
NO. 07-02-0088-CV

IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


MARCH 22, 2002


______________________________



IN RE JOE L. LOVELL

 
_________________________________




Before BOYD, C.J., and DODSON and DICKENSON, JJ. (1)
ON MOTION TO VACATE OR MODIFY STAY

	Relator Joe L. Lovell filed a petition for an extraordinary writ seeking to have this
court direct the Honorable Bill Sheehan to vacate a judgment and certain orders in the
underlying original cause and certain orders in a severed cause, as well as to disqualify
him from conducting further proceedings in the underlying matters.  Relator then filed a
motion for temporary relief in which he sought a stay of all further proceedings in the
underlying causes until this court has completed its review of the petition for extraordinary
relief.  On February 20, 2002, that motion was granted to the extent that no further
proceedings be taken in the underlying cases pending receipt of the response to the
motion for temporary relief and the court's ruling on that motion.  
	Trustee Floyd Holder, plaintiff in the underlying causes of action, has now filed a
motion to vacate or modify that temporary stay.  In doing so, he asserts that the only matter
pending at the time of relator's filing of his motion for temporary relief was a hearing on
relator's motions to recuse Judge Sheehan pursuant to Rule 18a(d) of the Rules of Civil
Procedure because all other matters pending before Judge Sheehan had been previously
stayed.  The trustee asserts that if any of the motions to recuse are granted, then relator's
petition before this court will be rendered moot.  
	We also find in the documents before us a letter from Judge Kelly G. Moore to the
parties in which these assertions appear to be confirmed.  Thus, a granting of the motions
to recuse should at least limit if not remove all of the issues before this court.  
	Accordingly, the motion to modify our temporary stay is granted in part, and our
temporary stay is vacated to the extent necessary to permit Kelly Moore, Presiding Judge
of the Ninth Administrative Judicial Region, to hear and rule upon defendants' motion to
recuse Judge Sheehan.  We ask Judge Moore to conduct that hearing at his earliest
convenience and to forward a certified copy of his ruling on that motion to the clerk of this
court.
						Per Curiam
Do not publish.
1. Carlton B. Dodson and Bob Dickenson, retired Justices, sitting by assignment. 

Exception Locked="true" SemiHidden="true" UnhideWhenUsed="true"
   QFormat="true" Name="heading 3"/>
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 







NO.
07-10-0078-CR
   
IN
THE COURT OF APPEALS
  
FOR
THE SEVENTH DISTRICT OF TEXAS
       AT AMARILLO
PANEL
B
       FEBRUARY 8, 2011
                                            
___________________________
        
NEIL CURRAN,  
Appellant

                                                                         v.
THE
STATE OF TEXAS,  
Appellee
                                            ___________________________
FROM
THE COUNTY COURT AT LAW NO 1 OF LUBBOCK COUNTY;
       NO. 2009-456,362; HONORABLE LARRY B.
"RUSTY" LADD, PRESIDING
                                                ___________________________
Memorandum Opinion
                                                ___________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
            Neil Curran
was convicted of operating a vehicle at an unsafe speed.  He raises six issues in which he seeks to
overturn that conviction. Finding no merit to those issues, we affirm the
judgment.
            
