Jonathan Price Larsen, II v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-07-108-CR
2-07-109-CR
2-07-110-CR
JONATHAN PRICE LARSEN, II APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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In three points, Jonathan Price Larsen, II appeals his convictions and
sentences for intoxication assault, for failure to stop and render aid, and for
evading arrest or detention with a vehicle. We affirm.
1
… See T EX. R. A PP. P. 47.4.
I. Factual and Procedural Background
On March 16, 2006, Larsen had a dispute over a movie ticket with the
assistant manager of a movie theater in Hudson Oaks, Texas. The assistant
manager called the Hudson Oaks Police Department (HOPD), and, according to
her testimony, when HOPD officers approached Larsen’s vehicle, Larsen “pulled
out and took off.” 2
The HOPD officers activated their vehicles’ lights and sirens and chased
Larsen’s vehicle as he traveled on I-20 toward Weatherford at around 100 miles
per hour. Still following Larsen, the HOPD officers exited I-20 but then lost
sight of Larsen’s vehicle. When they reached the intersection of Bankhead
Road and U.S. Highway 180, they found a severely damaged Weatherford
police vehicle and Larsen’s smoking vehicle.
Weatherford Police Officer Gregory Stewart had been dispatched to lay
down “spike strips” in an attempt to end the car chase, and Larsen’s vehicle,
a heavy pickup truck, had collided with Officer Stewart’s vehicle in the
intersection, slamming into the driver’s side door. Officer Stewart suffered two
pelvic fractures, a bruised spinal cord, a severe concussion, and nerve damage,
2
… Larsen testified that he never saw the HOPD officers at the movie
theater but that, after he left, one of his friends called him and told him “that
the cops had just pulled out and that they were coming to get [him].”
2
as well as cuts, scrapes, and pieces of glass embedded in his scalp, all resulting
in a permanent impairment rating of twenty-five percent.
Before the HOPD officers arrived, Larsen fled the scene on foot without
giving aid to Officer Stewart. Shortly thereafter, Weatherford police located
Larsen, who was hiding in the back of a pickup truck at a local car dealership,
and arrested him. Lab analyses of two blood samples taken from Larsen that
night revealed blood alcohol concentrations of .10 and .11.3
Larsen was indicted for intoxication assault, failure to stop and render aid
(FSRA), and evading arrest or detention with a vehicle. On January 25, 2007,
he pleaded guilty to all three offenses and elected to have a jury assess
punishment.
The trial court set the jury trial for February 26, 2007. Larsen filed
motions for continuance in all three causes on February 22, urging two
grounds: (1) he needed additional time to have a second meeting with his
retained mitigation expert before the expert testified at trial, and (2) he needed
additional time to prepare for some of the State’s witnesses, identified “within
the last week that it intends to call to testify at the trial in this matter.” The
3
… A blood alcohol concentration of .08 or more is legal intoxication. See
T EX. P ENAL C ODE A NN. § 49.01(2)(B) (Vernon 2003).
3
trial court denied Larsen’s motions after a hearing on February 23. Voir dire
began on February 26, and Larsen’s punishment trial began on February 27.
During the punishment trial, Officer Stewart and others testified about the
events of March 16, 2006, and the State presented evidence of Larsen’s
criminal history, extraneous offenses, and other bad acts.4 Larsen, testifying
on his own behalf, admitted that on the day that his vehicle collided with
Officer Stewart’s vehicle, he had consumed “five or six [c]rown and cokes” and
a six-pack of beer on the way home from work. When asked by the State
whether he was “taking responsibility for the evading and failure to stop and
render aid and getting drunk and nearly killing the officer,” Larsen replied, “Yes,
sir, that is correct.”
During his direct testimony, Larsen admitted to his criminal history,
extraneous offenses, and other bad acts, and offered as explanations his
unstable family life, including watching his mother die in a car accident and an
uncle who sexually abused him, and alcohol abuse. He called several friends
and family members as character witnesses and Dr. Emily A. Fallis, a forensic
evaluation psychologist, as his mitigation expert.
4
… These included writing hot checks, stealing a wallet and fraudulently
using a credit card from that wallet to get his eyebrows waxed, starting a fire
in a jail cell after a prior arrest, other theft incidents, and driving while
intoxicated.
