Opinion
No. 05-04-00231-CR
Opinion issued November 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 21,342. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
Elizabeth Dianne Bodiford appeals her conviction for robbery. After appellant pleaded guilty, the jury assessed punishment at seventeen years' confinement. In seven issues, appellant claims the trial judge erred in overruling certain objections and denying her motion for mistrial, and that the prosecutor engaged in prosecutorial misconduct. We affirm the trial court's judgment. In her first issue, appellant complains the prosecutor "engaged in prosecutorial misconduct" when he mentioned an extraneous offense. Appellant claims she did not receive proper notice of the State's intent to use the extraneous offense during punishment, and the remarks denied her a fair trial. We disagree. Following the State's mention of an extraneous offense during the prosecutor's opening statement, defense counsel approached the bench and requested the jury be removed from the courtroom. Counsel then complained of the State's use of the extraneous offense, noting the State had not given proper notice of its intent to use the offense. At the conclusion of the discussion, the State conceded its error, noting that appellant could "let the trial go forward" or request a mistrial. When informed of her options, appellant chose to have the trial judge instruct the jury to disregard the comment and proceed with trial. Upon returning to the courtroom, the jury was instructed to disregard the comment. Although appellant now complains she was denied "her right to a fair trial," appellant received all the relief she requested-an instruction to disregard. Thus, no error is presented for our review. See Juhasz v. State, 827 S.W.2d 397, 401 (Tex.App.-Corpus Christi 1992, pet. ref'd) ("No error is preserved if a defendant receives all the relief he requests."); Norwood v. State, 737 S.W.2d 71, 73 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd) ("Appellant received all the relief he requested . . . Therefore, nothing is presented for review."). We overrule appellant's first issue. In her second issue, appellant claims the trial judge erred in denying her motion for mistrial during voir dire when the prosecutor attempted to get the jury to commit to a set of facts. "[A]n attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts." Allridge v. State, 850 S.W.2d 471, 480 (Tex.Crim.App. 1991). Commitment questions are "those that commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact." Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App. 2001). In Standefer, the court of criminal appeals noted,
Not all commitment questions are improper. For example, questions concerning a juror's ability to consider the full range of punishment for a particular offense meet the above definition of commitment questions but are nevertheless proper. The question, "Can you consider probation in a murder case?" commits a prospective juror to keeping the punishment options open (i.e., to refraining from resolving the punishment issues in a certain way) in a murder case.Standefer, 59 S.W.3d at 181 (footnote omitted). In this case, the prosecutor asked, "Is there anybody on the jury, without knowing anything about the facts of this case, who could not give the minimum punishment, which would be probation, if the facts and circumstances —" Appellant then objected, claiming the prosecutor was attempting to commit the jury to a set of facts. The judge sustained the objection and after appellant requested, instructed the jury to disregard the question. He then denied appellant's request for a mistrial. Appellant now challenges this ruling as error. Although the question appellant challenges on appeal is a commitment question under the discussion in Standefer, it is not improper. The question seeks to determine whether a prospective juror can keep the punishment options open while contemplating the facts of the case. Under Standefer, this is an acceptable commitment question. See Standefer, 59 S.W.3d at 181 (prospective juror must be able to consider full range of punishment provided for offense or be challengeable for cause). Appellant's complaint therefore lacks merit. We overrule appellant's second issue. In her third and fourth issues, appellant claims the trial judge erred in failing to enforce its ruling regarding the admission of the video tape. She further asserts the prosecutor engaged in misconduct by disregarding the judge's rulings on the admissibility of the audio portion of the video tape. Initially, we question whether appellant has properly briefed these issues for our review. Rule 38 of the rules of appellate procedure provides that a brief to the court of appeals shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex.R.App.P. 38.1(f), (h); see Rhoades v. Texas, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996) (interpreting former rule 74); Aldrich v. State, 928 S.W.2d 558, 560 (Tex.Crim.App. 1996) (interpreting former rule 74). The failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal. See Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App. 1995); Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992); Robinson v. State, 851 S.W.2d 216, 222 n. 4 (Tex.Crim.App. 1991). Appellant's brief fails to set forth any law to support her argument and does not clearly argue or analyze her position. She cites generally to three cases but provides no meaningful analysis of the law or facts of those cases, nor does she explain how the law applies to the facts of her case or how she was harmed by the misapplication, if any, of that law to her case. Thus, we conclude she has waived error, if any. See Stahle v. State, 970 S.W.2d 682, 692 (Tex.App.-Dallas 1998, pet. ref'd.) (issue not adequately preserved for review when appellant's conclusory argument contained only fleeting references to law and no discussion or analysis of relevant authorities or record cites); Menchaca v. State, 901 S.W.2d 640, 649-50 (Tex.App.