### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00501- CR

Steven K eller, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 11- 9040 92, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Steven L awr ence Keller of ag g ravated robber y . See Tex. Penal Code § 29.03. I n acc ordanc e with the jury ’s punishment verdic t, the trial court sentenc ed appellant to imprisonment of forty -fiv e y ea rs . On appea l, appellant contends that the trial court committed reve rsible err or when it g rante d a subpoena for a non-mater ial witness and then g rante d the State’s oral motion for continuance

. Be cause we conclude that appellant has failed to prese rve his issue on appea l, we af firm. 1

Be cause appellant does not ch al l eng e the sufficie ncy of the evidenc e to support his 1 conviction, we provide only a g ener al overvie w of the fac ts o f t h e ca s e. See King v. State , 953 S.W .2d 266, 267 (Tex. Crim. App. 1997); see also Tex. R. App

. P

. 4 7.4 (authorizing memorandum opinions to be “no longe r than nece ssary to advise the parties of the court’s decision and the ba sic rea sons for it”).BACK GR OUND A robber y occur red in May 2011 that was captur ed on video. The victim was struck from behind and injured, and the victim’s pur se was stolen. Wit nesses identified appellant as the man flee ing w ith the victim’s purse and the pe rpetrator in the video.

The trial on the me rits was set for May 2012. After a jury was selec ted but before the j ury was sworn, the t rial court g rante d the S tate’s oral motion for a cont i n u ance based on the failure of appellant’ s fathe r to appea r for the trial. Appell an t ’s fa t h er, an Arizona resident, was subject to an Arizona order for him to appea r at the trial as an out-of-state witness pursuant to the Uniform Act to Secure Attendanc e of Wit nesses from Wit hout the State in Criminal Procee dings. See Tex. Code Crim. Proc. art. 24.28. Ba sed on a reque st by the State, the t ri al co u rt en t er ed a

cer tification reque sting attendance of appellant’s fathe r at t h e trial. After appellant’ s fathe r was 2

serve d with a copy of the trial court’s cer tificate and an order from the Arizona court to show cause why he shoul d not be ordered to appea r i n Austin, appellant’s fathe r waived a hearing befor e the Arizona court, a

nd the Arizona cour

t ordere d him to appear

for the Ma

y trial setting. Appellant’s fathe r, howe ver, did not appe ar.

About one week after the trial court gra nted t he S tate’s moti on fo r a conti nuance , appellant’ s fathe r filed a motion to quash or deny issuance of subpoena, contending that he should not have been order ed to appea r at the May trial setting, that he should not be order ed to appea r

I n the cer tificate, the trial court reque sted attendanc e of appellant’ s fathe r beca use he was 2 a “mater ial and nece ssary witness in said criminal proce eding in tha t he has knowledg e that would enable him to identify

the def endant a s the individual who committed the robber y .” 2ag ain, and that he was not a materia l or nece ssary witness beca use identity was not an issue. After a hea ring , the trial cour

t found that appe llant’s fathe r wa s “a ma terial a nd nece ssary

witness.” The trial occur

red in J une 2012. Appellant’s fa ther, as well as sever al other witnesses, testified and identified appellant as the perpe trator on the video. The j u ry fo u nd appellant g uilty of ag g ravated robber y . During the punishment p h as e, appellant testified and admitted that h e co m m itted the robber y . The jury assessed punishment of forty -five y ear s’ imprisonment, and the trial court rende red judgme nt in acc ordanc e with the ju ry ’s v er d i ct. This appea l followed.

ANALYSIS

I n one issue, appellant contends that his rig hts wer e violated and that the trial court committed reve rsible err or when it g rante d a subpoena for a non-mater ial witness and then g rante d the State’s oral motion for continuance

. Appellant contends that his fathe r was an immaterial witness beca

use hi s testimony duplicated other available witnesses’ testim ony , see i d

. art. 24.28, § 4(a) (re quiring person to be “mater ial witness”), and that the State’s oral motion for continuance was insuffic ient beca

use it was not in writing or sworn. See id

. arts. 29.03, .08 (re quiring motion for continuance to be in writing and sworn). Appellant further urg es that his fathe r’s unavailability

was not a sufficie nt rea son to continue the trial pursuant t o ar t i cl e 2 9

. 13 of the Texas Code of Criminal Procedure

. See id. art. 29.13 (de scribing when c ontinuance a llowed af ter trial be g un). The S tate urge s that appellant has not prese rved his issue for appeal. To preser ve an is sue for appea l, an appellant must make the complaint to the t rial co u rt “b y a timely reque st, objection, or motion .

. . with suf ficient specific ity to make the trial court awa re of the complaint, 3unless the specific g rounds wer e appar ent from the context.” See Tex. R. App. P. 33.1(a) (1). The

complaint on appea l must comport with the complaint made to the trial court. See Guev ara v. State , 97 S.W .3d 579, 583 (Tex. Crim. App. 2003) (holdi n g ap p ellant failed to prese rve any err or “bec ause the objection at trial [did] not comport with the complaint raise d on appea l”).

I n response to the State’s motion for continuance , appellant’ s only response was: “We oppose the State’s motion for continuance and wish to proce ed with trial.” Appellant did not make the complaints to the trial court that he now makes on appea l as to the m o t i o n for continuance

. See Tex. R. App. P. 33.1(a) (1); Guev ara , 97 S.W .3d at 583. The rec ord simi l ar l y does not ref

lect any complaint as to the subpoena of appellant’ s fathe r befor e the trial court g rante d the motion for continuance

. See Tex. R. App. P. 33.1(a )( 1 ) (r eq u iring complaint to be timely ). Prior to the May trial setting, appellant’ s fathe r was serve d with the trial court’s cer tificate for his attendanc e and the Arizona court’ s show cause order , he wa ived a show c ause he aring befor e the Arizona court, a

nd the Arizona cour

t ordere d him to appear

for the Ma

y trial setting. 3 Acc ording ly , beca

use appellant did not raise the g rounds that he raises on appea l to the trial court “by a timely reque st, objection, o r m o t i o n , ” he has failed to prese rve his issue for appea l and has wa ived any err or. See id.

To the extent appellant relies on his fathe r’s motion to quash or deny issuance of subpoena 3 to support his issue on appea l, the motion was fi l ed after the trial court had alre ady g rante d the motion for continuance, and hi s fa t h er soug ht to quash or deny the i ssuance of a subpoena for t he J une trial setting

. 4CONCLUSION For this rea son, we overr

ule appellant’ s issue and aff irm the judgme nt of conviction.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: Aug ust 6, 2014 Do Not Publish

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