                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00537-CR


Johnathan Eugene Cooper                   §   From the 43rd District Court

                                          §   of Parker County (CR09-0661)

v.                                        §   November 21, 2012

                                          §   Per Curiam

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       PER CURIAM
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00537-CR
                            NO. 02-11-00538-CR


JOHNATHAN EUGENE COOPER                                          APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


                                  ----------

         FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

                                  ----------

                       MEMORANDUM OPINION1

                                  ----------

     In four points, appellant Johnathan Eugene Cooper appeals his convictions

for online solicitation of a minor, which is a second-degree felony under the




     1
      See Tex. R. App. P. 47.4.


                                      2
circumstances of this case, and aggravated sexual assault of a child, which is a

first-degree felony.2 We affirm.3

                               Background Facts

      Kori4 was thirteen years old when she contacted appellant through the

internet. Appellant told her that he was a doctor. Kori invited appellant to her

house, and appellant picked her up in his car one early morning in October 2008,

when appellant was twenty-two years old. While knowing that Kori was thirteen

years old, appellant had sex with her, and although Kori asked him to stop, he

did not. Appellant did not wear a condom while having sex with Kori, and he told

her that he was ―going to make [her] have a baby.‖        Kori got dressed, and

appellant drove her home. Appellant later told Kori that he had once had sex

with an eleven-year-old child and that he wanted Kori to bring a six-year-old girl

to have sex with him.     Kori told her mother and the police about what had

occurred. The police received the pajama pants that Kori had worn on the night



      2
      See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (2)(B), (e) (West
Supp. 2012), § 33.021(c), (f) (West 2011).
      3
       In October 2012, appellant sent this court a letter in which he expressed
his belief that he had no chance to succeed in these appeals and seemed to
state his desire to dismiss them. The letter, however, did not comply with the
requirements for a motion to dismiss a criminal appeal. See Tex. R. App. P.
42.2(a). Thus, assuming that appellant intended for his letter to serve as a
motion to dismiss, we deny the motion.
      4
       To protect the identity of the people associated with appellant’s acts
described in this opinion, we will refer to them through pseudonyms.


                                        3
that she had sex with appellant. A forensic examination of those pants revealed

the presence of appellant’s semen.

      A grand jury indicted appellant for online solicitation of a minor and for

aggravated sexual assault of a child younger than fourteen years old by

penetrating her sexual organ.      Appellant retained counsel and filed pretrial

motions, including a request for notice of the State’s intention to use evidence of

extraneous offenses at trial and a written objection to the admissibility of

extraneous offenses. The trial court consolidated appellant’s cases for a single

trial. Appellant received written and oral admonishments about the effects of

pleading guilty, waived his constitutional and statutory rights, judicially confessed

to both offenses, and entered open guilty pleas to both of them. The trial court

accepted appellant’s pleas, ordered the completion              of a presentence

investigation report, and appointed a licensed sex offender treatment provider to

evaluate appellant.

      After recessing appellant’s cases awhile, the trial court heard evidence

from a forensic computer examiner, Russell Stephens, about images and

information that Stephens had found on computers and an external hard drive.

Stephens testified that he found pictures associated with Kori’s MySpace account

and pictures depicting bestiality. The trial court recessed appellant’s cases for

two more weeks, and then the trial court held a hearing on, among other matters,

the possible withdrawal of appellant’s guilty pleas. At that hearing, however, the

following exchange occurred:


                                         4
            [DEFENSE COUNSEL]: Well, I want to state something for
      the record, that as a result of some conversations I had with
      [appellant], I began to question whether or not he was intending on
      withdrawing his plea on both cases.

           Now that we’ve had time to visit here today, and we’ve been in
      the courtroom, it’s my understanding, from [appellant], that he
      wishes to go forward with the guilty plea on both cases. . . .

            ....

            . . . [A]t this point, . . . you are not asking this Court to allow
      you to withdraw your plea on both of these cases?

            THE DEFENDANT: Yes.

            [DEFENSE COUNSEL]: And you’re going to continue with
      your plea of guilty to both cases?

            THE DEFENDANT: Yes.

            ....

            THE COURT: And the next question is: Are you going to
      continue, not only with your plea of guilty, but to permit the Court to
      sentence you after finishing the hearing?

            THE DEFENDANT: Yes.

