Opinion
No. 05-06-01402-CR
Opinion Filed May 3, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-00155-WQ.
Before Justices WHITTINGTON, FRANCIS, and LANG. Opinion by Justice LANG.
MEMORANDUM OPINION
Stephen Howard Timms appeals the trial court's judgment convicting him of aggravated robbery and assessing his punishment at thirty-five years of imprisonment. In two issues, Timms argues the trial court erred when it: (1) admitted evidence of Timms's prior conviction for deadly conduct for the purpose of impeachment; and (2) denied his motion for continuance. We conclude Timms failed to preserve for appellate review the admissibility of the evidence of his prior deadly conduct conviction. Also, we conclude the trial court did not err when it denied Timms's motion for continuance. The trial court's judgment is affirmed. We issue this memorandum opinion because the issues in this appeal are well-settled. See Tex. R. App. P. 47.4. Also, the facts of this case are well-known to the parties so we do not recite them in detail.
I. ADMISSIBILITY OF PRIOR CONVICTION
In his first issue, Timms argues the trial court erred when it admitted evidence of his prior conviction for deadly conduct for the purpose of impeachment. The State responds that Timms failed to preserve this issue for appellate review because he did not object to the complained of testimony at trial. During oral argument at this court, Timms claimed he preserved this issue for appeal because he filed a pretrial motion to testify free from impeachment of his prior convictions, prior to his testifying the trial court held a hearing outside the presence of the jury on this motion, and the trial court denied his motion.A. Preservation of Error
To preserve an issue for appellate review, a party is required to show: (1) a timely and specific request, objection, or motion bringing the issue to the trial court's attention; and (2) the trial court ruled on the party's request, objection, or motion, or the trial court refused to rule and the party objected to that refusal. Tex. R. App. P. 33.1(a); Haley v. State, 173 S.W.3d 510, 516 (Tex.Crim.App. 2005); Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003).B. Application of the Law to the Facts
Timms filed a pretrial motion to testify free from impeachment with prior convictions. The motion states Timms has the following prior convictions: (1) two felony convictions for possession of a controlled substance in 1985; (2) three convictions for theft over $750 in 1990, 1992, and 1994; and (3) a conviction for possession of a controlled substance in 1994. Also, the motion states Timms is still on parole for a 2001 "charge" for deadly conduct. The motion argues:The prejudicial effect of admitting evidence that he has previously been convicted and done penitentiary time for three charges of Possession of a Controlled substance [sic], plus three Theft offenses, all of which were committed more than ten years before he was charged in the present cases, greatly outweighs any probative value of admitting this evidence in the present case should [Timms] testify in [sic] his own behalf. . . .
[S]ince these priors are from 1985, 1990, 1992, and 1994, this factor would also weigh against admission.The motion does not argue the State should be precluded from impeaching Timms based on his 2001 deadly conduct conviction. During the trial, the trial court held a hearing outside the presence of the jury on Timms's motion to testify free from impeachment and denied the motion. Timms testified at trial on his own behalf. During cross-examination, the State impeached Timms's testimony with his prior deadly conduct conviction, without objection. We conclude Timms has not preserved his first issue for appeal. Timms did not make a timely and specific objection at the time the evidence of his prior deadly conduct conviction was offered. Also, although there was a hearing outside the presence of the jury on his pretrial motion to testify free from impeachment with prior convictions, that motion did not argue the State should be precluded from impeaching Timms based on his 2001 deadly conduct conviction.
II. MOTION FOR CONTINUANCE
In his second issue, Timms argues the trial court erred when it denied his motion for continuance. He argues that witness testimony at trial and a brief follow-up investigation after the trial disclosed facts that if he had been able to investigate would have provided information essential for a fair trial. He contends a continuance was necessary because the whereabouts of Glen Ramsey had been discovered and he believed Ramsey could exonerate him. The State responds that Timms offered only conclusory reasons for the continuance and failed to establish the unexpected event could not have been anticipated with reasonable investigation.A. Standard of Review
A motion for continuance is a matter left to the sound discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 2006) (sufficiency of a motion for continuance shall be addressed to "sound discretion" of court and "shall not be granted as matter of right"). As a result, an appellate court reviews a trial court's ruling on a motion for continuance for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995). To establish an abuse of discretion, the defendant must show he was actually prejudiced by the denial of his motion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996); Heiselbetz, 906 S.W.2d at 511.B. Applicable Law
