DAN RODRIGUEZ v. THE STATE OF TEXAS--Appeal from 138th District Court of Cameron County

NUMBER 13-01-203-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  DAN RODRIGUEZ, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 138th District Court

of Cameron County, Texas.

__________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

Appellant, Dan Rodriguez, brings this appeal following his conviction for capital murder and aggravated kidnapping. By seven issues, appellant contends the State committed improper jury argument, and, the trial court erred by: (1) denying appellant=s motion for continuance; (2) denying appellant=s request for additional time during his voir dire; (3) giving an improper jury charge; (4) allowing testimony of a fingerprint analysis; and (5) denying appellant=s challenges to two jury members. Appellant also contends that the cumulative effect of all alleged errors denied his right to a fair trial. We affirm.

I. Facts

On August 6, 1989, Jose Alberto Ramirez was abducted in front of his home by three men posing as police officers. Ramirez was never seen or heard from again. Following an investigation, a warrant was issued for appellant. The State contended that appellant was one of the three men involved in the abduction and killing of Ramirez. Appellant was eventually arrested in 1999 at the Miami International Airport after arriving from Columbia.

Following a trial to the jury, appellant was convicted of two counts of capital murder and two counts of aggravated kidnapping. The trial court sentenced appellant to life imprisonment on each count, the sentences to run concurrently, in the Texas Department of Criminal JusticeBInstitutional Division. This appeal ensued.

II. Motion for Continuance

By his first issue, appellant contends the trial court erred by denying one of his motions for continuance because he was having trouble making travel arrangements for three alibi witnesses from Columbia. We find it unnecessary to reach appellant=s contention because error, if any, was waived.

To preserve error and challenge a trial court=s refusal of a motion for continuance made because of an absent witness, an appellant must file a sworn motion for new trial stating the testimony he expected to present by the witness, Ashcraft v. State, 900 S.W.2d 817, 834 (Tex. App.BCorpus Christi 1995, pet. ref=d), and must show how the witness=s testimony would have been material. Gentry v. State, 770 S.W.2d 780, 787 (Tex. Crim. App. 1988). A mere recitation that the appellant expects to prove certain things by the witness is not sufficient. Id. at 788 (citing Parsons v. State, 160 Tex. Crim. 387, 271 S.W.2d 643 (1954)). Additionally, a showing under oath by means of an affidavit of the missing witness or other source as to what the witness would testify must accompany the motion for new trial. Ashcraft, 900 S.W.2d at 834.

In this instance, appellant not only failed to file a sworn motion for new trial providing detail as to what the witnesses would testify to, but he also failed to file a sworn affidavit with his motion for new trial giving detail as to what the witness would testify to. Ashcraft, 900 S.W.2d at 834. Thus, appellant failed to preserve error. Id. Appellant=s first issue is overruled.

III. Voir Dire

By his second issue, appellant contends the trial court erred by limiting his voir dire to forty-five minutes.

The control of voir dire is within the sound discretion of the trial court, and the court may impose reasonable restrictions on the manner in which the voir dire is conducted. See McCarter v. State, 837 S.W.2d 117, 120 (Tex. Crim. App. 1992); Ratliff v. State, 690 S.W.2d 597, 599 (Tex. Crim. App. 1985). The discretionary authority extends to imposing reasonable limits on the time allotted for counsel to question the jury. See Caldwell v. State, 818 S.W.2d 790, 793 (Tex. Crim. App. 1991), overruled on other grounds, Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995); Menchaca v. State, 901 S.W.2d 640, 645 (Tex. App.BEl Paso 1995, pet. ref=d). In determining whether the trial court abused its discretion by imposing a time limitation, we must consider whether: (1) the complaining party attempted to prolong voir dire; (2) the questions that the party was not permitted to ask were proper voir dire questions; and (3) if the party was precluded from examining prospective jurors who actually served on the jury. See McCarter, 837 S.W.2d at 119; Ratliff, 690 S.W.2d at 599. Every case must be examined on its own facts. Ratliff, 690 S.W.2d at 600.