4
On March 2, before jury deliberations began, Larsen filed motions for a
mistrial in all three causes due to juror misconduct and requested permission to
take juror Catherine Boyd on voir dire to clarify a note that she had sent to the
trial court. The trial court denied Larsen’s voir dire request and Larsen’s
motions for mistrial, but it allowed Larsen to read the questions he would have
asked Boyd into the record and included the juror questionnaires in the record.
The jury assessed Larsen’s punishment at five years’ confinement and a
$5,000 fine each for the intoxication assault and FSRA convictions, and two
years’ confinement and a $500 fine in the evading arrest or detention with a
vehicle conviction. The jury returned affirmative findings on the use or
exhibition of a deadly weapon in the intoxication assault and evading arrest
convictions, and the trial court entered judgment on the verdicts. Larsen now
appeals, complaining that he was entitled to a mistrial because of juror
misconduct, that he suffered Double Jeopardy violations because of multiple
punishments, and that his motions for continuance should have been granted.
II. Jury Misconduct
In his third point, Larsen claims that the trial court erred by denying his
motions for mistrial because of jury misconduct.
5
A. Standard of Review
W e review a trial court’s ruling on a motion for mistrial using an
abuse-of-discretion standard of review, viewing the evidence in the light most
favorable to the trial court’s ruling and upholding that ruling if it was within the
zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex.
Crim. App. 2007). A trial court abuses its discretion in denying a motion for
mistrial only when no reasonable view of the record could support the trial
court’s ruling. See id.
To obtain a mistrial for juror misconduct, the defendant must show that
the juror withheld material information during voir dire despite due diligence
exercised by the defendant. Franklin v. State, 138 S.W.3d 351, 355–56 (Tex.
Crim. App. 2004). With respect to oral questions asked during voir dire, error
occurs when “a prejudiced or biased juror is selected without fault or lack of
diligence on the part of defense counsel, such counsel acting in good faith on
the juror’s responses and having no knowledge of their inaccuracy.” Gonzales
v. State, 3 S.W.3d 915, 916–17 (Tex. Crim. App. 1999).
Counsel must be diligent in eliciting pertinent information from
prospective jurors during voir dire in an effort to uncover potential prejudice or
bias, and, unless defense counsel asks questions calculated to bring out
information that might be said to indicate a juror’s inability to be impartial, the
6
purportedly material information which a juror fails to disclose is not really
“withheld” so as to constitute misconduct which would warrant a reversal. See
id. at 917. Counsel’s questions must be specific, not broad. Id.; see also
Webb, 232 S.W.3d at 113 (“The jury panel does not know the statutory
challenges for cause and thus the prospective jurors likely do not know what
the parties are trying to determine during voir dire. It is counsel’s responsibility
to ask questions specific enough to elicit the answers they require.”);
Armstrong v. State, 897 S.W.2d 361, 363–64 (Tex. Crim. App. 1995) (holding
that there was no error where counsel did not ask question that would uncover
juror’s close friendship with prosecutor).
B. Analysis
Larsen’s juror misconduct complaint was triggered by a note from juror
Boyd to the trial court before jury deliberations. The note was about Micah
Thompson, the mother of Larsen’s three-year-old daughter; it stated:
Judge:
Micah was my next door neighbor for a year when she lived
on Wandering Lane in Weatherford, Tx.
We didn’t have an overly cordial relationship because she
kept anywhere from ten to 20 dogs in her back yard and they
barked constantly during the night.
7
I don’t remember [Larsen] but he could have been introduced
once. Other than this knowledge, it will not affect any decision I
would have in this case.
Larsen sought to take Boyd on voir dire about the note, and his questions
included how Boyd knew Micah, whether she had ever met Larsen, whether
Boyd’s boyfriend knew Micah and ever had an a “altercation” with her, 5 and
whether, in light of the altercation between Micah and Boyd’s boyfriend, Boyd
felt that she could “set aside any bias or prejudice [she] might have toward
Micah Thompson and sit fairly in judgment on [Larsen][.]” 6
We must review whether Larsen exercised due diligence during voir dire
to elicit information regarding Micah Thompson and any conflicts involving her
to determine whether he was entitled to a mistrial. See Franklin, 138 S.W.3d
at 355–56.
