Opinion filed September 18, 2014




                                         In The


          Eleventh Court of Appeals
                                       __________

                                No. 11-12-00296-CR
                                       __________

                MAURICE EDWARD LAVOIE, Appellant
                              V.
                  THE STATE OF TEXAS, Appellee

                      On Appeal from the 12th District Court
                             Madison County, Texas
                      Trial Court Cause No. 10-11472-012-6

                      MEMORANDUM OPINION
      Maurice Edward Lavoie appeals his conviction of sexual assault of a child. 1
The jury found him guilty of sexual assault of a child, and Appellant opted for the
trial court to assess punishment.        The trial court assessed his punishment at
confinement for a term of fifteen years. We affirm.



      1
       See TEX. PENAL CODE ANN. § 22.011 (West 2011).
                              I. The Charged Offense
      The grand jury returned an indictment against Appellant for the offense of
sexual assault of a child, alleging that on or about April 1, 2009, Appellant
intentionally and knowingly penetrated the sexual organ of W.H., a child who was
then and there younger than seventeen years of age, with his sexual organ. A
person commits the offense of sexual assault of a child if he “intentionally or
knowingly causes the penetration of the anus or sexual organ of a child by any
means.” PENAL § 22.011(a)(2)(A).
                               II. Evidence at Trial
      W.H. testified that, when she was seven years old, her father was sent to
prison for sexually abusing her; her mother also was sent to prison for witnessing
the abuse and failing to act. W.H. then moved in with Appellant and his family in
Bedias, Texas.    Two weeks after being placed in Appellant’s home, Child
Protective Services (CPS) moved W.H. to a foster home in Austin. W.H. stayed in
Austin for less than a year before she was returned to Appellant’s home.
      Shortly after W.H. returned, Appellant reached for her hand and asked: “[I]f
you can do stuff with your real dad, why not me?” Appellant then made W.H.
“rub” his penis outside of his clothes. W.H. was eight years old at the time.
      When she was nine or ten years old, Appellant forced W.H. to perform oral
sex on him. Appellant also forced W.H. to give him “hand jobs,” and he began
touching her vagina and chest over and under her clothes. Before W.H. was
allowed to go to a friend’s house or leave for a school activity, Appellant made
W.H. give him a “hand job” or a “blow job.”
      CPS removed W.H. from Appellant’s home once more when she was
fourteen years old. Nine months later, W.H. moved back into Appellant’s home,
which was then located in Madisonville.