 
Background
            On November
4, 2008, appellant, who was a Texas Tech student, and three fellow students,
Chris Parker, Andrew Mosley, and Nathaniel Colon, were involved in a single car
rollover accident on North County Road 2000 near FM 1294 in Lubbock
County.  Colon was injured but the other
three boys were unharmed.  When Deputy
Scott Duncan arrived, he asked the three uninjured boys who had been driving
the car.  Appellant took out his license
and claimed responsibility, though the car belonged to appellants father.  
            When
Trooper Jerry Johnson arrived at the scene, he again inquired about the
drivers identity and was informed by appellant that he was the driver of the
car.  Appellant also told the trooper
that he believed he had been traveling approximately 75 m.p.h.  Appellant then called Colons sister, whom he
was dating, and told her that her brother had been injured in an accident, that
he (appellant) was the driver, and that he had been driving too fast.  Several days later,
appellant and Parker told Trooper Johnson that Parker was the driver of the
vehicle, though appellant had been the one who received the ticket.  
            Issue 1  Admission
of Speed
            In his
first issue, appellant complains of the trial courts admission into evidence
of the statement made to Trooper Johnson as to the speed that appellant
believed he had been going at the time of the accident.  Appellant argues that it was opinion evidence
that must be proffered by a properly qualified expert only after it has been
shown to be reliable.  We overrule the
issue.
            We review
the trial courts admission of evidence for abuse of discretion.  Rodriguez v. State,
280 S.W.3d 288, 289 (Tex. App.Amarillo 2007, no pet.).  Moreover, we may uphold the ruling if the
evidence is admissible for any purpose.  McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App.
1997).   
            Appellant
assumes that his statement consisted of expert testimony.  However, one may offer testimony based on
actual knowledge as well as his lay opinion if that opinion is limited to those
opinions or inferences which are rationally based on the perception of the
witness and helpful to a determination of a fact in issue.  Tex. R.
Evid. 701; see King v. State, 129 S.W.3d 680, 683-84 (Tex. App.Waco
2004, pet. refd).  Speed is one area in
which lay opinions may be offered.  McMillan v. State, 754 S.W.2d 422, 425 (Tex. App.Eastland
1988, pet. refd). 
Given that appellant admitted several times he was driving the vehicle,
the trial court reasonably could have inferred that he had a factual basis from
which to estimate his speed at the time of the accident.  At least, we cannot say that such an inference
would fall outside the zone of reasonable disagreement. 
            Issue
2  Subpoenas
            Next,
appellant argues the trial court erred in quashing subpoenas he had issued for
representatives of General Motors and Vericom Computers as well as Parker,
Mosley, and Colon.  We overrule the
issue.
            Initially,
we note that Parker testified at trial. 
This rendered moot any complaint about that individual not being
subpoenaed.  
            Regarding
the other four potential witnesses, we again review the trial courts ruling
under the standard of abused discretion. 
Ortegon v. State, 267 S.W.3d 537, 542 (Tex. App.Amarillo
2008, pet. refd); Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.Fort
Worth 2006, pet. refd).  With this in
mind, we note that the addresses listed on the subpoenas indicated that the
prospective witnesses were located outside Lubbock County.  This is of import because a defendant is
entitled to subpoena witnesses who are located outside the county boundaries
only if the offense for which he is being tried is punishable by confinement in
jail.  Tex.
Code Crim. Proc. Ann. art.
24.16 (Vernon 2009). 
Here, appellant was cited for proceeding at an unsafe speed, which
offense is a misdemeanor punishable only by a fine.  See Tex. Transp. Code Ann. §§542.301(b),
542.401, 545.351(a) (Vernon 1999).[1]  Thus, he was not entitled to the
subpoenas.   
            Issue
3  Denial of Recess
            In his
third issue, appellant contends the trial court erred in denying his request
for a recess during trial.  We overrule
the issue for several reasons.  
            First,
appellant cites no direct or indirect authority supporting the proposition that
he was entitled to a recess.  This
omission violates rule 38.1(i) of the Texas Rules of Appellate Procedure,
which, consequently, means he waived the complaint.  See Tex. R. App. P. 38.1(i)
(stating that an appellate brief must contain a clear and concise argument for
the contentions made with appropriate citations to authorities); Cardenas
v. State, 30 S.W.3d 384,
393 (Tex. Crim. App. 2000).
            Second, the
recess was allegedly sought so that the witness being examined could obtain
