Munoz v. State

• Citation: 24 S.W.3d 427
• Decision Date: 25 May 2000
• Docket Number: No. 13-99-284-CR,13-99-284-CR
• Parties: (Tex.App.-Corpus Christi 2000) DAVID MUNOZ, Appellant, v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 427

24 S.W.3d 427 (Tex.App.-Corpus Christi 2000)

DAVID MUNOZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-99-284-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

May 25, 2000

On appeal from the 214th District Court of Nueces County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices HINOJOSA, CHAVEZ, and RODRIGUEZ.

O P I N I O N

Opinion by Justice MELCHOR CHAVEZ.

On May 17, 1998 Appellant David Munoz was arrested in Corpus Christi for possession of cocaine and heroin.¹ On February 2, 1999 the jury found appellant guilty on both counts. Two days later, the judge assessed his punishment at thirty-five years for each offense. Appellant's motion for new trial was overruled by operation of law on April 20, 1999.

In his first two points of error, appellant states that the trial court erred by not granting his oral motions to recess the trial and by refusing to grant a new trial once a witness became available and gave testimony at the motion for new trial hearing. Appellant also argues that the trial court assessed an illegal sentence and that he did not receive effective assistance of counsel. We affirm the trial court's decision, but remand for re-sentencing.

On the day appellant's case was called for trial, a hearing was held on his motion to suppress. Before the hearing started, appellant's trial counsel said that he had been informed by the State that there was another police officer involved in the case whose identity was not known. Officer Curtis Shelton, the arresting officer, testified at the hearing for the State. Officer Shelton had not mentioned any other police officers in his police report. Before he was excused from the witness stand, appellant's trial counsel stated, "And Your Honor, it's kind of an informal discovery request, but I would like the court to maybe direct Officer Shelton to locate this partner. It may be significant, if there's any contradiction in what happened. My client seems to feel it's extremely significant." Officer Shelton agreed to try to have him at trial. The case proceeded to voir dire and a jury was selected and sworn.

The following morning, appellant's trial counsel was informed that the other officer's name was Daniel Sanchez. Sanchez, however, was to be in New York City for his brother's funeral until the following week. Appellant made an oral motion to recess the trial for one week; the judge denied the motion. The State presented four witnesses: a narcotics evidence technician from the Corpus Christi Police Department, a chemist for the Department of Public Safety, a technician who locked the narcotics in the vault and brought it to court, and the State's primary witness, Officer Shelton, who was its only witness that was at the scene. Only appellant testified for the defense. The testimony of Officer Shelton and appellant was in direct conflict.

I. Appellant's Motion for a Continuance

Appellant's motion to recess the trial until Officer Sanchez arrived was oral and unsworn. The Texas Code of Criminal Procedure permits a continuance only upon a written motion sworn by the State or the defendant. Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 1979). Recently, the court of criminal appeals confirmed a long line of cases stating, "A motion for continuance not in writing and not sworn preserves nothing for review." Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); see Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); see also Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App. 1989). Likewise, this Court has not recognized any error preserved for review when a continuance is not in writing and sworn. Mosley v. State, 960 S.W.2d 200, 206 (Tex. App. --Corpus Christi 1997, no pet.).

Appellant does not claim that his motion was a written motion for a continuance sworn to the court covered under articles 26.03 and 26.08. Instead, he makes an argument in equity that the trial court erroneously denied counsel's oral motions to recess the trial. There is case law that supports this assertion. In 1917, the court of criminal appeals ruled that it was reversible error to deny a continuance for one to two hours upon an oral motion when the missing testimony would be sharply conflicting with the testimony provided. Jones v. State, 194 S.W. 1109, 1111 (Tex. Crim. App. 1917). The court of criminal appeals has also suggested that a trial court has equitable power to grant an oral motion for a continuance. Darty v. State, 193 S.W.2d 195, 195 (Tex. Crim. App. 1946). It has now been more clearly stated that "a motion for continuance, based on equitable grounds rather than statutory grounds, is entirely within the sound discretion of the court, and will only call for reversal if it is shown that the court clearly abused its discretion." Alvarado v. State, 818 S.W.2d 100, 103 (TexApp. --San Antonio 1991, (citing Hernandez v. State, 492 S.W.2d 466, 467 (Tex. Crim. App. 1973)). See also Collection Consultants, Inc. v. State, 556 S.W.2d 787, 795 (Tex. Crim. App. 1977); Chance v. State, 528 S.W.2d 605, 607 (Tex. Crim. App. 1975); Coleman v. State, 481 S.W.2d 872, 873 (Tex. Crim. App. 1972); Ward v. State, 427 S.W.2d 876, 881 (Tex. Crim. App. 1968).