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      A couple of days after W.H. returned, Appellant began making her give him
“hand jobs” and blow jobs,” and the sexual activity shortly progressed to sexual
intercourse. W.H. noted that, over the course of the next several months, the
sexual intercourse occurred “sometimes every other day, sometimes every three
days.” W.H. recalled a specific incident that occurred on April 24, 2009, during
which Appellant came home from work angry and forced her to have sexual
intercourse with him.
                               III. Issues Presented
      Appellant presents two issues on appeal. First, Appellant argues that the
trial court erred when it denied his challenges for cause to prospective jurors who
indicated that they could not consider community supervision in a case with a
defendant charged with sexual assault of a child. Second, Appellant contends that
the trial court abused its discretion and denied him due process and due course of
law when it denied his motion for continuance and refused to allow him to present
testimony to rebut untimely provided discovery by the State.
                             IV. Standard of Review
      When reviewing a trial court’s decision to grant or deny a challenge for
cause, we look at the entire record to determine if there is sufficient evidence to
support the court’s ruling. Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App.
1995). We give great deference to the trial court’s decision because the trial judge
is present to observe the demeanor of the venireperson and to listen to his tone of
voice. Id.
      The trial court’s denial of a motion for continuance is reviewed for an abuse
of discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). We
also review a trial court’s decision on whether to allow a witness to testify for an
abuse of discretion. Johnson v. State, 233 S.W.3d 109, 114 (Tex. App.—Houston
[14th Dist.] 2007, no pet). A trial court abuses its discretion when its ruling is
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arbitrary, unreasonable, or without reference to any guiding rules or legal
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
                                     V. Analysis
      A. Denial of Challenges for Cause
      Through his first issue, Appellant argues that the trial court erred when it
denied his challenges for cause to prospective jurors who indicated that they could
not consider community supervision in a case with a white male defendant charged
with sexual assault of a child. At oral argument, Appellant recognized that this
issue is moot, given that the trial court assessed his punishment. We agree that the
issue is moot for the reason cited by Appellant, and we also note that none of the
prospective jurors that Appellant challenged for cause actually sat on the jury that
assessed his guilt. Accordingly, we overrule Appellant’s first issue.
      B. Denial of Motion for Continuance
      Appellant argues in his second issue that the trial court abused its discretion
when it denied his motion for continuance and when it refused to allow him to
present the testimony of Darrel Wells, M.D. Appellant argues that he was denied
due process and due course of law through the court’s actions. We recognize that
Appellant’s second issue is multifarious, but we review both arguments in the
interest of justice. See TEX. R. APP. P. 38.1; Davis v. State, 329 S.W.3d 798, 820
(Tex. Crim. App. 2010).
      We review a trial court’s denial of a motion for continuance for an abuse of
discretion. Janecka, 937 S.W.2d at 468. In reviewing such a decision by the trial
court, we bear in mind the general interest in the fair and efficient administration of
justice. Rosales v. State, 841 S.W.2d 368, 375 (Tex. Crim. App. 1992).
      There are no mechanical tests for determining when a denial of continuance
is so arbitrary as to violate due process. Id. at 374. Instead, the answer must be
found in the circumstances present in the case, particularly the reasons presented to
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the trial judge at the time the request is denied. Id. In the absence of an abuse of
discretion, there generally can be no violation of due process. Nwosoucha v. State,
325 S.W.3d 816, 828 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
        Prior to trial, Appellant filed a motion for continuance, asking for more time
to review evidence that the State had recently given him. 2 The trial court denied
the motion. During trial, Jane Riley, a pediatric nurse practitioner, testified that
she performed a child sexual assault exam on W.H. in April of 2009. Riley stated
that the results of the examination were normal but explained that such a result was
common for child victims of sexual assault. Riley noted that she took photographs
during W.H.’s exam but stated that she had not brought them with her or given
them to the State.
        After Riley testified, Appellant informed the trial court that he had just
requested the State to supply him with the images taken during Riley’s
examination of W.H. Appellant further informed the trial court that he might call a
doctor to testify in order to explain the photos to the jury on the following day of
trial. In response, the trial court asked Appellant why he did not use his own
investigator to obtain the photos and noted that testimony regarding the photos
would be very similar to testimony already given by Riley. Appellant’s attorney
recognized that it might have been an “oversight” on his part.
        At the start of the next day of trial, Appellant attempted to call Dr. Darrel
Wells as a witness. Appellant explained that Dr. Wells intended to testify that the
photographs Riley took of W.H. were not consistent with someone who had
engaged in sexual intercourse two or three times a week for the four months
leading up to the exam. The State objected, arguing that the defense had been
ordered to designate all expert witnesses before the start of trial.
        2
          This evidence consisted of a list of extraneous bad acts that the State intended to introduce at
trial and a report issued by the Secret Service that stated that no sexually oriented material was found on
Appellant’s computer.
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       Appellant contended that Dr. Wells should be permitted to testify based on
the fact that he only learned of the need to call Dr. Wells after he obtained the
photographs and found that they contained exculpatory evidence. The trial court
once again noted that Appellant had been provided funds to hire an investigator
and stated that he could have obtained the photographs from Riley before trial.
The trial court sustained the State’s objection and refused to allow Dr. Wells to
testify.
       Appellant then re-urged his previously filed motion for continuance, based
on the State’s “last minute disclosure of evidence.” The trial court denied the
motion. Although Appellant argued at trial that his motion for continuance was
based on the State’s “last-minute disclosure of evidence,” Appellant was not
surprised by the contents of the photographs.                       According to counsel, the
photographs showed results consistent with the written report Appellant previously
received; both the photographs and the report indicated that W.H.’s exam results
were normal. 3
       Futhermore, Appellant has failed to show how the trial court’s refusal to
give him more time to investigate the photographs prejudiced his defense. See
Janecka, 937 S.W.2d at 468 (stating that, to show an abuse of discretion, an
appellant must establish that the trial court’s denial of his motion for continuance
actually caused him prejudice). We find that the trial court did not abuse its
discretion when it denied Appellant’s motion for continuance. Given that finding,
we also conclude that the trial court’s action did not violate Appellant’s rights to
due process and due course of law. See Nwosoucha, 325 S.W.3d at 828. We
overrule Appellant’s challenge to the trial court’s denial of his motion for
continuance.

       3
        Appellant’s trial counsel stated that he had read Riley’s written report and that he understood,
based on the report, that W.H.’s hymen appeared “intact and normal.”
                                                   6
       C. Refusal to Permit Witness to Testify
       We now turn to Appellant’s challenge of the trial court’s refusal to allow
him to present the testimony of Dr. Wells. We review a trial court’s decision to
prohibit a witness from testifying for an abuse of discretion. Johnson, 233 S.W.3d
at 114–15. In reviewing such a decision, we consider (1) whether the party’s
action in failing to timely disclose the expert witness constituted bad faith and
(2) whether the opposing party could have reasonably anticipated that the
undisclosed witness would testify. Id. at 115.
       There is no evidence in the record that Appellant acted in bad faith in failing
to timely disclose Dr. Wells as a witness; however, there is evidence that Appellant
failed to act with diligence and that his conduct left the State with no time to
prepare for Dr. Wells’s testimony. Appellant received notice on July 25, 2011, that
Riley was to serve as an expert witness in this case, and the case did not go to trial
until July 11, 2012. Appellant therefore had ample time to request the photographs
from Riley and to designate an expert witness to testify on the photographs.
Appellant’s failure to diligently comply with the discovery order in this case
provided the court with justification to deny his request to allow Dr. Wells to
testify.
       Additionally, Appellant has not shown how Dr. Wells’s testimony would
have affected the outcome of this case. See Strawn v. State, No. 2-02-170-CR,
2003 WL 21235537, at *2–4 (Tex. App.—Fort Worth May 29, 2003, pet. ref’d)
(not designated for publication) (holding that, because the defendant did not show
that the expert witness’s testimony was relevant, the trial court did not err when it
enforced the discovery order). Riley explained to the jury that W.H.’s exam was
normal and noted that it was possible that W.H. had not experienced penetration.
Thus, Appellant has failed to establish how Dr. Wells’s testimony would have
affected the outcome of this case. We find that the trial court did not abuse its
                                          7
discretion when it excluded Dr. Wells’s testimony. In light of that finding, we also
conclude that the trial court’s action did not violate Appellant’s constitutional
rights to due process and due course of law. See Nwosoucha, 325 S.W.3d at 828.
Accordingly, we overrule Appellant’s second issue.
                              VI. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


September 18, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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