Opinion
NO. 09-11-00013-CR
09-05-2012
SAMSON GONZALES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 10-07-08158-CR
MEMORANDUM OPINION
Appellant Samson Gonzales was charged in a single indictment with five counts of possession of a controlled substance with the intent to deliver. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2010). A jury convicted Appellant of all five counts and assessed punishment. Appellant presents a number of issues on appeal. We find Appellant's issues are without merit and affirm the trial court's judgment.
I. SUFFICIENCY OF EVIDENCE
In his first issue, Appellant contends the trial court erred by denying his motion for instructed verdict. Specifically, he challenges the corroboration testimony for the accomplice witnesses. He contends generally that there is insufficient evidence that Appellant possessed a controlled substance. A motion for an instructed verdict is a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993); Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) ("A challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction."). In reviewing challenges to the denial of an instructed verdict, we apply the same standard as we apply to challenges for legal sufficiency of the evidence. See id.
The "Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In evaluating legal sufficiency, we review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The reviewing court gives full deference to the jury's responsibility to "'fairly resolve conflicts in [the] testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318-19). The jury may accept or reject all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
Under Texas Health and Safety Code Section 481.112(a), a person commits the offense of possession of a controlled substance with the intent to deliver or manufacture if the person "knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1." Id. § 481.112(a). Penalty Group 1 includes methamphetamine and cocaine. Id. § 481.102(3)(D), (6). The offense "is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams. Id. § 481.112(d). A. Corroboration of Accomplice Witness Testimony
Appellant complains that the State presented insufficient evidence to corroborate the accomplice witness testimony for counts one through five. Because the State did not present or rely on accomplice witness testimony for count four of the indictment this argument is inapplicable to that offense. We find sufficient evidence to corroborate the accomplice witness testimony for counts one, two, three and five.
Article 38.14 provides that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). In conducting a sufficiency review under this rule, "a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime." Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). The corroborating evidence need not alone be sufficient to establish guilt; rather, the evidence must simply link the defendant to the commission of the crime in some way. Id.; see also Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). Sometimes even insignificant incriminating circumstances may provide sufficient corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999) (quoting Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996)). There is no set amount of non-accomplice corroboration evidence that is required for sufficiency purposes, as each case must be judged on a case-by-case basis. Malone, 253 S.W.3d at 257. When coupled with other suspicious circumstances, proof the accused was at or near the scene of the crime about the time of its commission may tend to connect the accused to the crime and furnish sufficient corroboration to support conviction. Id. However, mere presence alone at the scene of the crime is insufficient corroboration of accomplice testimony. Id.
The jury charge included an accomplice as a matter of law instruction for Randy Stokes, Blake Bratcher, and Debra Perry. However, Officers Dunn, Macfarlane, Green, Benavides, Clendenen, Seals, Looza, Welch, Bradshaw, and McPherson also testified. Because these officers were not accomplices, their testimony can be used as corroboration. When considering this combined evidence, viewed in a light most favorable to the verdict, we conclude that the testimony of these officers is sufficient evidence that tends to connect Appellant to the contraband and commission of the charged crimes. See Solomon, 49 S.W.3d at 361; see also Evans, 202 S.W.3d at 161-62; Poindexter, 153 S.W.3d at 406.
Counts 1 and 2: July 20, 2009
Count 1 alleged that on or about July 20, 2009, Appellant possessed cocaine with the intent to deliver. Count 2 alleged that on the same day, Appellant possessed methamphetamine with the intent to deliver. Officer Jason Dunn testified that on July 20, 2009, he had someone call Appellant and place an order for methamphetamines. Dunn arranged to pick up the methamphetamines at Porter Food Store. While Dunn was waiting in the parking lot of the store, a vehicle drove up. Dunn approached the passenger side of the vehicle and made contact with Randy Stokes. Dunn testified that Stokes handed him a small Ziploc bag that contained .6 grams of methamphetamine in exchange for City issued "buy money."
After Dunn purchased the methamphetamine from Stokes, Dunn drove to a secure area where he joined other officers to participate in further surveillance. They followed Stokes' to his residence. They then followed Stokes from his residence to a small strip center where officers observed Stokes conduct a hand-to-hand narcotics transaction. Officer Jose Benavides testified that he observed Appellant driving a black Suburban approximately a quarter mile away from the strip center and notified the other officers. Thereafter, Dunn observed the black Suburban pass slowly by the strip center. Dunn testified that it appeared to him that the Suburban was "shadowing" the drug transaction, which is done to protect the person selling the drugs, or to allow the main drug dealer to keep "an eye on his underling[.]"
