Affirmed and Opinion filed April 19, 2012.




                                           In The

                           Fourteenth Court of Appeals
                                  ___________________

                                   NO. 14-10-01090-CR
                                  ___________________

                              JOHN FRANGIAS, Appellant

                                             V.

                           THE STATE OF TEXAS, Appellee


                       On Appeal from the 262nd District Court
                                Harris County, Texas
                           Trial Court Cause No. 1256414


                                       OPINION

       Appellant John Frangias appeals his conviction for sexual assault and argues that
his case should be retried because he received ineffective assistance of counsel.
According to appellant, there was a witness who would have corroborated his version of
events, and his attorneys’ failure to procure the witness’s testimony, or to move for a
continuance in order to do so, constituted ineffective assistance of counsel. Appellant
additionally contends that the trial court abused its discretion in excluding the testimony of
a lay witness as to appellant’s health issues. Because the trial court did not abuse its
discretion in denying appellant’s motion for new trial on any of these grounds, we affirm.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was convicted of sexually assaulting Canadian resident K.H. in July 2008
while she was a guest at a hotel in downtown Houston owned by appellant’s family. The
State and the defense agree that K.H. originally reserved a room at a different hotel, but
because it was overbooked, its staff sent K.H. to appellant’s hotel. They also agree that
K.H. checked into appellant’s hotel on Monday, July 7, 2008; that on the three following
days, appellant drove K.H. and other guests to or from the venue where they were attending
a convention; and that K.H. checked out on Friday, July 11, 2008.               Beyond this,
appellant’s version of events differs sharply from that of the State.

       To provide some context for the arguments presented on appeal, we summarize the
testimony of the key witnesses.

A.     The State’s Case

       On the evening of Thursday, July 10, 2008, appellant dropped K.H. off at a
convention event. K.H. testified that she had two glasses of wine at the event, then
accompanied her business partner to his hotel room where she had another glass of wine.
She stated that she returned to appellant’s hotel at 11:00 p.m. According to K.H., there
was no one in the lobby when she entered and started up the stairs, but when she was nearly
to the second floor, she saw appellant downstairs speaking to someone. He then excused
himself and started up the stairs behind her. K.H. testified that she just wanted to go to her
room, so she quickened her pace, but appellant did the same, and when she opened her door
with her key, appellant pushed her into the room. K.H. stated that she initially laughed
and told appellant that she was married and that he had to leave, but appellant grabbed her
and kissed her. She stated that appellant pulled her hair as he fondled her breasts and
genitals, but she was able to push him away enough to see that the door to her room was

                                              2
still open. She testified that when appellant saw her look in that direction, he pushed the
door closed. As K.H. described it, appellant unbuttoned and unzipped her jeans, which
fell to her knees, and when she tried to pull her jeans back up, appellant pushed her back
onto the bed. She testified that she closed her eyes and put her hands over her face, and
appellant removed her jeans and underwear. According to K.H., appellant had vaginal
intercourse with her, then went into the bathroom and she heard water running. K.H.
continued to cover her face, and she heard appellant dress and leave without speaking to
her again. She stated that she showered and brushed her teeth, but decided not to call the
police because she hadn’t screamed or fought back. She related that she telephoned her
husband at 11:24 p.m., but did not tell him what had occurred; she also checked her email
and spent a half-hour on a business phone call. K.H. testified that she left the hotel at 7:00
a.m. the next day and took a cab to the hotel where her business partner was staying. The
two of them went to the airport, and after her business partner’s flight departed, K.H.
emailed a friend to say that she had been raped. K.H. then flew back to Canada, and upon
her arrival, she left a telephone message for another friend who was a former police officer.
When the former police officer returned her call, K.H. described what had happened to her.
Her husband heard K.H. crying and went to investigate. After K.H. told him what had
happened, he took her to the police station to report the offense. Although K.H. was
examined, there was no physical evidence of assault.

B.     The Defense

       In his defense, appellant attempted to show that (1) he was physically incapable of
forcible rape; (2) when K.H. returned to the hotel on July 10, 2008, she was so intoxicated
that she was confused, irrational, emotional, and incapable even of standing up unassisted;
and (3) appellant helped the intoxicated K.H. upstairs, but never entered her room.

