Seals v. State, 04-81-00044-CR
| Decision Date | 19 May 1982 |
| Docket Number | No. 04-81-00044-CR,04-81-00044-CR |
| Citation | 634 S.W.2d 899 |
| Court | Texas Court of Appeals |
| Parties | Lindsey Ray SEALS, Appellant, v. The STATE of Texas, Appellee. |
Allan R. Manka, San Antonio, for appellant.
Lindsey Ray Seals, pro se.
Bill White, Dist. Atty., Douglas V. McNeel, Asst. Dist. Atty., San Antonio, for appellee.
Before ESQUIVEL, BUTTS and CANTU, JJ.
Appeal is taken from a conviction for burglary of a habitation as a habitual offender, and punishment was set at confinement in the Texas Department of Corrections for life. Trial on the merits was before a jury and punishment was set by the trial court.
Appeal is predicated upon seven grounds of error.
In his first ground of error appellant asserts that the trial court abused its discretion in overruling his second motion for continuance. An indictment was returned against appellant on April 5, 1978, charging the offense of burglary of a habitation enhanced by two prior convictions pursuant to the provisions of Tex.Penal Code Ann. § 12.42(d) (Vernon 1974). Arraignment was had on April 14, 1978, and a trial date was set for April 24, 1978. Appellant's first motion for continuance was filed, heard and granted on April 24, 1978 and a new trial setting agreed upon for May 22, 1978. Appellant's first motion for continuance alleged that his court-appointed attorney had not had sufficient time to prepare a defense because the transcription of an examining trial was not yet available to appellant.
On April 26, 1978, appellant sought and was granted the appointment of a court-appointed investigator for the purpose of locating witnesses deemed necessary to his alibi defense. The trial setting was then changed from May 22, 1978 to July 3, 1978. For some undisclosed reason the case did not come to trial on July 3, 1978. On August 23, 1978, however, appellant filed his motion seeking to acquire, at State expense, the transcription of the testimony at the trial on the merits in the case involving one of his co-defendants. The transcription was sought "for possible impeachment purposes". The trial court denied the request.
The case was subsequently reset to September 11, 1978. Jury selection began on September 12, 1978, and immediately preceding voir dire examination, appellant presented his second motion for continuance. Counsel for appellant, arguing on behalf of the motion, stated:
Mr. Manka (Defense Atty): We would like to present to the court a motion for continuance based on the fact that we have not had time-enough time since the last setting to locate three witnesses who are expected to provide alibi evidence for the defendant, and my investigator has not had time to locate and interview the eye witness in this case, and because I have not had an opportunity to secure the transcript of the testimony in the trial of a co-defendant, which the court reporter tells me will be ready in three or four weeks in the appeal in that case. At that time we may have access to the transcript already in this case.
The arresting officer, one of the officers involved in the case, has contradicted his testimony from a previous hearing and had indicated that the record was incorrect, and I believe that the transcript of the trial of the co-defendant is essential to our defense to show the character of the witness that is testifying.
The motion, in part, recited:
II
The defense has not had ample time since the last trial setting of the cause to locate three alibi witnesses, Mr. and Mrs. Willie Moore, and Mr. Elijah Burrell, addresses unknown. The defense has had a private investigator appointed who had made diligent efforts to locate the above mentioned witnesses but who has not sufficient time to exhaust all avenues of investigation.
III
The witnesses are material as their testimony is expected to provide an alibi for this defendant. The witnesses are not absent by the procurement or consent of the defendant. Their testimony cannot be procured from any other source known to the defendant. The defendant has reasonable expectation of procuring the testimony of the witnesses at the next term of court.
The motion further recited that the transcription of the testimony of a co-defendant's trial would be available within three to four weeks and that it was vital to the defense impeachment of State's witnesses who have given conflicting testimony.
Appellant alleges that he was forced to trial over his announcement of "not ready." The record, however, reflects that on the preceding day, September 11, 1978, after disposing of pretrial motions, the trial court made the following inquiry of appellant's counsel:
The Court: Okay. The motion is overruled. Can we get thirty-six jurors in the morning? Do you want to start on them this afternoon or start in the morning?
Mr. Manka: Why don't we start in the morning.
