Opinion
No. 05-01-00584-CR.
Opinion Filed January 6, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-01278-TV. Affirmed.
OPINION
A jury convicted appellant of the third-degree felony offense of driving while intoxicated. The trial court found the indictment's enhancement allegation to be true and assessed appellant's punishment at confinement for ten years. In his sole point of error, appellant contends the trial court erred in denying his oral motion for continuance. We affirm. Irving Police Officer Louis Remington stopped appellant's vehicle when appellant began to turn left without yielding to oncoming traffic. Two open beer bottles were in the car's console, one empty and one half full. Two empty beer bottles were on the front passenger-side floorboard. Appellant had bloodshot eyes and slightly slurred speech. He refused to perform any field sobriety tests. Uncooperative before he was arrested, he became even more agitated and verbally abusive after he was arrested, handcuffed, and placed in the police car. Appellant refused to take a breathalyzer test. Domingo Reyes had been summoned by subpoena to appear as a witness at the trial of appellant's case. Reyes had appeared at earlier settings of appellant's case. Reyes, however, failed to appear at the commencement of the trial nor was he present at the conclusion of the State's case in chief. At the conclusion of the State's case in chief, the following colloquy occurred:
[The Court]: For the record, a couple of developments. The witness that you subpoenaed earlier Mr. —
[Counsel]: Domingo Reyes.
[The Court]: Reyes — wasn't here this morning. The Court issued an attachment for him. Mr. Shinpaugh, do you have the status of that attachment?
[The Bailiff]: Yes, sir. I just called a second ago. The attachment made it down to the sheriff's office, department's office that handles that a little while ago. The two deputies that do that are already out in the field looking for somebody else and they haven't come back to the office yet.
[The Court]: So Mr. Reyes is not here?
[Counsel]: Exactly. He's not here. It's 1:15.
[The Court]: I'll deal with that because I understand we have another problem. . . .
[Counsel]: On behalf of Mr. Cantu in regards to Mr. Reyes, I'd like to make an oral motion for continuance, that since Mr. Reyes has not been attached yet we continue the case till later in the day or tomorrow.
[The Court]: All right. I'm going to deny the motion. I'm really, obviously I do not want Mr. Cantu to be denied the benefit of anything that might help him. I assume it would help him if he wants the witness here. But I have no way of knowing we'll ever get him here frankly. I understand he's out there somewhere from what your investigator has told me. . . .After the denial of his oral motion for continuance the defendant rested without calling any witnesses. At the punishment stage, appellant testified that he had not been drinking before his arrest, and that the beer bottles found in his car had belonged to the absent Domingo Reyes. In his sole point, appellant contends the trial court erred in denying his motion for continuance. He argues that the record shows he had subpoenaed the missing witness, the witness had appeared for earlier settings, and although an attachment for the witness had been issued, the sheriff's deputies charged with this duty had no opportunity to attach the witness. Appellant argues that the denial of his motion deprived him of the opportunity to present a defense. After trial has commenced, the trial court may grant a continuance "when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had." Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 1989). The motion must be in writing and fully state sufficient cause for a continuance. Id. art. 29.03. The motion must be sworn to by a person having personal knowledge of the facts relied upon for the continuance. Id. art. 29.08. The defendant's written motion must allege facts showing surprise and the exercise of diligence by the defendant in procuring the attendance of an absent witness. See Gentry v. State, 770 S.W.2d 780, 786 (Tex.Crim. App. 1988). The record must show, under oath, the nature of the absent witness's expected testimony and its materiality to the defense. Id. Finally, the evidence must indicate a probability that the missing witness can be procured by a continuance and that a continuance would not delay the trial indefinitely. See Rodriguez v. State, 21 S.W.3d 562, 565-66 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (op. on reh'g). Appellant's oral motion satisfies none of the statutory prerequisites. Nevertheless, appellant, citing three authorities, contends the rule requiring the motion be in writing and sworn to by one having knowledge of the facts relied upon for the continuance is not absolute. See O'Rarden v. State, 777 S.W.2d 455, 459 (Tex.App.-Dallas 1989, pet. ref'd) (op. on reh'g); Petrick v. State, 832 S.W.2d 767, 770 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd); Deaton v. State, 948 S.W.2d 371, 374 Tex.App.-Beaumont 1997, no pet.). In each of the three cases cited by appellant, the court of appeals held that when the trial court's denial of an oral motion for continuance amounts to a denial of constitutional due process, the trial court's decision is subject to appellate review for abuse of discretion. See O'Rarden, 777 S.W.2d at 459-60; Petrick, 832 S.W.2d at 770; Deaton, 948 S.W.2d at 377. In order to determine if an accused's right to due process has been violated, it is important to look at the facts leading up to the motion for continuance. See Petrick, 832 S.W.2d at 770. The court in Petrick, found the following factors instructive in making such a determination:
