VINCENTE RODRIGUEZ MENDOZA, JR.,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00587-CR
VINCENTE RODRIGUEZ MENDOZA, JR.,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, LAGARDE, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
MAY 9, 1989
        A jury convicted Vincente Rodriguez Mendoza, Jr. of murder and assessed punishment at eight years' imprisonment. Appellant's counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969) indicating there is not any error or combination or errors of sufficient merit to warrant reversal of the conviction. A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed.
        Appellant's counsel does present the following four points which he characterizes as arguable: (1) the State did not establish proper predicate before introduction of photographic evidence; (2) the court erred in overruling appellant's motion to reopen and his motion for continuance; (3) the prosecutor misstated evidence in closing argument; and (4) the court erred in entering a deadly weapon finding. We find no merit in any of appellant's points of error, and based on our review of the record we find nothing that might arguably support the appeal. Accordingly, the judgment of the trial court is affirmed.
        In his first point, appellant contends that ten photographs of the murder scene were wrongfully admitted into evidence because the State failed to lay the proper predicate. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. TEX. R. CRIM. EVID. 901(a). A police photographer testified that he took the pictures a short time after the murder, and that the photographs accurately depict the crime scene when he arrived. We hold the State laid a proper predicate. Point one is overruled.
        Appellant claims in his second point that the trial court should have permitted him to reopen his case and should have granted his request for a continuance to produce absent witnesses. The decision whether to reopen a case is left to the sound discretion of the trial judge. Cain v. State, 666 S.W.2d 109, 111 (Tex. Crim. App. 1984). An important consideration is whether the evidence is available at the time the request to reopen is made. Vital v. State, 523 S.W.2d 662, 664 (Tex. Crim. App. 1975). In the instant case, the absent witnesses were not present when appellant requested his case be reopened. Accordingly, we find no abuse of discretion in overruling the motion to reopen.
        Regarding the motion for continuance, such motions must be in writing and sworn to by someone with personal knowledge of the facts relied upon for the request. TEX. CODE CRIM. PROC. ANN. art. 29.08 (Vernon Supp. 1989). There is no abuse of discretion in failing to grant an oral motion for continuance. Hightower v. State, 629 S.W.2d 920, 926 (Tex. Crim. App. 1981). Appellant's motion was orally presented. Accordingly, the trial court did not err in denying it. Point two is overruled.
        Appellant asserts in his third point that the State made an improper argument at the punishment stage of trial. The prosecutor, in referring to the shooting, stated: "[Appellant] thought about it. He had time to think about it. It was a conscious decision on his part to pull that trigger. He had the gun." Appellant objected that the argument was a misstatement of evidence. The four traditional areas of permissible jury argument are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Brown v. State, 692 S.W.2d 497, 502 (Tex. Crim. App. 1985). A witness for the State testified that appellant "was finding a target. He took a while to find his target, and once he found his target [he took about four seconds] before he shot him." We conclude that the objected-to argument in the instant case was a reasonable deduction from the evidence. Point three is overruled.
        In his final point, appellant asserts that the trial court erred by including a deadly weapon finding in its judgment. The jury found appellant guilty of murder "as charged in an indictment." The indictment alleged that appellant murdered the deceased by shooting him with "a handgun, a deadly weapon." The term "deadly weapon" was defined in the jury charge. Once the jury found appellant guilty "as charged," the trial court acted in accordance with its mandatory duty and entered the deadly weapon finding. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). Arguable point four is overruled.
        We have examined the record and conclude that appellant's counsel has followed the rule of law announced in Anders v. California, 386 U.S. 738 (1967) and the procedure recommended in Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We agree that the appeal is wholly frivolous and without merit. Further we find nothing in the record that might arguably support the appeal. The judgment of the trial court is affirmed.
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00587.F
 
 
File Date[01-02-89]
File Name[880587F]