Jonathan Price Larsen, II v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NOS. 2-07-108-CR
2-07-109-CR
2-07-110-CR

JONATHAN PRICE LARSEN, II APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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MEMORANDUM OPINION 1

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In three points, Jonathan Price Larsen, II appeals his convictions and

sentences for intoxication assault, for failure to stop and render aid, and for

evading arrest or detention with a vehicle. We affirm.

1
… See T EX. R. A PP. P. 47.4.
 I. Factual and Procedural Background

On March 16, 2006, Larsen had a dispute over a movie ticket with the

assistant manager of a movie theater in Hudson Oaks, Texas. The assistant

manager called the Hudson Oaks Police Department (HOPD), and, according to

her testimony, when HOPD officers approached Larsen’s vehicle, Larsen “pulled

out and took off.” 2

The HOPD officers activated their vehicles’ lights and sirens and chased

Larsen’s vehicle as he traveled on I-20 toward Weatherford at around 100 miles

per hour. Still following Larsen, the HOPD officers exited I-20 but then lost

sight of Larsen’s vehicle. When they reached the intersection of Bankhead

Road and U.S. Highway 180, they found a severely damaged Weatherford

police vehicle and Larsen’s smoking vehicle.

Weatherford Police Officer Gregory Stewart had been dispatched to lay

down “spike strips” in an attempt to end the car chase, and Larsen’s vehicle,

a heavy pickup truck, had collided with Officer Stewart’s vehicle in the

intersection, slamming into the driver’s side door. Officer Stewart suffered two

pelvic fractures, a bruised spinal cord, a severe concussion, and nerve damage,

2
… Larsen testified that he never saw the HOPD officers at the movie
theater but that, after he left, one of his friends called him and told him “that
the cops had just pulled out and that they were coming to get [him].”

2
as well as cuts, scrapes, and pieces of glass embedded in his scalp, all resulting

in a permanent impairment rating of twenty-five percent.

Before the HOPD officers arrived, Larsen fled the scene on foot without

giving aid to Officer Stewart. Shortly thereafter, Weatherford police located

Larsen, who was hiding in the back of a pickup truck at a local car dealership,

and arrested him. Lab analyses of two blood samples taken from Larsen that

night revealed blood alcohol concentrations of .10 and .11.3

Larsen was indicted for intoxication assault, failure to stop and render aid

(FSRA), and evading arrest or detention with a vehicle. On January 25, 2007,

he pleaded guilty to all three offenses and elected to have a jury assess

punishment.

The trial court set the jury trial for February 26, 2007. Larsen filed

motions for continuance in all three causes on February 22, urging two

grounds: (1) he needed additional time to have a second meeting with his

retained mitigation expert before the expert testified at trial, and (2) he needed

additional time to prepare for some of the State’s witnesses, identified “within

the last week that it intends to call to testify at the trial in this matter.” The

3
… A blood alcohol concentration of .08 or more is legal intoxication. See
T EX. P ENAL C ODE A NN. § 49.01(2)(B) (Vernon 2003).

3
trial court denied Larsen’s motions after a hearing on February 23. Voir dire

began on February 26, and Larsen’s punishment trial began on February 27.

During the punishment trial, Officer Stewart and others testified about the

events of March 16, 2006, and the State presented evidence of Larsen’s

criminal history, extraneous offenses, and other bad acts.4 Larsen, testifying

on his own behalf, admitted that on the day that his vehicle collided with

Officer Stewart’s vehicle, he had consumed “five or six [c]rown and cokes” and

a six-pack of beer on the way home from work. When asked by the State

whether he was “taking responsibility for the evading and failure to stop and

render aid and getting drunk and nearly killing the officer,” Larsen replied, “Yes,

sir, that is correct.”

During his direct testimony, Larsen admitted to his criminal history,

extraneous offenses, and other bad acts, and offered as explanations his

unstable family life, including watching his mother die in a car accident and an

uncle who sexually abused him, and alcohol abuse. He called several friends

and family members as character witnesses and Dr. Emily A. Fallis, a forensic

evaluation psychologist, as his mitigation expert.

4
… These included writing hot checks, stealing a wallet and fraudulently
using a credit card from that wallet to get his eyebrows waxed, starting a fire
in a jail cell after a prior arrest, other theft incidents, and driving while
intoxicated.

