Esther Garcia Ortega v. State

Affirmed and Opinion filed July 30, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00090-CR
ESTHER GARCIA ORTEGA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1769477
OPINION
Appellant Esther Ortega was charged with, and convicted of, possession of a
gambling device. See Tex. Penal Code Ann. § 47.06 (West 2011). Appellant
appeals her conviction, raising four issues. We conclude that appellant did not
preserve her first issue, which challenges the trial court’s jurisdiction on the ground
that the jurat in the complaint was undated. In her third issue, appellant asserts
that dismissal is required because her right to a speedy trial was violated as a result
of the State’s failure to prosecute her in a timely manner. We overrule this issue
because appellant has not made a prima facie showing that she was prejudiced by
the delay of twenty-seven months.
Appellant urges in her fourth issue that she was entitled to testimonial
immunity under Texas Penal Code section 47.08 because she was required to
furnish self-incriminating testimony to one of the investigating sergeants on the
scene. We overrule this issue because the trial court could reasonably have
concluded that appellant was not required to furnish testimony to the sergeant but
instead voluntarily provided the information.
Finally, appellant seeks a new trial in her second issue, arguing that the court
denied her a fair trial for two reasons. Regarding appellant’s complaint that the
trial court refused to enforce her subpoena for the motherboards from seized
gambling devices, we hold the court did not abuse its discretion given that the
motherboards had been auctioned off or destroyed. As to appellant’s contention
that the trial court violated her right to compulsory process when it did not allow
her to question a bank teller about seized funds, we hold that she failed to preserve
this complaint for appellate review. We therefore affirm the trial court’s judgment.
BACKGROUND
From October 22 to November 9, 2010, the Harris County Sheriff’s
Department conducted an undercover investigation of the “Treasure Island
Arcade.” As part of the investigation, an undercover deputy, Terrence Burks,
visited the arcade on three different occasions and gambled on several video
gaming devices, commonly known as “eight-liners.” Deputy Burks determined the
eight-liners were illegal because they paid out more than five dollars, or more than
ten times the value of the original wager. During one of his visits to the Treasure
Island Arcade, Deputy Burks placed a 40-cent wager and won $108.80. Appellant
2
was working as a floor attendant at the arcade and paid Deputy Burks his winnings
in cash.
As a result of Deputy Burks’s investigation, a search warrant was obtained
and executed on November 9, 2010. Appellant was working her assigned shift as a
floor room attendant when the search warrant was executed. During the search,
deputies seized approximately seventy gambling devices and the money found
inside the arcade, including the money inside the eight-liners. After the warrant
was executed and the premises were secured, Sergeant Touchasee Kributr
interviewed appellant inside one of the arcade’s offices. Appellant was not read
her Miranda warnings before or during the interview, a recording of which was
admitted into evidence.1 Sergeant Kributr and appellant each testified that Kributr
advised appellant she was not under arrest and was free to leave at any time.
Kributr asked appellant if she would voluntarily agree to talk with him about the
arcade’s operations. Appellant told Kributr that her duties were to give change to
the customers, pay out cash, and keep the arcade’s refrigerator clean and loaded
with snacks. Furthermore, appellant admitted that she was aware gambling was
illegal in Texas and that Treasure Island Arcade was involved in illegal gambling.
Appellant was charged in February 2011 with possession of a gambling
device. Appellant filed a motion to dismiss the case based on a defective
complaint and invalid information, and the trial court granted the motion on July
11, 2011. The State then refiled the complaint and information against appellant
on July 15, 2011. The State, however, failed to arrest appellant for nearly two
years. As a result, appellant was unaware that a warrant had been issued for her
arrest.
In July 2013, appellant finally became aware of the outstanding warrant
1
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
3
against her and surrendered to police. Appellant was tried and convicted of
possession of a gambling device. She was sentenced to serve two days’
imprisonment in the county jail and fined $700. Appellant timely filed this appeal.