5
… Larsen described the altercation as a business deal between Micah and
Boyd’s boyfriend, in which the boyfriend ended up owing Micah $200 and let
Micah’s dogs out of the backyard on several occasions. When Micah
attempted to kick the boyfriend’s door in, the boyfriend called the police, who
ordered both parties to stay off of each other’s property.
6
… Larsen also asserted that Micah would testify that Micah and Boyd got
along well, but that Boyd did not like Larsen and that Boyd and Micah talked
approximately once per month for one year and discussed Larsen’s failure to
pay child support or to visit his daughter. Larsen also claimed that Micah would
testify that “there were several instances where—that the juror was very upset
about the dogs that was [sic] at the house where Micah . . . lived; that the juror
actually knew [Larsen] before she knew Micah . . . ; that Micah . . . met the
juror and her boyfriend through [Larsen].”
8
On February 26, during voir dire, the State asked: “Anyone know the
defendant, [Larsen]? Anybody feel like you know the defendant in any way?
Perhaps you have a business that he visits, you know the family. Just anybody
in any way feel like you know the defendant, [Larsen]?” When it was Larsen’s
turn, his attorney stated the following to the venirepanel:
With the questionnaire that you filled out–and I want to thank you
for that because that’s made our jobs a lot easier–and with the
thorough job that [the district attorney] has done, I think that my
questioning of you is going to be quite a bit briefer than his . . . .
This is [Larsen]. He is the defendant. . . . And, again, does anyone
recognize [Larsen]? Without going into a lot of the evidence,
[Larsen] is 26 years old, and he’s lived in this area for roughly the
past four or five, six years. Does anyone— after knowing that
information, does anyone recognize [Larsen]?
None of the potential jurors responded that they knew or recognized Larsen.
Micah Thompson was not mentioned until the punishment trial began, on
February 27, and then only in passing during Officer Stewart’s testimony.7 Her
name was mentioned again on February 28 during Larsen’s direct testimony
about his minor daughter, who has his last name, and with regard to where he
7
… Larsen’s attorney asked Officer Stewart whether he ever told Micah
that he did not feel Larsen should have criminal charges pursued against him.
Officer Stewart said that he did not.
9
was going the night he collided with Officer Stewart. 8 Also that day, Max
Thompson testified that he knew Larsen because Micah was his daughter and
that Larsen started dating her four years before the trial.
On March 1, during Micah’s mother’s testimony, she pointed out Micah
in the courtroom at Larsen’s attorney’s request. Boyd’s note was dated the
same day that Micah’s mother pointed Micah out in the courtroom.
Based on the record, Larsen failed to show that he exercised due diligence
or that Boyd “withheld” any information during voir dire. See id. Specifically,
no one asked the potential jurors if any knew Micah Thompson, formerly of 221
Wandering Lane, who was Larsen’s girlfriend and the mother of his child, or if
they, or any of their friends or family, had ever had any altercations with Micah
Thompson or Larsen. See Gonzales, 3 S.W.3d at 917; Whiting v. State, 943
S.W.2d 102, 105 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding
that juror did not give false information to attorneys during voir dire where the
record reflected that he did not realize that he knew the victim until he saw the
victim walk into the courtroom during trial).
8
… “I was going to 221 Wandering Lane . . . . it was a residence that
Micah Thompson and I used to share.” Micah had sold that house, but Larsen
testified that he did not remember that and that he was heading for the house
“[b]ecause [he] was scared and [he] wanted to go to a place that [he] felt
safe.” On her juror questionnaire, Boyd revealed that she lived at 229
Wandering Lane.
10
The cases upon which Larsen relies, Von January v. State, 576 S.W.2d
43 (Tex. Crim. App. 1978), and Salazar v. State, 562 S.W.2d 480 (Tex. Crim.
App. 1978), are inapposite. In Von January, defense counsel specifically asked
whether any of the prospective jurors knew “George Parker, Sr., George Parker,
Jr., or George Parker, III (the deceased),” and the juror in question did not
respond, even though he recognized George Parker Sr. when he entered the
courtroom with the jury panel and had known the Parkers well for around thirty
years. 576 S.W.2d at 44. In Salazar, the State specifically asked, in an
indecency with a child case involving a Mexican-American defendant, whether
any of the venire had ever been a witness in a criminal case, and the juror in
question indicated that he had not. 562 S.W.2d at 481, 483. The juror later
revealed to the court that he had given false information during voir dire in that
he had been a witness in a criminal case five years before, when he was an
eyewitness to a sexual assault on his own daughter by a Mexican-American
male. Id. at 481–82.
