Andrew Lee Beard v. State ( 2005 )

Opinion issued December 15, 2005 

  In The    

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-04-01180-CR

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ANDREW LEE BEARD, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 03CR2830

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MEMORANDUM OPINION

           A jury convicted appellant, Andrew Lee Beard, of murder and assessed his punishment at 44 years in prison. See Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). We determine whether the trial court erred by (1) denying appellant’s oral motion for continuance to identify additional witnesses and (2) denying appellant’s motion to suppress evidence. We affirm. Facts

          On August 14, 2003, Harold Carlton Allen, Sr., an 83-year-old man, allowed appellant into his house to use his telephone. While he was inside Allen’s residence, appellant unlocked the side door with the intent to return to steal a jar of money. Later that evening, appellant returned while Allen was away, rummaged through Allen’s belongings, took a shower, watched television, and stole Allen’s jar of money.

          Appellant testified that Allen returned to his residence while he was there and attacked appellant with a cane, at which time a fight ensued between them. Appellant ultimately killed Allen by striking him in the throat using an Aikido-type blow. Appellant contends that the move was made in self-defense and that he did not correctly calculate its force or effect. An autopsy report showed that Allen was beaten heavily over several areas of his body and that the strike to his throat was lethal.

          LaMarque Police Department Officers Dennis Macik and Jeff Winstead interviewed appellant regarding his involvement in Allen’s murder. On September 15, 2003, Officers Macik and Winstead videotaped appellant’s confession. Appellant signed three waiver-of-rights forms, which recited article 38.22 warnings and included a statement that appellant understood these rights, he was willing to make a statement, he did not want a lawyer, and he was making the statement voluntarily. Appellant filed a motion to suppress his videotaped confession, alleging that the denial of his request to call his aunt was a denial of his right to counsel. After a hearing, the trial court denied appellant’s motion to suppress.

          During the trial, the State offered appellant’s videotaped confession into evidence. Appellant’s counsel stated, “We don’t have any objections to it being offer [sic] into evidence. We reserve the right to object to its contents, Your Honor.” The videotaped confession was then admitted into evidence. After appellant’s confession was shown to the jury, appellant’s counsel objected to portions of the tape showing a blue screen and white space and to a statement that appellant made in it about a prior burglary. Appellant’s counsel stated, “I would like to have the tape redacted to have those portions removed, then that remaining tape submitted to the jury. I don’t have any problem with the rest of the tape.”  

          After the State rested its case, appellant testified in his own defense. Appellant requested and was granted a recess to locate witnesses who had not shown up to testify. However, the witnesses were not subpoenaed and did not show up for court because they had charges against them and warrants out for their arrest. Appellant then requested additional time to locate a witness to show that appellant and his cousins had engaged in “this particular kind of horseplay” and “used these [Aikido] blows on each other” in an effort to show that appellant had simply misjudged his strength. The trial court denied appellant’s oral motion for continuance. Appellant did not have any additional witnesses on that day and rested his case.

  Motion for Continuance

          In his first point of error, appellant contests the trial court’s denial of his oral motion for continuance. Appellant requested a continuance because his unsubpoenaed witnesses had not appeared at trial.

          The trial court has discretion to deny a continuance, and reversal is justified only when the trial court has abused its discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982). A continuance may be granted after trial has begun when there is some unexpected occurrence, which no reasonable diligence could have anticipated that so takes the applicant by surprise that a fair trial cannot be had. Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 1989). To obtain a continuance for a missing witness, the defendant must show, among other things, that he exercised due diligence to secure attendance. Id. art. 29.06(2) (Vernon 1989). To obtain relief from the denial of a motion for continuance, an affidavit of the absent witness or an application for subpoena of the witness is necessary to show an abuse of discretion. Robinson v. State, 454 S.W.2d 747, 748 (Tex. Crim. App. 1970).  

          Appellant failed to exercise the due diligence necessary to support a motion for continuance because he   did not subpoena his witnesses, but relied solely upon promises from the witnesses to be present. Appellant neither secured an affidavit of the absent witnesses nor made applications for subpoenas for them. See Robinson, 454 S.W.2d at 748. Accordingly, we hold that the trial court did not abuse its discretion by overruling appellant’s motion for continuance. See Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App. 1992) (holding that trial court’s denial of motion for continuance so that defendant could locate witness was not abuse of discretion when defendant did not file pretrial application for subpoena).

          We overrule appellant’s first point of error.  

Motion to Suppress

          In his second point of error, appellant argues that the trial court erred by denying his motion to suppress his videotaped confession. On appeal, appellant contends that his videotaped confession should not have been admitted into evidence because the statement continued after he had asked to make a telephone call to his aunt, which he contends amounted to a denial of his right to remain silent. See Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S. Ct. 1602, 1624-28 (1966). The State contends that, although the trial court denied appellant’s pretrial motion to suppress, appellant failed properly to preserve this issue for appeal.

          To obtain appellate review, the complained-of error must be preserved. See Tex. R. App. P. 33.1(a)(1). To preserve error, one must make a timely objection stating the grounds with sufficient specificity to make the trial court aware of the complaint. See id. The legal grounds made on appeal must comport with the grounds asserted at trial. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).

           In his motion to suppress, appellant alleged that his constitutional rights were violated because (1) the interview was continued without appellant’s request for food being met, thereby coercing appellant and overbearing his will, and (2) the interview was continued after appellant asked to call his aunt, denying appellant his right to counsel. At the suppression hearing, the only issue raised was whether the police officers’ denial of appellant’s request to call his aunt was a denial of appellant’s right to counsel. On appeal, however, appellant presents a new basis for excluding the videotaped confession that is substantially different from that raised in the trial court: appellant argues to this Court that the police officers’ denial of his request to call his aunt was a denial of appellant’s right to remain silent.

          It is well-settled that a court of appeals can affirm a trial court’s decision on a legal theory that is not presented to the trial court, but that is nonetheless applicable to the case, without violating ordinary notions of procedural default. Hailey v. State, 87 S.W.3d 118, 121 (Tex. Crim. App. 2002). However, absent situations involving fundamental error, it violates ordinary notions of procedural default for a court of appeals to reverse a trial court’s decision on a legal theory not presented to the trial court by the complaining party. Id. at 122. This rule is based on the notion that a trial court’s decision will not be reversed on a theory upon which the trial court did not have an opportunity to rule and upon which the non-appealing party did not have an opportunity to develop a complete factual record. Id.

          If appellant had presented this new argument to the trial court during the suppression hearing, the court would have been able to apply the law to the issues, and the State would have had the opportunity to develop a complete record on the issue of whether appellant’s request to call his aunt was an invocation of his right to remain silent. Because that issue was not raised at trial, we will not violate ordinary notions of procedural default, or vitiate the efforts of the trial court and the prosecution, by ruling on an issue that was never presented during the proceedings below. That issue is waived on appeal, and there is nothing for this Court to review.

          Accordingly, we overrule appellant’s second point of error. Conclusion

          We affirm the judgment of the trial court.

                                                   Tim Taft

                                                   Justice

Panel consists of Justices Taft, Keyes, and Hanks

Do not publish. Tex. R. App. P. 47.2(b).