       Through an interpreter, appellant’s wife Maria testified that appellant has had
substantial problems with kidney stones for the past three or four years. He had surgery
for the problem in 2007, and had several subsequent procedures to dissolve the stones.
                                              3
Since he has had a medical device inserted, appellant has found erections to be very
painful.

       Ron Hansard testified that he stayed at appellant’s hotel from about November 2007
to August 2008; that he was present when K.H. initially checked in; and that he heard her
try to negotiate a lower rate. Hansard also stated that there initially was a man with her,
but neither of them had luggage with them, and Hansard didn’t see the man again.
Hansard testified that he saw K.H. a couple of times later in the week, and it was his
impression that she had been drinking. Hansard further testified that he later saw K.H.
angrily ask appellant for a refund, but he did not see appellant give her any money.

       Registered nurse Mindy Colson testified that in July 2008, she went to appellant’s
hotel when she was unable to find a room elsewhere.1 Colson testified that appellant said
he would try to make a room available. Colson stated that while she waited, she observed
appellant “running around and doing things,” but he looked sick and stressed. To Colson,
appellant appeared sweaty, “somewhat hobbled,” and in pain. She related that at around
midnight, appellant saw a woman lying on her stomach in front of the entrance to the hotel.
According to Colson’s description, the woman had a large build, was dressed in jeans and a
T-shirt, appeared to be in her early 30’s, and smelled of alcohol. When appellant turned
the woman over, the woman awoke and seemed disoriented. She began crying and then
screaming. Colson testified that when appellant began trying to help the woman up, the
woman grabbed him and tried to kiss him. When appellant freed himself, the woman
staggered into a wall. Colson stated that appellant and another man helped the woman up
the stairs, and appellant came back to the lobby approximately five minutes later. He then
took towels upstairs and returned within two minutes.                Colson stated that she left
sometime after midnight without ever getting a room.



       1
         From the transcript, it is not clear when Colson arrived at the hotel. She stated that it was
“probably around 1ish,” and defense counsel asked, “1:50 p.m.?” Colson replied, “Yes, at night 2200.”
                                                  4
       Appellant testified that when K.H. checked in, a man was with her. Appellant did
not see her again until the next day when he drove K.H. and another guest to the convention
center. He stated that K.H. smelled of alcohol when he picked her up at noon and when he
drove her to the convention center the next day. He related that K.H. called him for a ride
back to the hotel, but he refused because he was in pain. According to appellant, he and
K.H. argued that evening about the room rate and about his failure to pick her up from the
convention center that afternoon. He testified that when he drove K.H. and another
woman to the convention center the next morning, K.H. again smelled strongly of alcohol
and appeared to be intoxicated. According to appellant, K.H. was rude to him and asked
him questions that upset him, so he loudly told her not to come into his car or back inside
the hotel.

       Appellant testified that he next saw K.H. at about 12:30 a.m. as she lay on the
ground outside of the hotel. He stated that he slapped her face and opened her eyes to see
if she was still alive and tried to help her stand up. As he described it, K.H. held onto him
and to the door handle and pulled herself up. He stated that she continued to hold him and
push him, so he pushed her away. According to appellant, K.H. alternately cried, laughed,
and sang. He stated that when K.H. started to go upstairs, she fell twice, so he and
part-time maintenance worker Jay Sotomayor helped her upstairs. Appellant further
testified that he and Sotomayor followed K.H. as she staggered to her room, and when it
appeared that she had no key, he checked to see if he accidentally had brought the master
key with him. Finding that he had, he opened K.H.’s room and she fell to the floor.
When asked at trial to describe what happened next, appellant answered, “Just crack the
door, and I help come in, get up, and I let her to go to her room, and I leave.”2 Appellant
stated that he then went to Hansard’s room. According to appellant, Hansard wanted to
transfer some information to or from a USB drive, so appellant went downstairs to get one.


       2
         We quote this statement because it is ambiguous, and different listeners could have different
impressions as to whether this statement meant that appellant did or did not enter the room.
                                                  5
He stated that while he was downstairs, K.H. called for more towels, so he got some from
the laundry and took them upstairs to her, then went to Hansard’s room. Appellant
testified that he next saw K.H. at about 10:40 a.m. He stated that she had planned to stay
another night, but appellant insisted that she leave. Finally, appellant testified that the
pain from his kidney problems was such that he could not work and could not have an
erection.

