No. 01-08-00262-CR
Opinion issued February 18, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 77th District Court, Limestone County, Texas, Trial Court Cause No. 11264A.
Panel consists of Justices JENNINGS, HANKS, and BLAND.
TERRY JENNINGS, Justice.
A jury found appellant, Arthur Carson, guilty of the offense of possession of a controlled substance in the amount of less than one gram. After appellant pleaded true to the allegations in two enhancement paragraphs that he had previously been convicted of two felony offenses, the trial court assessed his punishment at confinement for six years. In one issue, appellant contends that the trial court erred in denying his motion for continuance. We affirm.
This appeal, originally filed in the Tenth Court of Appeals, Waco, Texas, was transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005) (giving Texas Supreme Court authority to transfer cases from one court of appeals to another for good cause).
Factual and Procedural Background
At trial, Mexia Police Department Officer C. Winkler testified that on March 16, 2007, he saw appellant fail to signal a left turn at an intersection after he had heard appellant "rev" the engine of his truck as he drove by Winkler. After Winkler activated the emergency lights on his patrol car, appellant drove his truck into the driveway of a home and "jumped out of the truck and took off running." Winkler pursued appellant to the backyard but lost sight of him. Appellant then emerged from the weeds of "an abandon[ed] trailer right across the road and . . . came up walking from the trailer with his hands up and he said, `Here I am, here I am.'" Winkler arrested appellant for evading arrest and took him back to his patrol car. He searched appellant's truck and found a small baggie of a substance on the seat and another small rock of a substance in the driver's side door jamb. The substances field tested positive as crack cocaine, and a laboratory confirmed the substances to be 0.45 grams of crack cocaine. Prior to trial, on April 4, 2007, at a hearing before a magistrate, the trial court appointed as appellant's trial counsel, Shirley Spivey, who filed a motion for discovery on July 9, 2007. On October 10, 2007, she filed a motion for a continuance for the trial scheduled for October 22, 2007. The trial court moved the trial date to November 26, 2007, and then to November 29, 2007, and finally to January 28, 2008. The trial court informed Spivey that the case was the first alternate case scheduled for that date behind a civil case. The State subpoenaed all of its witnesses to appear on that date. At approximately 4:00 p.m. on January 25, 2008, the trial court confirmed to Spivey that the civil case would not be tried and appellant would go to trial on January 28. At approximately 2:30 p.m. on January 25, 2008, Spivey filed a document titled "Defendant's Election as to Punishment, a Motion in Limine Concerning `Field Tests' of Alleged Controlled Substances, a Motion for Production of Writings and Statements and for Recess, and a Motion Invoking `The Rule.'" At approximately 4:30 p.m. that same day, Spivey filed a motion for continuance stating that she had insufficient time to prepare for trial. On January 28, 2008, the trial court held a hearing on appellant's motion for continuance. Spivey told the court, I filed a motion for continuance on Friday because the bulk of the week I was led to believe the civil case was going to be tried and I did not find out until, I guess [4:30 p.m.] on Friday that I was actually number one. And, frankly, Judge, I am not prepared to go forward with this case. I have not issued any subpoenas, have not had an opportunity to really discuss the case with my client nor to prepare him for trial. . . . I have been in trial in December and January and in all fairness to Mr. Carson, I realize that I had notice that this case was set but I spent the last four days of last week at this courthouse, the week before that I was in trial for five days. I'm not ready for this trial. It will be unfair to force us to trial today. I have not had an opportunity to actually prepare for this case. I do not have not one single witness subpoenaed. . . . I've been his attorney for a while [since April 4, 2007]. And we have been — set on the docket before but we have not been reached. And honestly, Judge, I'm sorry but I cannot get ready for ten cases so I have never gotten ready for this case because it has never been reached. This is the first time that it has been reached for trial. This is my first motion for continuance, the only continuance I've filed in the case.
The State responded: [W]e were somewhat in the same boat as [trial counsel]. We were told that the other — that the case was going to go and we found out late Friday. We do have the folks here that are necessary to — to try the case. The officers are here. The lab folks are on standby . . . I understand the position she's in . . . but I would like to get something done on the case.
The trial court explained: And as an assigned judge, I was informed like a week or so before that the court had set up a list of cases and that this one was — was behind the civil case but that this one was number one behind the civil case and that was more than a week ago. And, of course, there's always the possibility that a — a latter case is going to come to the top. I'm — I'm going to deny the motion for continuance. We can pick a jury but we won't start any evidence until tomorrow, but we're — we're not going to put it off anymore.
