Craig Michael Campbell v. State , 551 S.W.3d 371 ( 2018 )

Affirmed and Opinion filed May 31, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00001-CR
CRAIG MICHAEL CAMPBELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 16CR0708
OPINION
Appellant Craig Michael Campbell challenges his conviction for deadly
conduct, asserting that (1) the evidence is insufficient to support his conviction, (2)
the trial court violated his right to compulsory process, and (3) the trial court
abused its discretion in excluding evidence of a witness’s prior inconsistent
statement. Finding no reversible error, we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A motorist on her way to work saw the complainant, a woman, running
diagonally across the intersection in front of the motorist’s car. To the motorist,
the complainant appeared to be running away from something. A few seconds
later, the motorist saw a gray car come across the intersection. As the car
approached, the complainant ran to a gas station on the side of the road. The car
followed the complainant, tailing closely behind her and traveling at such a high
rate of speed that the car went airborne for a few seconds as it hit the curb and
entered the gas station. The complainant ran around the gas station, which
appeared closed, attempting to stay near the building as the man at the wheel used
the car to chase her, almost hitting the building. At one point, the complainant ran
back out to the road and screamed “help me!” at the occupants of a car stopped at
the intersection.
Believing the complainant’s life to be in danger, the motorist who had been
watching the events unfold pulled into the gas station and called the police. The
motorist later testified at trial that she made eye contact with the driver who was
chasing the complainant. The man could tell the motorist was calling police and he
left. After the man left, the motorist told the complainant that the police were
coming and the complainant seemed to be relieved.
When the police officer responded to the scene, he made contact with the
complainant, who appeared to be very shaken up. She was struggling to catch her
breath. The complainant told the police officer that the man who had chased her
with his car was appellant. A second eye-witness noticed the police officer at the
gas station as he returned from his trip. The second eye-witness stopped and told
the police officer that he had seen the complainant exit a car and run across the
intersection and relayed that the driver of the car was following the complainant
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around the gas station at a high rate of speed. The second eye-witness testified that
he did not stop initially due to concern for his personal safety. According to the
second eye-witness, the complainant was “frantic to get away.”
Appellant was arrested and charged with aggravated assault with a deadly
weapon. The court set a trial date.
Appellant filed a motion to continue the trial, asserting that appellant
recently had retained counsel and the new counsel had to cover another trial. The
State opposed the motion for continuance because the complainant, who at the time
was incarcerated, was due to get out of jail about two weeks after the trial setting,
and the State believed the complainant would not appear for trial if the
complainant were released from jail before the case could be tried. The trial court
granted appellant’s motion for continuance. The complainant was served with a
subpoena compelling her attendance at the new trial date and the complainant
swore she would appear.
Trial Testimony
Both appellant and the State waived their right to a jury trial and tried the
case to the bench. At trial, both eye-witnesses and the police officer testified about
the events they had witnessed. Appellant testified that the complainant and
appellant were dating and the complainant lived with appellant. According to
appellant, the complainant had a history of drug abuse, and appellant was trying to
help her “stay clean.” Appellant explained that the complainant was doing well
until a week before the incident, when the complainant overdosed on an over-the-
counter medication. The police were called to appellant’s house and the
complainant received medical treatment. After her release from the hospital, the
complainant came to appellant’s house for two days and then left to “go party.”
Two days later, the complainant called appellant early in the morning, and
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appellant drove to pick her up.
Appellant testified that when he picked up the complainant, he smelled
alcohol and the complainant admitted she had been using drugs. Appellant
testified that he was mad, upset because the complainant had relapsed. According
to appellant, he was taking the complainant back home when the complainant
kicked him in the head and ran from the car. Appellant testified that he followed
her in the car with the intention of getting her back into the car to take her home.
Appellant admitted driving erratically, but testified that he was not trying to hurt
the complainant. Appellant pointed out that he had several opportunities to hit the
complainant with the vehicle, such as when she slipped and fell, but that he did not
hurt her or intend to hurt her. Appellant testified that the complainant came back
to his home later that night and he took photographs with her for his protection
because she informed him that there was a warrant for his arrest based on the
incident at the gas station.
