Esther Garcia Ortega v. State

Affirmed and Opinion filed July 30, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00090-CR

ESTHER GARCIA ORTEGA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1769477

OPINION

Appellant Esther Ortega was charged with, and convicted of, possession of a

gambling device. See Tex. Penal Code Ann. § 47.06 (West 2011). Appellant

appeals her conviction, raising four issues. We conclude that appellant did not

preserve her first issue, which challenges the trial court’s jurisdiction on the ground

that the jurat in the complaint was undated. In her third issue, appellant asserts

that dismissal is required because her right to a speedy trial was violated as a result

of the State’s failure to prosecute her in a timely manner. We overrule this issue

because appellant has not made a prima facie showing that she was prejudiced by

the delay of twenty-seven months.

Appellant urges in her fourth issue that she was entitled to testimonial

immunity under Texas Penal Code section 47.08 because she was required to

furnish self-incriminating testimony to one of the investigating sergeants on the

scene. We overrule this issue because the trial court could reasonably have

concluded that appellant was not required to furnish testimony to the sergeant but

instead voluntarily provided the information.

Finally, appellant seeks a new trial in her second issue, arguing that the court

denied her a fair trial for two reasons. Regarding appellant’s complaint that the

trial court refused to enforce her subpoena for the motherboards from seized

gambling devices, we hold the court did not abuse its discretion given that the

motherboards had been auctioned off or destroyed. As to appellant’s contention

that the trial court violated her right to compulsory process when it did not allow

her to question a bank teller about seized funds, we hold that she failed to preserve

this complaint for appellate review. We therefore affirm the trial court’s judgment.

BACKGROUND

From October 22 to November 9, 2010, the Harris County Sheriff’s

Department conducted an undercover investigation of the “Treasure Island

Arcade.” As part of the investigation, an undercover deputy, Terrence Burks,

visited the arcade on three different occasions and gambled on several video

gaming devices, commonly known as “eight-liners.” Deputy Burks determined the

eight-liners were illegal because they paid out more than five dollars, or more than

ten times the value of the original wager. During one of his visits to the Treasure

Island Arcade, Deputy Burks placed a 40-cent wager and won $108.80. Appellant

2

was working as a floor attendant at the arcade and paid Deputy Burks his winnings

in cash.

As a result of Deputy Burks’s investigation, a search warrant was obtained

and executed on November 9, 2010. Appellant was working her assigned shift as a

floor room attendant when the search warrant was executed. During the search,

deputies seized approximately seventy gambling devices and the money found

inside the arcade, including the money inside the eight-liners. After the warrant

was executed and the premises were secured, Sergeant Touchasee Kributr

interviewed appellant inside one of the arcade’s offices. Appellant was not read

her Miranda warnings before or during the interview, a recording of which was

admitted into evidence.1 Sergeant Kributr and appellant each testified that Kributr

advised appellant she was not under arrest and was free to leave at any time.

Kributr asked appellant if she would voluntarily agree to talk with him about the

arcade’s operations. Appellant told Kributr that her duties were to give change to

the customers, pay out cash, and keep the arcade’s refrigerator clean and loaded

with snacks. Furthermore, appellant admitted that she was aware gambling was

illegal in Texas and that Treasure Island Arcade was involved in illegal gambling.

Appellant was charged in February 2011 with possession of a gambling

device. Appellant filed a motion to dismiss the case based on a defective

complaint and invalid information, and the trial court granted the motion on July

11, 2011. The State then refiled the complaint and information against appellant

on July 15, 2011. The State, however, failed to arrest appellant for nearly two

years. As a result, appellant was unaware that a warrant had been issued for her

arrest.

In July 2013, appellant finally became aware of the outstanding warrant

1

See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

3

against her and surrendered to police. Appellant was tried and convicted of

possession of a gambling device. She was sentenced to serve two days’

imprisonment in the county jail and fined $700. Appellant timely filed this appeal.