Dunn testified that although the Suburban was registered to Appellant's wife, Appellant most often drove the Suburban. Benavides testified that he had conducted rolling surveillance on Appellant's residence for over six months and that during that time, he never saw anyone other than Appellant driving the Suburban.
Dunn followed Stokes back to his residence. Stokes left again and this time, Dunn followed Stokes to another strip center. Dunn testified Stokes parked and exited his vehicle, and then walked over to and entered Appellant's black Suburban. Benavides testified that he observed Appellant and Stokes talking inside the Suburban, but that they were looking down and appeared to be concentrating their efforts on something. Benavides believed they were conducting a narcotics transaction. Officer Gregory Green testified that he pulled in front of the black Suburban and exited his patrol car. He testified that while Appellant was sitting in the driver's seat of the Suburban, Appellant reached down towards the center of the console. Because Green did not know what Appellant was reaching for, Green drew his weapon and gave several verbal commands for Appellant to show his hands. Green testified that Appellant kept doing something with his hands in the console area "for five or six, maybe even seven or eight verbal commands until he finally showed [Green] his hands." Green approached the driver's door, opened the door, pulled Appellant out of the vehicle, handcuffed Appellant, and placed Appellant in the back of a patrol car. Green testified that Appellant had money on his lap.
Officer J. Macfarlane testified that after Green removed Appellant from the vehicle, he proceeded to inventory the contents of the Suburban. The officer collected approximately $1,500 from the driver's side floorboard. He testified that Dunn's "buy money" was included in the $1,500 he found. He also recovered torn up notebook paper that had been stuffed between the center console and the driver's side seat. He testified he collected as many of the pieces of paper as he could find and tried to piece them back together. He also recovered a black ledger, a notebook, and another ledger. He testified that the ledger appeared to have entries in it that were "consistent with keeping track of dope amounts, money, and stuff like that." Macfarlane turned the evidence over to Dunn.
Dunn testified that he also believed the reconstructed torn notebook paper looked like a "drug ledger." Within the black notebook recovered from the Suburban was another sheet of paper that had a set of numbers written on it. Dunn testified the set of numbers was significant because it turned out to be the combination for the safe located at Stokes's residence.
Dunn interviewed Stokes and observed that he was shaken, upset, and worried about his children. After Stokes gave a statement to Dunn, Dunn had a constable go to Stokes's residence to locate and seize narcotics they understood would be at the residence. Sergeant Buck Clendenen was dispatched to Stokes's residence. The evidence in the record reflects that Nina Gonzales is Appellant's common-law wife and Dietra Schoelmann is Stokes's common-law wife. Clendenen testified that as he drove past Stokes's residence, he observed Gonzales on the front porch, and Schoelmann standing in the doorway. He testified that when Schoelmann saw the police cars, she appeared startled, turned around, and ran into the residence. Clendenen testified that they had driven past the residence and it took them a significant amount of time to get their vehicles turned around and back to the residence. When Clendenen finally pulled into the driveway, Schoelmann was returning to the front porch. He advised Schoelmann that they were there because of information they had received from Stokes. Schoelmann told Clendenen that she lived at the residence and gave officers her consent to search the residence. Clendenen stood at the front door with Schoelmann and Gonzales, while Lieutenant Mark Seals and Deputy Drew Sharp searched the residence. Seals testified that he found a Sentry brand safe in the bedroom and a plastic tackle box that contained narcotics in the backyard. Seals testified that Schoelmann admitted that she threw the narcotics in the backyard. Seals located a set of keys in the ignition column of Gonzales's vehicle. The set of keys included a key with the brand name "Sentry" written on the top. He testified that the key fit the locking mechanism of the safe and turned the cylinder of the safe's lock. He testified that a person with possession of the key would have had control over the safe since the key enabled the holder to bypass the safe's keypad and change the codes.
Dunn testified that the items on the torn sheet of notebook paper found in the Suburban with Appellant correlated with the narcotics organized and labeled in the tackle box found in Stokes's backyard. He also testified that the sheet of paper taken out of the ledger found in the Suburban contained the combination to the keypad of the safe located at Stokes's residence.