Based upon appellant’s statements and upon findings that appellant had been

properly admonished, that his pleas were voluntary, and that the trial court had

already taken appellant’s cases under advisement,5 the trial court denied any

attempt by appellant to withdraw his pleas.



      5
        See Mendez v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004)
(―[W]hen trial by jury has been waived, the defendant may change the plea from
guilty to not guilty until the court pronounces judgment or takes the case under
advisement.‖).


                                         5
      After again recessing appellant’s cases, the trial court heard more

evidence about acts that appellant had committed. For example, Kori testified

that after appellant was indicted for soliciting and sexually assaulting her, he

communicated with her on the internet while using a different name, and because

she believed that he was someone else, she sent him a photograph in which she

was holding her breasts. Two other women testified that they each became

acquainted with appellant on the internet, that they each had sex with him, and

that he asked each of them if they could arrange for him to have sex with an

underage girl.

      Another witness, Brianna, testified that in 2009, when she was fourteen

years old, she began communicating with appellant, who said that he was

seventeen years old, on the internet.6 Brianna said that she sent appellant nude

pictures of herself. According to Brianna, appellant asked to meet her in person

to have sex, said that he was going to rape her, and told her that he preferred to

have sex with young girls. Brianna testified that she sneaked out of her house to

meet appellant in person one early morning in July 2009. After she got in his car

and followed his command to pull her shorts and underwear down, he had sex

with her.   Later, appellant told Brianna that he wanted to have sex with her

younger sister. Brianna testified that a couple of days after she and appellant

had sex the first time, they had sex again. Brianna eventually told the police

      6
       Appellant was born in July 1986, so he was approximately twenty-three
years old in 2009.


                                        6
about her relationship with appellant. Johnson County Sheriff’s Office Detective

Brian Peterson investigated Brianna’s allegations.    When officers executed a

search warrant at appellant’s house, they knocked at the house for several

minutes without a response before forcing entry into the home. Upon entry, the

officers located appellant and found wet cell phones, which led Detective

Peterson to believe that appellant was trying to prevent officers from retrieving

evidence from the phones. The officers also found the computers that Stephens

later analyzed. Appellant’s criminal case concerning Brianna was still pending at

the time of the trial of Kori’s case.

      Another witness, Heather, told the trial court that when she was

approximately fourteen years old and was living in Florida, appellant offered to

pay her money or with cigarettes for sex. Appellant was approximately twenty

years old when he asked Heather for sex. They eventually had sex.

      Next, Brandi, who was twenty-one years old at the time of her testimony,

stated that in 2004, when she was fourteen years old and appellant was eighteen

years old and was a senior at her high school, appellant picked her up from the

school and had sex with her at his house. A police officer asked appellant about

having sex with Brandi, and he gave a statement in which he admitted having

sexual contact with her but stated that he did not realize how young she was.

      Another witness, Kyra stated that in the summer of 2006, when she was

fifteen years old and appellant was nineteen years old, she went to appellant’s

house. Other people were also at the house and were drinking alcohol. Kyra,


                                        7
who had drunk alcohol before, drank half of a glass of red wine, began feeling

tired, and was not able to completely comprehend what was happening to her.7

Eventually, appellant, without Kyra’s consent, had sex with her in his bedroom.

Kyra’s sister and parents learned what had happened, and Kyra’s parents called

the police. A criminal case regarding appellant’s having sex with Kyra was still

pending at the time of Kyra’s testimony in the cases concerning Kori.

      Kelsey, another female who became acquainted with appellant through the

internet, testified that after she met him in person but before she had sex with

him, he asked her if she had any young friends, which she thought was ―weird.‖

Kelsey assumed that appellant meant that he wanted her to find younger girls

that he could have sex with.

      Becky, who met appellant on the internet and was appellant’s girlfriend for

almost a year, testified that while she dated appellant, he lied to her about his

education, his criminal history, and his interaction with Kori. Becky stated that

while she was living with appellant, he bought a fake identification of Kori and

stated that he was going to give that identification to his attorney to use in

defense of the crimes involving her. Becky also testified, among many other

facts, that appellant stated that he ―wanted to get everybody pregnant.‖

      Next, Douglas testified that he met appellant on the internet through a

―[m]en [s]eeking [m]en‖ advertisement. According to Douglas, appellant went to


      7
       At trial, Kyra opined that something might have been put into the wine.


                                        8
Douglas’s home for a sexual encounter but later changed his mind and said that

he had to leave. Before leaving, however, appellant asked Douglas if he knew of

any ―girls that might be interested in coming over.‖ Douglas also had a telephone

conversation with appellant in which appellant expressed his desire to have sex

with young girls. When Douglas sent a text message to appellant that falsely

stated that Douglas had two young girls at his house, appellant went to the house

and asked where the girls were. Appellant became angry after realizing that the

girls were not there, and he told Douglas that Douglas ―could have had anything

[he] wanted if [he would have had] girls there.‖ Douglas eventually reported

appellant’s statements to the police.