ANALYSIS

I. Appellant waived any error concerning the trial court’s jurisdiction by

failing to object to the undated jurat in the complaint.

In her first issue, appellant argues that the trial court never had jurisdiction

because the complaint lacked a date in the jurat, rendering the charging instrument

invalid. For misdemeanor offenses, a prosecutor “shall forthwith prepare an

information based upon such complaint and file the same in the court having

jurisdiction.” Tex. Code Crim. Proc. Ann. art. 2.05 (West 2005). Appellant

contends in her first issue that a complaint lacking a date in the jurat is

fundamentally defective, citing Shackelford v. State, 516 S.W.2d 180 (Tex. Crim.

App. 1974). Shackelford held that because “there can be no valid information in

the absence of a valid complaint, a complaint without a proper jurat will not

support an information.” Id.

We hold that appellant failed to preserve this challenge in the trial court. If a

“defendant does not object to a defect, error, or irregularity of form or substance in

an indictment or information before the date on which the trial on the merits

commences, he waives and forfeits the right to object to the defect, error, or

irregularity, and he may not raise the objection on appeal or in any other post-

conviction proceeding.” Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App.

2003). Appellant does not point out where in the record she timely objected to the

alleged defect, and our own independent review of the record failed to locate an

objection. Because appellant failed to object to the allegedly defective complaint

on which the information was based, we overrule appellant’s first issue.

4

II. Appellant’s right to a speedy trial was not violated.

In her third issue, appellant argues she is entitled to dismissal because her

right to a speedy trial was violated as a result of a twenty-seven-month delay

between the date she was formally charged with possession of a gambling device

and the date of her motion seeking dismissal on speedy-trial grounds.

A. Standard of review and applicable law

An accused is guaranteed the right to a speedy trial under both the United

States and Texas Constitutions. U.S. Const. amend. VI; Tex. Const. art. I, § 10.

Texas courts apply the same standard to enforce the state constitutional right to a

speedy trial as federal courts use to enforce the Sixth Amendment right to a speedy

trial. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). We therefore

analyze together appellant’s claims that these rights were violated.

The right to a speedy trial attaches once a person is either arrested or

charged with an offense. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App.

2008). Courts analyze speedy trial claims on a case-by-case basis by balancing the

following factors: (1) length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of her right; and (4) the prejudice inflicted on the defendant

by the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972). No single Barker factor

is “either a necessary or sufficient condition to the finding of a deprivation of the

right of speedy trial.” Id. at 533. Instead, the factors must be examined together,

along with any other relevant circumstances. Id.

In order to trigger a speedy-trial violation analysis, “an accused must allege

that the interval between accusation and trial has crossed the threshold dividing

ordinary from ‘presumptively prejudicial’ delay.” Doggett v. United States, 505

U.S. 647, 651–52 (1992). Once the first Barker factor is satisfied, an analysis of

the remaining factors is triggered. Cantu, 253 S.W.3d at 281. The State must meet

5

its burden of justifying the length of delay, while the defendant must satisfy her

burden of proving the assertion of the right and showing that she was prejudiced as

a result of the delay. Id. at 280. “The defendant’s burden of proof varies inversely

to the State’s degree of culpability for the delay.” State v. Wei, 447 S.W.3d 549,

554 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). In other words, “the

greater the State's bad faith or official negligence and the longer its actions delay a

trial, the less a defendant must show actual prejudice or prove diligence in

asserting his right to a speedy trial.” Cantu, 253 S.W.3d at 280–81.

We apply a bifurcated standard of review when analyzing a trial court’s

ruling on a speedy trial claim. Id. at 282. Legal components are evaluated de

novo, while the factual components are evaluated for an abuse of discretion. Id.

Review of the individual Barker factors necessarily involves factual determinations

and legal conclusions, but the balancing test as a whole is “a purely legal

question.” Id. With respect to the trial court’s resolution of factual issues, we

view all of the evidence in the light most favorable to the trial court’s ruling. Id.

