Joe Manuel Vargas v. The State of Texas--Appeal from 176th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-02 -00075 -CR

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JOE MANUEL VARGAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th Judicial District Court

Harris County, Texas

Trial Court No. 852119

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

I. Nature of the Case

Joe Manuel Vargas appeals his jury conviction of aggravated assault with a deadly weapon, enhanced by a prior felony conviction. He was sentenced to thirty years' imprisonment. No fine was assessed. In two points of error, Vargas contends: (1) the trial court erred by admitting an audio recording over his objections asserting a violation of the confrontation clause and lack of authentication; and (2) he was denied due process when the trial court denied his motion for continuance.

II. Factual Background

On July 8, 2000, Vargas and Michelle Espinoza had an argument culminating in a physical scuffle. As a result of the scuffle, Vargas was charged with assaulting Michelle with a deadly weapon-his crutch.

On the morning the case was set for trial, Vargas' counsel made an oral motion for a continuance due to missing witnesses. Counsel followed the oral motion with a handwritten motion. The trial court denied Vargas' motion for continuance, and the case proceeded to trial.

During trial, the State offered an audio recording of a 9-1-1 tape purporting to contain the voice of Frank Espinoza, Michelle's cousin, who stated Vargas had struck Michelle with his crutch during the physical scuffle. Vargas objected to the tape's admission based on failure to properly authenticate and based on a confrontation clause violation. The trial court overruled the objections and admitted the tape.

III. Discussion

A. Admission of the 911 Tape

In his first point of error, Vargas contends the trial court erred by admitting a 9-1-1 tape offered by the State. Specifically, Vargas asserts the tape's admission was improper because: (1) it violated his constitutional right to confrontation, and (2) the tape was not properly authenticated under Tex. R. Evid. 901.

1. Confrontation Clause Violation

Vargas' argument regarding a confrontation clause (U.S. Const. amend. VI) violation is limited to an assertion that he was denied the opportunity to confront and cross-examine the person who called 9-1-1 in order to "determine possible bias or to probe exactly what [the caller] saw." But Vargas fails to argue or cite authority supporting the proposition that his constitutional right to confrontation was violated under either the United States or Texas Constitutions by the trial court simply admitting the 9-1-1 tape. Vargas' brief is inadequate on this issue and presents nothing for our review. See Tex. R. App. P. 38.1(h) (requiring brief contain clear and concise argument for contentions made, with appropriate citations to authority and record).

We will, however, review whether the 9-1-1 tape was properly authenticated under Tex. R. Evid. 901.

2. Authentication Objection

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). We will not reverse a trial court's ruling if it was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391 (op. on reh'g).

Vargas' authentication challenge focuses on whether the voice on the 9-1-1 tape was sufficiently identified as Frank Espinoza's voice.

Tex. R. Evid. 901 governs the authentication of recordings. Angleton v. State, 971 S.W.2d 65, 69 (Tex. Crim. App. 1998). Under Rule 901(a), the requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). Here, the State offered the 9-1-1 tape to show that Frank Espinoza had called and reported that Vargas had struck Michelle with a crutch. The issue before us is whether Espinoza's voice was sufficiently identified for the purpose of authentication. There are several different methods under Rule 901 for voice identification. Voice identification may be based on hearing the voice and recognizing it. See Wilson v. State, 884 S.W.2d 904, 906 (Tex. App.-San Antonio 1994, no pet.). Voice identification may be based on what is said in the conversation. Id. A caller's voice can be demonstrated by self-identification coupled with additional circumstances, such as the context and timing of the call, the content of the statement, and disclosure of knowledge of facts known peculiarly to the speaker. Id. (citing United States v. Orozco-Santillan, 903 F.2d 1262, 1266 (9th Cir. 1990)). Finally, circumstantial evidence may be used to meet this requirement. Wilson, 884 S.W.2d at 906 (citing Palos v. United States, 416 F.2d 438, 440 (5th Cir. 1969)).

The evidence shows that Frank Espinoza is a cousin of the victim and was present at the time of the assault. At trial, Alicia Espinoza, Michelle's mother, testified that, after the scuffle between Michelle and Vargas, she told Frank Espinoza to call the police. Alicia used Frank's truck to take her daughter home from the hospital. When asked if the voice on the tape sounded like Frank's voice, Alicia testified it sounded a little bit like him, but she could not swear to it. In addition to Alicia's testimony, the caller on the 9-1-1 tape identified himself as Frank Espinoza and said he was a cousin of the party involved in the assault and a witness to it. Taken together and considering the methods of voice identification listed above, this evidence is sufficient to meet the identification requirements of Tex. R. Evid. 901 and, therefore, the trial court did not abuse its discretion by admitting it. Vargas' first point of error is overruled.

B. Denial of a Motion for Continuance

In his second point of error, Vargas contends he was denied due process when the trial court erroneously denied his motion for continuance.

On the morning the case was set for trial, Vargas' counsel moved for an oral motion for continuance, followed by a handwritten motion and sworn affidavit.

The trial court's ruling on a motion for continuance is reviewed for abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). To establish an abuse of discretion, an appellant must show he or she was actually prejudiced by the denial of the motion. Id.

Vargas' point of error is without merit for two reasons: (1) he did not show the facts expected to be proved by the missing witness as required by Tex. Code Crim. Proc. Ann. art. 29.06(3) (Vernon 1989); and (2) he has not shown he was actually prejudiced by the denial of his motion.

Tex. Code Crim. Proc. Ann. art. 29.06(3) requires that a motion for continuance based on the absence of a witness must state "[t]he facts which are expected to be proved by the witness, and it must appear to the court that they are material."

In his handwritten motion for continuance, Vargas named five witnesses whom he had subpoenaed, but who were not available to testify. In identifying four of the missing witness--Donna Blaha, R. K. Hillman, Jennifer Varela, and Blanca Ruiz--Vargas failed to provide any facts expected to be shown by the witnesses' testimony. This was insufficient under Article 29.06(3). For the fifth listed witness--Daniel Rodriguez--the motion indicated Rodriguez would testify that the truck owned by Vargas was his separate property. But nowhere in his motion, affidavit, or elsewhere in the record did Vargas show how this fact was material to any issue in the case. This, too, was insufficient under Article 29.06(3).

Furthermore, even though Vargas claims his "ability to present a defense was circumscribed by the Court's denial of a continuance; hence his constitutional right to due process was violated," he provides no evidence or argument showing he was actually harmed. Without this showing, we conclude the trial court did not abuse its discretion by denying Vargas' motion for continuance. SeeVasquez, 67 S.W.3d at 240. Vargas' second point of error is overruled

We affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: February 20, 2003

Date Decided: March 20, 2003

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