Count 3: April 22, 2009
Count 3 of the indictment alleges that on April 22, 2009, Appellant possessed, with the intent to deliver, methamphetamine. Officer Arthur Looza testified that on April 22, 2009, he made a traffic stop of a 1994 Tahoe, driven by Blake Bratcher. Officer Benavides testified that the Tahoe was registered to Fidel Gonzales, Jr., Appellant's father. Benavides testified that he had previously seen the Tahoe at Appellant's house. Chief Deputy Barry Welch searched Bratcher's person and discovered narcotics.
Sergeant Kenneth Bradshaw testified that on April 22, 2009, he received a call informing him that Looza received some information that there could be narcotics in an apartment in Kingwood, Texas. When he arrived at the apartment, he encountered Crystal English. Bradshaw testified that Bratcher lived in the apartment with English. English gave Bradshaw her consent for officers to search the apartment. Bradshaw testified that Bratcher told English over the phone to show the officers where the narcotics were located. Bradshaw located a safe in the pantry. Bradshaw testified there was a small baggy in front of the safe that contained narcotics. He also found narcotic paraphernalia and other controlled substances, including cocaine, marijuana, and methamphetamine in the apartment. He found scales in the apartment and testified that the narcotics appeared packaged for delivery. English insisted that the drugs belonged to someone else.
With English's consent, Dunn removed the safe from her apartment. Although both Bratcher and English appeared cooperative with the investigation, neither could provide a combination to unlock the safe. Dunn testified that once they had the safe opened, he found methamphetamine on the inside. Dunn compared the safe he found in English's apartment to the safe he found in Stokes's residence, and testified that the two were similar and were both Sentry brand safes.
Count 5: June 3, 2009
Count 5 of the indictment alleges that on June 3, 2009, Appellant possessed with the intent to deliver, methamphetamine. On June 3, 2009, Dunn met with a confidential informant and had the informant contact Appellant to arrange to purchase narcotics. Dunn went to the prearranged location, but Debra Perry showed up in Appellant's place. Dunn observed his partner, Officer William McPherson, meet with Perry and purchase methamphetamine from her. McPherson also testified, and confirmed that he went undercover on June 3, met with Perry, and purchased approximately 5 grams of methamphetamine from her.
Later, while Perry was stopped for a traffic violation, Dunn confronted her about recently selling narcotics to an undercover officer. Perry asked Dunn if they could move from where she had been stopped in order to avoid being seen by Appellant's parents, who lived down the road. Dunn testified that Perry was nervous and appeared scared of Appellant. Dunn complied with her request and they moved to a nearby fire station. Once at the fire station, Perry admitted to selling methamphetamine. She told Dunn that Appellant provided her with the narcotics and a phone for Appellant to reach her with to relay the information she needed to make his deliveries. While Dunn was speaking with Perry, she received a phone call from Appellant. On the call, Perry arranged to meet Appellant. Dunn testified that Appellant changed his phone number soon after Dunn's encounter with Perry, which led Dunn to suspect that Perry told Appellant about their conversation.
After having reviewed the record, we conclude that while the non-accomplice corroborating evidence may not have been sufficient to prove guilt beyond a reasonable doubt, it was sufficient for a rational jury to have concluded the corroborating evidence tended to connect Appellant to the offenses in counts 1, 2, 3, and 5 of the indictment. B. Possession of a Controlled Substance
Appellant contends generally that there is insufficient evidence that he possessed a controlled substance. In addition to the non-accomplice testimony detailed above, the jury heard testimony from accomplices Randy Stokes, Blake Bratcher, and Debra Perry.
To support a conviction for unlawful possession of narcotics, the State must prove the accused exercised actual care, custody, control, or management over the substance and knew the matter possessed was contraband. See Tex. Health & Safety Code Ann. § 481.002(38); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The affirmative links rule requires that the evidence, whether direct or circumstantial, establish that the defendant's connection with the controlled substance was more than fortuitous. Evans, 202 S.W.3d at 161. The rule is intended to protect innocent bystanders from conviction based solely on a person's fortuitous proximity to another's drugs. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).
Thus, when a defendant is not in exclusive possession of the place where the contraband is found, the State must offer additional independent facts and circumstances which affirmatively link the defendant to the contraband. Poindexter, 153 S.W.3d at 406. It is not the number of links that is dispositive, but the logical force of the combined evidence, direct and circumstantial, that supports a jury's verdict. See Evans, 202 S.W.3d at 162; Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). The trier of fact is the exclusive judge of the credibility of the witnesses and the weight given to their testimony in determining whether the evidence shows a sufficient link between the defendant and the contraband. Poindexter, 153 S.W.3d at 406.