Because the trial court denied appellant’s motion on the record without making

findings, “we presume that the trial judge resolved any disputed fact issues in the

State’s favor, and we defer to the implied findings of fact that the record supports.”

Id. There are no disputed fact issues in this case, however, because neither party

offered any evidence in connection with the speedy trial issue. In their arguments

on this issue at the pretrial hearing, the attorneys referred to documents in the trial

court record to establish the relevant dates.

B. Analysis of the Barker factors

1. The delay triggers a speedy-trial analysis.

The first Barker factor, the length of the delay, is measured from the time

the defendant is arrested or formally accused until the trial or the defendant’s

6

demand for a speedy trial occurs. United States v. Marion, 404 U.S. 307, 313

(1971); Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). Here,

appellant was formally charged on July 15, 2011 and filed her motion to quash or

dismiss alleging a speedy-trial violation on October 21, 2013, an interval of over

twenty-seven months. The State concedes this delay is sufficient to trigger a

speedy-trial analysis. We agree. See Harris, 827 S.W.2d at 956 (noting that delay

of eight months or longer is presumptively unreasonable and triggers speedy-trial

analysis).

2. The reason for the delay was not explained.

The burden of justifying the delay is on the State. Cantu, 253 S.W.3d at

280. In evaluating the State’s reason for the delay, we assign different weights for

different reasons. Barker, 407 U.S. at 531. For instance, a deliberate or intentional

prosecutorial delay will weigh heavily against the State. Id. A more neutral

reason, such as negligence, will weigh less heavily against the State. Id. A valid

justification for delay should not weigh against the State at all. Id. In the absence

of an assigned reason for the delay by the State, we may presume neither a

deliberate attempt to prejudice the defense nor a valid reason for the delay.

Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

As noted above, the length of delay was twenty-seven months. The record

reflects that the State failed to notify appellant of the refiled charges against her or

execute the arrest warrant for two years of that period. In the trial court, the State

did not offer a specific reason for the delay. This factor therefore weighs in favor

of finding a violation of the speedy trial right, although not heavily because the

delay was not intentional or deliberate. Dragoo, 96 S.W.3d at 314; Wei, 447

S.W.3d at 555.

7

3. Appellant moved for dismissal rather than a speedy trial after

learning of the charges.

The defendant has the sole responsibility of asserting the right to a speedy

trial. Barker, 407 U.S. at 531. The failure to assert the right diligently makes it

difficult for a defendant to show she was denied a speedy trial. Id. at 532. “Filing

for a dismissal instead of a speedy trial will generally weaken a speedy-trial claim

because it shows a desire to have no trial instead of a speedy one. If a defendant

fails to first seek a speedy trial before seeking dismissal of the charges, he should

provide cogent reasons for this failure.” Cantu, 253 S.W.3d at 283. The failure to

request a speedy trial before seeking dismissal “supports an inference that the

defendant does not really want a trial, he wants only a dismissal.” Id.

In this case, appellant learned of the charges against her in July 2013.

Appellant could not have sought a speedy trial diligently before this date because

she was unaware of the pending charges. See Wei, 447 S.W.3d at 555. On the

other hand, appellant did not file her motion to quash or dismiss alleging a speedy

trial violation until October 2013.2 During this time, appellant’s counsel signed

four case reset forms and filed one motion for continuance. There is no indication

in the record that appellant asked for a speedy trial before filing her motion. We

therefore conclude that this factor carries only minimal weight in establishing a

violation of the speedy trial right.3

2

See White v. State, No. 04-10-00412-CR, 2011 WL 2893107, at *3 (Tex. App.—San

Antonio July 20, 2011, no pet.) (mem. op., not designated for publication) (focusing on whether

appellant diligently asserted right to speedy trial after becoming aware of charges); State v.

Pyburn, No. 03-02-00269-CR, 2002 WL 31026832, at *3 (Tex. App.—Austin Sept. 12, 2002,

pet. ref’d) (not designated for publication) (same); Mitchell v. State, No. 05-93-01946-CR, 1995

WL 437188, at *1, *3 (Tex. App.—Dallas July 20, 1995, no pet.) (not designated for

publication) (same).