ANALYSIS
I. Appellant waived any error concerning the trial court’s jurisdiction by
failing to object to the undated jurat in the complaint.
In her first issue, appellant argues that the trial court never had jurisdiction
because the complaint lacked a date in the jurat, rendering the charging instrument
invalid. For misdemeanor offenses, a prosecutor “shall forthwith prepare an
information based upon such complaint and file the same in the court having
jurisdiction.” Tex. Code Crim. Proc. Ann. art. 2.05 (West 2005). Appellant
contends in her first issue that a complaint lacking a date in the jurat is
fundamentally defective, citing Shackelford v. State, 516 S.W.2d 180 (Tex. Crim.
App. 1974). Shackelford held that because “there can be no valid information in
the absence of a valid complaint, a complaint without a proper jurat will not
support an information.” Id.
We hold that appellant failed to preserve this challenge in the trial court. If a
“defendant does not object to a defect, error, or irregularity of form or substance in
an indictment or information before the date on which the trial on the merits
commences, he waives and forfeits the right to object to the defect, error, or
irregularity, and he may not raise the objection on appeal or in any other post-
conviction proceeding.” Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App.
2003). Appellant does not point out where in the record she timely objected to the
alleged defect, and our own independent review of the record failed to locate an
objection. Because appellant failed to object to the allegedly defective complaint
on which the information was based, we overrule appellant’s first issue.
4
II. Appellant’s right to a speedy trial was not violated.
In her third issue, appellant argues she is entitled to dismissal because her
right to a speedy trial was violated as a result of a twenty-seven-month delay
between the date she was formally charged with possession of a gambling device
and the date of her motion seeking dismissal on speedy-trial grounds.
A. Standard of review and applicable law
An accused is guaranteed the right to a speedy trial under both the United
States and Texas Constitutions. U.S. Const. amend. VI; Tex. Const. art. I, § 10.
Texas courts apply the same standard to enforce the state constitutional right to a
speedy trial as federal courts use to enforce the Sixth Amendment right to a speedy
trial. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). We therefore
analyze together appellant’s claims that these rights were violated.
The right to a speedy trial attaches once a person is either arrested or
charged with an offense. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App.
2008). Courts analyze speedy trial claims on a case-by-case basis by balancing the
following factors: (1) length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of her right; and (4) the prejudice inflicted on the defendant
by the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972). No single Barker factor
is “either a necessary or sufficient condition to the finding of a deprivation of the
right of speedy trial.” Id. at 533. Instead, the factors must be examined together,
along with any other relevant circumstances. Id.
In order to trigger a speedy-trial violation analysis, “an accused must allege
that the interval between accusation and trial has crossed the threshold dividing
ordinary from ‘presumptively prejudicial’ delay.” Doggett v. United States, 505
U.S. 647, 651–52 (1992). Once the first Barker factor is satisfied, an analysis of
the remaining factors is triggered. Cantu, 253 S.W.3d at 281. The State must meet
5
its burden of justifying the length of delay, while the defendant must satisfy her
burden of proving the assertion of the right and showing that she was prejudiced as
a result of the delay. Id. at 280. “The defendant’s burden of proof varies inversely
to the State’s degree of culpability for the delay.” State v. Wei, 447 S.W.3d 549,
554 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). In other words, “the
greater the State's bad faith or official negligence and the longer its actions delay a
trial, the less a defendant must show actual prejudice or prove diligence in
asserting his right to a speedy trial.” Cantu, 253 S.W.3d at 280–81.
We apply a bifurcated standard of review when analyzing a trial court’s
ruling on a speedy trial claim. Id. at 282. Legal components are evaluated de
novo, while the factual components are evaluated for an abuse of discretion. Id.
Review of the individual Barker factors necessarily involves factual determinations
and legal conclusions, but the balancing test as a whole is “a purely legal
question.” Id. With respect to the trial court’s resolution of factual issues, we
view all of the evidence in the light most favorable to the trial court’s ruling. Id.