The complainant’s mother testified that the complainant suffers from bipolar
disorder and that the complainant acted “crazy” when she was in a manic phase.
The complainant’s mother described appellant as even keeled, always affirming
and positive. She stated that appellant gave the complainant lots of love. The
complainant’s mother testified that appellant helped the complainant’s parents in
their efforts to treat the complainant’s drug addictions. According to the
complainant’s mother, the complainant came to the mother’s house later on the
date of the incident, and the complainant told the mother that she had not told the
truth to the police officers who responded to the incident at the gas station. The
complainant’s mother said the complainant is not always truthful. The
complainant’s father echoed the testimony of the complainant’s mother, describing
appellant as a positive influence in the complainant’s life.
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An acquaintance of both appellant and the complainant testified that in her
observations, appellant and the complainant acted like “love birds.” The
acquaintance was not aware of any violence between the two.
Request for Writ of Attachment
The morning of trial the prosecutor sent an investigator to secure the
complainant’s presence at trial. The investigator drove to several addresses but
could not find the complainant. The State asked for a writ of attachment to secure
the complainant’s presence at trial, and appellant joined the State’s request.
An investigator working for the District Attorney’s Office gave an account
of his attempts to locate the complainant, testifying that he drove to several
addresses, but did not find the complainant. Defense counsel said he thought the
address for the complainant’s mother’s home — one location the investigator went
to look for the complainant — was incorrect. Defense counsel stated that the
mother was coming to court the next day and suggested that the trial court hold off
on putting an address on the writ of attachment until the mother came and provided
the correct address.
The next morning the trial court informed the parties that it had signed a
writ of attachment the day before, after the defense counsel left. The trial judge
stated that the State presented a writ and the State and trial judge attempted to call
defense counsel, and that defense counsel’s voicemail was full. The trial judge
said the clerk’s office contacted the judge and told the judge that the clerk’s office
could not execute the writ because the writ did not contain a bond amount. The
prosecutor communicated that the State’s investigator drove to all of the known
addresses and spoke to the complainant’s mother at the complainant’s mother’s
home. The complainant’s mother indicated that she had not heard from the
complainant since the complainant was released from jail. The investigator
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testified that he did not know where to find the complainant and had no further
ideas about where to search for her. Neither the State nor appellant requested
additional relief that morning.
Appellant continued presenting his case and then rested subject to a request
that the trial court continue the case based on the writ of attachment. The trial
court reminded appellant that no writ of attachment had issued. Appellant then
requested a writ of attachment properly be executed and requested a continuance
so that appellant might have time to request a writ of attachment and serve the writ.
The trial court denied appellant’s request to continue the trial.
Judgment
The trial court found appellant guilty of the lesser-included offense of deadly
conduct and sentenced appellant to one year’s confinement in county jail.
ISSUES AND ANALYSIS
A. Is the evidence sufficient to support appellant’s conviction?
Appellant first contends that the evidence is insufficient to support his
conviction for deadly conduct because the evidence shows he was trying to help
the complainant. Appellant asserts that if he had wanted to harm the complainant,
he had ample opportunity to do so, and that he did not harm the complainant even
though he had the opportunity to do so shows that he did not commit deadly
conduct.
In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State’s evidence or
believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State,
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667 S.W.2d 137, 143 (Tex. Crim. App. 1984). We may not overturn the verdict
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the
sole judge of the credibility of the witnesses and of the strength of the evidence.”
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses’ testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with
conflicting evidence, we presume the trier of fact resolved conflicts in favor of the
prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).
A person commits the offense of deadly conduct if the person recklessly
engages in conduct that places another in imminent danger of serious bodily injury.
Tex. Penal Code Ann. § 22.05 (West, Westlaw through 2017 1st C.S.); Ford v.