In contrast, here, neither Larsen nor the State asked any questions about,
or even mentioned, Micah Thompson during voir dire. Although Larsen blames
Boyd for “her failure to respond,” he presented nothing to the venire for Boyd
to respond to. Therefore, the trial court did not abuse its discretion by denying
his motion for mistrial. We overrule Larsen’s third point.
11
III. Double Jeopardy
In his second point, Larsen contends that his convictions and
punishments for the three offenses violate Double Jeopardy protections under
the Texas and federal constitutions. Specifically, Larsen argues that “all three
charges, convictions[,] and punishments occurred in the same criminal episode
and transaction.” He claims that there was no causal break between the three
offenses, resulting in multiple punishments for the same act.
A. Standard of Review
The Double Jeopardy Clause of the United States Constitution provides
that no person shall be subjected to twice having life or limb in jeopardy for the
same offense. U.S. C ONST. amend. V. Generally, this clause protects against
multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161,
165, 97 S. Ct. 2221, 2225 (1977); Ex parte Herron, 790 S.W.2d 623, 624
(Tex. Crim. App. 1990) (op. on reh’g). However, separate convictions for
different offenses arising from a single criminal transaction do not violate the
prohibition against double jeopardy. See Haight v. State, 137 S.W.3d 48, 51
(Tex. Crim. App. 2004).
To determine whether both offenses are the same, we must examine the
elements of the applicable statutes to determine whether each statute “requires
proof of an additional fact which the other does not.” Blockburger v. United
12
States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932); see United States v.
Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856 (1993); Parrish v. State,
869 S.W.2d 352, 353–55 (Tex. Crim. App. 1994). But in multiple
punishments cases, the court of criminal appeals has recognized that
Blockburger is not the exclusive test and requires a two-step analysis. The first
step is to examine the proof necessary to establish the statutory elements of
each offense as alleged in the indictment. Vineyard v. State, 958 S.W.2d 834,
836 (Tex. Crim. App. 1998). The second step requires an analysis of the
legislative intent, i.e., whether it was the legislature’s intent to impose multiple
punishments or only one. Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim.
App. 1999); see also Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.
2006). A defendant suffers multiple punishments in violation of the Double
Jeopardy Clause only when he is convicted of more offenses than the
legislature intended. Ervin, 991 S.W.2d at 807.
B. Analysis
Larsen was convicted of intoxication assault, FSRA, and evading arrest
or detention with a vehicle offenses. The elements of an evading arrest or
detention with a vehicle offense are that the person intentionally flees, using a
vehicle, from a person that he knows is a peace officer attempting to lawfully
arrest or detain him. See T EX. P ENAL C ODE A NN . § 38.04(a), (b)(1). The
13
elements of an intoxication assault offense require that a person, by accident
or mistake, operate a motor vehicle in a public place while intoxicated and
cause serious bodily injury to another. See id. § 49.07. The elements of a
FSRA offense require that the operator of a vehicle involved in an injury-
accident intentionally or knowingly fail to immediately stop or return to the
accident scene and to remain there until he complies with section 550.023 of
the transportation code. See T EX. T RANSP. C ODE A NN. § 550.021(a), (c) (Vernon
Supp. 2007). Section 550.023 of the transportation code requires providing
any person injured in the accident with reasonable assistance. Id. § 550.023(3)
(Vernon 1999).
FSRA and evading arrest with a vehicle do not require intoxication;
intoxication assault does not require the perpetrator to stay and render
reasonable assistance, or that the offender intentionally flee from authority.
See State v. Marshall, 814 S.W.2d 789, 796–97 (Tex. App.—Dallas 1991, pet.
ref’d); see also Ephraim v. State, 237 S.W.3d 438, 440–41 (Tex.