The parties conducted voir dire and selected a jury, and the case proceeded to trial the following day. Spivey vigorously cross-examined Officer Winkler and each of the State's other witnesses, made motions to inspect, examine, and test physical evidence, to dismiss, for recess at the close of the State's case-in-chief, to limit the State's argument, and for a hearing outside the presence of the jury. She also called a witness to attack the search of appellant's truck and the field testing of the substance found in the truck. Motion for Continuance
In his sole issue, appellant argues that the trial court erred in denying his motion for continuance because Spivey was "wholly unprepared" for trial and she did not have "sufficient time to get ready." A criminal trial "may be continued on the written motion . . . of the defendant, upon sufficient cause shown." TEX. CODE CRIM. PROC. ANN. art. 29.03 (Vernon 2006). We review a trial court's decision to grant or deny a motion for continuance for an abuse of discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). A trial court abuses its discretion in denying a motion for continuance if a defendant has shown that he "was prejudiced by his counsel's inadequate preparation time." Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). Such prejudice includes "unfair surprise or an inability to effectively cross-examine any of the State's witnesses or that crucial testimony would have been given by potential witnesses." Janecka, 937 S.W.2d at 468. A trial court does not abuse its discretion in denying a motion for continuance based on a mere desire for more time to prepare. Id. Appellant first complains of "the lack of any preparation being done by counsel for trial." However, although Spivey had told the trial court that she "[had] never gotten ready for the case," she had been appellant's trial counsel for about nine months; was aware at least one week before trial that appellant's trial was scheduled first behind the civil trial set for January 28, 2008; and had filed several pre-trial motions before being notified that appellant's case would actually go to trial. Also, she had already filed several other pretrial motions and been granted one prior continuance. At the hearing on his motion for continuance, appellant testified that "I've continued to give [Spivey] all the information that I needed to go to trial as far as my witnesses, everything that happened that night"; she had failed to obtain the " Brady" dashboard camera videotape of the traffic stop that supported his version of the events; and she did not know "what I'm in here for. . . . [H]ow can she represent me if she don't even know the case?" On cross-examination, appellant admitted that he understood that Officer Winkler's video was not available because it had been recorded over. He further provided the name of only one witness who had not been subpoenaed. Although appellant stated that "[the witness] know[s] everything that went on the whole night because I had just got off work and we was all at the house," he did not explain the specific testimony that the witness would offer. During the trial, Spivey spent a lengthy amount of time cross-examining each of the State's witnesses in detail about their procedures for handling evidence and conducting searches, probable cause for the traffic stop, the failure to preserve the video recording of the traffic stop, and procedures for testing the substances recovered. In Heiselbetz, the Texas Court of Criminal Appeals held that the trial court did not abuse its discretion in denying a motion for continuance when a solo-practitioner had forty-three days to prepare for a capital murder trial that included "eighty-seven potential witnesses . . ., including fourteen names added only two weeks before trial was set to begin; . . . over one hundred potential exhibits, ninety-five of which were actually introduced; and counsel could not adequately review medical records which contained potential mitigating evidence." 906 S.W.2d at 511. The court concluded that the defendant did not establish "any specific prejudice to his cause arising from the trial court's failure to continue the trial," that is, no unfair surprise or any inability to effectively cross-examine any of the State's witnesses. Id. at 511-512. Here, as in Heiselbetz, although Spivey stated that she was unprepared, her vigorous cross-examination of the State's witnesses did not demonstrate an inability to effectively cross-examine. Nor did appellant's testimony at the hearing on his motion for continuance reveal any crucial evidence that would be excluded at trial if his motion was denied. On these facts, we conclude that appellant has not demonstrated any actual prejudice to his defense by the denial of his motion for continuance. Appellant further asserts that "[t]his right of having adequately prepared counsel sounds in due process: (1) the right to have counsel, (2) the right to a minimal quality of counsel, (3) the right to a reasonable opportunity to select and be represented by chosen counsel, and (4) the right to a preparation period sufficient to assure at least a minimal quality of counsel." In support of his proposition that "denial of a continuance . . . resulted in representation by counsel who was not prepared," appellant relies on Richardson v. State, 288 S.W.2d 500 (Tex. Crim. App. 1956), Stevens v. State, 82 S.W.2d 148 (Tex. Crim. App. 1935), Kuehn v. State, 85 S.W. 793, 794 (Tex. Crim. App. 1905), Daughtery v. State, 26 S.W. 60 (Tex. Crim. App. 1894), and Scott v. State, 68 S.W. 171 (1902). In Richardson, the Texas Court of Criminal Appeals held that the trial court erred in forcing the defendant to trial with an unprepared attorney when her retained attorney had been detained at another trial that same day and she had requested a postponement of only one day. 288 S.W.2d at 501. In Stevens, Kuehn, and Daughtery, the Texas Court of Criminal Appeals held that the trial courts erred in forcing the defendants to represent themselves at trial after their trial counsel had informed the court that they were too ill to proceed. Stevens, 82 S.W.2d at 149; Kuehn, 85 S.W. at 793-94; Daughtery, 26 S.W. at 60-61. In Scott, the Texas Court of Criminal Appeals held that the trial court erred in forcing the defendant to trial with unprepared counsel after his chosen attorney, who was the only attorney familiar with the case, had been arrested after the jury had been impaneled. 68 S.W. at 171-72. In this case, Spivey was not absent due to sickness or appearance in another trial the same day. Appellant was represented by his appointed trial counsel, who was not unfamiliar with the case, having had the case for about nine months. Spivey did not ask for a short continuance but "an order continuing this cause until some future date" without specifying a time frame. The trial court delayed the presentation of witnesses for a day, and Spivey ably represented appellant at trial, putting the State to its burden of proof. Finally, appellant points to no particular prejudice from the denial of the continuance. That appellant desired more time to prepare did not entitle him to a continuance. See Janecka, 937 S.W.2d at 468. Accordingly, we hold that the trial court did not err in denying appellant's motion for continuance. We overrule appellant's sole issue. Conclusion
We affirm the judgment of the trial court.