State, 38 S.W.3d 836, 844 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
One acts recklessly, or is reckless, with respect to circumstances surrounding one’s
conduct or the result of one’s conduct when one is aware of but consciously
disregards a substantial and unjustifiable risk that the circumstances exist or the
result will occur. Tex. Penal Code Ann. § 6.03 (West, Westlaw through 2017 1st
C.S.). The risk must be of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary person would exercise
under all the circumstances as viewed from the actor's standpoint. Id.
The two eye-witnesses testified that appellant was driving his car at a high
rate of speed and that he was tailing the complainant. One eye-witness testified
that appellant was driving so erratically that appellant’s car became airborne as
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appellant hit the curb of the gas station. According to the witness, appellant was
about to run over the complainant with his car. Appellant admitted at trial that he
was upset and driving erratically, though he says he did not want to harm the
complainant. Even presuming that appellant did not want to harm the complainant,
this lack of intent to harm does not render the evidence insufficient because the
offense of deadly conduct requires only that appellant’s behavior be reckless. See
Tex. Penal Code Ann. § 22.05.
The record contains evidence that appellant was driving erratically, at a high
rate of speed, in pursuit of the complainant, who was on foot. Though appellant
asserts that he was not driving at a high rate of speed, the trial court was entitled to
credit the eye-witness testimony. See Turro, 867 S.W.2d at 47. One eye-witness
testified that appellant was close to hitting the complainant and the eye-witness
feared the appellant would injure the complainant if the eyewitness did not stop
and secure police intervention. See Gilbert v. State, 429 S.W.3d 19, 23 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d) (holding the evidence sufficient to
support conviction for deadly conduct based on eye-witness testimony that
conflicted with defendant’s account). The second eye-witness did not stop out of
concern over the danger the circumstances presented. In spite of being so near the
complainant, appellant continued driving in an erratic fashion, near the
complainant’s person. See id. While appellant did not strike the complainant,
appellant testified that he had to swerve to avoid hitting the complainant.
Appellant’s conduct showed appellant was aware that his driving was creating a
risk to the complainant, and by continuing to drive erratically, appellant
consciously disregarded the risk. The trial court reasonably could have inferred
from the eyewitness accounts of appellant’s driving that appellant was aware of,
but consciously disregarded, a substantial and unjustifiable risk that appellant
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would cause the complainant serious bodily injury by striking her with his car. See
Wheaton v. State, 129 S.W.3d 267, 274 (Tex. App.—Corpus Christi 2004, no pet.)
(inferring deadly conduct from circumstances). The record supports the finding
that appellant’s reckless conduct placed the complainant in imminent danger of
serious bodily injury. See id.
We conclude the record contains sufficient evidence to support appellant’s
conviction for deadly conduct. We overrule appellant’s first issue.
B. Did appellant preserve error on his complaint that the trial court
erred in denying his request for a writ of attachment?
In his second issue, appellant asserts that the trial court violated his right to
compulsory process for obtaining witnesses in his favor by denying his request for
a writ of attachment. Under both the United States and the Texas Constitution, a
defendant has a right to compulsory process to call witnesses to testify on the
defendant’s behalf. U.S. Const. amend. VI; Tex. Const. art. I § 10; Etheridge v.
State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994). The Texas Code of Criminal
Procedure requires a defendant to properly serve a subpoena on a witness before
the defendant has a right to compulsory process to compel the witness’s attendance
at trial if the witness has failed to appear. Clark v. State, 305 S.W.3d 351, 355–56
(Tex. App.—Houston [14th Dist.] 2010, aff’d 365 S.W.3d 333, 340 (Tex. Crim.
App. 2012). The issuance of a subpoena inures to the benefit of the opposing party
if the opposing party desires to call or examine the witness. Gentry v. State, 770
S.W.2d 780, 785 (Tex. Crim. App. 1988).
The law prescribes a three-step process for preserving error when a
subpoenaed witness does not appear. Erwin v. State, 729 S.W.2d 709, 714 (Tex.
Crim. App. 1987), overruled on other grounds by Burks v. State, 876 S.W.2d 877,
904 (Tex. Crim. App. 1994). First, the party must request a writ of attachment and
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secure a denial of the request from the trial court. Id. Second, the party must show
the substance of the witness’s prospective testimony. Id. Third, the party must
show that the testimony the absent witness would have given would be relevant
and material. Id. Appellant did not fulfill these preservation-of-error
requirements.