App.—Texarkana 2007, pet. ref’d) (holding that there was no double jeopardy
violation in convictions for “unsafe speed” and “intoxication assault,” although
the offenses shared some common elements, because the unsafe speed charge
did not require proving bodily injury or driver intoxication, and the intoxication
assault charge did not require proving that the offender used more excessive
14
speed than was reasonable and prudent under the circumstances). These are
all separate and distinct offenses—the only common element of all three is that
a motor vehicle must be involved. See Blockburger, 284 U.S. at 304, 52 S. Ct.
at 182; Vineyard, 958 S.W.2d at 836.
According to Ervin, we must now review whether the legislature intended
multiple punishments. Ervin set out a nonexclusive list, which includes
whether: (1) the offenses’ provisions are contained within the same statutory
section, (2) the offenses are phrased in the alternative, (3) the offenses are
named similarly, (4) the offenses have common punishment ranges, (5) the
offenses have a common focus, or “gravamen,” and whether that common
focus tends to indicate a single instance of conduct, (6) the elements that differ
between the offenses can be considered the “same” under an imputed theory
of liability which would result in the offenses being considered the same under
Blockburger, and (7) any legislative history containing an articulation of an
intent to treat the offenses as the same or different for Double Jeopardy
purposes. See 991 S.W.2d at 814.
With regard to evading arrest or detention, the legislature has explicitly
provided that “[a] person who is subject to prosecution under both this section
and another law may be prosecuted under either or both this section and the
other law.” T EX. P ENAL C ODE A NN. § 38.04(d). Therefore, as to the conviction
15
and punishment for evading arrest or detention with a vehicle, Larsen’s Double
Jeopardy protections were not violated. See id.
Applying Ervin to the other two offenses, intoxication assault and FSRA
are not contained within the same statutory sections: intoxication assault is
located in the penal code, under the chapter entitled, “Intoxication and
Alcoholic Beverage Offenses,” and FSRA is located in the transportation code,
under the chapter entitled “Accidents and Accident Reports.” They are not
phrased in the alternative or similarly named, although there is some overlap in
their punishment ranges. 9 The focus of the offenses differs, in that under
intoxication assault, an offender is punished for causing bodily injury to another
with his vehicle, regardless of intent, while the offender was intoxicated. In
contrast, under FSRA, an offender is punished for intentionally abandoning
someone that he injured with his vehicle, drunk or sober. And the elements
that differ between these offenses cannot be considered the “same” under an
imputed theory of liability. See Marshall, 814 S.W.2d at 797 (holding that the
State was not barred by double jeopardy from prosecuting the defendant for
9
… Intoxication assault here was a third degree felony, involving a
punishment range from two to ten years’ confinement and a fine not to exceed
$10,000; FSRA’s punishment range provides for confinement of one to five
years and a fine not to exceed $5,000. T EX. P ENAL C ODE A NN. §§ 12.34,
49.07(c); T EX. T RANSP. C ODE A NN. § 550.021(c)(2).
16
FSRA after obtaining a conviction for DWI for the same event). Under Ervin,
FSRA and intoxication assault do not constitute the same offense. See Ervin,
991 S.W.2d at 814; see also Villanueva v. State, 227 S.W.3d 744, 753 (Tex.
Crim. App. 2007) (Keller, P.J., dissenting) (“The legislature has shown a
willingness to impose additional criminal liability for a person’s failure to
mitigate the results of his (or others’) conduct. Failure to render aid is a
stand-alone offense, as is failure to report a felony and failure to stop and
render aid, to mention but a few examples. These statutes reflect the
legislature’s effort to encourage the amelioration of injury.”). We conclude that
Larsen’s Double Jeopardy protections were not violated and we overrule
Larsen’s second point.
IV. Motions for Continuance
In his first point, Larsen argues that the trial court erred by denying his
motions for continuance.
A. Standard of Review
The denying of a motion for continuance is within the sound discretion
of the trial court. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App.
2006); Heiselbetz v. State, 906 S.W.2d 500, 511–12 (Tex. Crim App. 1995).
A defendant must show “specific prejudice to his defense” to establish that the
trial court abused its discretion by refusing to grant a continuance. Renteria,
17
206 S.W.3d at 699; Heiselbetz, 906 S.W.2d at 511–12. Examples of specific
prejudice include unfair surprise, an inability to effectively cross-examine the
State’s witnesses, and the inability to elicit crucial testimony from potential
witnesses. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996),
cert. denied, 522 U.S. 825 (1997); Dotson v. State,146 S.W.3d 285, 297
(Tex. App.—Fort Worth 2004, pet. ref’d).