Because the trial court denied appellant’s motion on the record without making
findings, “we presume that the trial judge resolved any disputed fact issues in the
State’s favor, and we defer to the implied findings of fact that the record supports.”
Id. There are no disputed fact issues in this case, however, because neither party
offered any evidence in connection with the speedy trial issue. In their arguments
on this issue at the pretrial hearing, the attorneys referred to documents in the trial
court record to establish the relevant dates.
B. Analysis of the Barker factors
1. The delay triggers a speedy-trial analysis.
The first Barker factor, the length of the delay, is measured from the time
the defendant is arrested or formally accused until the trial or the defendant’s
6
demand for a speedy trial occurs. United States v. Marion, 404 U.S. 307, 313
(1971); Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). Here,
appellant was formally charged on July 15, 2011 and filed her motion to quash or
dismiss alleging a speedy-trial violation on October 21, 2013, an interval of over
twenty-seven months. The State concedes this delay is sufficient to trigger a
speedy-trial analysis. We agree. See Harris, 827 S.W.2d at 956 (noting that delay
of eight months or longer is presumptively unreasonable and triggers speedy-trial
analysis).
2. The reason for the delay was not explained.
The burden of justifying the delay is on the State. Cantu, 253 S.W.3d at
280. In evaluating the State’s reason for the delay, we assign different weights for
different reasons. Barker, 407 U.S. at 531. For instance, a deliberate or intentional
prosecutorial delay will weigh heavily against the State. Id. A more neutral
reason, such as negligence, will weigh less heavily against the State. Id. A valid
justification for delay should not weigh against the State at all. Id. In the absence
of an assigned reason for the delay by the State, we may presume neither a
deliberate attempt to prejudice the defense nor a valid reason for the delay.
Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).
As noted above, the length of delay was twenty-seven months. The record
reflects that the State failed to notify appellant of the refiled charges against her or
execute the arrest warrant for two years of that period. In the trial court, the State
did not offer a specific reason for the delay. This factor therefore weighs in favor
of finding a violation of the speedy trial right, although not heavily because the
delay was not intentional or deliberate. Dragoo, 96 S.W.3d at 314; Wei, 447
S.W.3d at 555.
7
3. Appellant moved for dismissal rather than a speedy trial after
learning of the charges.
The defendant has the sole responsibility of asserting the right to a speedy
trial. Barker, 407 U.S. at 531. The failure to assert the right diligently makes it
difficult for a defendant to show she was denied a speedy trial. Id. at 532. “Filing
for a dismissal instead of a speedy trial will generally weaken a speedy-trial claim
because it shows a desire to have no trial instead of a speedy one. If a defendant
fails to first seek a speedy trial before seeking dismissal of the charges, he should
provide cogent reasons for this failure.” Cantu, 253 S.W.3d at 283. The failure to
request a speedy trial before seeking dismissal “supports an inference that the
defendant does not really want a trial, he wants only a dismissal.” Id.
In this case, appellant learned of the charges against her in July 2013.
Appellant could not have sought a speedy trial diligently before this date because
she was unaware of the pending charges. See Wei, 447 S.W.3d at 555. On the
other hand, appellant did not file her motion to quash or dismiss alleging a speedy
trial violation until October 2013.2 During this time, appellant’s counsel signed
four case reset forms and filed one motion for continuance. There is no indication
in the record that appellant asked for a speedy trial before filing her motion. We
therefore conclude that this factor carries only minimal weight in establishing a
violation of the speedy trial right.3
2
See White v. State, No. 04-10-00412-CR, 2011 WL 2893107, at *3 (Tex. App.—San
Antonio July 20, 2011, no pet.) (mem. op., not designated for publication) (focusing on whether
appellant diligently asserted right to speedy trial after becoming aware of charges); State v.
Pyburn, No. 03-02-00269-CR, 2002 WL 31026832, at *3 (Tex. App.—Austin Sept. 12, 2002,
pet. ref’d) (not designated for publication) (same); Mitchell v. State, No. 05-93-01946-CR, 1995
WL 437188, at *1, *3 (Tex. App.—Dallas July 20, 1995, no pet.) (not designated for
publication) (same).