4
 On March 2, before jury deliberations began, Larsen filed motions for a

mistrial in all three causes due to juror misconduct and requested permission to

take juror Catherine Boyd on voir dire to clarify a note that she had sent to the

trial court. The trial court denied Larsen’s voir dire request and Larsen’s

motions for mistrial, but it allowed Larsen to read the questions he would have

asked Boyd into the record and included the juror questionnaires in the record.

The jury assessed Larsen’s punishment at five years’ confinement and a

$5,000 fine each for the intoxication assault and FSRA convictions, and two

years’ confinement and a $500 fine in the evading arrest or detention with a

vehicle conviction. The jury returned affirmative findings on the use or

exhibition of a deadly weapon in the intoxication assault and evading arrest

convictions, and the trial court entered judgment on the verdicts. Larsen now

appeals, complaining that he was entitled to a mistrial because of juror

misconduct, that he suffered Double Jeopardy violations because of multiple

punishments, and that his motions for continuance should have been granted.

II. Jury Misconduct

In his third point, Larsen claims that the trial court erred by denying his

motions for mistrial because of jury misconduct.

5
A. Standard of Review

W e review a trial court’s ruling on a motion for mistrial using an

abuse-of-discretion standard of review, viewing the evidence in the light most

favorable to the trial court’s ruling and upholding that ruling if it was within the

zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex.

Crim. App. 2007). A trial court abuses its discretion in denying a motion for

mistrial only when no reasonable view of the record could support the trial

court’s ruling. See id.

To obtain a mistrial for juror misconduct, the defendant must show that

the juror withheld material information during voir dire despite due diligence

exercised by the defendant. Franklin v. State, 138 S.W.3d 351, 355–56 (Tex.

Crim. App. 2004). With respect to oral questions asked during voir dire, error

occurs when “a prejudiced or biased juror is selected without fault or lack of

diligence on the part of defense counsel, such counsel acting in good faith on

the juror’s responses and having no knowledge of their inaccuracy.” Gonzales

v. State, 3 S.W.3d 915, 916–17 (Tex. Crim. App. 1999).

Counsel must be diligent in eliciting pertinent information from

prospective jurors during voir dire in an effort to uncover potential prejudice or

bias, and, unless defense counsel asks questions calculated to bring out

information that might be said to indicate a juror’s inability to be impartial, the

6
purportedly material information which a juror fails to disclose is not really

“withheld” so as to constitute misconduct which would warrant a reversal. See

id. at 917. Counsel’s questions must be specific, not broad. Id.; see also

Webb, 232 S.W.3d at 113 (“The jury panel does not know the statutory

challenges for cause and thus the prospective jurors likely do not know what

the parties are trying to determine during voir dire. It is counsel’s responsibility

to ask questions specific enough to elicit the answers they require.”);

Armstrong v. State, 897 S.W.2d 361, 363–64 (Tex. Crim. App. 1995) (holding

that there was no error where counsel did not ask question that would uncover

juror’s close friendship with prosecutor).

B. Analysis

Larsen’s juror misconduct complaint was triggered by a note from juror

Boyd to the trial court before jury deliberations. The note was about Micah

Thompson, the mother of Larsen’s three-year-old daughter; it stated:

Judge:

Micah was my next door neighbor for a year when she lived
on Wandering Lane in Weatherford, Tx.

We didn’t have an overly cordial relationship because she
kept anywhere from ten to 20 dogs in her back yard and they
barked constantly during the night.

7
 I don’t remember [Larsen] but he could have been introduced
once. Other than this knowledge, it will not affect any decision I
would have in this case.

Larsen sought to take Boyd on voir dire about the note, and his questions

included how Boyd knew Micah, whether she had ever met Larsen, whether

Boyd’s boyfriend knew Micah and ever had an a “altercation” with her, 5 and

whether, in light of the altercation between Micah and Boyd’s boyfriend, Boyd

felt that she could “set aside any bias or prejudice [she] might have toward

Micah Thompson and sit fairly in judgment on [Larsen][.]” 6

We must review whether Larsen exercised due diligence during voir dire

to elicit information regarding Micah Thompson and any conflicts involving her

to determine whether he was entitled to a mistrial. See Franklin, 138 S.W.3d

at 355–56.

