computers as well as Parker, Mosley, and Colon.  We overrule the issue.

            Initially, we note that Parker testified at trial.  This rendered moot any complaint about that individual not being subpoenaed. 

            Regarding the other four potential witnesses, we again review the trial court’s ruling under the standard of abused discretion.  Ortegon v. State, 267 S.W.3d 537, 542 (Tex. App.–Amarillo 2008, pet. ref’d); Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.–Fort Worth 2006, pet. ref’d).  With this in mind, we note that the addresses listed on the subpoenas indicated that the prospective witnesses were located outside Lubbock County.  This is of import because a defendant is entitled to subpoena witnesses who are located outside the county boundaries only if the offense for which he is being tried is punishable by confinement in jail.  Tex. Code Crim. Proc. Ann. art. 24.16 (Vernon 2009).  Here, appellant was cited for proceeding at an unsafe speed, which offense is a misdemeanor punishable only by a fine.  See Tex. Transp. Code Ann. §§542.301(b), 542.401, 545.351(a) (Vernon 1999).[1]  Thus, he was not entitled to the subpoenas.  

            Issue 3 – Denial of Recess

            In his third issue, appellant contends the trial court erred in denying his request for a recess during trial.  We overrule the issue for several reasons. 

            First, appellant cites no direct or indirect authority supporting the proposition that he was entitled to a recess.  This omission violates rule 38.1(i) of the Texas Rules of Appellate Procedure, which, consequently, means he waived the complaint.  See Tex. R. App. P. 38.1(i) (stating that an appellate brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).

            Second, the recess was allegedly sought so that the witness being examined could obtain records regarding the “issuance of citations after rollover accidents.”  Why this was relevant to appellant’s guilt or innocence for operating a vehicle at an unsafe speed went unexplained.  Thus, we cannot say that he carried his burden of proving that the trial court abused its discretion in denying the recess.

            Issue 4 – Admission of Exhibits 11-13

            In his next issue, appellant argues that the trial court erred in admitting exhibits 11 through 13 into evidence.  The exhibits consisted of scaled diagrams of the crash site and a reconstruction of the accident.  They were allegedly inadmissible because the officer who created them “had help from another officer” and the latter was not made to testify.  Thus, his right to confront witnesses was denied him.   Furthermore, the State purportedly “failed to prove . . . that this computer generate [sic] accident reconstruction is reliable.”   We overrule the issue.

            Appellant’s contentions consist of mere conclusory argument lacking analysis.  And, while it may be that appellant referred to authority which he labeled “Melendez” and “Kelly,” he failed to explain how either pertained to or controlled the circumstances at bar.  It was not enough to merely say “[a]ppellant will not bore the Court with a discussion of Kelly” and then utter that “under Kelly . . .  admission was reversible error.”  Nor was it enough to simply say that because the lab technician in Melendez, who apparently identified the controlled substance as cocaine, was required to testify, the officer who helped the witness at bar develop the exhibits was also required to testify.  For all we were told, the “assisting” officer at bar may have done nothing more than acquire a pencil, gather paper, provide a glass of water, or the like, and such would hardly be akin to the testimonial evidence involved in Melendez.

            In short, it is not our obligation to add meat to a bone thrown at us by an appellant.  When an appellant cares not to flesh out an issue through explanation and analysis, we are free to deem it waived.  Robinson v. State, 851 S.W.2d 216, 221-22 (Tex. Crim. App. 1991).  And, we do so here.

            Issue 5 – Hearsay

            Appellant argues in his fifth issue that the trial court should have granted his motion to strike certain testimony of Trooper Johnson.  The testimony consisted of the officer stating that both Parker and appellant initially disclosed to him that appellant was driving the vehicle at the time of the accident.  The trial court sustained a hearsay objection with regard to the purported utterance by Parker but refused to do so with regard to that of appellant.  We overrule the issue.

            It, like others proffered by appellant, lacks citation to authority and explanation as to why the admission of appellant had to be excluded simply because the statement of Parker may have been hearsay.  Given this inadequacy in briefing, the issue was waived.  See Tex. R. App. P.  38.1(i) (stating that an appellate brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities); Cardenas v. State, 30 S.W.3d at 393.

Issue 6 – Testimony of Amit Desai

Finally, appellant complains of the trial court’s refusal to permit Amit Desai to testify about his belief that Parker, as opposed to appellant, actually was driving at the time.  We overrule the issue.

A trial court may exclude redundant testimony or evidence.  Sturgeon v. State, 106 S.W.3d 81, 88 (Tex. Crim. App. 2003).  Furthermore, the testimony at issue was redundant of that already admitted.  Trooper Johnson testified that Parker told him (days after the accident) that he (Parker) was driving the vehicle.  So, the trial court’s concluding that the Desai comments were inadmissible did not fall outside the zone of reasonable disagreement. 

Having overruled all of appellant’s issues, we affirm the judgment.

                                                            Per Curiam

Do not publish.

---

[1]Pursuant to the Transportation Code, a person convicted of speeding is subject to a fine of not less than $1 or more than $200.  Tex. Transp. Code Ann. §542.401 (Vernon 1999); see also Halbert v. State, No. 05-96-01438-CR, 1999 Tex. App. Lexis 384, at *3 (Tex. App.–Dallas January 22, 1999, no pet.) (not designated for publication); Clark v. State, No. 01-96-01079-CR, 1998 Tex. App. Lexis 1610, at *2-3 (Tex. App.–Houston [1^st Dist.] March 12, 1998, no pet.) (not designated for publication); Riley v. State, No. 07-96-0447-CR, 1997 Tex. App. Lexis 5564, at *4 (Tex. App.–Amarillo October 24, 1997, no pet.) (not designated for publication).  Under the Penal Code, a Class C misdemeanor is punishable by a fine not to exceed $500.  Tex. Penal Code Ann. §12.23 (Vernon  2003).  A fine of $500 was assessed against appellant, which is inconsistent with the Transportation Code.