                                  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.



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      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
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(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).
        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.
                                                   4 
       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



                                              5 
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.
                                             6 
      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.




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