In this instance, appellant filed a motion requesting a minimum of three hours to conduct voir dire. During the pre-trial hearing, the trial court informed appellant that he usually allowed a maximum of twenty-five minutes, but that because of the circumstances he would allow appellant forty-five minutes for voir dire. During voir dire, appellant=s counsel asked questions and discussed a variety of topics with the jurors, including: prior service; attitude toward service; contact with law enforcement; wrongful accusation; belief that an arrest is not evidence of guilt; presumption of innocence; burden of proof; and the nature of the case. When the trial court informed appellant that his forty-five minutes expired, appellant requested an additional hour of time. His request was denied. Appellant then filed an eight page list of questions he claimed he was unable to ask because of the time limitation. Upon review of the list, we find the questions concerned topics discussed during appellant=s forty-five minute voir dire.[1] Although appellant may have wanted to ask additional questions, the fact that a skilled lawyer can think of additional questions should not transform a reasonable time limit into an unreasonable limitation. See Whitaker v. State, 653 S.W.2d 781, 782 (Tex. Crim. App. 1983). Thus, because most of the additional questions he wanted to ask were indeed asked during his original time period, we find that appellant was merely trying to prolong the voir dire process. See McCarter, 837 S.W.2d at 119; Ratliff, 690 S.W.2d at 599. We conclude the trial court, in this instance, did not abuse its discretion in limiting the voir dire to forty-five minutes. See Thacker v. State, 889 S.W.2d 380, 390-91 (Tex. App.BHouston [14th Dist.] 1994, no pet.) (if party unnecessarily prolongs voir dire, trial court=s time limit is not an abuse of discretion). Appellant=s second issue is overruled.

IV. Improper Arguments

By his third issue, appellant generally contends the State made improper jury arguments.

The State claims this issue is multifarious and, therefore, not subject to review. A multifarious issue is one that embraces more than one specific ground. Stults v. State, 23 S.W.3d 198, 205 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d). While we may disregard and refuse to review a multifarious issue, we may also elect to consider it if we are able to determine, with reasonable certainty, the alleged error about which the complaint is made. Id.

In this instance, appellant=s brief is not sufficiently developed. Appellant makes bare assertions of improper conduct by the State, followed by string cites to support the assertions. However, not all of the assertions are supported by relevant cites. Appellant then lists examples from the record where alleged errors occurred without any corresponding argument or cases that relate to the record cites. See Tex. R. App. P. 38.1(h) (brief must contain clear and concise arguments for contentions made, with appropriate citations to authorities and to record). We will not make appellant=s arguments for him and, thus, we hold this issue to be inadequately briefed. See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000); Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000). Appellant=s third issue is overruled.

V. Jury Charge

By his fourth issue, appellant contends the trial court erred by failing to include

requested instructions to the jury concerning impeachment by inconsistent statements and prior criminal convictions of State=s witness, Marvin Lee.

When a defendant impeaches a State=s witness, an instruction limiting the jury=s consideration of the impeaching testimony is unnecessary. See Nethery v. State, 692 S.W.2d 686, 705 (Tex. Crim. App. 1985); Jones, 810 S.W.2d 824, 828 (Tex. App.BHouston [14th Dist.] 1991, no pet.). Thus, because Lee was a State=s witness, and he was impeached, an instruction was not necessary. Appellant=s fourth issue is overruled.

VI. Witness List

By his fifth issue, appellant contends the trial court erred in allowing the State to introduce testimony of a witness not previously listed on the State=s witness list. Specifically, appellant argues that the State=s failure to disclose its fingerprint expert entitles him to a new trial.

Upon request by the defense, notice of the State=s witnesses should be given. Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989) (citing Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977)). If a witness whose name is not on a witness list furnished the defendant is permitted to testify, the standard of review is whether the trial court abused its discretion in allowing such witness to testify. Irvine v. State, 857 S.W.2d 920, 926 (Tex. App.BHouston [1st Dist.] 1993, pet. ref=d) (citing Stoker, 788 S.W.2d at 15). In determining whether the trial court abused its discretion, this Court should consider whether: (1) the prosecutor acted in bad faith in failing to provide the defense with the name of the witness; and (2) the defendant could reasonably anticipate the witness would testify despite the State=s failure to disclose the witness=s name. See id. at 927.

In appellant=s opening statement, he made clear that he would rely on an alibi/misidentification defense. As part of this strategy, appellant denied that an identification card (ID) belonged to him, and claimed he was not the person pictured on the ID. Given this trial strategy, appellant should have anticipated that a fingerprint examiner would testify as a rebuttal witness regarding appellant=s fingerprint found on the ID. See id. Moreover, there is no evidence in the record of bad faith on part of the State. See id. We find the trial court did not abuse its discretion in allowing the testimony of the State=s fingerprint examiner. Appellant=s fifth issue is overruled.

VII. Challenges for Cause

By his sixth issue, appellant contends the trial court erred by denying his challenges to two jurors for cause. However, appellant provides no authority in support of his argument that the two jurors should have been excluded. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities. Tex. R. App. P. 38.1(h). We find this issue to be inadequately briefed. See Tong, 25 S.W.3d at 710. Appellant=s sixth issue is overruled.

VIII. Cumulative Effect of Errors

By his seventh issue, appellant contends that the Acumulative effect of all errors committed during trial@ entitle him to a new trial. However, because we have found no errors, this claim has no merit. Cf. Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002) (AA number of errors may be found harmful in their cumulative effect.@). Appellant=s sixth issue is overruled.

IX. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed this

19th day of December, 2002.

[1]We note that the topic of pre-trial publicity was included in his list of questions, however, the trial court addressed this topic during voir dire.