      Ezio Leite, who has treated numerous sex offenders, conducted a

psychosexual assessment of appellant. Leite testified that appellant described

his offense against Kori much differently than the description of facts within an

offense report and within the presentence investigation report. Leite also stated

that appellant was defensive, which suggested to Leite that there was ―more

about [appellant], his personality, his behaviors, [and] his sexuality than he was

willing to give [Leite].‖ When Leite was asked what program he could tailor for

appellant if the trial court placed appellant on community supervision, he

responded, ―Counsel, that remains to be seen. Because as of now, I don’t have

much to go with. . . . Because all I got [was] defensiveness.‖ Leite opined that

based on various facts that had been presented to the trial court, appellant had a

risk to reoffend. Leite said, however, that he had treated clients with profiles


                                        9
similar to appellant’s profile and that some of those clients had successfully

completed the sex offender program.

      After the State rested, appellant called several witnesses, including his

father, his mother, and one of his brothers, in an effort to persuade the trial court

to defer its adjudication of his guilt and to place him on community supervision.

The trial court found appellant guilty of both offenses and sentenced him to

twenty years’ confinement for his online solicitation offense and to confinement

for life for aggravated sexual assault of a child. The court ordered the sentences

to run concurrently. After the court denied appellant’s request for a new trial, he

brought these appeals.

                  The Withdrawal of Appellant’s Guilty Pleas

      In his first point, appellant argues that the trial court erred by refusing to

withdraw his guilty pleas on his motion or on the court’s own motion. Appellant

contends that he had a ―right to withdraw his guilty plea[s] because the trial court

had not found him Guilty and was hearing evidence as to whether to accept the

Guilty pleas and impose sentence.‖        But even if appellant had the right to

withdraw his pleas, he did not seek to do so. Instead, as shown above, he

unequivocally expressed to the trial court (and apparently also to his trial

counsel) that he did not desire to withdraw the pleas but that he instead wanted

to maintain them and to allow the court to assess his punishment. Appellant has

not directed us to any part of the record showing that he subsequently sought to

withdraw the pleas. Thus, the trial court was not required to withdraw the pleas.


                                         10
See id. at 350 (―It is reasonable to put on . . . a defendant the requirement of

timely seeking, in one way or another, to withdraw the plea of guilty.            The

[defendant] not having done so, he may not complain for the first time on appeal

that the trial court did not do it for him.‖); Salinas v. State, 282 S.W.3d 923, 924

(Tex. App.—Fort Worth 2009, pet. ref’d) (―Appellant did not ask to withdraw his

plea, even though he testified that he did not commit the offense as described in

the indictment. We hold, therefore, that Appellant has forfeited his complaint by

failing to raise the issue before the trial court.‖); Ingram v. State, Nos. 02-06-

00276-CR, 02-06-00277-CR, 02-06-00278-CR, 2007 WL 1299230, at *1 (Tex.

App.—Fort Worth May 3, 2007, pet. ref’d) (mem. op., not designated for

publication) (―It is well settled that a defendant has the duty to timely withdraw his

guilty plea and may not complain for the first time on appeal that the trial court

failed to withdraw the plea for him.‖). We overrule appellant’s first point.

                       The Admission of Various Exhibits

      In his second point, appellant argues that the trial court abused its

discretion by admitting State’s Exhibits One through Four and State’s Exhibit

Eleven. State’s Exhibits One through Three are photographs of the computer

equipment seized from appellant’s residence.        When the State offered those

exhibits, appellant’s counsel stated that he did not object to their admission.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,


                                         11
objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687,

691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez, 138 S.W.3d at 341. A reviewing court should not address

the merits of an issue that has not been preserved for appeal. Wilson v. State,

311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g). Because appellant

stated that he did not object to the admission of State’s Exhibits One through

Three, we hold that he forfeited his appellate complaint about the admission of

those exhibits.