Mr. Manka: I am still not ready, Judge, for purposes of the record.
The next day, following denial of his second motion for continuance, appellant did not comment on the court's ruling.
Although appellant argues that the court's ruling did not permit him to present the testimony of witnesses to substantiate his alibi defense, his real argument concerns his inability to offer alibi testimony from witnesses who had no prior criminal records. Appellant did not testify but elected to call two co-defendants who disclaimed any participation by appellant in the burglary in question. Through their testimony it was shown that appellant had just recently joined their company prior to being arrested. Although appellant recognizes that the testimony sought of the missing witnesses would have been cumulative, he argues that he should have been permitted to establish his alibi defense through more reputable witnesses. 1
Although appellant claims to have shown diligence in the procurement of his own witnesses, the record reflects that appellant's court appointed investigator spent only four hours on May 21, 1978, attempting to locate the missing witnesses and had ceased providing services to appellant's attorney as of June 1, 1978. The record further reflects that appellant was out on bail at different times between the date of original arrest and trial date. 2 There is no indication as to the efforts made by appellant personally to locate his witnesses.
Tex.Code Crim.Pro.Ann. art. 29.07 (Vernon 1966) provides:
Subsequent motions for continuance on the part of the defendant shall, in addition to the requisites in the preceding article, state also:
1. That the testimony cannot be procured from any other source known to the defendant; and
2. That the defendant has reasonable expectation of procuring the same at the next term of the court.
We note that appellant in his second motion for continuance was not able to state that he had a reasonable expectation of procuring the required testimony at the next term of the court. 3 And although he did allege that the testimony could not be procured from any other source known to the defendant, the record reflects, and his brief admits that the testimony was cumulative and that the real concern was the character of the witnesses and not their testimony. It is axiomatic that on a second application for continuance it must be alleged and shown that absent testimony cannot be procured from any other source known to appellant. Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679 (1921); Brown v. State, 85 Tex.Cr.R. 618, 215 S.W. 97 (1919). Furthermore, it is not error to deny a second application for continuance on the basis of absent testimony where the motion is made to secure cumulative testimony. See Wenck v. State, 156 Tex.Cr.R. 50, 238 S.W.2d 793 (1951); Richardson v. State, 154 Tex.Cr.R. 422, 228 S.W.2d 179 (1950). We further hold that appellant failed to establish the exercise of due diligence in the procurement of his witnesses. 4 The trial court, therefore, did not abuse its discretion in overruling appellant's second application for continuance. Imhoff v. State, 494 S.W.2d 919 (Tex.Cr.App.1973); Pitcock v. State, 420 S.W.2d 719 (Tex.Cr.App.1967).
The State correctly points out that appellant's motion was defective for failure to comply with Tex.Code Crim.Pro.Ann. art. 29.06(3) (Vernon 1966). Article 29.06(3) provides that a defense motion for continuance on account of the absence of a witness must state the "facts which are expected to be proved by the witness." Appellant's motion simply alleged that "the witnesses are material as their testimony is expected to provide an alibi for this defendant." Having failed to allege with sufficient specificity the facts which were expected to be proved by the witnesses, the trial court did not err in overruling appellant's second motion for continuance. Fields v. State, 495 S.W.2d 926 (Tex.Cr.App.1973); Glover v. State, 470 S.W.2d 688 (Tex.Cr.App.1971). Appellant's first ground of error is overruled.
Appellant next alleges that the trial court committed reversible error in overruling his motion for transcription of testimony, in violation of his rights to effective assistance of counsel, due process and equal protection of law. The argument presented in support of the alleged error is identical to that advanced and rejected in Shirden v. State, 439 S.W.2d 348 (Tex.Cr.App.1969).
Appellant argues that denial of the transcription of testimony from the trial of his co-defendant deprived him of valuable impeaching matter. Specifically, appellant points out that one of the arresting officers testified differently at an examining trial from his testimony at the trial of appellant's co-defendant with regard to a search of appellant and evidence thereby recovered from his person. It is appellant's contention that availability of this officer's prior testimony would have permitted impeachment on an important aspect of the case.
We would not normally feel compelled to elaborate further on such a contention, but we believe that the magnitude of the contention requires...
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