3

See White, 2011 WL 2893107, at *3.

8

4. Appellant did not make a prima facie showing of prejudice.

We evaluate prejudice in light of the interests that the speedy-trial right was

designed to protect: (1) minimizing anxiety and concern of the accused, (2)

preventing oppressive pretrial incarceration, and (3) limiting the possibility that the

defense will be impaired. State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App.

1999). Of these interests, “the most serious is the last, because the inability of a

defendant adequately to prepare his case skews the fairness of the entire system.”

Id. The defendant has the burden to make some showing of prejudice, although a

showing of “actual prejudice” is not required. Id. If the defendant makes a prima

facie showing of prejudice, the burden shifts to the State to prove that the

defendant suffered “no serious prejudice beyond that which ensued from the

ordinary and inevitable delay.” Id. Furthermore, if the State fails to persuasively

rebut the presumption of prejudice, the defendant is entitled to relief. Doggett, 505

U.S. at 658.4

In this case, the first two interests that the speedy trial right was designed to

protect are not at issue because appellant was unaware of the pending charge. As

to the third interest, appellant contends her ability to mount a defense was impaired

because “the delay in informing her of the charges allowed her to lose contact with

the witnesses.” “Before such a contention will amount to ‘some showing of

prejudice,’ the appellant must show [1] that the witnesses are unavailable, [2] that

their testimony might be material and relevant to [her] case, and [3] that [she] has

exercised due diligence in [her] attempt to find them and produce them for trial.”

Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973); see also Phipps v.

State, 630 S.W.2d 942, 947 (Tex. Crim. App. 1982); Harrison v. State, 282 S.W.3d

4

We note this is not a case in which the delay was so lengthy as to excuse appellant from

the requirement of demonstrating prejudice. Cf. Gonzales v. State, 435 S.W.3d 801, 812–15

(Tex. Crim. App. 2014) (six years); Wei, 447 S.W.3d at 555 (fifty-one months).

9

718, 722 (Tex. App.—Amarillo 2009, no pet.).

Here, appellant did not meet any of these three elements because she offered

no evidence regarding the speedy trial issue—only argument of counsel regarding

matters outside the courtroom. Yet even if we consider her counsel’s arguments at

the pretrial hearing, appellant did not meet all of the elements required for a

showing of prejudice.

The witnesses that appellant’s attorney asserted were missing, Aaron

Hilburn and Lorenzo Santiago, were co-defendants in connection with the case.

Hilburn was the manager of Treasure Island Arcade. He pled guilty and was

placed on deferred adjudication for one year beginning in June 2011. According to

counsel, appellant was unable to locate Hilburn once his probation requirements

were satisfied. Counsel asserted that Santiago’s case was dismissed in June 2012

and he was then deported to Mexico. Appellant argues she was prejudiced by her

inability to locate these two witnesses because, without the delay, she would have

been able to locate and use the witnesses.

At most, these arguments show that the witnesses were unavailable.

Counsel did not address the steps taken to locate the witnesses (particularly

Hilburn), so appellant has not shown that she exercised due diligence in attempting

to find them and produce them for trial. Moreover, appellant failed to show that

the missing witnesses’ testimony would have been relevant and material to her

defense. Accordingly, the record does not show that appellant’s ability to defend

herself was prejudiced by the delay, and this factor weighs against a finding of a

speedy trial violation. See Harris, 489 S.W.3d at 309; Harrison, 282 S.W.3d at

722.

10

5. The balance of factors supports the trial court’s ruling.

Having analyzed the Barker factors, we conclude that, on balance, the

evidence supports the trial court’s ruling. Although the delay of twenty-seven

months triggers a speedy-trial analysis, we conclude that the State’s failure to

explain its delay does not outweigh the lack of prejudice resulting from that delay.