      State’s Exhibit Four is a compact disc containing the report generated by

Stephens’s forensic examination of the computer equipment seized from

appellant’s residence. Stephens was the trial’s first witness, so when he testified

about State’s Exhibit Four, the State had not presented evidence connecting the

computer equipment that he examined to appellant. When the State offered the

exhibit, appellant’s counsel stated,

      Judge -- as far as any objection is concerned, I understand he’s
      testifying as to what he took off of a computer, and that is these
      records. But as far as the content, I mean, at a later date, we may
      have some objections to the relevance of these documents. There’s
      been nothing tied up to [appellant], at this point.

In response to this statement, the State asked that the exhibit be admitted

―subject to tying [it] to the defendant.‖    After further discussion, appellant’s

counsel said,


                                        12
       The objection is, at this point, that . . . there’s been no proper
       predicate, and it’s not relevant to Mr. Cooper. But I understand that,
       knowing this DA’s office as I do, . . . if they tell me they’re going to
       bring people in here that they’re going to try to link that computer to
       my client, then I would believe that that’s what they’re going to try to
       do.

              So, . . . if you want to admit it conditionally on that point, that’s
       fine with me, at this point.

As appellant’s counsel suggested, the trial court conditionally admitted the

exhibit.

       When the relevancy of evidence ―depends upon the fulfillment of a

condition of fact, the court shall admit it upon, or subject to the introduction of

evidence sufficient to support a finding of the fulfillment of the condition.‖ Tex. R.

Evid. 104(b). In Powell v. State, the court of criminal appeals explained the

doctrine of conditional relevancy, stating,

       [A] trial judge may admit evidence that lacks authentication on the
       condition that the party offering the evidence authenticate it, or
       ―connect it up,‖ at a later time. If sufficient ―connecting‖ evidence
       does not appear by the close of the proponent’s evidence, the
       opposing party must renew his original objection by a motion to
       strike the conditionally admitted evidence.        Failure to do so
       constitutes waiver by the opposing party for purposes of appeal.

898 S.W.2d 821, 829 (Tex. Crim. App. 1994) (citations omitted), cert. denied,

516 U.S. 991 (1995); see also Williams v. State, 82 S.W.3d 557, 563–64 (Tex.

App.—San Antonio 2002, pet. ref’d) (citing and applying the preservation rule

expressed in Powell).

       Appellant does not direct us to any part of the record in which he renewed

his original objection to the conditionally admitted evidence and moved to strike


                                           13
it. Thus, under the precedent of Powell, we are compelled to hold that appellant

forfeited his objection to the admission of State’s Exhibit Four.

       Finally, State’s Exhibit Eleven was a folder that officers found upon

searching appellant’s residence.      The folder contained, among other things,

photographs and internet printouts. When the State offered Exhibit Eleven for

admission, appellant’s counsel initially twice stated that appellant had no

objection. Appellant’s counsel then stated, ―Judge, we would make one legal

objection, that these documents were seized without a legal search warrant.‖

The trial court deferred ruling on the admissibility of the exhibit until the court

could review the warrant. The next day, the State again sought admission of the

exhibit, and appellant’s counsel urged that the search warrant that the State had

presented did not authorize seizure of the folder. After listening to arguments

from the parties, the trial court overruled appellant’s objection and admitted the

exhibit.

       In his brief, appellant does not argue that State’s Exhibit Eleven should

have been excluded because a warrant did not authorize its seizure; instead,

appellant appears to argue that it should have been excluded because the State

did not connect the exhibit to him. ―[I]t is well settled that the legal basis of a

complaint raised on appeal cannot vary from that raised at trial.‖ Heidelberg v.

State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); see Lemasurier v. State, 91

S.W.3d 897, 902 (Tex. App.—Fort Worth 2002, pet. ref’d) (―[A]n objection

preserves only the specific ground cited. . . . Therefore, if counsel objects on an


                                         14
incorrect ground at trial and is overruled, but later cites the correct ground to the

appellate court, error is not preserved.‖). Because appellant’s objection at trial to

the admissibility of Exhibit Eleven does not match his complaint on appeal, we

hold that he forfeited his complaint.

      We overrule appellant’s second point.