3
See White, 2011 WL 2893107, at *3.
8
4. Appellant did not make a prima facie showing of prejudice.
We evaluate prejudice in light of the interests that the speedy-trial right was
designed to protect: (1) minimizing anxiety and concern of the accused, (2)
preventing oppressive pretrial incarceration, and (3) limiting the possibility that the
defense will be impaired. State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App.
1999). Of these interests, “the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of the entire system.”
Id. The defendant has the burden to make some showing of prejudice, although a
showing of “actual prejudice” is not required. Id. If the defendant makes a prima
facie showing of prejudice, the burden shifts to the State to prove that the
defendant suffered “no serious prejudice beyond that which ensued from the
ordinary and inevitable delay.” Id. Furthermore, if the State fails to persuasively
rebut the presumption of prejudice, the defendant is entitled to relief. Doggett, 505
U.S. at 658.4
In this case, the first two interests that the speedy trial right was designed to
protect are not at issue because appellant was unaware of the pending charge. As
to the third interest, appellant contends her ability to mount a defense was impaired
because “the delay in informing her of the charges allowed her to lose contact with
the witnesses.” “Before such a contention will amount to ‘some showing of
prejudice,’ the appellant must show [1] that the witnesses are unavailable, [2] that
their testimony might be material and relevant to [her] case, and [3] that [she] has
exercised due diligence in [her] attempt to find them and produce them for trial.”
Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973); see also Phipps v.
State, 630 S.W.2d 942, 947 (Tex. Crim. App. 1982); Harrison v. State, 282 S.W.3d
4
We note this is not a case in which the delay was so lengthy as to excuse appellant from
the requirement of demonstrating prejudice. Cf. Gonzales v. State, 435 S.W.3d 801, 812–15
(Tex. Crim. App. 2014) (six years); Wei, 447 S.W.3d at 555 (fifty-one months).
9
718, 722 (Tex. App.—Amarillo 2009, no pet.).
Here, appellant did not meet any of these three elements because she offered
no evidence regarding the speedy trial issue—only argument of counsel regarding
matters outside the courtroom. Yet even if we consider her counsel’s arguments at
the pretrial hearing, appellant did not meet all of the elements required for a
showing of prejudice.
The witnesses that appellant’s attorney asserted were missing, Aaron
Hilburn and Lorenzo Santiago, were co-defendants in connection with the case.
Hilburn was the manager of Treasure Island Arcade. He pled guilty and was
placed on deferred adjudication for one year beginning in June 2011. According to
counsel, appellant was unable to locate Hilburn once his probation requirements
were satisfied. Counsel asserted that Santiago’s case was dismissed in June 2012
and he was then deported to Mexico. Appellant argues she was prejudiced by her
inability to locate these two witnesses because, without the delay, she would have
been able to locate and use the witnesses.
At most, these arguments show that the witnesses were unavailable.
Counsel did not address the steps taken to locate the witnesses (particularly
Hilburn), so appellant has not shown that she exercised due diligence in attempting
to find them and produce them for trial. Moreover, appellant failed to show that
the missing witnesses’ testimony would have been relevant and material to her
defense. Accordingly, the record does not show that appellant’s ability to defend
herself was prejudiced by the delay, and this factor weighs against a finding of a
speedy trial violation. See Harris, 489 S.W.3d at 309; Harrison, 282 S.W.3d at
722.
10
5. The balance of factors supports the trial court’s ruling.
Having analyzed the Barker factors, we conclude that, on balance, the
evidence supports the trial court’s ruling. Although the delay of twenty-seven
months triggers a speedy-trial analysis, we conclude that the State’s failure to
explain its delay does not outweigh the lack of prejudice resulting from that delay.