The burden of making a prima facie showing of prejudice was on appellant, and

she failed to specify how she diligently attempted to locate the allegedly missing

witnesses or how they would have contributed to her defense. Accordingly, we

hold that appellant was not denied her right to a speedy trial, and the trial court did

not err in denying appellant’s motion to dismiss. We overrule appellant’s third

issue.

III. Appellant was not entitled to immunity under section 47.08 of the Penal

Code because she was not required to furnish evidence or testify.

In her fourth issue, appellant argues that the trial court erred when it refused

her request for immunity from prosecution under section 47.08 of the Penal Code.

The statute provides that individuals who are parties to gambling offenses “may be

required to furnish evidence or testify about the offense.” Tex. Penal Code Ann.

§ 47.08.5 The statute then protects those individuals from prosecution for any

offenses about which they are required to furnish evidence. Id. Appellant argues

5

Section 47.08 of the Penal Code provides, in relevant part:

(a) A party to an offense under this chapter may be required to furnish evidence or testify

about the offense.

(b) A party to an offense under this chapter may not be prosecuted for any offense about

which he is required to furnish evidence or testify, and the evidence and testimony may

not be used against the party in any adjudicatory proceeding except a prosecution for

aggravated perjury.

(c) For purposes of this section, “adjudicatory proceeding” means a proceeding before a

court or any other agency of government in which the legal rights, powers, duties, or

privileges of specified parties are determined.

11

she was required to give incriminating testimony to Sergeant Kributr during a

custodial interrogation that was not preceded by Miranda warnings, and that this

testimony was used to prosecute her for possession of a gambling device. 6 We

disagree and conclude the trial court did not err in denying appellant immunity.

Appellant has identified no authority for the proposition that a police

officer’s unwarned custodial interrogation can amount to a “require[ment] to

furnish information” that triggers immunity under this statute, rather than the

ordinary remedy of exclusion (which is not at issue in this appeal).7 Even

assuming that immunity could be triggered in such a circumstance (which we need

not and do not decide), we hold that the trial court could reasonably have found

that no custodial interrogation occurred here. Thus, appellant is not entitled to

immunity.

On the night the Harris County Sheriff’s Department raided the arcade,

Sergeant Kributr conducted a recorded interview with appellant concerning the

status and operations of Treasure Island Arcade. Appellant contends this interview

was a custodial interrogation because Sergeant Kributr took her into a room alone,

while still wearing his raid mask and gun, and asked her questions. As a result,

appellant claims the statements were involuntary.

6

Appellant also contends that there was a violation of her privilege against self-

incrimination under the Sixth Amendment to the United States Constitution, Article I, section 10

of the Texas Constitution, and Art. 1.05 of the Texas Code of Criminal Procedure. These

arguments, however, were not preserved. See Tex. R. App. P. 33.1(a).

7

Cf. Graham v. State, 994 S.W.2d 651, 653–54 (Tex. Crim. App. 1999) (explaining that

grant of immunity under Texas law is prosecutorial promise to dismiss case and requires court

approval); Bolton v. State, 265 S.W.2d 84, 85 (Tex. Crim. App. 1954) (applying prior version of

section 47.08 conferring immunity when court or prosecutor compels party to appear and testify

in court regarding offense); Carpenter v. State, 192 S.W.2d 268, 270 (Tex. Crim. App. 1946)

(holding under prior version of section 47.08 that to obtain immunity, party seeking it must has

burden “to show that he was summoned as a witness and examined relative to a violation of the

particular statute under which he is being prosecuted,” and that the immunity is no broader than

the privilege against self-incrimination).

12

In Miranda v. Arizona, the Supreme Court of the United States held that “the

prosecution may not use statements, whether exculpatory or inculpatory, stemming

from custodial interrogation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.”

384 U.S. 436, 444 (1966). Texas codified these safeguards in article 38.22 of the

Texas Code of Criminal Procedure. Section 3(a) of article 38.22 provides that no

oral statement of an accused “made as a result of custodial interrogation” shall be

admissible against him in a criminal proceeding unless an electronic recording of

the statement is made, the accused is given all specified warnings, including the

Miranda warnings, and he knowingly, intelligently, and voluntarily waives the

rights set out in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22 § 3(a) (West

2005).