A person intends to deliver a substance if it is his conscious objective or desire to transfer, actually or constructively, the substance to another. Tex. Health & Safety Code Ann. § 481.002(8) (West 2010); Tex. Penal Code Ann. § 6.03 (a) (West 2011). Intent to deliver can be inferred from the acts, words, and conduct of the defendant. See Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd).
Randy Stokes testified that Appellant offered him a job to sell and deliver narcotics for Appellant. Stokes testified that he made at least ten deliveries a day for Appellant. Appellant agreed to pay Stokes a percentage of the profits from selling the narcotics. They agreed that Stokes would keep the narcotics at his house, in a safe provided by Appellant. Appellant supplied Stokes with the narcotics that Stokes then delivered. Stokes testified that Appellant "processed" the narcotics and explained that by "processing" he meant that Appellant bought the narcotics in a "big quantity and then [Appellant] bagged it all up himself and weighed it all himself[.]" Stokes testified that after the narcotics were processed, they were placed in a fishing tackle box. He testified that he delivered narcotics, which he had retrieved from the fishing tackle box, at Appellant's direction on July 20, 2009, to the Porter Food Store and to the Kenco strip center. He testified that after he made these deliveries, he met with Appellant to deliver the profits he made selling narcotics over the past few days. He testified that while he was meeting with Appellant, officers approached Appellant's Suburban and took them into custody. He testified that as officers approached the Suburban, Appellant was "ripping up the notebook for which had all the deliveries [Stokes] made throughout the weeks." Stokes testified that Appellant wrote down the details of Stokes's deliveries, including the dates of delivery, the amount of drugs delivered, and the amount of money exchanged. He testified he told officers where they could find additional drugs at his house.
Blake Bratcher testified that on April 22, 2009, while driving Appellant's vehicle, he was pulled over by police for a traffic violation and arrested for possession of narcotics. He admitted that when he was arrested, he was in possession of more than four grams of methamphetamine. He testified that when officers pulled him over, he was on his way to Wal-Mart to make a narcotics delivery for Appellant. He explained that Appellant helped prepare the methamphetamine for delivery that day, told Bratcher where to go, and arranged to meet with Bratcher after the delivery.
Bratcher testified that when he first started working for Appellant, Appellant had prearranged for Bratcher to pick up the narcotics. Appellant accompanied Bratcher to pick up the narcotics, which Bratcher stored at his apartment in a safe. Bratcher testified that he did not know the combination to the safe, and did not retrieve narcotics from the inside of the safe, but that Appellant did. He explained that Appellant typed in a code to open the safe and that Appellant also had a key to open the safe. Bratcher testified that on the night he was arrested, there were narcotics both inside and outside of the safe. He explained that he and Appellant had packaged and made ready the narcotics on the outside of the safe for delivery.
Bratcher testified that Appellant brought him additional cocaine and crystal meth to replenish his original supply. He testified generally that he received calls from Appellant telling him "where to go and what to take to who." He explained that he would then meet with Appellant to give Appellant the money he had received in exchange for the narcotics. After Bratcher was arrested, he told officers where they could find additional drugs in his apartment.
Debra Perry testified that she worked for Appellant. She testified she first approached Appellant and asked if she could work for him delivering narcotics. She testified that Appellant eventually put her to work selling drugs. She testified that she would receive a call from a male telling her where to go to pick up the drugs, where to drop the drugs off, and then where to leave the money she had received in exchange for drugs. She testified she never knew exactly who the person calling her was, but she understood that she was working for Appellant when she was making deliveries.
Having reviewed all the evidence, as set out above, in the light most favorable to the verdict, we conclude that the jury could have found beyond a reasonable doubt in each count that Appellant possessed the contraband with the intent to deliver to another person. We overrule this issue.
II. VENUE
The indictment alleged that Appellant possessed controlled substances while in Montgomery County. Appellant argues the evidence was insufficient to prove venue for the offenses. Appellant suggests that since he "was arrested in Harris County, Texas, and the money from that arrest was forfeited in Harris County, Texas," there is insufficient evidence to show that he committed "each and every case" in Montgomery County. Appellant further argues that "there is insufficient proof to even show that Montgomery County had jurisdiction over him and the record in fact shows that [Appellant] should have been tried in Harris County[.]"
