### TEXAS COUR T OF APPEALS, THIRD DIST RICT, AT AUSTIN

NO. 03-05-00763-CR

Constance

Hurst Cohr an, Appellant
v. The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 55133, HONORAB LE MARTHA J. TRUDO, JUDGE PRESIDING

M E M O R A N

D U M O P

I N I O N
Constance Cohran appeals her conviction for theft of a firearm. See Tex. Penal Code Ann. § 31.03(e)(4)(c) (West Supp. 2006). A jury found Cohran g uilty, and the

district court assessed punishmen

t at two y ears in ja il, proba ted for f ive y ears. We will affi rm.
BACKGROUND Cohranwas arrested for theft of a firearm on May

3, 2003. At the time, Cohran lived with Sergeant Roosevelt Stevens. After returning from a trip, Stevens discovered that several new articles of clothing weremissing from his home. At this time, Cohran was out of the state visiting relative s. Stevens telephoned Cohran and asked her about the missing clothing . She denied taking the clothing but admitted taking something else that he owned. Appr oximately on e week l ate r, Stevens realized that his .357 Magnum revolver was missing. Stevens confronted Cohran, and she admitted that she had taken his fire arm. Due to the theft, Ste vens ref used to al low Cohra

n acces s2

to his house w

hen she r eturned from her

trip. Cohr

an then c alle d the police to retrieve her belon gings and an officer was dispatched. The of ficer interviewed both parties, and Co hran admitted to taking a

nd pawnin

g the fi rearm. The fire arm was l ate r recovered f rom a pawn shop, and the manage r confir med that Cohran paw

ned the f irearm. OnJune 14, 2004, the State filed a motion for c ont inuance because Stevens was deployed oversea s with the U .S. Army . The distr ict cour t grant ed the mot

ion, and the trial w as held in September 2005. Cohran was tried before a jury and found guilty. T

his appeal followed.
DISCUSSION Cohranraises three issues on appeal. She contends that the district court erred by (1) granting the State’s written, unsworn motion for continuance; (2) not allowing Cohran to make a statement regarding her theor

y of the ca se during voir dire; and (3) allowing the State to discuss the theft of Sgt. Steven’s clothing. We will address each issue in turn. Motion for Continuance

Inher first issue, Cohran insists that the district court e rred by g

ranting the State’s motion for continuance because the motion was not sworn to by a perso n havi ng pers onal k nowle dge of the facts relied upon for t he cont inuance as required by article 29.08 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. Art. 29.08 (West 1989). The district court’s ruling on a motion fo r continuance is reviewed for an abuse of discretion. Vasquez v . State , 67 S.W.3d 229, 240 (Te x. Crim. App. 2002). Generally , to establish an abuse of discretion, Cohran must demonstrate that she was actually prejudiced by the

granting of the continuance. Id
.3 Cohrancontends

that t h e State’s unsworn motion for continuance should not have been granted because it did not preserve anything f

or review on appeal. See Dewberry v. State , 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) (stating that motion for continuance not in writing and not
swornpreser

ves nothin

g for r eview). Thus, Cohr

an arg ues t hat the di strict court committed reversible error by

granting the unsworn motion. We disagree
. Whether or not the

State fa iled to pre serve e

rror wit h rega rd to the d

istr ict cour

t’ s granting of the State’s motion for continuance is irrelevant. Our only concern is whether the district court abused its discretion in granting the motion. Vasquez , 67 S.W.3d a t 240. Cohr

an explicit

ly states in her brief that she does not challenge the validity of the State’s grounds for a continuance. Moreover, she does not establish that she was prejudiced as a result of the continuance. During the hear ing r egard

ing the motion for

continua nce, she claimed t

hat she w as unable

to find wor

k as a counselor because of the charge s against her. However, she later testified that she was employ ed as
a prevent ion manag er for the Centra l Texas Council on Alc ohol an d Drug A buse while