A separate line of cases in the intermediate appellate courts has generally, but not uniformly, recognized counsel's right to make an oral motion for a continuance enforceable by the appellate courts' powers in equity. White v. State, 982 S.W.2d 642, 647 (Tex. App.--Texarkana 1998, pet. ref'd); Deaton v. State, 948 S.W.2d 371, 374 (Tex. App.--Beaumont 1997, no pet.); Petrick v. State, 832 S.W.2d 767, 770-71 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd); O'Rarden v. State, 777 S.W.2d 455, 459 (Tex. App.--Dallas 1989, pet. ref'd). The authority cited in these cases is the 1946 Darty case, above. One situation from this line of cases where such a motion was not granted at trial, but then reversed on appeal, occurred when a witness who was present at trial disappeared briefly just before he was called to testify. Deaton, 948 S.W.2d at 377. Another reversal occurred when the State rested earlier on a Friday afternoon then expected, and the defendant's witnesses were not due to arrive from out of town until the following Monday. Petrick, 832 S.W.2d at 770-71. Only one case fully rejects counsel's right to make an oral motion for a continuance enforceable by the appellate courts' powers in equity. Rodriguez v. State, 903 S.W.2d 405, 411-12 (Tex. App.--Texarkana 1995, pet. ref'd).

The issue in this line of cases is phrased such that if the trial court's decision to not grant the oral unsworn motion amounts to a denial of fundamental principles of due process, the ruling is subject to appellate review. Petrick, 832 S.W.2d at 770; O'Rarden, 777 S.W.2d at 459. In O'Rarden, the prosecution inadvertently failed to disclose favorable evidence until after trial commenced despite defendant's discovery motions that clearly requested it. O'Rarden 777 S.W.2d at 456-57. The court determined that this failure to disclose was a violation of due process, and, once the evidence became available at trial, the denial of the oral motion for a continuance prevented a fair trial. Id. at 460.

The facts of O'Rarden were unusual. At trial, the defense did not receive the file of a social worker who had investigated child abuse allegations against the defendant until the day of trial. Id. at 457-58. The file contained a report of a pediatrician expert in child sexual abuse who knew the children she was testifying about for years, and was satisfied that no abuse had occurred. Id. Evidence this important warranted a new trial. Id. at 460.

In the case before the court today, the appellant has conceded that he neither made nor attempted a sworn written motion for a continuance. The unsworn oral motion made by appellant's trial counsel, whether a motion for a continuance, or a motion for a recess, can only be based on equitable grounds rather than statutory grounds. Hernandez, 492 S.W.2d at 467. The trial court's decision will only be overturned if there was a clear abuse of discretion. Id.

There is no due process claim on which to base any possible O'Rarden argument. See United States v. Bagley, 473 U.S. 667, 677 (1985) (Undisclosed evidence is material only if it is reasonably probable that the outcome of the trial would have been different had the evidence been disclosed.); Brady v. Maryland, 373 U.S. 83, 87 (1963) (Prosecutors must disclose material evidence favorable to the accused.); Ex Parte Adams, 768 S.W.2d 281, 291 (Tex. Crim. App. 1989) (Applies federal standard under Brady and Bagley to Texas Courts.). Furthermore, appellant's trial attorney made no discovery requests before trial. He easily could have learned from his client that there was more than one police officer at the scene. The testimony that the second officer provided at the hearing for appellant's motion for a new trial varied somewhat from the first officer's testimony, but was not exculpatory in nature, nor was the officer's existence hidden from appellant's trial attorney before trial.

Sanchez provided testimony later, at the hearing on the motion for new trial. In their testimony, both officers agreed as to the time of day, and of the description of the scene of the arrest. Sanchez stated that they had gone to the front door of the house where the incident took place and then a back door. Shelton described the door they approached as the front door to one of several small apartments in the house. They agreed that there was a tattered screen door and an opened, broken wooden door. It is not clear who said what exactly when, but the two officers agreed that Shelton claims to have seen one individual behind the screen door throw down a syringe and the appellant throw a plastic bag containing narcotics. Officer Shelton made a warrantless arrest of the appellant because this violation of the law...