5
… Larsen described the altercation as a business deal between Micah and
Boyd’s boyfriend, in which the boyfriend ended up owing Micah $200 and let
Micah’s dogs out of the backyard on several occasions. When Micah
attempted to kick the boyfriend’s door in, the boyfriend called the police, who
ordered both parties to stay off of each other’s property.
6
… Larsen also asserted that Micah would testify that Micah and Boyd got
along well, but that Boyd did not like Larsen and that Boyd and Micah talked
approximately once per month for one year and discussed Larsen’s failure to
pay child support or to visit his daughter. Larsen also claimed that Micah would
testify that “there were several instances where—that the juror was very upset
about the dogs that was [sic] at the house where Micah . . . lived; that the juror
actually knew [Larsen] before she knew Micah . . . ; that Micah . . . met the
juror and her boyfriend through [Larsen].”

8
 On February 26, during voir dire, the State asked: “Anyone know the

defendant, [Larsen]? Anybody feel like you know the defendant in any way?

Perhaps you have a business that he visits, you know the family. Just anybody

in any way feel like you know the defendant, [Larsen]?” When it was Larsen’s

turn, his attorney stated the following to the venirepanel:

With the questionnaire that you filled out–and I want to thank you
for that because that’s made our jobs a lot easier–and with the
thorough job that [the district attorney] has done, I think that my
questioning of you is going to be quite a bit briefer than his . . . .
This is [Larsen]. He is the defendant. . . . And, again, does anyone
recognize [Larsen]? Without going into a lot of the evidence,
[Larsen] is 26 years old, and he’s lived in this area for roughly the
past four or five, six years. Does anyone— after knowing that
information, does anyone recognize [Larsen]?

None of the potential jurors responded that they knew or recognized Larsen.

Micah Thompson was not mentioned until the punishment trial began, on

February 27, and then only in passing during Officer Stewart’s testimony.7 Her

name was mentioned again on February 28 during Larsen’s direct testimony

about his minor daughter, who has his last name, and with regard to where he

7
… Larsen’s attorney asked Officer Stewart whether he ever told Micah
that he did not feel Larsen should have criminal charges pursued against him.
Officer Stewart said that he did not.

9
was going the night he collided with Officer Stewart. 8 Also that day, Max

Thompson testified that he knew Larsen because Micah was his daughter and

that Larsen started dating her four years before the trial.

On March 1, during Micah’s mother’s testimony, she pointed out Micah

in the courtroom at Larsen’s attorney’s request. Boyd’s note was dated the

same day that Micah’s mother pointed Micah out in the courtroom.

Based on the record, Larsen failed to show that he exercised due diligence

or that Boyd “withheld” any information during voir dire. See id. Specifically,

no one asked the potential jurors if any knew Micah Thompson, formerly of 221

Wandering Lane, who was Larsen’s girlfriend and the mother of his child, or if

they, or any of their friends or family, had ever had any altercations with Micah

Thompson or Larsen. See Gonzales, 3 S.W.3d at 917; Whiting v. State, 943

S.W.2d 102, 105 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding

that juror did not give false information to attorneys during voir dire where the

record reflected that he did not realize that he knew the victim until he saw the

victim walk into the courtroom during trial).

8
… “I was going to 221 Wandering Lane . . . . it was a residence that
Micah Thompson and I used to share.” Micah had sold that house, but Larsen
testified that he did not remember that and that he was heading for the house
“[b]ecause [he] was scared and [he] wanted to go to a place that [he] felt
safe.” On her juror questionnaire, Boyd revealed that she lived at 229
Wandering Lane.

10
 The cases upon which Larsen relies, Von January v. State, 576 S.W.2d

43 (Tex. Crim. App. 1978), and Salazar v. State, 562 S.W.2d 480 (Tex. Crim.

App. 1978), are inapposite. In Von January, defense counsel specifically asked

whether any of the prospective jurors knew “George Parker, Sr., George Parker,

Jr., or George Parker, III (the deceased),” and the juror in question did not

respond, even though he recognized George Parker Sr. when he entered the

courtroom with the jury panel and had known the Parkers well for around thirty

years. 576 S.W.2d at 44. In Salazar, the State specifically asked, in an

indecency with a child case involving a Mexican-American defendant, whether

any of the venire had ever been a witness in a criminal case, and the juror in

question indicated that he had not. 562 S.W.2d at 481, 483. The juror later

revealed to the court that he had given false information during voir dire in that

he had been a witness in a criminal case five years before, when he was an

eyewitness to a sexual assault on his own daughter by a Mexican-American

male. Id. at 481–82.