The burden of making a prima facie showing of prejudice was on appellant, and
she failed to specify how she diligently attempted to locate the allegedly missing
witnesses or how they would have contributed to her defense. Accordingly, we
hold that appellant was not denied her right to a speedy trial, and the trial court did
not err in denying appellant’s motion to dismiss. We overrule appellant’s third
issue.
III. Appellant was not entitled to immunity under section 47.08 of the Penal
Code because she was not required to furnish evidence or testify.
In her fourth issue, appellant argues that the trial court erred when it refused
her request for immunity from prosecution under section 47.08 of the Penal Code.
The statute provides that individuals who are parties to gambling offenses “may be
required to furnish evidence or testify about the offense.” Tex. Penal Code Ann.
§ 47.08.5 The statute then protects those individuals from prosecution for any
offenses about which they are required to furnish evidence. Id. Appellant argues
5
Section 47.08 of the Penal Code provides, in relevant part:
(a) A party to an offense under this chapter may be required to furnish evidence or testify
about the offense.
(b) A party to an offense under this chapter may not be prosecuted for any offense about
which he is required to furnish evidence or testify, and the evidence and testimony may
not be used against the party in any adjudicatory proceeding except a prosecution for
aggravated perjury.
(c) For purposes of this section, “adjudicatory proceeding” means a proceeding before a
court or any other agency of government in which the legal rights, powers, duties, or
privileges of specified parties are determined.
11
she was required to give incriminating testimony to Sergeant Kributr during a
custodial interrogation that was not preceded by Miranda warnings, and that this
testimony was used to prosecute her for possession of a gambling device. 6 We
disagree and conclude the trial court did not err in denying appellant immunity.
Appellant has identified no authority for the proposition that a police
officer’s unwarned custodial interrogation can amount to a “require[ment] to
furnish information” that triggers immunity under this statute, rather than the
ordinary remedy of exclusion (which is not at issue in this appeal).7 Even
assuming that immunity could be triggered in such a circumstance (which we need
not and do not decide), we hold that the trial court could reasonably have found
that no custodial interrogation occurred here. Thus, appellant is not entitled to
immunity.
On the night the Harris County Sheriff’s Department raided the arcade,
Sergeant Kributr conducted a recorded interview with appellant concerning the
status and operations of Treasure Island Arcade. Appellant contends this interview
was a custodial interrogation because Sergeant Kributr took her into a room alone,
while still wearing his raid mask and gun, and asked her questions. As a result,
appellant claims the statements were involuntary.
6
Appellant also contends that there was a violation of her privilege against self-
incrimination under the Sixth Amendment to the United States Constitution, Article I, section 10
of the Texas Constitution, and Art. 1.05 of the Texas Code of Criminal Procedure. These
arguments, however, were not preserved. See Tex. R. App. P. 33.1(a).
7
Cf. Graham v. State, 994 S.W.2d 651, 653–54 (Tex. Crim. App. 1999) (explaining that
grant of immunity under Texas law is prosecutorial promise to dismiss case and requires court
approval); Bolton v. State, 265 S.W.2d 84, 85 (Tex. Crim. App. 1954) (applying prior version of
section 47.08 conferring immunity when court or prosecutor compels party to appear and testify
in court regarding offense); Carpenter v. State, 192 S.W.2d 268, 270 (Tex. Crim. App. 1946)
(holding under prior version of section 47.08 that to obtain immunity, party seeking it must has
burden “to show that he was summoned as a witness and examined relative to a violation of the
particular statute under which he is being prosecuted,” and that the immunity is no broader than
the privilege against self-incrimination).
12
In Miranda v. Arizona, the Supreme Court of the United States held that “the
prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
384 U.S. 436, 444 (1966). Texas codified these safeguards in article 38.22 of the
Texas Code of Criminal Procedure. Section 3(a) of article 38.22 provides that no
oral statement of an accused “made as a result of custodial interrogation” shall be
admissible against him in a criminal proceeding unless an electronic recording of
the statement is made, the accused is given all specified warnings, including the
Miranda warnings, and he knowingly, intelligently, and voluntarily waives the
rights set out in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22 § 3(a) (West
2005).