records regarding the issuance of citations after rollover accidents.  Why this was relevant to appellants guilt or
innocence for operating a vehicle at an unsafe speed went unexplained.  Thus, we cannot say that he carried his
burden of proving that the trial court abused its discretion in denying the
recess.
            Issue
4  Admission of Exhibits 11-13
            In his next
issue, appellant argues that the trial court erred in admitting exhibits 11
through 13 into evidence.  The exhibits
consisted of scaled diagrams of the crash site and a reconstruction of the
accident.  They were allegedly
inadmissible because the officer who created them had help from another
officer and the latter was not made to testify.  Thus, his right to confront witnesses was
denied him.   Furthermore, the State
purportedly failed to prove . . . that this computer generate [sic] accident
reconstruction is reliable.   We
overrule the issue.
            Appellants
contentions consist of mere conclusory argument lacking analysis.  And, while it may be that appellant referred
to authority which he labeled Melendez and Kelly, he
failed to explain how either pertained to or controlled the circumstances at
bar.  It was not enough to merely say
[a]ppellant will not bore the Court with a discussion of Kelly and
then utter that under Kelly . . .  admission was reversible error.  Nor was it enough to simply say that because
the lab technician in Melendez, who apparently identified the
controlled substance as cocaine, was required to testify, the officer who
helped the witness at bar develop the exhibits was also required to
testify.  For all we were told, the
assisting officer at bar may have done nothing more than acquire a pencil,
gather paper, provide a glass of water, or the like, and such would hardly be
akin to the testimonial evidence involved in Melendez.
            In short,
it is not our obligation to add meat to a bone thrown at us by an
appellant.  When an appellant cares not
to flesh out an issue through explanation and analysis, we are free to deem it
waived.  Robinson v. State, 851 S.W.2d 216,
221-22 (Tex. Crim. App. 1991). 
And, we do so here.
            Issue
5  Hearsay
            Appellant
argues in his fifth issue that the trial court should have granted his motion
to strike certain testimony of Trooper Johnson. 
The testimony consisted of the officer stating that both Parker and
appellant initially disclosed to him that appellant was driving the vehicle at
the time of the accident.  The trial
court sustained a hearsay objection with regard to the purported utterance by
Parker but refused to do so with regard to that of appellant.  We overrule the issue.
            It, like
others proffered by appellant, lacks citation to authority and explanation as
to why the admission of appellant had to be excluded simply because the
statement of Parker may have been hearsay. 
Given this inadequacy in briefing, the issue was waived.  See Tex. R. App. P.
 38.1(i) (stating that an
appellate brief must contain a clear and concise argument for the contentions made
with appropriate citations to authorities); Cardenas
v. State, 30 S.W.3d at 393.
Issue 6  Testimony of Amit Desai
Finally, appellant complains of the
trial courts refusal to permit Amit Desai to testify about his belief that
Parker, as opposed to appellant, actually was driving at the time.  We overrule the issue.
A trial court may exclude redundant
testimony or evidence.  Sturgeon v. State, 106
S.W.3d 81, 88 (Tex. Crim. App. 2003). 
Furthermore, the testimony at issue was redundant of that already admitted.  Trooper Johnson testified that Parker told
him (days after the accident) that he (Parker) was driving the vehicle.  So, the trial courts concluding that the
Desai comments were inadmissible did not fall outside the zone of reasonable
disagreement.  
Having overruled all of appellants
issues, we affirm the judgment.
 
                                                            Per
Curiam
 
Do not publish.




[1]Pursuant
to the Transportation Code, a person convicted of speeding is subject to a fine
of not less than $1 or more than $200.  Tex. Transp. Code Ann. §542.401 (Vernon
1999); see also Halbert v. State, No. 05-96-01438-CR, 1999 Tex. App. Lexis 384, at *3 (Tex. App.Dallas January 22, 1999, no pet.) (not designated for publication); Clark v. State, No. 01-96-01079-CR, 1998 Tex. App. Lexis 1610, at
*2-3 (Tex. App.Houston [1st Dist.] March 12,
1998, no pet.) (not designated for
publication); Riley v. State, No. 07-96-0447-CR, 1997 Tex. App. Lexis 5564, at *4 (Tex. App.Amarillo October 24, 1997, no pet.) (not designated for publication).  Under the Penal Code, a Class C misdemeanor
is punishable by a fine not to exceed $500. 
Tex. Penal Code Ann. §12.23
(Vernon  2003).  A fine of $500 was assessed against appellant,
which is inconsistent with the Transportation Code.  