1. The diligence of the defense in interviewing witnesses;
2. The diligence of the defense in procuring the witnesses' presence;
3. The probability of procuring their testimony within a reasonable time;
4. The specificity with which the defense is able to demonstrate their expected knowledge or testimony;
5. The degree to which such testimony is expected to be favorable to the accused;
and
6. The unique or cumulative nature of their testimony.Id. at 771, citing United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir. 1976). The courts of appeal found in each of the cases that given the attendant circumstances, the trial court's denial of the oral motion amounted to a denial of due process and, thus, constituted an abuse of discretion. In O'Rarden, the defendant orally moved for a continuance after discovering very favorable evidence on the day of trial that had been suppressed by the State. On appeal, the defendant argued that the delayed disclosure of the evidence, and the trial court's denial of the brief time he needed to evaluate it, had a disastrous effect on his trial strategy and the trial's outcome. This court agreed that, under the circumstances, the trial court's denial of the defendant's oral motion for a continuance amounted to "a denial of the rudiments of due process." O'Rarden, 777 S.W.2d at 459-60. In Petrick, the State put on its first witness at 10:29 a.m. on a Friday. Appellant's attorney knew the State had subpoenaed six witnesses to testify, and assumed that it would take all day for the State to put on its case. During the lunch break, appellant's attorney telephoned his alibi witnesses from the courtroom to verify that they would be in Houston on Monday morning. Unknown to appellant's attorney, the prosecutor was in the courtroom. After the lunch break, the prosecutor finished her examination of her third witness, then rested her case at 2:30 p.m. After examining one witness, defense counsel explained to the judge that he was surprised by the State resting so soon and that his out-of-state witnesses would not be available until Monday. In his oral motion, counsel told the judge that the absent witnesses were expected to testify to the defendant's alibi, and that he had no other witnesses who could do so. As a practical matter, the defendant was only asking for a delay of two hours and fifteen minutes, the balance of Friday afternoon. The trial court denied the motion and the defense was forced to rest. The court of appeals found that the trial court abused its discretion in denying the motion for continuance because it denied the defendant the opportunity to present a defense. Petrick, 832 S.W.2d at 771. In Deaton, defendant's toxicology expert had been subpoenaed and was known to be present in the courthouse only a short time before he was called. The witness was a hired expert who routinely testified in the local courts. At 4:15 p.m., the trial court granted the defendant a fifteen minute recess for the defendant to find the witness. The witness was not located during the recess, and the defendant orally moved for a continuance in order to have more time to locate the witness. The trial court refused the request and the defendant was forced to rest. The jury was charged at 4:35 p.m. The appellate court observed that the defendant had asked for what amounted to a thirty-minute continuance. The witness had been in the basement restroom and did not hear his name called. The court held that the denial of the motion for a continuance amounted to a denial of due process and was an abuse of discretion. Deaton, 948 S.W.2d at 377. Appellant also contends that the denial of his oral motion for new trial deprived him of his right to present a defense, a denial of due process, and hence, an abuse of discretion. Appellant's case, however, differs from O'Rarden, Petrick, and Deaton in several important respects. In his oral motion, appellant did not allege what material facts the missing witness, Domingo Reyes, would testify to at trial. Appellant did not inform the court in a motion for new trial under oath of the nature of the absent witness's expected testimony. See Lapp v. State, 519 S.W.2d 443, 447-48 (Tex.Crim.App. 1975) (holding it is not necessary to pass upon the inadequacy of a motion for continuance where there is no motion for new trial alleging the failure of the court to grant the continuance and no affidavit of the missing witness or a showing under oath from some source that the witness would actually testify to the facts set out in the motion for a new trial). In both Petrick and Deaton, defense counsel had talked to the absent witnesses within two hours of the denial of the motion. A compelling reason was shown for their absence. In the instant case, appellant has failed to show that the missing witness's attendance could be secured by a continuance and that a continuance would not indefinitely delay the trial. The trial court's denial of appellant's oral motion for a continuance did not, under the facts of this case, constitute a denial of due process, and the trial court did not abuse its discretion in denying the motion. Appellant's point is overruled. The judgment is affirmed.
Appellant also cites two older cases that conclude, without much analysis, that appellate courts review for abuse of discretion the denial of equitable, oral motions for continuance. See Darty v. State, 149 Tex.Crim. 256, 193 S.W.2d 195, 195 (1946); Daigle v. State, 658 S.W.2d 774, 775 (Tex.App.-Beaumont 1983, no pet.).