Venue is different from jurisdiction and is not a constituent element of the offense. State v. Blankenship, 170 S.W.3d 676, 681 (Tex. App.-Austin 2005, pet. ref'd). Jurisdiction is the power of the court to hear and decide the case. Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005). A trial court can have jurisdiction to hear and determine a case even though venue does not lie in that court. See Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981). The issue of venue concerns the geographic location where the case may be tried and is, at least in part, determined by whether the criminal acts had "substantial contacts" with the location. Soliz v. State, 97 S.W.3d 137, 143 (Tex. Crim. App. 2003); see Tex. Code Crim. Proc. Ann. art. 13.04 (West 2005). The State need only prove venue by a preponderance of the evidence, not beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005); see Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). Proof of venue may be established by direct or circumstantial evidence, and the trier of fact may make reasonable inferences from the evidence to decide the issue of venue. Thompson v. State, 244 S.W.3d 357, 362 (Tex. App.—Tyler 2006, pet. dism'd). If the jury may reasonably conclude the offense was committed in the county alleged, then the evidence is sufficient to establish venue. Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964).
For Count 2, Dunn testified that he purchased narcotics from Stokes at the Porter Food Store in Montgomery County, Texas. For Count 1, Dunn testified that after Stokes sold him the narcotics in Montgomery County, Stokes went to his residence, which is located in Montgomery County, Texas. Dunn testified they followed Stokes from his residence to a strip center in Harris County, Texas, where they observed Stokes meet with someone and conduct a hand-to-hand narcotics transaction. Stokes then returned to his residence in Montgomery County, only to later leave again and go to another strip center in Harris County where he met Appellant. Officer Green arrested Appellant in the parking lot of the strip center in Harris County. Officers later seized narcotics from Stokes's residence, located in Montgomery County.
The State presented sufficient evidence for a jury to find that Stokes worked for Appellant delivering narcotics, that Appellant had Stokes keep the narcotics at his residence in Montgomery County, and that Appellant had ultimate control over the narcotics Stokes sold. Additionally, for Count 2, it is undisputed that Stokes sold narcotics to an undercover police officer in Montgomery County. For Count 1, there is evidence in the record from which the jury could infer that Stokes retrieved the narcotics from his residence prior to delivery in Montgomery County.
Count 3 involved methamphetamine found on Bratcher's person during a traffic stop on Loop 494 in Montgomery County, Texas. The State presented sufficient evidence for the jury to find that Bratcher worked for Appellant in the same capacity that Stokes worked for Appellant, delivering narcotics. Further, the evidence establishes that Bratcher was stopped in Montgomery County and found to be in possession of methamphetamine in Montgomery County.
Counts 4 and 5 involved quantities of methamphetamine delivered to the driveway of a residence in Montgomery County. The evidence establishes that for Count 4, Appellant personally delivered methamphetamine to the driveway of a residence in Montgomery County. For Count 5, there is sufficient evidence for the jury to find that at Appellant's behest, Debra Perry delivered methamphetamine to the driveway at the same residence in Montgomery County. Based on the evidence in the record, the jury could reasonably infer that Appellant possessed narcotics in Montgomery County. See Thompson, 244 S.W.3d at 362. We find the State offered sufficient evidence in the record to support venue in Montgomery County. See Rippee, 384 S.W.2d at 718. Because we conclude the jury could reasonable find from the evidence that Appellant possessed the contraband in each count in Montgomery County, we overrule this issue.
III. CONFIDENTIAL INFORMANT
Within its legal sufficiency challenge, Appellant argues that we should not consider Dunn's testimony of a confidential informant or any transaction involving the informant because the State did not produce the informant as a witness at trial.
The confidential informant is only relevant with regard to Count 4 of the indictment, which alleges that on May 14, 2009, Appellant possessed, with the intent to deliver, methamphetamine. Officer Dunn testified that he and another officer met with a confidential informant, who called Appellant and ordered methamphetamine. Dunn testified that he traveled to the location where the informant had pre-arranged to meet with Appellant, observed Appellant arrive in the black Suburban, observed the informant approach the driver's side window of the Suburban and hand Appellant some money, and then observed Appellant hand the informant 6 grams of methamphetamine.