The trial court approved the application for a writ of attachment, but the writ
did not issue because the clerk’s office concluded the application contained a
deficiency. Rather than seek to cure the deficiency on the morning of trial — or
object that the writ was not deficient — both parties opted to take no action. Thus,
at this juncture, the trial court did not deny any application for a writ of attachment
or a corrected writ of attachment.
At the close of his case, appellant requested a continuance to apply for a writ
of attachment, and the trial court denied appellant’s motion to continue. The trial
court did not make any ruling related to appellant’s request for a writ of
attachment. The trial court’s ruling denying appellant’s motion to continue trial
was not a denial of a request for a writ of attachment. The question of whether the
trial court abused its discretion in denying the motion for a continuance for
appellant to apply for a writ of attachment stands apart from the issue of whether
the trial court violated appellant’s right to compulsory process by denying
appellant’s request for a writ of attachment. See Gentry v. State, 770 S.W.2d 780,
785 (Tex. Crim. App. 1988) (analyzing whether trial court abused its discretion in
denying request to continue trial to secure witness separately from attachment
issue); Trinidad v. State, 949 S.W.2d 22, 24 (Tex. App.—San Antonio 1997, no
pet.) (same). The record reveals that the trial court never denied a request for a
writ of attachment. So, appellant has not preserved error on this argument. See
Erwin, 729 S.W.2d at 714.
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C. Did the trial court abuse its discretion in denying appellant’s motion
to continue trial?
Construing appellant’s briefing liberally, we conclude appellant asserts
under his second issue that the trial court abused its discretion in denying his
motion to continue trial to request a proper writ of attachment.
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). To
show an abuse of discretion, appellant must show the denial of the motion
prejudiced him. Id. A trial court may continue a criminal trial if a party files a
written motion for continuance that shows sufficient cause for continuance.
Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). After the trial has
begun, the trial court may grant a continuance when, by some unexpected
occurrence that could not reasonably have been anticipated, the applicant is so
taken by surprise that a fair trial cannot be had. Tex. Code Crim. Proc. Ann. art.
29.13 (West 2018). The law requires that one having personal knowledge swear to
the facts upon which the applicant relies for the continuance. Tex. Code Crim.
Proc. Ann. art. 29.08 (West 2018). Article 29.06 of the Texas Code of Criminal
Procedure governs a motion for continuance based on the unavailability of a
witness. Gonzales v. State, 304 S.W.3d 838, 844 (Tex. Crim. App. 2010). The
statute provides that when a defendant files a motion to continue based on the
absence of a witness, the defendant must show the following:
1. The name of the witness and [the witness’s] residence, if known, or
that [the witness’s] residence is not known.
2. The diligence which has been used to procure [the witness’s]
attendance; and it shall not be considered sufficient diligence to have
caused to be issued, or to have applied for, a subpoena, in cases where
the law authorized an attachment to issue.
3. The facts which are expected to be proved by the witness, and it
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must appear to the court that they are material.
4. That the witness is not absent by the procurement or consent of the
defendant.
5. That the motion is not made for delay.
6. That there is no reasonable expectation that attendance of the
witness can be secured during the present term of court by a
postponement of the trial to some future day of said term. . . .
Tex. Code Crim. Proc. Ann. art. 29.06 (West 2018); Harrison, 187 S.W.3d at 434.
Appellant did not meet the technical requirements outlined by article 29.06.
Appellant’s attorney did not file any written motion or provide a sworn statement
that included article 29.06’s criteria. In particular, appellant did not make a sworn
statement describing the diligence used to procure the complainant’s attendance,
that the defendant did not procure or consent to the witness’s absence, or that the
defendant was not making the motion for delay. See Humphrey v. State, 681
S.W.2d 223, 224 (Tex. App.—Houston [14th Dist.] 1984, no writ) (holding trial
court did not abuse discretion in denying motion to continue due to insufficient
motion); Coleman v. State, 188 S.W.3d 708, 722 (Tex. App.—Tyler 2005, pet.
ref’d) (same).