In contrast, here, neither Larsen nor the State asked any questions about,

or even mentioned, Micah Thompson during voir dire. Although Larsen blames

Boyd for “her failure to respond,” he presented nothing to the venire for Boyd

to respond to. Therefore, the trial court did not abuse its discretion by denying

his motion for mistrial. We overrule Larsen’s third point.

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 III. Double Jeopardy

In his second point, Larsen contends that his convictions and

punishments for the three offenses violate Double Jeopardy protections under

the Texas and federal constitutions. Specifically, Larsen argues that “all three

charges, convictions[,] and punishments occurred in the same criminal episode

and transaction.” He claims that there was no causal break between the three

offenses, resulting in multiple punishments for the same act.

A. Standard of Review

The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. C ONST. amend. V. Generally, this clause protects against

multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161,

165, 97 S. Ct. 2221, 2225 (1977); Ex parte Herron, 790 S.W.2d 623, 624

(Tex. Crim. App. 1990) (op. on reh’g). However, separate convictions for

different offenses arising from a single criminal transaction do not violate the

prohibition against double jeopardy. See Haight v. State, 137 S.W.3d 48, 51

(Tex. Crim. App. 2004).

To determine whether both offenses are the same, we must examine the

elements of the applicable statutes to determine whether each statute “requires

proof of an additional fact which the other does not.” Blockburger v. United

12
States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932); see United States v.

Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856 (1993); Parrish v. State,

869 S.W.2d 352, 353–55 (Tex. Crim. App. 1994). But in multiple

punishments cases, the court of criminal appeals has recognized that

Blockburger is not the exclusive test and requires a two-step analysis. The first

step is to examine the proof necessary to establish the statutory elements of

each offense as alleged in the indictment. Vineyard v. State, 958 S.W.2d 834,

836 (Tex. Crim. App. 1998). The second step requires an analysis of the

legislative intent, i.e., whether it was the legislature’s intent to impose multiple

punishments or only one. Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim.

App. 1999); see also Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.

2006). A defendant suffers multiple punishments in violation of the Double

Jeopardy Clause only when he is convicted of more offenses than the

legislature intended. Ervin, 991 S.W.2d at 807.

B. Analysis

Larsen was convicted of intoxication assault, FSRA, and evading arrest

or detention with a vehicle offenses. The elements of an evading arrest or

detention with a vehicle offense are that the person intentionally flees, using a

vehicle, from a person that he knows is a peace officer attempting to lawfully

arrest or detain him. See T EX. P ENAL C ODE A NN . § 38.04(a), (b)(1). The

13
elements of an intoxication assault offense require that a person, by accident

or mistake, operate a motor vehicle in a public place while intoxicated and

cause serious bodily injury to another. See id. § 49.07. The elements of a

FSRA offense require that the operator of a vehicle involved in an injury-

accident intentionally or knowingly fail to immediately stop or return to the

accident scene and to remain there until he complies with section 550.023 of

the transportation code. See T EX. T RANSP. C ODE A NN. § 550.021(a), (c) (Vernon

Supp. 2007). Section 550.023 of the transportation code requires providing

any person injured in the accident with reasonable assistance. Id. § 550.023(3)

(Vernon 1999).

FSRA and evading arrest with a vehicle do not require intoxication;

intoxication assault does not require the perpetrator to stay and render

reasonable assistance, or that the offender intentionally flee from authority.

See State v. Marshall, 814 S.W.2d 789, 796–97 (Tex. App.—Dallas 1991, pet.

ref’d); see also Ephraim v. State, 237 S.W.3d 438, 440–41 (Tex.

App.—Texarkana 2007, pet. ref’d) (holding that there was no double jeopardy

violation in convictions for “unsafe speed” and “intoxication assault,” although

the offenses shared some common elements, because the unsafe speed charge

did not require proving bodily injury or driver intoxication, and the intoxication

assault charge did not require proving that the offender used more excessive

14
speed than was reasonable and prudent under the circumstances). These are

all separate and distinct offenses—the only common element of all three is that

a motor vehicle must be involved. See Blockburger, 284 U.S. at 304, 52 S. Ct.

at 182; Vineyard, 958 S.W.2d at 836.

