David Solis v. State

NO. 07-08-0033-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 18, 2008

______________________________

DAVID SOLIS, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137TH DISTRICT COURT OF POTTER COUNTY;

NO. 2007-417,788; HON. CECIL G. PURYEAR, PRESIDING

_______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, David Solis, appeals his convictions and sentences for two counts of aggravated assault with a deadly weapon and one count of assault on a family member. Appellant was sentenced to 15 years incarceration in the Texas Department of Criminal Justice, Institutional Division, for each of the aggravated assault with a deadly weapon convictions and was sentenced to 10 years incarceration for the assault on a family member conviction. Each of these sentences are to run concurrently. We affirm.

Background

          On or about January 3, 2007, appellant and his girlfriend, Fransisca Ramirez, got into an argument. As the argument escalated, appellant began hitting Ramirez with his hands. He, subsequently, began hitting her with a belt buckle that was attached to the end of a belt. Appellant’s use of the belt and belt buckle caused scratching, cutting, and bruising on Ramirez’s torso, arms, and legs. After things started to calm down, appellant pulled out a small knife and held it against Ramirez’s neck. The following morning, appellant again started hitting Ramirez with the belt buckle and belt. Following these events, Ramirez went to work and, later that afternoon, went to visit her mother, where a family member called the police.

          At trial, the officer that responded to the call, Joe Pinson, testified. Pinson testified that he was a certified police officer with the Slaton Police Department for 13 years. He testified that he spoke with Ramirez about the incident in the afternoon following its occurrence and photographed her injuries. Based on information he received from Ramirez as well as his personal observation of Ramirez’s injuries, Pinson testified about the manner in which appellant had used the belt and belt buckle. Over appellant’s objection, Pinson testified that a belt and belt buckle used in the manner in which appellant used them would be considered a deadly weapon.

          By one issue, appellant challenges the judgment. Appellant’s sole issue contends that the trial court erred in overruling appellant’s objection that Pinson testified as an expert witness regarding what constitutes a deadly weapon without the State designating Pinson as an expert witness in accordance with the trial court’s local rules.

Analysis

          Appellant contends that the trial court erred in overruling his objection to Pinson testifying as an expert when the State failed to provide notice of its intent to offer his expert testimony, as required by the local rules of the court. According to appellant’s brief, under “the local rules of the 137^th District Court of Lubbock County[,] both Defense and Prosecution are required to give notice to the other if they plan to call an expert witness to the stand during trial.” However, appellant does not provide a verifiable citation to this purported local rule and no copy of the purported local rule is included in the record or attached to appellant’s brief. Our review of the local rules applicable to the Lubbock County District Courts does not include any rule which requires designation of expert witnesses. See Local Administrative Rules of the District Courts and County Courts-At-Law of Lubbock County, Texas, http://www.co.lubbock.tx.us/DClerk/PDF/localrules.pdf; Local Procedural Rules, Criminal Cases, Lubbock County, Texas (2004), http://www.co.lubbock.tx.us/DCrt/PDF/LocalProceduralRules.pdf; Lubbock County Local Fair Defense Act Plan and Rules Sections of the Local Administrative Rules (2004), http://www.co.lubbock.tx.us/DCrt/PDF/FairDefenseActAmen.pdf. Without substantive argument or supporting authorities, an issue cannot be adequately evaluated, and will be overruled. Tex. R. App. P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997). As appellant’s sole citation to supporting authority is to a purported local rule that cannot be verified by this Court, we overrule appellant’s issue.

          We are, however, mindful that the Texas Code of Criminal Procedure provides,

On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party . . . .

 Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon 2005). The objection appellant raised at trial to Pinson’s testimony was that, “He wasn’t designated, based on the Court’s order that they designate their experts, if he is going to make an expert opinion as to what is or is not a deadly weapon. And I would object to that for lack of notice.” However, a review of the clerk’s record reveals neither a motion for identification of expert witnesses nor an order from the trial court requiring the State to designate expert witnesses. Thus, there is nothing in the record to indicate that the State was under any obligation to designate any expert witness that it intended to call at trial.