       To impeach appellant’s testimony, the State offered evidence that six months before
the alleged assault, appellant complained of erectile dysfunction and his doctor prescribed
Viagra. In addition, the State introduced medical records showing that four months after
the charged offense, appellant had a medical test for which he was required to run on a
treadmill, and the examiner noted in appellant’s records that he had excellent exercise
capacity.

       A jury convicted appellant and assessed punishment at eight years’ confinement in
the institutional division of the Texas Department of Criminal Justice.           Appellant’s
motion for new trial was overruled by operation of law.

                                  II. ISSUES PRESENTED

       In four issues. appellant contends that his state and federal constitutional rights to
effective assistance of counsel were violated in that his trial attorneys failed to procure Jay
Sotomayor’s testimony, either live or by deposition, or in the alternative, failed to move for
a continuance to do so. In a fifth issue, appellant argues that we must reverse his
conviction because the trial court erroneously excluded Hansard’s proffered testimony
about the state of appellant’s health in July 2008.

                      III. INEFFECTIVE ASSISTANCE OF COUNSEL

       We review claims of ineffective assistance of counsel under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This
test is applied to claims arising under the Texas Constitution as well as those arising under

                                              6
the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim.
App. 1986). Under the Strickland test, an appellant must prove that his trial counsel’s
representation was deficient and the deficient performance was so serious that it deprived
the appellant of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To establish
both prongs, the appellant must prove by a preponderance of the evidence that counsel’s
representation fell below the objective standard of prevailing professional norms, and there
is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding
would have been different. Id. at 690–94, 104 S. Ct. at 2066–68. See also Lopez v. State,
343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (explaining that “reasonable probability” as
used in the prejudice prong is “probability sufficient to undermine confidence in the
outcome” of the proceeding) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). An
appellant’s failure to satisfy one prong makes it unnecessary for a court to consider the
other prong. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

       Our review of defense counsel’s performance is highly deferential, beginning with
the strong presumption that the attorney’s actions were reasonably professional and were
motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994). A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we “review the
totality of the representation and the circumstances of each case without the benefit of
hindsight.” Lopez, 343 S.W.3d at 143 (citing Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006)). Under the totality of the circumstances, a single error may be so
egregious that it satisfies the Strickland test. Id. See, e.g., Vasquez v. State, 830 S.W.2d
948, 951 (Tex. Crim. App. 1992) (counsel’s failure to request a jury instruction on the issue
of necessity after the issue was raised by the appellant’s testimony was sufficient both to
demonstrate counsel’s deficient performance and to undermine confidence in the verdict).
But, isolated errors of omission or commission usually will not render counsel’s
performance ineffective. Robertson, 187 S.W.3d at 483. Moreover, “[i]t is not sufficient
                                          7
that the appellant show, with the benefit of hindsight, that his counsel’s actions or
omissions during trial were merely of questionable competence.” Mata v. State, 226
S.W.3d 425, 430 (Tex. Crim. App. 2007). Rather, to establish that trial counsel’s acts or
omissions were outside the range of competent professional assistance, a defendant must
show that counsel’s errors were so serious that he was not functioning as counsel. Patrick
v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).

       Here, appellant raised his allegations of ineffective assistance of counsel through a
motion for new trial. We may not reverse the trial court’s denial of a motion for new trial
absent an abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App.
2004), superseded in part on other grounds by TEX. R. APP. P. 21.8(b), as recognized in
State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007). In determining
whether the trial court abused its discretion, we do not determine whether the facts present
an appropriate case for the trial court’s action; we instead determine whether the trial court
acted without reference to any guiding principles or in an arbitrary or unreasonable
manner. See id. We view the evidence in the light most favorable to the trial court’s
ruling, and defer to its credibility determinations. Id. Because we presume that the trial
court implicitly made all reasonable factual findings that could have been made in support
of its ruling, we will conclude that the trial court abused its discretion only if no reasonable
view of the record could support its ruling. Id. This remains true even if we would have
decided the issue differently. Herndon, 215 S.W.3d at 907–08.