awaiting trial. Inher brief, she does not

make any spe cific references to any hardship that the continuance caused. She also does not claim that the continuance impaired her ability to prepare her defense. Therefore, the error did not have an effect on the outcome of the case. See Tex. R. App. P. 44.2(b) (stating nonconstitutional error

is harmless unless substantial rights are affected); Johnson v . State , 43 S.W.3d 1, 4 (Tex. Crim . App. 200 1) (find ing that a substan

tial rig ht is affe cted whe

n the err or has a substantial and injur

ious eff ect or in fluence

indetermining the jury’s ver dict). On these facts, we cannot conclude that the d

istrict c ourt abus ed its disc retion in g

rantin g th e State’s motion for continuance. We overrule Cohran’s first issue.4

Voir Dire Inher sec ond issue, Cohran a rgues t hat the di strict co

urt e rred in

sustaining an objectionduring voir dire because t he State’s counsel did not state the grounds for the objection. Cohrancontends

that the d

istrict c ourt err

ed by sustaining

the State ’s objec tion to the f ollo wi ng statement made by de fense counsel during voir dire:

C ounse l for Defense: What’s this case about? Really pr etty simple case. I

t’s an importantcase but it’s pretty simple. I t’s abo ut folks who u se the pol ice to settle their own personal domestic— Mr. Waldman: Objection, your honor. The Court: Sustained

To support her

argume nt, Cohra n relies on evidenc e rule

103(a)(1). See Tex. R. Evid. 103(a)(1). She contends that rule 103(a)(1) required State’s c ounsel to specify the g rounds for the objection for the district court to properly sustain it. We disagree. Th e decision of a district court to restrict voir dire is reviewed for an abuse o f discretion. Allridge v. State , 762 S.W.2d 146, 163 (Tex. Crim. App. 1990). The district court abuses its discretion when a proper question regardi ng a proper area of inquiry is forbidden. Id. A question is proper i f its purpo se is to disc over a ju ror’s views on an i ssue applicable to the case. Nunfio v. State , 808 S.W.2d 482, 484 (Tex. Crim. App. 1991).

Rule 103(a)(1) specifically deals with the admission or exclusion of evidence. Here, the district court did not rule on an evidentiary issue so the ru le di d n ot ap pl y. Even if r ule 103 did5

ap pl y, the district court excluded evidence presented by

Cohran. It did not admit evidence prese nted by the State. Therefore, rule 103(a)(2) puts the burden on Cohra n to make an o ffer of

proof to preserve the error on appeal. Cohran did not make an offer of proof after the State’s objection was sustained. Ad di ti on al ly, Cohran’ s “questi on” that was objected to was not a ques tion but a statement of fact . The fa

ct that Coh

ran was making a

statemen t to the en

tir e panel and not questioning prospective jurors to find their views on issues applicable to the case wa s sufficient grounds for sustaining the objection. Cadoree v. State , 810 S.W.2d 786, 790 (Tex. App.—Houston [1st Di st. ] 1991, pet. ref’d); see Barajas v. State , 93 S.W.3d 36, 37 (Tex. Crim. App. 2002) (a question may be too vag

ue to constitute a proper

question). Additionally, the district court did not prohibit Cohran from asking prospective jurors questions reg arding this theory of the case. Cohran also argued this theory

to the empaneled jury

during trial. Therefore, the distri ct court did not abu se its discretion by sustaining the State’s objec tion. We overrule Cohran’s second point of error. Extraneo us Offense

Inher final issue, Cohran claims that the district court er red by allowing the State to offer evidence of the extraneous offense of st ealing Steven’s clothing agains t Cohran. At trial, Stevens testifie d that af

ter retu rning f rom a trip , severa

l new outf

its were mis sing fr

om his room. This fact led him to ask Cohran if she had taken them. Although she denie d taki ng the c loth ing, Stevens’s questions

led her t

o admit that she took somet hing els e that be longed to him. Su bs eq ue nt ly, Stevens realized that his firearm was missing. Cohran’s admission that she had taken6

something from the h

ouse led him to believe that Cohran may ha ve stolen his firearm. We need not discuss this argument because Cohran failed to pre serve the issue for appeal.