                           Extraneous Offense Notice

      In his third point, appellant contends that the trial court abused its

discretion by allowing Heather to testify that she had sex with him because he did

not properly receive notice of that extraneous allegation. Heather testified twice

in appellant’s trial. In her initial testimony, she stated that when she was fourteen

or fifteen years old and was living in Florida, her sister and appellant visited.

Heather said that during that visit, appellant asked her for sex. In her initial

testimony, Heather was not asked, and did not disclose, whether she had

actually had sex with appellant. More than a month after Heather first testified,

the State recalled her so that she could testify that she had sex with appellant,

and the following exchange occurred:

           [THE STATE]. . . . [D]o you recall testifying here . . . about a
      month ago?

             A. Yes, ma’am.

             ....

            Q. Okay. And shortly before you entered the courtroom, you
      and I were speaking in the conference room; is that correct?

             A. Yes, ma’am.


                                         15
            Q. Okay. And did you tell me something for the first time
      during that conversation?

             A. Yes, ma’am.

             Q. And what was that?

             ....

             [DEFENSE COUNSEL]: Judge, I’m going to object on the
      notice situation, that we didn’t get . . . adequate notice of any
      additional uncharged misconduct or bad acts.

             THE COURT: So on what date again? . . .

             [THE STATE]: I believe she testified on the 4th of August.

           THE COURT: And she told you something additionally,
      immediately, or soon after testifying?

            [THE STATE]: Yes. And as soon as that information was
      revealed, [defense counsel] and I had a conference . . . about that --

             THE COURT: That same day or a few days after?

             [THE STATE]: That moment that it happened, within minutes
      of me finding out that information. And then on . . . Thursday or
      Friday of last week, I provided written notice that I intended to bring
      that information up today.

             THE COURT: Is that, essentially, correct, [defense counsel]?

             [DEFENSE COUNSEL]: That’s correct, Your Honor.

             THE COURT: Okay. Your objection’s overruled.

After the trial court overruled appellant’s objection, Heather testified that she had

once had sex with appellant.

      Appellant’s objection in the trial court and his argument on appeal indicate

that he challenges the timing of the notice that he received about Heather’s

allegation of having sex with him rather than the manner or specificity of the

                                         16
notice. We review a trial court’s admission of an extraneous offense on the basis

that a defendant received sufficient notice of it for an abuse of discretion.

Hayden v. State, 66 S.W.3d 269, 271 (Tex. Crim. App. 2001); Burks v. State, 227

S.W.3d 138, 147 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). A trial court

abuses its discretion by acting outside the zone of reasonable disagreement.

Lozano v. State, 359 S.W.3d 790, 817 (Tex. App.—Fort Worth 2012, pet. ref’d).

      In determining the proper sentence for a defendant who has pled guilty, a

trial court may consider any matter that the court deems relevant to sentencing,

including extraneous crimes or bad acts that are proved beyond a reasonable

doubt. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2012);

see also Carroll v. State, 975 S.W.2d 630, 631–32 (Tex. Crim. App. 1998)

(holding that when a defendant pleads guilty in front of a trial court, the court

conducts a unitary trial in which parties introduce evidence to enable the court to

―intelligently . . . exercise discretion in the assessment of punishment‖). On the

timely request of the defendant, reasonable notice of intent to introduce such

extraneous crimes or bad acts must be given. See Tex. Code Crim. Proc. Ann.

art. 37.07, § 3(g); Tex. R. Evid. 404(b). The purpose of the notice requirement is

to guard against surprise. Worthy v. State, 312 S.W.3d 34, 38 (Tex. Crim. App.

2010). The reasonableness of notice ―turns on the facts and circumstances of

each individual case.‖ Patton v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin

2000, pet. ref’d).




                                        17
      The record establishes that appellant sought notice of the State’s intent to

use extraneous offenses and that the State gave it. The parties agreed at trial

that the prosecutor met with appellant’s counsel minutes after learning of

Heather’s claim about having sex with appellant and that the prosecutor later

gave written notice of the State’s intent to use that evidence. Over a month

passed from the time that appellant’s counsel learned of Heather’s claim about

having sex with appellant until Heather testified about that claim. Under these

circumstances, we cannot hold that the trial court abused its discretion by

overruling appellant’s objection to the evidence and by implicitly determining that

appellant received adequate notice. See Henderson v. State, 29 S.W.3d 616,

625 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding that notice given

immediately upon discovering new evidence was reasonable when given eight

days before the evidence was introduced); Patton, 25 S.W.3d at 392–93 (holding

similarly when the State delivered notice two days before trial began); see also

West v. State, No. 03-05-00371-CR, 2008 WL 4899189, at *6 (Tex. App.—Austin

Nov. 14, 2008, pet. ref’d) (mem. op., not designated for publication) (holding that

the trial court did not abuse its discretion by admitting evidence of an extraneous

act when the State provided notice to defense counsel upon learning of an

extraneous offense five days before trial).