Appellant's argument is not a sufficiency issue, but rather is premised on the Confrontation Clause. The Confrontation Clause of the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. CONST. amend. VI. The Confrontation Clause bars a witness's out-of-court testimonial statements unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 59, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). While the United States Supreme Court has not provided a comprehensive definition of testimonial statements, the Court has identified three kinds of out-of-court statements that could be regarded as testimonial, including "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010) (citing Wall v. State, 184 S.W.3d 730, 735-36 (Tex. Crim. App. 2006) (internal quotations omitted)); see Crawford, 541 U.S. at 51-52.
Here, Appellant points to no out-of-court statements made by the confidential informant that could be considered testimonial in nature. After reviewing the record we do not find that the State introduced any statements allegedly made by the confidential informant. We overrule this issue.
IV. MOTION TO SEVER
In issue two, Appellant contends that the trial court committed reversible error when it denied his motion for severance of the various counts in the indictment. To be timely, a motion for severance must be filed and ruled upon prior to voir dire. Thornton v. State, 986 S.W.2d 615, 617 (Tex. Crim. App. 1999). The State charged Appellant in a single five-count indictment with possession, with the intent to deliver or manufacture a controlled substance. Appellant filed his motion to sever on September 17, 2010; however, he did not request or receive a ruling on the motion until September 21, 2010, the day after the jury was impaneled and sworn. The trial court denied the motion. Appellant's request was not timely and failure of the trial court to grant an untimely motion to sever is not error. See id. We overrule Appellant's second issue.
V. MOTION FOR CONTINUANCE
In issue three, Appellant contends the trial court committed reversible error in denying his motion for continuance. A motion for continuance must be made by sworn, written motion in order to preserve appellate review from a trial court's denial of a motion for a continuance. Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009); see also Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (West 2006). "Thus, if a party makes an unsworn oral motion for a continuance and the trial judge denies it, the party forfeits the right to complain about the judge's ruling on appeal." Anderson, 301 S.W.3d at 279. Here, there is no written, sworn motion for continuance in the appellate record. Appellant made an oral motion to continue the trial in order to re-call Randy Stokes in Appellant's case, and to call Stokes's wife, Dietra Schoelmann. The trial court denied the motion and in response, Appellant moved for a mistrial, which the trial court likewise denied. Appellant's unsworn oral request for a continuance did not preserve appellate review of the trial court's denial of his motion. See id.
Even had Appellant properly preserved this issue for review, the trial court did not abuse its discretion in denying Appellant's motion to continue. We review a trial court's denial of a mid-trial continuance for an abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240-41 (Tex. Crim. App. 2002). A trial court may grant a continuance after the trial has begun when the court is satisfied "that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had." Tex. Code Crim. Proc. Ann. art. 29.13 (West 2006). For an appellant to show that the trial court abused its discretion in refusing to grant a continuance, the appellant must show a specific prejudice to his defense. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). When a motion for continuance is based on the absence of a witness, the defendant must show (1) he exercised diligence to procure the witness's attendance, (2) he has not procured or consented to the absence of the witness, (3) he is not making the motion for delay, and (4) the facts he expects the witness to prove and that those facts are material. See Tex. Code Crim. Proc. art. 29.06; see also Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). The defendant may show materiality either by a sworn affidavit from the absent witness, or through "a showing under oath of the expected testimony." Gentry v. State, 770 S.W.2d 780, 787 (Tex. Crim. App. 1988). "Mere conclusions and general averments are not sufficient for the court to determine their materiality, and the motion for continuance must show on its face the materiality of the absent testimony." Harrison, 187 S.W.3d at 434.
Appellant sought to call Stokes and Schoelmann to elicit testimony as to whether the district attorney's office promised to dismiss Schoelmann's case in exchange for Stokes's testimony. Not only was his oral request for a continuation inadequate because it was not in writing or sworn, counsel presented nothing more than his own speculation that the absent witnesses would testify that such agreement occurred, which is insufficient to support a continuation.
Appellant argues that the trial court's refusal to grant a continuance or mistrial denied him his right of confrontation under the Sixth Amendment. However, Appellant was not denied his right to confront Stokes, as Appellant's counsel cross-examined Stokes during the State's case. Further, while Schoelmann did not testify, the Sixth Amendment right of confrontation is not implicated as it was Appellant's counsel who elicited the testimony of statements allegedly attributed to Schoelmann. We overrule Appellant's third issue.
Having overruled all of Appellant's issues, we affirm the judgment.
AFFIRMED.
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CHARLES KREGER
Justice
Do not publish Before McKeithen, C.J., Gaultney and Kreger, JJ.