Neil Curran v. State

NO. 07-10-0078-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
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.
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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
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(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).
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 [1st 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.
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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
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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.
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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.
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