Miranda warnings and article 38.22 requirements are mandatory only when
there is a custodial interrogation, however. Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007). The meaning of “custody” is the same for purposes of
both Miranda and article 38.22. Id. The State has no burden to show compliance
with Miranda unless and until the record as a whole “clearly establishes” that the
defendant’s statement was the product of a custodial interrogation. Id.
Miranda defined “custodial interrogation” as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” 384 U.S. at 444. A
“person is in ‘custody’ only if, under the circumstances, a reasonable person would
believe that his freedom of movement was restrained to the degree associated with
a formal arrest.” Herrera, 241 S.W.3d at 525. The subjective belief of the
defendant and the subjective intent of the police are not relevant except to the
extent they are objectively manifested in words or actions. Dowthitt v. State, 931
13
S.W.2d 244, 254 (Tex. Crim. App. 1996).
The record does not support appellant’s argument that she was subjected to a
custodial interrogation. At trial, Sergeant Kributr testified that he advised appellant
“she was not under arrest and that she was not in handcuffs, and I asked her if she
would voluntarily agree to talk to me about the game room operations.” In fact,
appellant herself testified that Sergeant Kributr told her she was not under arrest
and could leave the interview at any time. States’ Exhibit 17, the audio recording
of the interview, corroborates this version of the events.8 Furthermore, appellant
was not arrested that night and left the arcade after the interview. Based on the
record, we hold the trial court could reasonably have concluded that appellant was
not subjected to custodial interrogation. Thus, appellant could not qualify for
immunity under section 47.08 even if such immunity could be triggered by an
unwarned custodial interrogation. We overrule appellant’s fourth issue.
IV. Appellant is not entitled to a new trial based on the court’s failure to
enforce her subpoena or allow her questions.
Finally, appellant seeks a new trial in her second issue, arguing that she was
denied a fair trial on two grounds. Appellant first contends the trial court abused
its discretion when it declined to enforce her subpoena for the State to produce the
motherboards from the seized eight-liners. Appellant also asserts the trial court
denied her compulsory process when it prohibited her from questioning a Wells
Fargo bank teller about seized funds deposited into an account. We review each
sub-issue in turn.
8
States’ Exhibit 17 is an audio recording of the interview between Sergeant Kributr and
appellant. Sergeant Kributr can be heard asking appellant if she would voluntarily give a
statement. Appellant is heard agreeing to give a voluntary statement concerning the operations
of Treasure Island Arcade and her role as an employee.
14
A. The trial court did not abuse its discretion regarding the
motherboards because the eight-liners had been auctioned off or
destroyed before trial.
Appellant argues that the trial court abused its discretion when it refused to
enforce her subpoena for the State to produce the motherboards from the seized
eight-liners. Prior to trial, appellant claimed she wanted to use the motherboards in
order to show the jury how the devices operate and to demonstrate that the
“devices seized were not per se gambling devices.” The eight-liners, however, had
been auctioned off or destroyed after Hilburn, the arcade’s manager, was placed on
deferred adjudication. The State, therefore, no longer had possession of the eight
liners. The trial court refused to enforce appellant’s subpoena. The court
explained that appellant would still be able to cross-examine Sergeant Montemayor
and Deputy Burks about the missing eight-liners, and that the missing devices
would go “to the weight” of the evidence.
Appellant contends that the trial court’s refusal to enforce her subpoena
violated her state and federal constitutional rights to compulsory process.
Criminal defendants have a constitutional right to compulsory process for
obtaining witnesses in their favor. U.S. Const. amend. VI; Tex. Const. art. I, § 10.
Compulsory process “is in plain terms the right to present a defense, the right to
present the defendant’s version of the facts as well as the prosecution’s to the jury
so it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14, 19
(1967). The right to compulsory process, however, is not absolute. Defendants are
guaranteed compulsory process for obtaining witnesses whose testimony would be
both material and favorable to the defense. Coleman v. State, 966 S.W.2d 525,
527–28 (Tex. Crim. App. 1998).