A.     Failure to Present Sotomayor’s Testimony

       In his first two issues, appellant argues that the trial court erred in overruling his
motion for new trial because his defense attorneys were aware before trial of Sotomayor’s
existence and the testimony that he could offer, but took no steps to secure his presence or
to preserve his testimony via a videotaped deposition. See TEX. CODE CRIM. PROC. ANN.
art. 39.02 (West Supp. 2011) (governing depositions of witnesses in criminal trials). As


                                               8
the following summary shows, however, the record does not affirmatively show that
defense counsel’s conduct fell outside the broad range of prevailing professional norms.

        On the second day of trial, defense attorney Alfred Valdez represented to the trial
court that Sotomayor was hospitalized in El Paso, and that although Valdez had intended to
have someone fly to El Paso and escort Sotomayor to Houston to testify that day,
Sotomayor had represented that he was unable to travel. Valdez further stated that he was
trying to arrange to have a court reporter administer an oath to Sotomayer the next morning
and have Sotomayor testify by telephone. Valdez explained that he had a copy of an
affidavit in which Sotomayor stated that K.H. was intoxicated on July 10, 2008, and that
he, Sotomayor, had gone upstairs behind K.H. and appellant and observed that appellant
did not enter K.H.’s room. To explain why arrangements for Sotomayor’s testimony had
not been made earlier, Valdez stated, “We were trying to track him down, and he kind of
dropped out of sight on us.” The State objected that Sotomayor’s testimony duplicated
the testimony of other witnesses who had been or would be called, and the trial court stated
that it would rule after it heard the other testimony.

        After appellant’s remaining witnesses finished testifying, Valdez asked the trial
court on the fourth day of trial to rule as to whether Sotomayor would be allowed to testify
by telephone.      Valdez stated, “[W]e have been attempting to . . . get [Sotomayor]
here . . . . But we tried to locate him, and we have found him, but he’s not allowed to
travel.” In denying the request, the trial court stated, “I have no subpoena in here
indicating that he was served with a subpoena to be here. I have no proof that he’s
medically incapacitated.”

        Although appellant moved for a new trial asserting that he was denied effective
assistance of counsel by his trial attorneys’ failure to offer Sotomayor’s evidence through
live testimony or deposition,3 the evidence in support of the motion was both conflicting

        3
           In arguing that appellant’s trial counsel should have moved for leave to allow Sotomayor to
testify live via a video link, appellant has assumed that such a procedure would be governed by the same
                                                   9
and incomplete. Appellant produced his own affidavit and that of a paralegal, Rene
Alexander, whom he had asked to assist with his defense.4 Appellant attested that he gave
Jones and Valdez originals or copies of Sotomayor’s statement in July 2008, and
Alexander testified that appellant gave defense counsel the statement at a time when she
was no longer associated with the case. Alexander also opined that lead counsel Lisa
Jones must not have looked for Sotomayor, because Alexander was able to find him within
a few days of the date on which she began looking. Alexander does not mention any
efforts by Valdez to locate Sotomayor, and Valdez’s own statements to the trial court were
contradictory. As discussed above, Valdez initially represented to the trial court that the
defense had been looking for Sotomayor and had been unable to locate him; however, he
also filed an affidavit in which he stated that according to his best recollection, he was not
aware of Sotomayor until Alexander told Valdez about him on October 22, 2010—the last
business day before trial. The trial court also had before it the affidavit of lead defense
attorney Lisa Jones, who swore that she had no knowledge of Sotomayor until October 22,
2010, when Valdez forwarded her a copy of Sotomayor’s statement. Jones attached to her
affidavit an email string showing that Alexander sent Sotomayor’s statement to Valdez at
3:14 p.m. on Friday, October 22, 2010, and Valdez sent a reply to Alexander (with a
courtesy copy to Jones) at 9:47 p.m. that night.