Even if appellant had filed a proper motion in compliance with the statute,
the record reveals that appellant lacked diligence in attempting to secure the
complainant’s attendance at trial. Weeks before trial, the prosecutor made the
court and defense counsel aware of the State’s concern that the complainant would
not appear at trial if she were released from jail before trial commenced. The State
took steps to get the complainant served with a subpoena. Appellant knew before
trial commenced that the State had been unable to locate the complainant and that
the State was attempting to get relief from the court to secure the complainant’s
presence at trial.
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After the first day of trial, appellant left the courthouse while the State
continued to seek relief. Appellant’s counsel did not take any further steps to help
with the process. When the State and trial judge attempted to communicate with
appellant on this point, they were unable to do so because appellant’s counsel had
left, counsel did not answer his cellphone, and counsel’s voicemail was full. The
next morning, appellant was aware that the State had applied for a writ of
attachment but that the writ did not issue because of a defect. Still, appellant did
not ask the trial court to cure the defect, nor did appellant take the position that the
writ was not defective and seek relief from the court at that juncture. To
successfully complain on appeal, appellant would have had to take proper action
upon learning that the attachment did not issue, such as following up and
requesting the relief necessary for the writ to have issued. See Kirk v. State, 37
S.W. 440, 442 (Tex. Crim. App. 1896) (holding that defendant did not use
diligence when defendant failed to follow up on writ of attachment that was not
returned; noting that the defendant “should have followed up on his process with
more diligence”). Instead, appellant waited until the close of the evidence and then
rested subject to a request that the trial court continue the proceedings so that
appellant could file a proper application for writ of attachment.
Appellant did not prove that he was diligent in attempting to procure the
complainant’s presence at trial. Accordingly, the trial court did not abuse its
discretion in denying appellant’s motion to continue. See Gonzales v. State, 304
S.W.3d 838, 843–44 (Tex. Crim. App. 2010) (holding trial court did not abuse
discretion in denying motion to continue because motion did not state the diligence
defendant exercised in seeking to secure witness). We overrule appellant’s second
issue.
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D. Did the trial court abuse its discretion in excluding evidence of the
eye-witness’s prior inconsistent statement?
In the third issue, appellant asserts that the trial court erred in prohibiting
appellant from offering evidence of prior inconsistent statements by the first eye-
witness to the car-chasing incident. The first eye-witness testified that appellant
left the gas station after noticing that the eye-witness was on her phone calling the
police. On cross-examination, appellant asked the eye-witness if she told the
police officer responding to the scene that appellant left after he unsuccessfully
tried to get the complainant to get back into the car with him. The eye-witness
denied making the statement to the police officer. Appellant’s counsel later
attempted to ask the police officer about the eye-witness’s statements, giving rise
to the following exchange:
[Appellant’s counsel]: Now, didn’t she say specifically that the
vehicle was trying to make her — make [the complainant] get inside?
[Prosecutor]: Your Honor, I would object to hearsay.
[Trial court]: Sustained.
[Appellant’s counsel]: Your Honor, this is solely for impeachment to
her testimony that she never made these statements to this officer.
And he said we couldn’t use the report, but we certainly [sic] use the
officer. He was there.
[Prosecutor]: Well, he can ask if statements were made; but, Your
Honor, it’s hearsay. He is asking what this lady has told him at the
scene. It’s hearsay.
[Trial court]: I sustain the objection.
[Appellant’s counsel]: Didn’t she tell you specifically that the
Defendant got out of the vehicle and walked towards [the
complainant] in an attempt to get her into the vehicle?
[Prosecutor]: Objection to hearsay, Your Honor.
[Trial court]: Sustain the objection.
[Appellant’s counsel]: Isn’t it true that only after the Defendant was
unable to get [the complainant] to return to the vehicle with him that
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he then — the Defendant then got back in the vehicle and left?
[Police officer]: She never got back —
[Prosecutor]: Objection to speculation.
