We review a trial court's determination for whether an out-of-state witness is necessary and material for an abuse of discretion. Ashby v. State, 646 S.W.2d 641, 644 (Tex. App.-Fort Worth 1983, pet. ref'd). A trial court abuses its discretion when it acts without reference to any guiding rules and principles or when it acts arbitrarily or unreasonably.
After receiving an application, the trial court determines, among other things, whether the "witnesses are material and necessary." Ashby v. State, 646 S.W.2d 641, 644 (Tex. App.—Fort Worth 1983, pet. ref'd); see also Reader's Digest Ass'n, Inc. v. Dauphinot, 794 S.W.2d 608, 610 (Tex. App.—Fort Worth 1990, orig. proceeding) (addressing propriety of order denying request to quash subpoena in criminal case). The applicant has the burden of proving that the out-of-state witness is material and necessary, and the trial court's ruling is reviewed for an abuse of discretion.
To subpoena an out of state witness in California, the Texas trial judge must first determine that the witness is material and necessary. See Ashby v. State, 646 S.W.2d 641, 643 (Tex. App.—Fort Worth 1983, writ ref'd); see also Johnson v. State, 746 S.W.2d 791, 794 (Tex. App.—Corpus Christi 1987, writ ref'd) (must establish testimony is material and necessary). If materiality is established, the Texas court then issues a certificate stating that finding and specifying the number of days the witness will be required.
It is proper to charge only on the means which is supported by the evidence. Ashby v. State, 646 S.W.2d 641, 644 (Tex. App.—Fort Worth 1983, pet. ref'd). As stated above, Dr. Ahmad suspected L.G. had internal bleeding upon his arrival at the hospital.
The trial judge should not charge the jury on a manner or means of committing an offense that is not supported by any evidence. See Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012); Ashby v. State, 646 S.W.2d 641, 644 (Tex. App.—Fort Worth 1983, pet. ref'd). But in this case, there was some evidence to support the State's theory that appellant kicked Hipp.
Although appellant has a sixth amendment right of compulsory process to call witnesses in his favor, and this right is applicable to the State under the Fourteenth Amendment of the Federal Constitution, this right is not absolute. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Ashby v. State, 646 S.W.2d 641, 643 (Tex.App. — Fort Worth 1983, pet.ref'd.). We fail to see that appellant established a valid need for the witnesses from Ohio. The trial court's refusal to advance the funds appellant requested was not an abuse of discretion, nor a denial of due process, nor did such a ruling deny the appellant the effective assistance of counsel.