According to Ervin, we must now review whether the legislature intended

multiple punishments. Ervin set out a nonexclusive list, which includes

whether: (1) the offenses’ provisions are contained within the same statutory

section, (2) the offenses are phrased in the alternative, (3) the offenses are

named similarly, (4) the offenses have common punishment ranges, (5) the

offenses have a common focus, or “gravamen,” and whether that common

focus tends to indicate a single instance of conduct, (6) the elements that differ

between the offenses can be considered the “same” under an imputed theory

of liability which would result in the offenses being considered the same under

Blockburger, and (7) any legislative history containing an articulation of an

intent to treat the offenses as the same or different for Double Jeopardy

purposes. See 991 S.W.2d at 814.

With regard to evading arrest or detention, the legislature has explicitly

provided that “[a] person who is subject to prosecution under both this section

and another law may be prosecuted under either or both this section and the

other law.” T EX. P ENAL C ODE A NN. § 38.04(d). Therefore, as to the conviction

15
and punishment for evading arrest or detention with a vehicle, Larsen’s Double

Jeopardy protections were not violated. See id.

Applying Ervin to the other two offenses, intoxication assault and FSRA

are not contained within the same statutory sections: intoxication assault is

located in the penal code, under the chapter entitled, “Intoxication and

Alcoholic Beverage Offenses,” and FSRA is located in the transportation code,

under the chapter entitled “Accidents and Accident Reports.” They are not

phrased in the alternative or similarly named, although there is some overlap in

their punishment ranges. 9 The focus of the offenses differs, in that under

intoxication assault, an offender is punished for causing bodily injury to another

with his vehicle, regardless of intent, while the offender was intoxicated. In

contrast, under FSRA, an offender is punished for intentionally abandoning

someone that he injured with his vehicle, drunk or sober. And the elements

that differ between these offenses cannot be considered the “same” under an

imputed theory of liability. See Marshall, 814 S.W.2d at 797 (holding that the

State was not barred by double jeopardy from prosecuting the defendant for

9
… Intoxication assault here was a third degree felony, involving a
punishment range from two to ten years’ confinement and a fine not to exceed
$10,000; FSRA’s punishment range provides for confinement of one to five
years and a fine not to exceed $5,000. T EX. P ENAL C ODE A NN. §§ 12.34,
49.07(c); T EX. T RANSP. C ODE A NN. § 550.021(c)(2).

16
FSRA after obtaining a conviction for DWI for the same event). Under Ervin,

FSRA and intoxication assault do not constitute the same offense. See Ervin,

991 S.W.2d at 814; see also Villanueva v. State, 227 S.W.3d 744, 753 (Tex.

Crim. App. 2007) (Keller, P.J., dissenting) (“The legislature has shown a

willingness to impose additional criminal liability for a person’s failure to

mitigate the results of his (or others’) conduct. Failure to render aid is a

stand-alone offense, as is failure to report a felony and failure to stop and

render aid, to mention but a few examples. These statutes reflect the

legislature’s effort to encourage the amelioration of injury.”). We conclude that

Larsen’s Double Jeopardy protections were not violated and we overrule

Larsen’s second point.

IV. Motions for Continuance

In his first point, Larsen argues that the trial court erred by denying his

motions for continuance.

A. Standard of Review

The denying of a motion for continuance is within the sound discretion

of the trial court. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App.

2006); Heiselbetz v. State, 906 S.W.2d 500, 511–12 (Tex. Crim App. 1995).

A defendant must show “specific prejudice to his defense” to establish that the

trial court abused its discretion by refusing to grant a continuance. Renteria,

17
206 S.W.3d at 699; Heiselbetz, 906 S.W.2d at 511–12. Examples of specific

prejudice include unfair surprise, an inability to effectively cross-examine the

State’s witnesses, and the inability to elicit crucial testimony from potential

witnesses. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996),

cert. denied, 522 U.S. 825 (1997); Dotson v. State,146 S.W.3d 285, 297

(Tex. App.—Fort Worth 2004, pet. ref’d).