        Because we must presume that the trial court made all factual findings and
credibility determinations in a manner that supports its ruling, see Charles, 146 S.W.3d at


rule that governs depositions of witnesses. We will assume for the purposes of this discussion that this is
correct. A criminal defendant may take a deposition upon a showing of “good reason” for doing so. TEX.
CODE CRIM. PROC. ANN. art. 39.02 (West Supp. 2011). The trial judge has broad discretion in deciding
whether to order a deposition. May v. State, 738 S.W.2d 261, 273 (Tex. Crim. App. 1987); James v. State,
563 S.W.2d 599, 602 (Tex. Crim. App. 1978). Such depositions may be appropriate if the witness has
information critical to a significant factor at trial, or if the witness has exclusive possession of certain
information. Janecka v. State, 937 S.W.2d 456, 469–70 (Tex. Crim. App. 1996) (per curiam); Morrow v.
State, 139 S.W.3d 736, 743 (Tex. App.—Texarkana 2004, no pet.). But, “[a] deposition under Article
39.02 is of such an extraordinary nature that little jurisprudence exists to govern its application.” Janecka,
937 S.W.2d at 468.
        4
            Alexander was not employed by Jones or Valdez.
                                                     10
208, we presume the trial court found that appellant’s defense team did not subpoena
Sotomayor or seek to depose him prior to trial because until October 22, 2010, they were
unaware of his location5 and of his ability to testify that (1) the intoxicated woman in the
hotel lobby on July 10, 2008 was K.H., and (2) he followed appellant upstairs on two
occasions that night and saw that appellant did not enter K.H.’s room.

       It is true that after learning these facts, defense counsel did not file an application for
leave to depose Sotomayor. Nevertheless, we cannot agree that the failure to do so fell
outside the broad range of prevailing professional norms.

       An application to depose a witness in a criminal case must be supported by an
affidavit. See TEX. CODE CRIM. PROC. ANN. art. 39.02. The deposition is admissible in a
criminal trial “[w]hen oath is made by the party using the deposition . . . that by reason of
age or bodily infirmity, that witness cannot attend . . . . When sought to be used by the
defendant, the oath must be made by the defendant in person.” Id. art. 39.01. Although
“little jurisprudence exists to govern” the application of this provision,6 some courts have
held that if an application or motion to depose a witness is unsupported by an affidavit
affirmatively showing that the affiant has personal knowledge of the facts, “the trial court
has no discretion and must deny the motion.” State ex rel. Simmons v. Moore, 774 S.W.2d
711, 714–15 (Tex. App.—El Paso 1989, no pet.); accord, Gonzales v. State, 822 S.W.2d
189, 193–94 (Tex. App.—San Antonio 1991), pet. granted and remanded, 831 S.W.2d 326
(Tex. Crim. App. 1992). And, as the trial court pointed out on the record, there was no
proof that Sotomayor was medically incapable of travel. Every member of appellant’s
defense team later attested that Sotomayor told them his doctor would not allow him to
travel, but there is no affidavit from Sotomayor or his physician to that effect. Indeed,
there is no evidence that anyone with personal knowledge of Sotomayor’s condition was


       5
           See TEX. CODE CRIM. PROC. ANN. art. 24.03(a) (West 2009) (an application for a subpoena must
state the desired witness’s location).
       6
           Janecka, 937 S.W.2d at 468.
                                                  11
willing to swear that he was medically unable to travel. The trial court accordingly would
not have abused its discretion in denying a request to depose Sotomayor or to allow him to
testify via video link.7

        An application for deposition also must be filed in a timely fashion. In Langston v.
State, for example, the Court of Criminal Appeals held that the trial court did not abuse its
discretion in denying an application filed on the Friday before a Monday trial setting
because the indictment had been pending for almost a year, the defendant’s attorney was
appointed two months before trial, and the trial was passed on two prior occasions. 416
S.W.2d 821, 822 (Tex. Crim. App. 1967). Here, the indictment had been pending for just
three days less than a year, appellant had been represented by his two retained attorneys for
more than four months, the trial was repeatedly set and rescheduled; and the trial court
previously continued the case at appellant’s request. See also Aguilar v. State, 468
S.W.2d 75, 78–79 (Tex. Crim. App. 1971) (finding no abuse of discretion in trial court’s
denial of application for deposition filed two days after defendant announced “ready” for
trial); Jasso v. State, 699 S.W.2d 658, 663 (Tex. App.—San Antonio 1985, no pet.)
(finding no abuse of discretion in denying an application for deposition filed four days
before trial, because “[s]uch request for relief comes too late”). For this reason, too, the
trial court would not have abused its discretion in denying such a motion.