A criminal action may be continued on the written motion of a party for sufficient cause shown. Tex. Code Crim. Proc. Ann. art. 29.03; Harrison v. State, 187 S.W.3d 429, 434 (Tex.Crim.App. 2005). The motion must be sworn to by someone who has personal knowledge of the facts relied on for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08; Harrison, 187 S.W.3d at 434. When a defendant's motion for continuance is based on an absent witness, it is necessary to show: (1) the defendant has exercised diligence to procure the witness's attendance, (2) the witness is not absent by the procurement or consent of the defense; (3) the motion is not made for delay; and (4) the facts expected to be proved by the witness. Tex. Code Crim. Proc. Ann. art. 29.06; Harrison, 187 S.W.3d at 434. In addition to the requisites of a motion for continuance under article 29.06, a subsequent motion for continuance by a defendant shall also state that: (1) the testimony cannot be procured from any other source known to the defendant; and (2) the defendant has reasonable expectation of procuring the same at the next term of the court. Tex. Code Crim. Proc. Ann. art. 29.07. A trial court may grant a defendant's motion for continuance after the trial has begun, when it is made to appear to the trial court's satisfaction that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the defendant is so taken by surprise that a fair trial cannot be had. Id. art. 29.13. A motion for continuance must show on its face the materiality of the absent testimony. See Tex. Code Crim. Proc. Ann. art. 29.06; Harrison, 187 S.W.3d at 434. Mere conclusions and general averments are not sufficient for the trial court to determine the materiality of the absent testimony. See Harrison, 187 S.W.3d at 434.C. Application of the Law to the Facts
After the jury found Timms guilty, he moved for a continuance pursuant to article 29.13. He claimed that, during the trial and after the jury found him guilty, new information was unexpectedly discovered that provided reason to believe that, at the direction of Ramsey, Williams and another person were involved in ten other similar burglaries in the area. Timms argued an investigation of these unsolved burglaries might provide a description of Williams's accomplice and might reveal that these unsolved burglaries occurred while Timms was incarcerated for a parole violation. In his motion for continuance of the punishment phase, Timms claimed he needed additional time to locate and speak with four witnesses: (1) Ben Franklin; (2) Glen Ramsey; (3) Lynwood Owens;and (4) Robert Burdette. With respect to Franklin, Timms stated the following in his motion for continuance:A witness, Ben Franklin, who is a cousin of Glen Ramsey, relative of Hershel and Shavon, and friend of Eric Morton. His name and contact information were unexpectedly discovered during trial this past week. Defense counsel has contacted this witness on her own, but he has not been cooperative, stating he doesn't care about this case. Counsel believes he is withholding information that could be significant in this case; and further, that he was contacted and warned that Defense counsel would be calling him.During the hearing on his motion for continuance, Timms argued he first learned of Franklin during the trial. After contacting Franklin, who was not cooperative, he learned Ramsey, another witness he was looking for, was in federal prison. With respect to Ramsey, Timms stated the following in his motion for continuance:
Information has also unexpectedly been provided by [Franklin] that Glen Ramsey has recently been arrested and is now in the federal prison in the Dallas area. Early in the investigation of this case, Detective McGraw had contacted [Ramsey] and asked him to come in for an interview. [Ramsey] said he was on vacation but would call later; however, he never called. Despite several other attempts by Detective McGraw to locate this man, he was never able to complete this part of his investigation and interview [Ramsey] before trial. At the time of the offense, [Ramsey] lived in DeSoto, a few miles from the Morton's [sic], was in the car business same as Eric Morton, and it was unexpectedly discovered during trial last week that [Ramsey] was the only person who knew that Eric Morton kept that much cash in his house. [Ramsey] is obviously a source of information that Detective McGraw should be allowed to investigate at this time.The motion for continuance also states that, in a prior April 2006 motion for continuance,Timms noted he was diligently looking for Ramsey. He contended the April 2006 motion for continuance stated "there is also a witness that [Timms] has asked counsel to locate that could be crucial to this case if found, but the witness has moved and the defense has not yet been able to find him." However, this subsequent motion does not state Ramsey's testimony cannot be procured from any other source known to Timms. See Tex. Code Crim. Proc. Ann. art. 29.07. During the hearing on his motion for continuance, Timms argued "[Ramsey] has something to do with this that could exonerate [him]" and "Ramsey was . . . the person who would set these [burglaries or home invasions] up and then [Ramsey] would get [Williams] and somebody else to go out and commit the offenses." With respect to Burdette, Timms stated the following in his motion for continuance:
The name of the "fat" person referred to in the threats made to Kashandra Morton, Robert Burdette, was not revealed until the middle of trial on Thursday. This person needs to be contacted by the detective as well to complete this investigation and determine if he knows who might have had a grudge against Eric Morton, as detectives originally suspected.During the hearing on his motion for continuance, Timms argued Burdette's name was not discovered until the middle of trial. Timms claimed Eric Morton possessed this information and did not respond to Timms's attempts to contact him before trial. Although Timms explained the general topics he hoped to further investigate, he did not provide any specific facts these three witnesses would have provided or specify the unresolved burglaries he wanted to investigate. Further, Timms did not specify how Williams's involvement with another individual in the unresolved burglaries were material to the case against him. Because the motion for continuance contained nothing more than Timms's general averments as to the topics of the desired investigation and the witnesses' expected testimony, we conclude the trial court did not abuse its discretion when it denied his motion for continuance. Timms's second issue is decided against him.