No. 05-10-00581-CR
Opinion Filed June 24, 2011. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F09-24601-QV.
Before Justices O'NEILL, FitzGERALD, and LANG.
Opinion By Justice LANG.
Following a plea of not guilty, appellant Eric Lemond Mapps ("Mapps") was convicted by a jury of unlawful possession of cocaine, with the intent to deliver, in the amount of one gram or more, but less than four grams. The trial court set punishment at ten years confinement in the Texas Department of Criminal Justice, Institutional Division. In a single issue, Mapps contends the trial court erred in allowing the testimony of Detective Steve Junker, whom the State had not explicitly listed as a potential witness. We affirm the trial court's judgment. Because all dispositive issues are well settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. Also, because the facts and procedural history are well-known to the parties, we do not recite them in detail.
I. FACTUAL AND PROCEDURAL BACKGROUND
In April 2010, Mapps was tried for of unlawful possession of cocaine with intent to deliver, in an amount of one gram or more, but less than four grams. See Tex. Health Safety Code Ann. § 481.112(c) (West 2010). Prior to trial, the Mapps's attorney filed a motion requesting the State provide a list of all witnesses "who will or may be called by the State." The State responded by filing with the court a list of witnesses, which included, among others, "Officer Ragsdale or Officer Potts, or other qualified expert, Dallas Police Department." During the trial, neither Officer Ragsdale nor Office Potts testified. Instead, Detective Steve Junker from the Narcotics Division of the Irving Police testified about, inter alia, common practices in the illegal drug trade. When Detective Junker began his testimony, Mapps's trial attorney objected, stating the following: "Judge, we would object to the testimony of this witness due to the fact that the State has not listed this person as one of their witnesses on our request for a witness list." The trial court overruled this objection. Mapps' attorney did not request a continuance. A jury convicted Mapps and the trial court sentenced Mapps to ten years imprisonment in the institutional division of the Texas Department of Criminal Justice. Mapps moved for a new trial, which the trial court overruled. This appeal followed. II. ANALYSIS A. Standard of Review and Applicable Law
"It is a basic tenet of appellate practice that error must be preserved at trial for purposes of appeal." Tatum v. State, 798 S.W.2d 569, 571 (Tex. Crim. App. 1990). "To preserve error for appellate review, the complaining party must make a specific objection and obtain a ruling on the objection." Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see also Rios v. State, 263 S.W.3d 1, 5 (Tex. App.-Houston [1st Dist.] 2005, pet. dism'd) (citing Tex. R. App. P. 33.1). Additionally, "the point of error on appeal must comport with the objection made at trial." Wilson, 71 S.W.3d at 349. A trial court's decision to permit testimony by a witness not included in the State's witness list is reviewed for abuse of discretion. See Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993) (en banc); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992) (plurality op.) (en banc); Moore v. State, 38 S.W.3d 232, 236 (Tex. App.-Texarkana 2001, pet. ref'd). However, "any error in allowing [an undisclosed] witness to testify over a claim of surprise is `made harmless' by defendant's failure to object or move for a continuance." Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994) (en banc) (per curiam) (citing Youens v. State, 742 S.W.2d 855, 860 (Tex. App.-Beaumont 1987, pet. ref'd)); see also Hubbard v. State, 496 S.W.2d 924, 926 (Tex. Crim. App. 1973) (defendant did not object to the testimony of an unlisted witness, nor did he request a continuance); Quinones v. State, 592 S.W.2d 933, 946 (Tex. Crim. App. 1980) (en banc) (in response to previously undisclosed evidence of an extraneous offense during the punishment phase, the defense's failure to request a continuance "deprived the trial court of an opportunity to properly remedy the surprise complained of. . . .") C. Application of Law to Facts
In a single issue, Mapps argues the "trial court abused its discretion by allowing the testimony of an unlisted witness [Detective Junker]." The State argues there was no bad faith in its failure to include Detective Junker's name on the witnesses list, and therefore the trial court did not abuse its discretion. Furthermore, the State contends any error committed by allowing the testimony was "made harmless" by Mapps's failure to object on the basis of surprise or move for a continuance. We agree. On appeal, Mapps complains Detective Junker's testimony could not be "reasonably anticipated based on the facts" and that "[s]uch a high degree of surprise was disadvantageous to [Mapps], and denied him the opportunity [to] effectively cross-examine and rebut Detective Junker's testimony." However, at trial, Mapps's objection was "due to the fact that the State [had] not listed this person" as a witness. Mapps objected, but failed to move for a continuance in order to interview Detective Junker or determine the matters about which he was to testify. See Barnes, 876 S.W.2d at 328. "Having failed to do so, he `cannot now be heard to complain.'" Id. (quoting Hubbard, 496 S.W.2d at 926). We decide Mapps's sole issue against him. III. CONCLUSION
We conclude any potential error in allowing the testimony of Detective Junker was made harmless by Mapps' failure to object on grounds of surprise, and to move for a continuance. We resolve Mapps' sole point of error against him and affirm the trial court's judgment.