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Hooks v. State3/7/2001
y by newspaper clippings. The Court of Criminal Appeals held that where the appellant's name did not appear in the newspaper articles accompanying the motion, and absent a showing that any prospective jurors read and were prejudiced by the article, the trial court did not abuse its discretion in denying the motion for continuance.
Similarly, in Hullaby v. State, the Fort Worth Court of Appeals faced a similar issue regarding an alleged gang-motivated shooting and the publicity generated by a similar gang-related shooting days before trial. Hullaby v. State, 911 S.W.2d 921 (Tex. App.-Fort Worth 1995, pet. ref'd). Just as in the Lopez case, the appellant produced no evidence other than newspaper clippings in support of his motion for continuance. Additionally, the newspaper article did not discuss the appellant or his case in any way. The court held that the trial court did not abuse its discretion by denying the motion for continuance.
Our facts are very similar. Hooks' motion for continuance, while accompanied by various newspaper clippings, included nothing to demonstrate that potential jurors had been prejudiced by the publicity concerning the other incident. Additionally, the record of the jury panel voir dire indicates that none of the jurors was questioned about the similarities between Hooks' case and the Kuhn case, much less any prejudicial effect created by the media coverage.
The granting of a motion for continuance is within the sole discretion of the trial court. See Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989) (criminal action may be continued upon sufficient cause shown in motion); Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App. 1992); see also McGinnis v. State, 664 S.W.2d 769, 771-72 (Tex. App.-Amarillo1983, no pet.). We find that the trial court did not abuse its discretion in denying Hooks' motion for continuance.
Finally, we turn to Hooks' fourth and final point of error. He contends that Officer Hitt's opinion was unreliable because of his lack of expert qualifications, and that the admission of two out of three autopsy photographs constituted harmful error. We disagree.
The admission of expert testimony is within the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of that discretion. Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000); Hardin v. State, 20 S.W.3d 84 (Tex. App.-Texarkana 2000, pet. ref'd). A general objection to the qualifications of a tendered expert witness is not sufficient to preserve error on appeal. Chisum v. State, 988 S.W.2d 244 (Tex. App.-Texarkana 1998, pet. ref'd).
Hooks' defense attorney objected to Officer Hitt's opinion as to what transpired on the night of the accident, based on a lack of qualifications. However, such a general objection does not preserve error for appellate review, and without a showing of an abuse of discretion by the trial court in admitting such testimony, we find no error.
Hooks also contends that the admission of two out of three autopsy photographs was prejudicial and only served to inflame the minds of the jurors. Once a defendant objects to the admission of photographic evidence on the basis of unfair prejudice, the balancing test of Tex. R. Evid. 403 is triggered. The test requires that a trial court balance the probative value of the photographs against their potential for unfair prejudice. If the probative value is substantially outweighed by the danger of unfair prejudice, the court is required to exclude such evidence. The court must consider a host of factors affecting probativeness, including the relative weight of the evidence and the degree to which its proponent might be disadvantage
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