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Fontenot v. Hutchison ( 2003 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS           June 4, 2003
FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
Clerk
No. 01-41506
Summary Calendar
MICHAEL P. FONTENOT,
Plaintiff-Appellant,
versus
LURENZA W. HUTCHISON, Correctional Officer III Michael Unit,
OLIN C. STATHAM, JR., Sergeant, Michael Unit;
GENE R. MARTIN, Captain, Michael Unit; STEVEN, Officer,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-156
--------------------
Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Michael P. Fontenot, Texas prisoner # 672107, appeals the
jury verdict in favor of the defendants in his
    42 U.S.C. § 1983
    suit against correctional officers for a beating he allegedly
received in violation of his civil rights.     Fontenot’s initial
brief argued that he was denied due process at his disciplinary
hearing because his counsel substitute did not have time to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-41506
-2-
locate and interview witnesses and that his Fourteenth Amendment
rights were violated at trial because no explanation was given
for the unavailability of his witnesses.   He also argued that the
district court erred in refusing to find that the beating
violated his rights.   He further argued that the district court
should have allowed discovery of the defendants’ employment
history and that he was denied effective assistance of counsel
because he was not given funds for a medical expert or to take
depositions.
After the initial briefs were filed, we granted Fontenot’s
motion for a transcript of the proceedings below at government
expense and permitted Fontenot to file a supplemental brief
addressing issues implicated by the transcript.   Although
Fontenot could not cite to the transcript in his original brief,
since then the record has been transcribed and Fontenot has been
afforded the opportunity to raise issues supported by the record.
Fontenot did not include in his supplemental brief any reference
to or support for the issues he raised in his original brief.
Because Fontenot has not adequately briefed the issues he raised
in his original brief, he has waived them.   See Brinkmann v.
Dallas County Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir.
1987).
The only issues Fontenot addresses in his supplemental brief
are whether the district court erred in denying his motion in
limine with regard to his numerous disciplinary cases and his and
No. 01-41506
-3-
his witness’s convictions.    Because Fontenot objected to the
admission of testimony regarding his prior disciplinary
convictions, we review the denial of his motion in limine for
abuse of discretion.     See United States v. Haese,
    162 F.3d 359
    ,
364 (5th Cir. 1998).    However, the district court sustained the
objection, so Fontenot’s argument is meritless.
Fontenot’s attorney questioned him about his conviction,
and, thus, any error was invited by defense counsel.      See United
States v. Baytank (Houston), Inc.,
    934 F.2d 599
    , 606 (5th Cir.
1991).   Even applying plain-error review, the district court did
not commit plain error in the admission of this testimony because
the jury had been told during voir dire by defense counsel about
Fontenot’s conviction.     See United States v. Harrington,
    82 F.3d 83
    , 90 (5th Cir. 1996).
Because Fontenot failed to object to the introduction of
testimony that his witness had been convicted, we review the
district court’s admission of this evidence for plain error.       See
United States v. Graves,
    5 F.3d 1546
    , 1551 (5th Cir. 1993); FED.
R. EVID. 103(d).   The district court did not plainly err in
allowing the defendants’ counsel to question Fontenot’s witness
on cross-examination about his conviction because that evidence
was admissible under FED. R. EVID. 609(a).    See United States v.
Box,
    50 F.3d 345
    , 355 (5th Cir. 1995).      The district court’s
judgment is AFFIRMED.