We review appellant’s complaint that the trial court improperly refused to
enforce her subpoena under an abuse of discretion standard. Torres v. State, 424
15
S.W.3d 245, 261 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).9 We
conclude that because the motherboards were no longer in the State’s possession,
the trial court did not violate appellant’s right to compulsory process when it
refused appellant’s request to compel the State to produce them. The eight-liners
had been auctioned off or destroyed, and it would have been impossible for the
State to produce the devices. We therefore hold the trial court did not abuse its
discretion when it declined to enforce appellant’s subpoena.
B. Appellant did not preserve a compulsory process complaint
regarding evidence of the disposition of the seized funds.
Appellant next contends that she was denied her right to compulsory process
when the trial court barred her from questioning a Wells Fargo bank teller about
the disposition of funds seized from Treasure Island Arcade. In her brief, appellant
claimed the bank teller had knowledge of “what happened to the proceeds” and the
information obtained from the bank teller “would have been important to the cross-
examination” of Sergeant Montemayor. Appellant argues the bank teller’s
testimony “could have cast doubt on the entire testimony of [Sergeant] Chris
Montemayor.” The State does not respond to this argument in its brief.
We review “complaints concerning limitations on the right to compulsory
process under an abuse-of-discretion standard.” Lawal v. State, 368 S.W.3d 876,
886 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (citing Drew v. State, 743
S.W.2d 207, 225 n. 11 (Tex. Crim. App.1987)). We conclude that although
appellant raises a compulsory process violation claim in her brief, she nevertheless
failed to preserve this issue before the trial court. Appellant may not raise a
9
Appellant has not argued, either at trial or on appeal, that she is entitled to a new trial
because the Due Process Clause was violated when the State destroyed exculpatory or potentially
useful evidence. Cf. State v. Vasquez, 230 S.W.3d 744, 747–48 (Tex. App.—Houston [14th
Dist.] 2007, no pet.). We therefore confine our analysis to appellant’s claim regarding the
court’s refusal to enforce her subpoena.
16
compulsory process violation for the first time on appeal. See Trenor v. State, 333
S.W.3d 799, 805 (Tex. App.-Houston [1st Dist.] 2010, no pet.). For appellant to
preserve her compulsory process complaint for appellate review, the record must
show that appellant made a timely, specific request, objection, or motion to the
trial court. Tex. R. App. P. 33.1(a).
Appellant has failed to cite to the record showing where the trial court
violated her compulsory process right.10 Furthermore, our independent search of
the trial court record shows it lacks any mention by appellant of a Wells Fargo
bank teller. The first time appellant mentions the Wells Fargo bank teller is in her
brief on appeal. In a pretrial hearing, appellant did raise an issue regarding the
State’s compliance with her subpoena for various items, including bank records
regarding the disposition of the seized funds. The trial court addressed certain of
the other items requested and then asked appellant whether there was anything
else, to which appellant responded “Nothing else, your honor.” Later, during trial,
the trial court sustained a relevance objection to appellant’s questions of Sergeant
Montemayor regarding the disposition of the seized funds. But appellant did not
respond by making an offer of proof or raising a compulsory process complaint.
For these reasons, we hold appellant did not preserve for appellate review
her compulsory process complaint regarding the disposition of the seized funds.
Having addressed and rejected each argument made in her third issue, we overrule
appellant’s third issue.
10
The Texas Rules of Appellate Procedure provide, in part, that an appellant’s brief
“must contain a clear and concise argument for the contentions made, with appropriate citations
to authorities and to the record.” Tex. R. App. P. 38.1(i).
17
CONCLUSION
Having overruled each of appellant’s issues on appeal, we affirm the trial
court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Jamison, Busby, and Brown.
Publish — TEX. R. APP. P. 47.2(b).
18