B. Analysis
Larsen argues that he established at the hearing
his diligence, material facts, that the requested continuance was
through no fault of his own part for the delay, that the motion was
not made for delay, as well as the fact that the late disclosures by
the State precluded his being ready for trial because of the absence
of a material witness, and of course: prejudice from the denial of
the requested continuance.
He contends that “[b]y denying the requested continuance herein the trial court
denied [Larsen] the ability to adequately prepare his case as to punishment, the
only contested matter before the Court and the jury,” and because he received
confinement instead of community supervision, he suffered harm.
At the continuance hearing, Larsen did not dispute the State’s argument
that he had caused his own delay by failing to show up at previously scheduled
18
meetings with his expert.10 Furthermore, although Larsen contended during the
motion hearing that he needed additional meetings with Dr. Fallis because
“[t]here has to be some testing scored in order for her to be prepared to
testify[,]” the record reflects that Dr. Fallis was able to complete the test
scoring in time to testify, and that she felt she had enough time to evaluate
Larsen for valid results.11 Therefore, Larsen has failed to show any specific
prejudice or harm with regard to the denial of his motions for continuance as
to the expert witness. See Janecka, 937 S.W.2d at 468.
As to Larsen’s notice argument, Larsen claims that the trial court erred
by denying his motions because he needed “to investigate with respect to 2
witnesses substituted for those he was put on notice by the State would testify
only the week before the trial.” Yet Larsen never identified which witnesses he
complained of, either in his motions or at the hearing. Instead, he merely
complained that “the [S]tate has provided us with additional information about
witnesses in this case within the last week with regard to prior bad acts. And,
additionally, we need more time to prepare for those witnesses at the time of
10
… At trial, Dr. Fallis testified that Larsen missed at least two
appointments with her.
11
… In response to the question by Larsen’s attorney with regard to
whether she had enough time to evaluate Larsen, Dr. Fallis stated, “Yes. I feel
confident about the things that are in my report.”
19
trial.” In his motion, he added that he needed the additional time “to prepare
cross-examination of these witnesses.”
At the hearing, Larsen did not contradict the State’s assertion that there
was only one new witness, Officer Scott Bird. The State contended that
Officer Bird was one of two officers in a Wal-Mart theft incident and that the
arrest record produced earlier by the State to Larsen listed both officers; Officer
Bird was the officer who had written the report included in the arrest record.12
During the punishment trial, Officer Bird testified to the same facts listed
in the report; Larsen thanked the officer for his testimony but did not cross-
examine him. Larsen testified to the same facts during his direct examination,
admitting that he had committed the offense by switching the price tag from
an expensive item, a pair of boots, to “a lesser-price tagged item.”
In his brief to this court, Larsen has failed both to identify any specific
witness or to explain how he was specifically prejudiced by the trial court’s
denial of his motions for continuance with regard to any specific witness. See
12
… The record does not contain any witness lists; however, it does
contain the State’s subpoena applications. The State filed a subpoena
application for Officer Bird on February 22, at 1:30 p.m. Larsen filed his
motions for continuance at 3:15 p.m. that day. To the extent that Larsen’s
complaint concerns Joyce Ho and Raymond Waller, persons named in the
State’s subpoena applications filed February 14, eight days earlier, neither
testified at trial. Therefore, no prejudice was shown.
20
Heiselbetz, 906 S.W.2d at 511–12 (requiring establishment of “specific
prejudice” from a trial court’s failure to continue the trial); see also T EX. R. A PP.
P. 38.1(h) (requiring that a brief “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”).
Because Dr. Fallis was able to provide the testimony Larsen hired her to
provide, and because Larsen opted not to cross-examine Officer Bird and
testified to the same facts as Officer Bird, Larsen has failed to show that he
was actually prejudiced by the denial of his motions for continuance. See
Heiselbetz, 906 S.W.2d at 511–12; Dotson, 146 S.W.3d at 297. Therefore,
the denial of his motions did not constitute an abuse of discretion. We overrule
Larsen’s first point.
V. Conclusion
Having overruled all of Larsen’s points, we affirm the judgments of the
trial court.
PER CURIAM
PANEL F: MCCOY, J.; CAYCE, C.J.; and WALKER, J.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 26, 2008
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