Reynaldo Daniel, Jr. v. State

Opinion issued August 26, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00429-CR REYNALDO DANIEL, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Court at Law No. 3 Galveston County, Texas Trial Court Cause No. 221736 MEMORANDUM OPINION A jury found appellant, Reynaldo Daniel, Jr., guilty of assault causing bodily injury, and the trial court sentenced him to 365 days’ confinement. In his sole issue, appellant contends that the trial court erred when it denied his motion for mistrial “which was based on the failure of the State to secure the attendance of material and favorable witnesses after appellant filed an application for subpoenas for witnesses.” We affirm. Background On March 19, 2003, appellant’s counsel filed an application for trial witness subpoenas. The subpoenas instructed the witnesses to appear to testify at trial at 10:00 a.m. on March 24, 2003. On March 24, 2003, appellant announced ready for trial, and the trial commenced. After the State rested, appellant’s counsel informed the trial court that the defense witnesses were not present. The trial court took a 10-minute break to give the defense time to locate its witnesses. Appellant’s counsel put on one witness, and the trial court broke for the day. The next morning, appellant’s counsel informed the trial court that appellant was “not ready because the subpoenas, as far as I know haven’t been served.” Appellant’s counsel also admitted that he had spoken with one potential defense witness and “may have left him with the impression he didn’t have to show up.” After further inquiry regarding the subpoenas, appellant’s counsel asked the trial court to order writs of attachment for the missing witnesses who had been served but not yet appeared. The trial court responded, “I don’t know that I can do that. They were served after the time frame and I think that you released one of them.” The trial court denied appellant’s request. Appellant’s counsel then asked the trial court for extra time to allow the witnesses to be served and appear. The trial court granted appellant’s request and gave appellant until 1:00 p.m., on March 25 2003, to locate his witnesses. Appellant did not file a motion for continuance. Two of the subpoenaed witnesses appeared before the resumption of trial. The only witness who did not appear was Ron Manning. However, Manning had not been served by the court-imposed deadline. Appellant’s counsel moved for a mistrial, and the trial court denied the request. The trial continued, and the jury returned a guilty verdict later that afternoon. Appellant filed a motion for new trial, which was denied by operation of law. Motion for Mistrial In his sole point of error, appellant argues that, because the trial court denied his motion for mistrial, he was deprived of his constitutional right to compulsory process for obtaining witnesses, and the jury did not have an opportunity to hear his version of the facts. When a subpoenaed witness does not appear, the party calling him must follow three steps to preserve error. Erwin v. State, 729 S.W.2d 709, 714 (Tex. Crim. App. 1987); Rodela v. State, 829 S.W.2d 845, 848 (Tex. App.—Houston [1st Dist.] 1992, no pet.). First, the party must request a writ of attachment, which must be denied by the trial court. Erwin, 729 S.W.2d at 714; Rodela, 829 S.W.2d at 848. Second, the party must show what the witness would have testified to. Erwin, 729 S.W.2d at 714; Rodela, 829 S.W.2d at 848. The defendant may make this showing by attaching affidavits to the motion for continuance or to a motion for new trial or by providing testimony at a new trial hearing. See Gentry v. State, 770 S.W.2d 780, 787 (Tex. Crim. App. 1988); Lemmons v. State, 75 S.W.3d 513, 526 (Tex. App.—San Antonio 2002, pet. ref’d). A party’s assertion of the anticipated testimony on the record in open court is also sufficient to preserve error. Sturgeon v. State, 106 S.W.3d 81, 85 (Tex. Crim. App. 2003). Third, the testimony that the witness would have given must be relevant and material. Id. If all three requirements have been met, reversible error will result unless the error made no contribution to the conviction or to the punishment. Id. In this case, appellant failed to meet the second and third requirements necessary to preserve error on this issue. Here, appellant has not shown, through open court testimony, affidavits, or a bill of exceptions, what Manning’s testimony would have been. Although appellant indicated that he would file a bill of exceptions, there is no evidence in the record that one was filed. In his motion for new trial, appellant merely asserted, “a material defense witness was kept from the court to testify on behalf of the defendant through acts of fraud.” Such a statement does not sufficiently show the substance of the proposed testimony. See Erwin, 729 S.W.2d at 713–14. Finally, appellant argues that he should be excused from having to show the materiality of Manning’s testimony because he did not know that his witnesses had not been served with subpoenas until well into the trial and his only option was to ask for a mistrial. Appellant has cited no authority in support of this argument, and we have found none. Accordingly, for all of the reasons stated above, appellant failed to preserve error regarding the trial court’s denial of his motion for mistrial. See Erwin, 729 S.W.2d at 713–14. We overrule appellant’s sole issue. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Taft, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b).