A p rerequisite for presenting err or for appellate review is that the recor d mus t demonstr ate that the complaining party made a timely and

specific request , objection, or motion, and that the trial judge either ruled on th e request, objection, or motion, or refused to rule and the complaining party objecte d to that re fusal. Te

x. R. App. P. 33 .1(a). T

herefore, an ob

jection mu st be timely, specific, pursue d to an adverse ruling, and must be made each time inadmissible evidence is offered. Martinez v

. State , 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Only two exceptions apply to the requirement of subsequent objections: (1) counsel may obtain a running objection, or (2) counsel may

request a hearing outside the prese nce of the jury
. Id. The following excerpt demonstrates that Cohran did not preserver any err or:
Q: While the defendant was in one of the C arolinas for three weeks did y ou notice anything missing

around your house ? A: Clothing , at first
. Q: Tell us a

bout that. How did it c ome that y ou found that out? A: Well, I went to work to get one of my outfits I

wanted to wear and I

noticed it was miss ing. Then I went throu gh my closet, noticed three or four or five outfits were miss ing. Q: Wh at did you do whe n you foun d out some o f your clo thin g was mi ssin g? A: I checked twice

and then I called Connie. Q: Why did y

ou call Connie? A: To s ee if s he kne w what happe ned to my cloth ing.7

Q: Did you have a

conversation with her? A: About th

ree or f our times. Q: All rig ht. So y ou knew how to get

a hold of her in the

Carolina s? A: Yes, sir. Q: Did you say anything t o her ab out your m issi ng clot hing? A: Yes, sir. Q: Wh at di d s he sa y? A: She said, “No.” Then she said, “No,” and then I called her ba ck like the third time, she said, “N o, I d

idn’t take you r clothing but I did take something of y

ours and I’ll tell y ou about it when I get ba

ck.” Q: Let’s start with that

first conversation. Do y

ou remember the time period during early to m iddl e of May th at you dis covere d that your clot hes wer e miss ing? A: It was – it was during the f irst week of her being gone
. Q: And when

you first called he

r about it, did you

accuse her of ta king y our cloth es? A: No, I asked her. I

said did she know what

happened to them. I didn’t acc use her of anything . No, sir. Q: Du ri ng th at fi rs t p ho ne co nv er sa ti on wi th you , w ha t d id sh e s ay? A: Sh e s ai d n o, in it ia ll y. Q: She didn ’t have a

ny i dea wha

t could ha ve happe ned to the m? A: No, sir. Q: Then y

ou said the

re was a second phone ca

ll? A: Yes, sir. I told

her the f irst t ime I was goin g to triple check to make sure, went through again and I

called her back. Q: What did she have to say the sec ond time—8

Counsel for Def

ense : Excuse me , Your Honor, I’m g oing to object to any thing having to do with the clothing. We’re here on a theft of a we apon charge. I t’s irrelevant, extraneous offense.
The State also questioned Stevens regarding the missing clothing during re-direct with no objection fromCohran. This shows that Cohran failed to make a timely objection to this line of questioning and failed to object each time the evidence was introduc ed. See Martinez , 98 S.W.3d at 193. Ad di ti on al ly, she failed to obtain a running objection. See id. Further more, Coh

ran did no t indicate how the discussion of the missing clothing led to an improper judgment. See Tex. R. App. P. 44.2(b). Therefore, we overr ule Cohran’s third point of error.

CONCLUSION Havingoverrul ed all of

Cohran’ s issues on

appeal, we affi

rm th e judg ment of conviction entere d by

the distri ct court .

__________________________________________ Bea Ann Smith, Justice
Before Justices B. A. Smith, Purye ar and Waldrop Affirmed Filed: October 13, 2006 Do Not Publi sh