      Moreover, even if we were to conclude that the trial court abused its

discretion by allowing Heather’s second testimony, we would be required to

determine whether that nonconstitutional error affected appellant’s substantial


                                        18
rights. See Tex. R. App. P. 44.2(b); Pittman v. State, 321 S.W.3d 565, 572 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (stating that the improper admission of

an extraneous offense is nonconstitutional error). Appellant does not challenge

the admissibility of Heather’s initial testimony that appellant asked her for sex

when she was a minor and offered to pay for it; he attacks only her testimony that

they actually had sex. But the record includes significant evidence, apart from

Heather’s testimony, of appellant actually having sex with underage girls and

desiring to have sex with others. Heather’s second testimony was cumulative of

this other substantial evidence. Thus, we would not be able to conclude that the

admission of Heather’s second testimony likely influenced the trial court’s

judgment or affected appellant’s substantial rights. See Tex. R. App. P. 44.2(b);

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (explaining that in

making the determination of harm, we consider the character of the alleged error

and how it might be considered in connection with other evidence in the case).

      For all of these reasons, we overrule appellant’s third point.

          The Trial Court’s Alleged Failure to Issue a Writ of Attachment

      In his fourth point, appellant contends that the trial court abused its

discretion by failing to issue a writ of attachment for Audrey, Heather’s sister, so

that appellant could procure testimony from her.8 During the last day of the trial,

      8
        A writ of attachment commands ―some peace officer to take the body of a
witness and bring him before [a] court, magistrate or grand jury on a day named,
or forthwith, to testify in behalf of the State or of the defendant, as the case may
be.‖ Tex. Code Crim. Proc. Ann. art. 24.11 (West 2009).


                                        19
appellant’s counsel announced that the defense had served Audrey with a

subpoena at her place of employment, that she had torn the subpoena, and that

the defense would be making a ―decision . . . about what [they] want[ed] to do.‖

The trial court indicated that it would be willing to grant a writ of attachment to

ensure that Audrey would testify. Later that same day, however, the following

colloquy occurred:

              [DEFENSE COUNSEL]: [Appellant], I wanted to ask you, you
      know that we spent a lot of time and effort to find [Audrey] . . . . And
      finally, we were able to have her served last night, but she didn’t
      show up this morning.

            There are means by which we can file a Writ of Attachment
      and have the Sheriff’s Department . . . go and find her and bring her
      to court. . . . And you’ve . . . instructed me not to go forward with
      that Writ of Attachment because you do not want her called; is that
      correct?

              THE DEFENDANT: Yes. And I would -- I also just want to
      finish this up.

            [DEFENSE COUNSEL]: I just want to ask you, that’s your
      decision not to go forward with the writ, and not to have her brought
      up here . . . . You’ve told me not to go forward with that; is that
      correct?

            THE DEFENDANT: Yes. That is correct.

      Appellant contends in his brief that he was ―denied [Audrey’s] important

testimony at his trial,‖ but the record shows that he decided that he did not want

her to testify. To preserve error when a subpoenaed witness does not appear, a

defendant must show that he requested a writ of attachment, that the trial court

denied that request, and that the missing witness would have testified to specific



                                        20
facts that were relevant and material. Sturgeon v. State, 106 S.W.3d 81, 85

(Tex. Crim. App. 2003). Because appellant withdrew his request for a writ of

attachment and because the trial court did not deny any request for such a writ,

we hold that appellant forfeited the complaint stated in his fourth point, and we

overrule that point.9

                                   Conclusion

      Having overruled all of appellant’s points, we affirm the trial court’s

judgments.



                                                   PER CURIAM

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 21, 2012




      9
       In his discussion of his fourth point, appellant asserts that his federal and
state constitutional rights to compulsory process were violated because the trial
court did not compel Audrey to attend his trial. Appellant likewise forfeited this
argument because he did not raise it in the trial court. See Tex. R. App. P.
33.1(a)(1); Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).


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