Miranda warnings and article 38.22 requirements are mandatory only when

there is a custodial interrogation, however. Herrera v. State, 241 S.W.3d 520, 526

(Tex. Crim. App. 2007). The meaning of “custody” is the same for purposes of

both Miranda and article 38.22. Id. The State has no burden to show compliance

with Miranda unless and until the record as a whole “clearly establishes” that the

defendant’s statement was the product of a custodial interrogation. Id.

Miranda defined “custodial interrogation” as “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” 384 U.S. at 444. A

“person is in ‘custody’ only if, under the circumstances, a reasonable person would

believe that his freedom of movement was restrained to the degree associated with

a formal arrest.” Herrera, 241 S.W.3d at 525. The subjective belief of the

defendant and the subjective intent of the police are not relevant except to the

extent they are objectively manifested in words or actions. Dowthitt v. State, 931

13

S.W.2d 244, 254 (Tex. Crim. App. 1996).

The record does not support appellant’s argument that she was subjected to a

custodial interrogation. At trial, Sergeant Kributr testified that he advised appellant

“she was not under arrest and that she was not in handcuffs, and I asked her if she

would voluntarily agree to talk to me about the game room operations.” In fact,

appellant herself testified that Sergeant Kributr told her she was not under arrest

and could leave the interview at any time. States’ Exhibit 17, the audio recording

of the interview, corroborates this version of the events.8 Furthermore, appellant

was not arrested that night and left the arcade after the interview. Based on the

record, we hold the trial court could reasonably have concluded that appellant was

not subjected to custodial interrogation. Thus, appellant could not qualify for

immunity under section 47.08 even if such immunity could be triggered by an

unwarned custodial interrogation. We overrule appellant’s fourth issue.

IV. Appellant is not entitled to a new trial based on the court’s failure to

enforce her subpoena or allow her questions.

Finally, appellant seeks a new trial in her second issue, arguing that she was

denied a fair trial on two grounds. Appellant first contends the trial court abused

its discretion when it declined to enforce her subpoena for the State to produce the

motherboards from the seized eight-liners. Appellant also asserts the trial court

denied her compulsory process when it prohibited her from questioning a Wells

Fargo bank teller about seized funds deposited into an account. We review each

sub-issue in turn.

8

States’ Exhibit 17 is an audio recording of the interview between Sergeant Kributr and

appellant. Sergeant Kributr can be heard asking appellant if she would voluntarily give a

statement. Appellant is heard agreeing to give a voluntary statement concerning the operations

of Treasure Island Arcade and her role as an employee.

14

A. The trial court did not abuse its discretion regarding the

motherboards because the eight-liners had been auctioned off or

destroyed before trial.

Appellant argues that the trial court abused its discretion when it refused to

enforce her subpoena for the State to produce the motherboards from the seized

eight-liners. Prior to trial, appellant claimed she wanted to use the motherboards in

order to show the jury how the devices operate and to demonstrate that the

“devices seized were not per se gambling devices.” The eight-liners, however, had

been auctioned off or destroyed after Hilburn, the arcade’s manager, was placed on

deferred adjudication. The State, therefore, no longer had possession of the eight

liners. The trial court refused to enforce appellant’s subpoena. The court

explained that appellant would still be able to cross-examine Sergeant Montemayor

and Deputy Burks about the missing eight-liners, and that the missing devices

would go “to the weight” of the evidence.

Appellant contends that the trial court’s refusal to enforce her subpoena

violated her state and federal constitutional rights to compulsory process.

Criminal defendants have a constitutional right to compulsory process for

obtaining witnesses in their favor. U.S. Const. amend. VI; Tex. Const. art. I, § 10.

