David Solis v. State ( 2008 )

NO. 07-08-0033-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 18, 2008
______________________________
DAVID SOLIS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF POTTER COUNTY;
NO. 2007-417,788; HON. CECIL G. PURYEAR, PRESIDING
_______________________________
Before CAMPBELL, HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, David Solis, appeals his convictions and sentences for two counts of
aggravated assault with a deadly weapon and one count of assault on a family member.
Appellant was sentenced to 15 years incarceration in the Texas Department of Criminal
Justice, Institutional Division, for each of the aggravated assault with a deadly weapon
convictions and was sentenced to 10 years incarceration for the assault on a family
member conviction. Each of these sentences are to run concurrently. We affirm.
Background
On or about January 3, 2007, appellant and his girlfriend, Fransisca Ramirez, got
into an argument. As the argument escalated, appellant began hitting Ramirez with his
hands. He, subsequently, began hitting her with a belt buckle that was attached to the end
of a belt. Appellant’s use of the belt and belt buckle caused scratching, cutting, and
bruising on Ramirez’s torso, arms, and legs. After things started to calm down, appellant
pulled out a small knife and held it against Ramirez’s neck. The following morning,
appellant again started hitting Ramirez with the belt buckle and belt. Following these
events, Ramirez went to work and, later that afternoon, went to visit her mother, where a
family member called the police.
At trial, the officer that responded to the call, Joe Pinson, testified. Pinson testified
that he was a certified police officer with the Slaton Police Department for 13 years. He
testified that he spoke with Ramirez about the incident in the afternoon following its
occurrence and photographed her injuries. Based on information he received from
Ramirez as well as his personal observation of Ramirez’s injuries, Pinson testified about
the manner in which appellant had used the belt and belt buckle. Over appellant’s
objection, Pinson testified that a belt and belt buckle used in the manner in which appellant
used them would be considered a deadly weapon.
By one issue, appellant challenges the judgment. Appellant’s sole issue contends
that the trial court erred in overruling appellant’s objection that Pinson testified as an expert
2
witness regarding what constitutes a deadly weapon without the State designating Pinson
as an expert witness in accordance with the trial court’s local rules.
Analysis
Appellant contends that the trial court erred in overruling his objection to Pinson
testifying as an expert when the State failed to provide notice of its intent to offer his expert
testimony, as required by the local rules of the court.1 According to appellant’s brief, under
“the local rules of the 137th District Court of Lubbock County[,] both Defense and
Prosecution are required to give notice to the other if they plan to call an expert witness to
the stand during trial.” However, appellant does not provide a verifiable citation to this
purported local rule and no copy of the purported local rule is included in the record or
attached to appellant’s brief. Our review of the local rules applicable to the Lubbock
County District Courts does not include any rule which requires designation of expert
witnesses. See Local Administrative Rules of the District Courts and County Courts-At-
Law of Lubbock County, Texas, http://www.co.lubbock.tx.us/DClerk/PDF/localrules.pdf;
Local Procedural Rules, Criminal Cases, Lubbock County, Texas (2004),
http://www.co.lubbock.tx.us/DCrt/PDF/LocalProceduralRules.pdf; Lubbock County Local
Fair Defense Act Plan and Rules Sections of the Local Administrative Rules (2004),
http://www.co.lubbock.tx.us/DCrt/PDF/FairDefenseActAmen.pdf. Without substantive
argument or supporting authorities, an issue cannot be adequately evaluated, and will be
1
Because appellant’s sole issue relates only to the procedural requirements for
offering expert testimony, we need not and, therefore, do not express any opinion
regarding whether Pinson’s testimony was, in fact, expert opinion testimony.
3
overruled. TEX . R. APP. P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App.
1997). As appellant’s sole citation to supporting authority is to a purported local rule that
cannot be verified by this Court, we overrule appellant’s issue.
We are, however, mindful that the Texas Code of Criminal Procedure provides,
On motion of a party and on notice to the other parties, the court in which an
action is pending may order one or more of the other parties to disclose to
the party making the motion the name and address of each person the other
party may use at trial to present evidence under Rules 702, 703, and 705,
Texas Rules of Evidence. The court shall specify in the order the time and
manner in which the other party must make the disclosure to the moving
party . . . .
TEX . CODE CRIM . PROC . ANN . art. 39.14(b) (Vernon 2005). The objection appellant raised
at trial to Pinson’s testimony was that, “He wasn’t designated, based on the Court’s order
that they designate their experts, if he is going to make an expert opinion as to what is or
is not a deadly weapon. And I would object to that for lack of notice.” However, a review
of the clerk’s record reveals neither a motion for identification of expert witnesses nor an
order from the trial court requiring the State to designate expert witnesses. Thus, there is
nothing in the record to indicate that the State was under any obligation to designate any
expert witness that it intended to call at trial.
However, even were we to find that the trial court’s ruling was in error because it
violated a local rule, trial counsel objected on the basis that Pinson’s testimony violated a
prior order of the trial court. If the complaint on appeal does not correlate to the objection
made at trial, the complainant has not preserved error. TEX . R. APP. P. 33.1(a); Thomas
v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). Because appellant’s argument on
4
appeal does not comport with the objection raised at trial, any error in the State’s failure
to designate Pinson as an expert witness was not preserved.
Conclusion
For the foregoing reasons, we overrule appellant’s sole issue.
Mackey K. Hancock
Justice
Do not publish.
5