B. Analysis

Larsen argues that he established at the hearing

his diligence, material facts, that the requested continuance was
through no fault of his own part for the delay, that the motion was
not made for delay, as well as the fact that the late disclosures by
the State precluded his being ready for trial because of the absence
of a material witness, and of course: prejudice from the denial of
the requested continuance.

He contends that “[b]y denying the requested continuance herein the trial court

denied [Larsen] the ability to adequately prepare his case as to punishment, the

only contested matter before the Court and the jury,” and because he received

confinement instead of community supervision, he suffered harm.

At the continuance hearing, Larsen did not dispute the State’s argument

that he had caused his own delay by failing to show up at previously scheduled

18
meetings with his expert.10 Furthermore, although Larsen contended during the

motion hearing that he needed additional meetings with Dr. Fallis because

“[t]here has to be some testing scored in order for her to be prepared to

testify[,]” the record reflects that Dr. Fallis was able to complete the test

scoring in time to testify, and that she felt she had enough time to evaluate

Larsen for valid results.11 Therefore, Larsen has failed to show any specific

prejudice or harm with regard to the denial of his motions for continuance as

to the expert witness. See Janecka, 937 S.W.2d at 468.

As to Larsen’s notice argument, Larsen claims that the trial court erred

by denying his motions because he needed “to investigate with respect to 2

witnesses substituted for those he was put on notice by the State would testify

only the week before the trial.” Yet Larsen never identified which witnesses he

complained of, either in his motions or at the hearing. Instead, he merely

complained that “the [S]tate has provided us with additional information about

witnesses in this case within the last week with regard to prior bad acts. And,

additionally, we need more time to prepare for those witnesses at the time of

10
… At trial, Dr. Fallis testified that Larsen missed at least two
appointments with her.
11
… In response to the question by Larsen’s attorney with regard to
whether she had enough time to evaluate Larsen, Dr. Fallis stated, “Yes. I feel
confident about the things that are in my report.”

19
trial.” In his motion, he added that he needed the additional time “to prepare

cross-examination of these witnesses.”

At the hearing, Larsen did not contradict the State’s assertion that there

was only one new witness, Officer Scott Bird. The State contended that

Officer Bird was one of two officers in a Wal-Mart theft incident and that the

arrest record produced earlier by the State to Larsen listed both officers; Officer

Bird was the officer who had written the report included in the arrest record.12

During the punishment trial, Officer Bird testified to the same facts listed

in the report; Larsen thanked the officer for his testimony but did not cross-

examine him. Larsen testified to the same facts during his direct examination,

admitting that he had committed the offense by switching the price tag from

an expensive item, a pair of boots, to “a lesser-price tagged item.”

In his brief to this court, Larsen has failed both to identify any specific

witness or to explain how he was specifically prejudiced by the trial court’s

denial of his motions for continuance with regard to any specific witness. See

12
… The record does not contain any witness lists; however, it does
contain the State’s subpoena applications. The State filed a subpoena
application for Officer Bird on February 22, at 1:30 p.m. Larsen filed his
motions for continuance at 3:15 p.m. that day. To the extent that Larsen’s
complaint concerns Joyce Ho and Raymond Waller, persons named in the
State’s subpoena applications filed February 14, eight days earlier, neither
testified at trial. Therefore, no prejudice was shown.

20
Heiselbetz, 906 S.W.2d at 511–12 (requiring establishment of “specific

prejudice” from a trial court’s failure to continue the trial); see also T EX. R. A PP.

P. 38.1(h) (requiring that a brief “contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record”).

Because Dr. Fallis was able to provide the testimony Larsen hired her to

provide, and because Larsen opted not to cross-examine Officer Bird and

testified to the same facts as Officer Bird, Larsen has failed to show that he

was actually prejudiced by the denial of his motions for continuance. See

Heiselbetz, 906 S.W.2d at 511–12; Dotson, 146 S.W.3d at 297. Therefore,

the denial of his motions did not constitute an abuse of discretion. We overrule

Larsen’s first point.

V. Conclusion

Having overruled all of Larsen’s points, we affirm the judgments of the

trial court.

PER CURIAM

PANEL F: MCCOY, J.; CAYCE, C.J.; and WALKER, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 26, 2008

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