Compulsory process “is in plain terms the right to present a defense, the right to

present the defendant’s version of the facts as well as the prosecution’s to the jury

so it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14, 19

(1967). The right to compulsory process, however, is not absolute. Defendants are

guaranteed compulsory process for obtaining witnesses whose testimony would be

both material and favorable to the defense. Coleman v. State, 966 S.W.2d 525,

527–28 (Tex. Crim. App. 1998).

We review appellant’s complaint that the trial court improperly refused to

enforce her subpoena under an abuse of discretion standard. Torres v. State, 424

15

S.W.3d 245, 261 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).9 We

conclude that because the motherboards were no longer in the State’s possession,

the trial court did not violate appellant’s right to compulsory process when it

refused appellant’s request to compel the State to produce them. The eight-liners

had been auctioned off or destroyed, and it would have been impossible for the

State to produce the devices. We therefore hold the trial court did not abuse its

discretion when it declined to enforce appellant’s subpoena.

B. Appellant did not preserve a compulsory process complaint

regarding evidence of the disposition of the seized funds.

Appellant next contends that she was denied her right to compulsory process

when the trial court barred her from questioning a Wells Fargo bank teller about

the disposition of funds seized from Treasure Island Arcade. In her brief, appellant

claimed the bank teller had knowledge of “what happened to the proceeds” and the

information obtained from the bank teller “would have been important to the cross-

examination” of Sergeant Montemayor. Appellant argues the bank teller’s

testimony “could have cast doubt on the entire testimony of [Sergeant] Chris

Montemayor.” The State does not respond to this argument in its brief.

We review “complaints concerning limitations on the right to compulsory

process under an abuse-of-discretion standard.” Lawal v. State, 368 S.W.3d 876,

886 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (citing Drew v. State, 743

S.W.2d 207, 225 n. 11 (Tex. Crim. App.1987)). We conclude that although

appellant raises a compulsory process violation claim in her brief, she nevertheless

failed to preserve this issue before the trial court. Appellant may not raise a

9

Appellant has not argued, either at trial or on appeal, that she is entitled to a new trial

because the Due Process Clause was violated when the State destroyed exculpatory or potentially

useful evidence. Cf. State v. Vasquez, 230 S.W.3d 744, 747–48 (Tex. App.—Houston [14th

Dist.] 2007, no pet.). We therefore confine our analysis to appellant’s claim regarding the

court’s refusal to enforce her subpoena.

16

compulsory process violation for the first time on appeal. See Trenor v. State, 333

S.W.3d 799, 805 (Tex. App.-Houston [1st Dist.] 2010, no pet.). For appellant to

preserve her compulsory process complaint for appellate review, the record must

show that appellant made a timely, specific request, objection, or motion to the

trial court. Tex. R. App. P. 33.1(a).

Appellant has failed to cite to the record showing where the trial court

violated her compulsory process right.10 Furthermore, our independent search of

the trial court record shows it lacks any mention by appellant of a Wells Fargo

bank teller. The first time appellant mentions the Wells Fargo bank teller is in her

brief on appeal. In a pretrial hearing, appellant did raise an issue regarding the

State’s compliance with her subpoena for various items, including bank records

regarding the disposition of the seized funds. The trial court addressed certain of

the other items requested and then asked appellant whether there was anything

else, to which appellant responded “Nothing else, your honor.” Later, during trial,

the trial court sustained a relevance objection to appellant’s questions of Sergeant

Montemayor regarding the disposition of the seized funds. But appellant did not

respond by making an offer of proof or raising a compulsory process complaint.

For these reasons, we hold appellant did not preserve for appellate review

her compulsory process complaint regarding the disposition of the seized funds.

Having addressed and rejected each argument made in her third issue, we overrule

appellant’s third issue.

10

The Texas Rules of Appellate Procedure provide, in part, that an appellant’s 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(i).

17

CONCLUSION

Having overruled each of appellant’s issues on appeal, we affirm the trial

court’s judgment.

/s/ J. Brett Busby

Justice

Panel consists of Justices Jamison, Busby, and Brown.

Publish — TEX. R. APP. P. 47.2(b).

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