          However, even were we to find that the trial court’s ruling was in error because it violated a local rule, trial counsel objected on the basis that Pinson’s testimony violated a prior order of the trial court. If the complaint on appeal does not correlate to the objection made at trial, the complainant has not preserved error. Tex. R. App. P. 33.1(a); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). Because appellant’s argument on appeal does not comport with the objection raised at trial, any error in the State’s failure to designate Pinson as an expert witness was not preserved.

Conclusion

          For the foregoing reasons, we overrule appellant’s sole issue.

 

Mackey K. Hancock

Justice

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NO. 07-09-0373-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL E

 

SEPTEMBER 27, 2010

 

 

In the Interest of A.S., a Child

___________________________

 

FROM THE 316th DISTRICT COURT OF HUTCHINSON COUNTY;

 

NO. 38,213; HONORABLE JOHN LAGRONE, PRESIDING

 

 

Memorandum Opinion

 

 

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.[1]

  Tammy Lea Smith (Smith) appeals the termination of her parental rights to her five-year-old daughter A.S. by attacking the sufficiency of the evidence underlying the findings with regard to the child’s best interest and the various statutory grounds alleged.  We affirm.

            We initially observe that Smith failed, in both her motion for new trial or statement of points on appeal, to allege that the evidence was either legally or factually insufficient to support a finding that termination was in the child’s best interest.  Thus, those complaints were not preserved for review.  See In re C.M., 208 S.W.3d 89, 92 (Tex. App.–Houston [14^th Dist.] 2006, no pet.).

 

            Next, the trial court found by clear and convincing evidence that termination was warranted under §161.001(1)(D), (E), (I), and (O) of the Texas Family Code.  If there be sufficient evidence to support the existence of any one  of those grounds, then we must affirm its decision.  In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.–Amarillo 2009, pet. denied). 

            Next, the record before us contained the following evidence.  Smith had been a long-time abuser of drugs, that is, marijuana, methamphetamine, and cocaine.  Each hair follicle drug test she took during the eighteen months that her daughter was in foster care came back positive.  She further admitted to using marijuana and methamphetamine less than thirty days prior to trial.  Smith also admitted to being arrested numerous times for possessing drugs, shoplifting, or public intoxication.  So too has she been jailed at least six times since A.S. was born.  Appellant also moved frequently, once had been evicted from her abode due to her drug use, lacked electricity in one home, lived a nomadic life with friends, lost a job due to drug use, and lived with a boyfriend with whom she used drugs.  The latter was also a violent individual and physically abused Smith.  According to A.S., her mother’s boyfriend was responsible for a cut lip and a mark across her back.  Other men with whom Smith had lived were also abusive.  And, though she claimed that she was employed with a “private” lady, appellant failed to provide proof of employment to Child Protective Services.  Next, it appeared that A.S. spent most weekends with her purported grandparents, one of which described the child as being dirty and hungry whenever they picked her up.  The house in which the child lived with her mother was further described as smelling of marijuana.  A grandparent also testified that Smith oftimes could not be awakened when the child was returned home.  Additionally, A.S. told others that she was afraid of her mother, that her mother would leave her alone, and that she feared her mother’s boyfriend.  A.S. also asked her foster mother if her husband was going to cut her clothes with a knife, if he was going to throw the foster mother’s possessions out of the window, and why he did not hit the foster mother and her other children.

            Other evidence illustrated that Smith failed to complete her parenting classes or counseling.  So too did a psychologist conclude that Smith had poor parenting skills and would have difficulty caring for a five-year-old child.  Finally, Smith admitted that she was unable to care for the child.  All of this constitutes clear and convincing proof that the child’s surroundings and environment endangered A.S.’ physical and emotional well-being.  Thus, the trial court had ample evidence to support termination under that ground.  See Tex. Fam. Code Ann. §161.001(1)(D) (Vernon Supp. 2010) (termination may be warranted when a parent knowingly placed or knowingly allowed a child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child).   

            Accordingly, we overrule Smith’s issues and affirm the termination order. 

 

                                                                                    Brian Quinn

                                                                                    Chief Justice

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[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov’t Code  Ann. §75.002(a)(1) (Vernon 2005).