No. 01-03-00629-CR
Opinion issued June 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 913903.
Panel consists of Justices NUCHIA, ALCALA, and HIGLEY.
LAURA CARTER HIGLEY, Justice.
A jury found appellant, Cedric Ryan Harrison, guilty of capital murder and, having answered a punishment issue in the negative, assessed punishment at confinement for life. In two issues on appeal, appellant contends that the trial court erred in (1) denying his motion for continuance and his motion for new trial and (2) denying his challenge of a veniremember for cause. We affirm.
Background
On June 2, 2002, complainant, Felix Sabio, arrived at the Westfield Apartments at 10:30 p.m. to pick up the parents of his friend, Daniel Tobias. Complainant was to drive the parents to the airport to meet Daniel, who was arriving on a flight that evening. As complainant waited for Daniel's parents to come down from their apartment, he was approached by appellant, who demanded complainant's wallet. When complainant failed to immediately acquiesce to appellant's demand, appellant shot complainant in the chest with a pistol-grip shotgun and drove away in complainant's car. Complainant died of the shotgun wound. Denial of Motions
Prior to trial, appellant filed a motion for continuance, seeking 20 days to find and question missing witnesses. This motion was denied. After trial, appellant filed a motion for new trial, asserting that the trial court erred in denying the motion for continuance. This motion was overruled by operation of law. In his first point of error, appellant contends that the trial court erred in denying his motion for continuance and his subsequent motion for new trial. A. Motion for Continuance Appellant contends that the State violated a court order requiring it to produce the name, address, and telephone number of all potential witnesses by failing to produce the address and telephone number of a material witness — Dante Rush. Consequently, appellant argues, he was unable to prepare an adequate defense prior to trial and was entitled to a continuance to find and question Rush. Therefore, appellant concludes, the trial court abused its discretion in denying his request for a continuance. Upon the written motion of a defendant and upon a showing of sufficient cause, a trial court may continue criminal proceedings. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). All motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 1989). When a defendant's motion for continuance is based on the absence of a witness, the defendant must present to the trial court, inter alia, the material facts expected to be proved by the witness, and it must appear to the trial court that the facts are material. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 1989). To preserve error and challenge a trial court's refusal of a motion for continuance made because of an absent witness, an appellant must file a sworn motion for new trial, stating the testimony he expected to present by the witness. Flores v. State, 789 S.W.2d 694, 698-99 (Tex. App.-Houston [1st Dist.] 1990 no pet.). A showing under oath by means of an affidavit of the missing witness or some other source as to what that witness would testify must accompany the motion for new trial. Benoit v. State, 561 S.W.2d 810, 817 (Tex.Crim.App. 1977). In the instant case, appellant's motion for continuance was not accompanied by an affidavit stating the material facts to which Rush would testify. Furthermore, appellant failed to present any evidence during the hearing on his motion for continuance as to what Rush would testify. Appellant also failed to file a sworn motion for new trial stating the testimony he expected to elicit from Rush. The unsworn motion for new trial appellant did file was unaccompanied by an affidavit of the missing witness or other source indicating to what Rush would have testified. No hearing was held on the motion for new trial. Because appellant failed to preserve error as to the trial court's denial of his motion for a continuance, we hold that he waived the issue on appeal. B. Motion for New Trial Appellant contends that the trial court erred in denying his motion for new trial. However, appellant failed to provide this Court with any argument or authority supporting this contention. Texas Rule of Appellate Procedure 38.1(h) provides that the "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h). Appellant failed to support his argument on this issue with legal authority or with references to the record. Conclusory arguments that cite no authority present nothing for our review. See Yuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App. 1992). We hold that appellant has waived appellate review as to the trial court's denial of his motion for new trial. Tex.R.App.P. 38.1(h). We overrule appellant's first point of error. Voir Dire
In his second point of error, appellant complains that veniremember J. McCormack stated during voir dire that she could not consider probation as an appropriate punishment for murder; thus, appellant contends, the trial court should have struck the veniremember for cause. Instead of striking the veniremember, the trial court attempted to rehabilitate her by asking her whether she could consider probation in a case involving a mercy killing. Veniremember McCormack stated that she could. Appellant asserts that the trial court's query constituted an improper commitment question. Thus, appellant contends the trial court erred in (1) denying his challenge of veniremember McCormack for cause and (2) asking veniremember McCormack an improper commitment question. A. Challenge for Cause To preserve error with respect to a trial court's denial of a challenge for cause, an appellant must (1) assert a clear and specific challenge for cause, (2) use a peremptory strike on the complained-of veniremember, (3) exhaust his peremptory strikes, (4) request additional peremptory strikes, (5) identify an objectionable juror, and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use. Allen v. State, 108 S.W.3d 281, 282 (Tex.Crim.App. 2003). Appellant failed to meet the third, fourth, fifth, and sixth requirements to preserve error. Although appellant objected to veniremember McCormack and ultimately used a peremptory strike on her, appellant failed to exhaust all his peremptory strikes. It follows that appellant did not request additional peremptory strikes. Furthermore, appellant has failed to identify an objectionable juror who actually sat on the jury; nor can he claim that he would have struck the objectionable juror with a peremptory strike if he had one to use. We hold that appellant has failed to preserve error as to his contention that the trial court erred in denying his challenge for cause of veniremember McCormack. B. Commitment Question A commitment question is a question that commits 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). Often, such questions ask for a "yes" or "no" answer in which one or both of the possible answers commits the jury to resolve an issue a certain way. Id. Although not all commitment questions are improper, those that include facts in addition to the facts necessary to establish a challenge for cause may be improper. Id. at 182. To complain of an improper commitment question, a defendant must (1) make a timely and specific objection to the improper question and (2) obtain a ruling on such objection or, if the court refuses to rule on the objection, object to the court's refusal to rule. See Tex.R.App.P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003). In the instant case, appellant failed to make a timely and specific objection to the complained-of question. We hold that appellant has failed to preserve error as to his contention that the trial court asked an improper commitment question. We overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court.