An accused has a right to compulsory process for obtaining witnesses in his favor. Tex. Const. art. I, § 10; Tex. Code Crim.Proc.Ann. art. 1.05; Willis v. State, 626 S.W.2d 500, 504 (Tex.Crim.App. 1979). Also the trial court has the right and the duty to impose reasonable restrictions on voir dire within the trial court's discretion.
Where a ground of error on appeal does not comport with the objection made at trial, then the ground of error presents nothing for review. Ibarra v. State, 11 S.W.3d 189, 196-97 (Tex.Crim.App. 1999); Willis v. State, 626 S.W.2d 500, 504 (Tex.Crim.App. 1979). EXTRANEOUS OFFENSE ADMITTED DURING PUNISHMENT
Our review of the record in this case leads us to conclude that Wiggins, in fact, did not preserve this point. The applicable procedure is outlined in Willis v. State, 626 S.W.2d 500, 503 (Tex.Crim.App. 1979). Under that procedure, if a subpoenaed witness does not appear, a party should seek an attachment for that witness.
However, even after Brito, the proper procedure required to obtain a writ of attachment or continuance to obtain the testimony of missing witnesses remains unclear. See, e.g., Bowser v. State, 816 S.W.2d 518 (Tex.App.-Corpus Christi, 1991) (defense counsel telling court what he believed missing witness would testify to was sufficient); Erwin v. State, 729 S.W.2d 709 (Tex.Crim.App. 1987) (bill of exceptions summarizing proposed testimony sufficient); Willis v. State, 626 S.W.2d 500 (Tex.Crim.App. 1979) (calling for either an affidavit of the missing witness or a showing under oath of why the affidavit could not be obtained).
Where a motion for new trial is made based on previously unpresented evidence, the law has always required a showing of what the unpresented testimony would have been. See, e.g., Willis v. State, 626 S.W.2d 500 (Tex.Cr.App. 1979). If the motion for new trial asserts facts which are not in the record but would necessitate a new trial, the burden is on the defendant to establish the truth of the averments.
Article 24.22, V.A.C.C.P. In an unrelated claim of error, in Willis v. State, 626 S.W.2d 500 (Tex.Cr.App. 1982), Judge W.C. Davis, writing for a panel of this Court, stated: "Where a subpoenaed witness fails to appear after being called, an attachment for that witness should be sought." Id. at 503.
Brito v. State, supra. Ideally, this is accomplished by a sworn affidavit of the absent witness identifying the expected testimony. However, as the Court noted in Willis v. State, 626 S.W.2d 500 (Tex.Cr.App. 1979): "We realize that in most cases the unexpected absence of a subpoenaed witness precludes obtaining an affidavit in support of a continuance." Id., at 502, fn. 2.
A judgment is void only when it is apparent that the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to attack.” (citations and internal quotations omitted)); cf. Willis v. State, 626 S.W.2d 500, 504 (Tex.Crim.App.1979) (holding challenge to sufficiency of evidence is impermissible collateral attack). Even if we were to entertain Cognata's challenge, we must note that the Nacogdoches Court conducted a hearing on DHI's original petition, but a transcript of that hearing has not been included in our record on appeal. Thus, we have no means of assessing this complaint.
A judgment is void only when it is apparent that the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to attack." (citations and internal quotations omitted)); cf. Willis v. State, 626 S.W.2d 500, 504 (Tex. Crim. App. 1979) (holding challenge to sufficiency of evidence is impermissible collateral attack). Even if we were to entertain Cognata's challenge, we must note that the Nacogdoches Court conducted a hearing on DHI's original petition, but a transcript of that hearing has not been included in our record on appeal.
Discussion In her first issue, appellant argues that the trial court denied her the constitutional right of compulsory service of process by declining to issue the writ of attachment. The State responds that the trial court had no basis on which to issue a writ of attachment because the witness in question was never properly served. An accused has a right to compulsory process for obtaining witnesses in his favor under both the United States and Texas Constitutions. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Washington v. Texas, 388 U.S. 14, 19 (1967); Etheridge v. State, 903 S.W.2d 1, 7 (Tex.Crim.App. 1994) (citing Willis v. State, 626 S.W.2d 500, 504 (Tex.Crim.App. 1979)). Questions regarding limitations on the right to compulsory process are within the trial court's discretion. Emenhiser v. State, 196 S.W.3d 915, 921 (Tex.App.-Forth Worth 2006, pet. ref'd); Rodriguez v. State, 90 S.W.3d 340, 358 (Tex.App.-El Paso 2001, pet ref'd); Muennink v. State, 933 S.W.2d 677, 684 (Tex.App.-San Antonio 1996, pet. ref'd). Under the Texas Code of Criminal Procedure, to secure the attendance of a witness at trial, a defendant must file an application for subpoena with the clerk of the trial court. See Tex. Code Crim. Proc. Ann. art. 24.03(a) (Vernon Supp. 2008). The code of criminal procedure also provides that when a witness who has been subpoenaed fails to appear, the State or the defendant shall be entitled to have an attachment issued for the witness. Rodela v. State, 829 S.W.2d 845, 848 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). However, a trial court does not err in refusing to issue a writ of attachment for witnesses who are not duly and properly serv