        Under all these circumstances, we cannot conclude that defense counsel’s conduct
in failing to procure Sotomayor’s testimony before or during trial fell below prevailing
professional norms. We accordingly overrule appellant’s first two issues.




        7
          Although the Code of Criminal Procedure does provide that there are circumstances in which a
witness who is unable to travel can be deposed, appellant has cited no similar authority providing for such a
witness to testify live from another location via a video link. And as the Court of Criminal Appeals has
stated, “An ineffective assistance of counsel claim cannot be based on an alleged error of counsel when the
caselaw evaluating counsel’s actions and decisions in that instance was nonexistent or not definitive.”
Vaughn v. State, 931 S.W.2d 564, 568 (Tex. Crim. App. 1996) (per curiam).
                                                    12
B.       Failure to Move for Continuance

         In his third and fourth issues, appellant argues that even if his trial attorneys did not
locate Sotomayor until October 22, 2010, they rendered ineffective assistance by failing to
move for a continuance to secure his attendance or deposition. In her affidavit in response
to appellant’s motion for new trial, Jones stated that she did not move for a continuance
because she did not think it would be granted.            Because there is no evidence that
appellant’s trial counsel could have met the statutory requirements governing such
motions, we cannot conclude that, in making this decision, Jones’s representation fell
outside the bounds of prevailing professional norms.

         A defendant who files a first motion for a continuance based on a witness’s absence
must identify the witness and the material facts he expects the witness to prove. TEX.
CODE CRIM. PROC. art. 29.06 (West 2006). In addition, the defendant must show that
(1) he exercised diligence to procure the witness’s attendance, (2) he has neither procured
nor consented to the witness’s absence, (3) the motion is not made for delay, and (4) there
is no reasonable expectation that attendance of the witness can be secured during the
present term of court by postponing the trial to a later day in the same term. Id.; Harrison
v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). If the defendant files a subsequent
motion for a continuance based on a witness’s absence, then the defendant additionally
must show that he reasonably expects to procure the witness’s testimony “at the next term
of the court,” and “the testimony cannot be procured from any other source known to the
defendant.” TEX. CODE CRIM. PROC. art. 29.07 (West 2006). The trial court may grant a
continuance even after trial has begun “when it is made to appear to the satisfaction of the
court that by some unexpected occurrence since the trial began, which no reasonable
diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot
be had.” Id. art. 29.13. Moreover, “[a]ll motions for continuance must be sworn to by a
person having personal knowledge of the facts relied on for the continuance.” Id. art.
29.08.

                                                13
        As previously discussed, there is no evidence that anyone with personal knowledge
of Sotomayor’s condition was willing to swear that he was medically unable to travel to
Houston to testify at the October 25th trial setting. Moreover, defense counsel already
had successfully continued the trial once to bring two witnesses from Canada. To move
for a second continuance, appellant’s trial attorneys would be required to show that they
reasonably expected to procure Sotomayor’s testimony at the next term of court. 8
Because there is no evidence that defense counsel could have made such a showing, we
cannot say that defense counsel rendered ineffective assistance by failing to move for a
further continuance. Cf. Nwosoucha v. State, 325 S.W.3d 816, 828 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d) (concluding that trial court did not abuse its discretion in
denying a motion for continuance filed on the date of trial where the case previously had
been continued and “out-of-county physicians, federal prisoners, and numerous persons
over sixty-five, had been subpoenaed and were ready to testify”). We therefore overrule
appellant’s third and fourth issues.

                                 IV. EXCLUSION OF EVIDENCE

        In his final issue, appellant contends that the trial court reversibly erred in excluding
certain testimony by Ron Hansard about appellant’s health and physical condition. We
review a trial court’s admission or exclusion of evidence for an abuse of discretion.
Campos v. State, 256 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d)
(citing Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002)). A trial court abuses
its discretion when it acts without reference to any guiding rules and principles or acts
arbitrarily or unreasonably. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex.
Crim. App. 1990)). A trial court does not abuse its discretion, and we will not reverse a



        8
         The record shows that on July 22, 2010, the trial court set this case to be tried on October 22,
2010. Jones had moved for a continuance on October 8, 2010 to subpoena unspecified witnesses from
Canada. The trial court granted the motion on October 19, 2010. The case was continued over the
weekend, and the trial began on October 25, 2010.
                                                   14
trial court’s ruling, unless the ruling falls outside the zone of reasonable disagreement. Id.
(citing Torres, 71 S.W.3d at 760).