-El Paso 1995, pet. ref'd) (concluding appellant waived point of error because, although appellant mentioned Sixth Amendment and Texas Rule of Criminal Evidence 801, he did not cite any case authority or provide any analysis in support of argument). To the extent she complains the prosecutor engaged in "prosecutorial misconduct" when he "attempted to continue to elicit testimony from its sponsoring witness," the judge, after ruling that only the video portion of the video tape would be published to the jury, told the prosecutor he could have the sponsoring witness narrate the chase scene. In order for a witness to testify regarding the video tape, the State was required to authenticate the video tape and demonstrate that the sponsoring witness had knowledge of what the item was. See Tex. R. Evid. 901; Wood v. State, 18 S.W.3d 642, 647 (Tex.Crim.App. 2000). Therefore, the prosecutor was required to provide "evidence sufficient to support a finding that the matter in question is what its proponent claims." Wood, 18 S.W.3d at 647 (citing Angleton v. State, 971 S.W.2d 65, 67-68 (Tex.Crim.App. 1998)). The evidence could be authenticated by (i) the testimony by a witness with knowledge that the matter is what it is claimed to be or (ii) its "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Wood, 18 S.W.3d at 647; see Tex. R. Evid. 901. Thus, the prosecutor did not engage in "prosecutorial misconduct" in authenticating the State's evidence, and the trial judge did not err in permitting the prosecutor to authenticate the evidence. We overrule appellant's third and fourth issues. In her fifth issue, appellant contends the trial judge erred in denying her motion for mistrial. Under this issue, appellant claims the prosecution's repeated questions about how her brother would likely testify if called constituted improper conduct and denied her a fair trial. Because appellant failed to adequately brief this issue on appeal, we conclude we need not reach the merits of her argument. As previously stated, rule 38 requires an appellant's brief to contain a statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex.R.App.P. 38.1(f), (h); see Rhoades, 934 S.W.2d at 119; Aldrich, 928 S.W.2d at 560. The failure to adequately do so waives any error on appeal. See Lawton, 913 S.W.2d at 558; Narvaiz, 840 S.W.2d at 429; Robinson, 851 S.W.2d at 222 n. 4. Under her fifth issue, appellant briefly recites the facts and makes only the following conclusory statement in her brief: "The State engaged in improper conduct concerning the speculative questioning of Appellant in an attempt to prejudice her before the jury be [sic] implying that her won [sic] family did not support her plea for probation when there was no evidence in the record to support such an insinuation." Appellant provides no discussion or analysis of relevant authorities or the record to support her argument. Under these circumstances, we cannot conclude this issue has been adequately preserved for our review. See Stahle, 970 S.W.2d at 692 (issue not preserved when appellant's brief contained conclusory argument, fleeting references to law, and no discussion or analysis of relevant authorities or record cites); Menchaca, 901 S.W.2d at 649-50 (error waived by failure to cite any case authority or provide any analysis in support of argument). We overrule her fifth issue. In her final two issues, appellant contends the trial judge abused his discretion in permitting appellant's mother to testify after she had been present and heard all the testimony during punishment. Evidentiary rule 614 provides that, at the request of a party, the judge shall order the exclusion of witnesses so they cannot hear the testimony of other witnesses. Tex. R. Evid. 614. The purpose of the Rule is to prevent corroboration, contradiction, and the influencing of witnesses. Minor v. State, 91 S.W.3d 824, 829 (Tex.App.-Fort Worth 2002, pet. ref'd). A two-step approach is taken in determining whether a trial judge abused his discretion in allowing a violation of the Rule. Guerra v. State, 771 S.W.2d 453, 476 (Tex.Crim.App. 1988). First, we consider what kind of witness was involved. "If the witness was one who had no connection with either the State's case-in-chief or the defendant's case-in-chief and who, because of a lack of personal knowledge regarding the offense was not likely to be called as a witness, no abuse of discretion can be shown." Guerra, 771 S.W.2d at 476. Under the second step, we determine whether (i) the witness actually conferred with or heard the testimony of another witness without court permission and (ii) the witness's testimony contradicted the testimony of a witness he actually heard from the opposing side or corroborated the testimony of another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence. Guerra, 771 S.W.2d at 476. Appellant's mother had no connection with the State's case-in-chief or the defendant's case-in-chief. Moreover, because of a lack of personal knowledge regarding the offense, she was not likely to be called as a witness; under these circumstances, we cannot conclude the trial judge abused his discretion in allowing her to testify despite her presence during punishment. See Guerra, 771 S.W.2d at 476. To the extent appellant complains the State failed to give proper notice of its intent to use extraneous offense or bad act evidence provided by appellant's mother, we note that appellant's mother testified only that she was afraid of appellant and had "a fear of her being out on probation." Because she did not testify or give evidence of any extraneous offenses or bad acts, the State was not required to give notice of the same. The trial judge did not abuse his discretion in allowing the testimony. We overrule appellant's final two issues. We affirm the trial court's judgment.
Appellant's issue actually complains that the trial judge erred in overruling her objection; however, as the trial judge sustained the objection and instructed the jury to disregard the statement, we construe her point to be the denial of her motion for mistrial.
In support of her argument, appellant cites this Court to article 36.03 of the code of criminal procedure which provides, in pertinent part, that "a court . . . may order the exclusion of a witness who for the purposes of the prosecution is a victim, close relative of a deceased victim, or guardian of the victim." Tex. Code Crim. Proc. Ann. art. 36.03 (Vernon Supp. 2004-05). Because the witness at issue in this case is appellant's mother who is not "a victim, close relative of a deceased victim, or guardian of the victim," we conclude article 36.03 is inapplicable and do not discuss it.