[Trial court]: I sustain the objection.
Appellant made an offer of proof that the police officer would testify that at the
scene, the eye-witness told the police officer that appellant left the location after
appellant was unable to get the complainant to get back into his car.
On appeal, appellant asserts that the trial court abused its discretion in
excluding this evidence because (1) appellant did not offer the statements for the
truth of the matter asserted and (2) the evidence was admissible as impeachment
evidence. We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App.
2006). In analyzing this issue, we presume for the sake of argument that the trial
court erred in excluding this evidence.
Now, we turn to consider what harm, if any, resulted from that error. See
Tex. R. App. P. 44.2. To determine the standard governing our harm analysis, we
first must classify the error as constitutional or nonconstitutional error. See Tex. R.
App. P. 44.2. A constitutional error within the meaning of Texas Rule of
Appellate Procedure 44.2(a) is an error that directly offends the United States
Constitution or Texas Constitution, without regard to any statute or rule that also
might apply. Geuder v. State, 142 S.W.3d 372, 375 (Tex. App.—Houston [14th
Dist.] 2004, pet. ref’d). An erroneous evidentiary ruling amounts to constitutional
error only if the correct ruling was constitutionally required. Id. For example, the
erroneous exclusion of evidence is constitutional error if the evidence forms such a
vital portion of the case that exclusion effectively precludes the defendant from
presenting a defense. See Saenz v. State, 474 S.W.3d 47, 54 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). If the exclusion of the evidence is nonconstitutional
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error, then we review the trial court’s ruling under Texas Rule of Appellate
Procedure 44.2(b). See id. Appellant asserts that the exclusion rose to the level of
constitutional error because it prevented him from presenting evidence that the
eye-witness’s testimony was unreliable. The trial court was not constitutionally
required to admit the impeachment evidence because evidence did not form such a
vital portion of the case that the exclusion prevented appellant from presenting a
defense. See Walters v. State, 247 S.W.3d 204, 207 (Tex. Crim. App. 2007).
Because the error is nonconstitutional, we deem the error harmful only if the error
affected appellant’s substantial rights. See Geuder, 142 S.W.3d at 376.
The complainant’s testimony that appellant left the gas station when
appellant saw the complainant on the telephone relates to actions that appellant
took after the actionable conduct. An inconsistency in the eye-witness’s report of
these actions does not relate to any of the conduct at issue. The inconsistency
relates to appellant’s consciousness of guilt and to the complainant’s memory.
With respect to consciousness of guilt, appellant was convicted of deadly conduct,
a crime that did not require any consciousness of guilt. Tex. Penal Code Ann. §
22.05; Ford, 38 S.W.3d at 844. The record evidence, including appellant’s
admission that he was driving erratically, strongly supports the trial court’s finding
that appellant was reckless.
To the extent the inconsistency may have undermined the eye-witness’s
credibility by suggesting that the eye-witness had faulty memory, two eye-
witnesses described appellant’s erratic and dangerous driving. The first eye-
witness was so affected by appellant’s driving that she called the police. Appellant
admitted he was upset and driving erratically. The record evidence strongly
supports appellant’s conviction for deadly conduct. Based on the strength of the
record evidence and the limited impact of any impeachment testimony based on
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the eye-witness’s prior inconsistent statement, we conclude that any error in
excluding the evidence was harmless. See Tex. R. App. P. 44.2(b); Broussard v.
State, 434 S.W.3d 828, 836 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
Thus, we overrule appellant’s third issue.
CONCLUSION
The evidence supports appellant’s conviction. Appellant did not preserve
error on his complaint that the trial court violated his right to compulsory process
because the trial court did not deny his request for a writ of attachment. Likewise,
the trial court did not abuse its discretion in denying appellant’s motion for
continuance because appellant did not use diligence in attempting to secure the
complainant’s presence at trial. Any error in excluding the police officer’s
testimony regarding the eye-witness’s statements to the police officer is harmless
and so presents no grounds for appellate relief. We affirm the trial court’s
judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Busby and Wise.
Publish — TEX. R. APP. P. 47.2(b).
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