       The record shows that Hansard initially attempted to testify regarding appellant’s
health as follows:

       Q.     Did you know anything about Mr. Frangias’[s] health at that time?

       A.     He had been having some health problems for quite a while. And I
              was always getting on to him about go ahead and get your problems
              taken care of here. And he couldn’t even -- how do I say it, he
              couldn’t even go to the bathroom, you know.

       Q.     What do you mean by that?

              THE STATE:             Objection, this is going to be hearsay, Your
                                     Honor.

              THE COURT:             That will be sustained.

       Q.     So, you said he couldn’t even go to the bathroom?

              THE STATE:             Objection.

              DEFENSE:               I’m repeating what he said.

              THE STATE:             And [the trial court] sustained the objection that
                                     that was hearsay.

       Q.:    How did he appear to you healthwise?

              THE STATE:             Objection, Your Honor, relevance.

              THE COURT:             That will be sustained.

       Q.:    Did you ever see Mr. Frangias have difficulty doing any tasks?

              THE STATE:             Objection, Your Honor, relevance.

              THE COURT:             That will be sustained.

       Defense counsel made an offer of proof of the excluded testimony. Thus, the
record shows that Hansard would have testified that (1) while he was staying at the hotel,
                                              15
he saw appellant frequently during the day, and appellant spoke with him in his room three
to five nights each week; (2) he became aware that appellant had health issues;
(3) appellant had difficulty urinating; (4) appellant had gastric problems; (5) appellant’s
health started to deteriorate before July 2008; (6) at times, appellant appeared yellowish, as
though he were jaundiced; (7) appellant had less strength in July 2008 than in previous
months, and on some days, appellant “would just sit there”; (8) appellant frequently had to
go to his room to rest, and (9) Hansard did not believe that appellant had a lot of strength or
could lift heavy objects. When asked why appellant had problems urinating, Hansard
stated, “I’m not real sure. I figured that he had some kind of prostate. I don’t know first
hand what his problem was. John had some gastral [sic] problems that were bad.” The
State objected that Hansard’s testimony was hearsay in that it had to be based on
appellant’s statements as to how he was feeling. In excluding the testimony, the trial court
observed that Hansard is not a medical doctor.

        We conclude that the exclusion of this testimony did not result in reversible error.
There was no evidence that Hansard had first-hand knowledge of appellant’s gastric
problems or difficulty urinating; thus, trial court did not abuse its discretion in sustaining
the hearsay objection. See TEX. R. EVID. 602 (“A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.”). Although some of the proffered testimony was not hearsay
but instead consisted of Hansard’s observations and the inferences he drew from those
observations,9 even that testimony was cumulative. Not only did appellant and his wife
testify as to appellant’s medical history, his medical records were in evidence. Moreover,
witness Mindy Colson is a registered nurse, and she testified about appellant’s appearance
on the night of the charged offense. Thus, the excluded testimony would have added



        9
           See TEX. R. EVID. 701 (a lay witness may give opinion testimony if that testimony is both
rationally based on the witness’s perceptions and helpful to the factfinder in understanding the witness’s
testimony or in determining a fact in issue).
                                                   16
nothing to the evidence that was admitted. We accordingly overrule appellant’s fifth
issue.

                                     V. CONCLUSION

         Because the record does not affirmatively show that appellant’s trial counsel
rendered ineffective assistance, the trial court did not abuse its discretion in allowing
appellant’s motion for new trial to be overruled by operation of law. We further conclude
that the trial court did not abuse its discretion in excluding Hansard’s testimony regarding
appellant’s apparent health. We therefore affirm the trial court’s judgment.




                                          /s/    Tracy Christopher
                                                 Justice



Panel consists of Chief Justice Hedges and Justices Brown and Christopher.
Publish — TEX. R. APP. P. 47.2(b).




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