No. 14-03-01061-CR
Memorandum Opinion filed July 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 940,362. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, SEYMORE.
CHARLES W. SEYMORE, Justice.
A jury found appellant, Donald Ray Walker, guilty of aggravated robbery. In one issue, he contends the trial court erred in denying his motion for continuance. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. TEX. R. APP. P. 47.4.
BACKGROUND
According to the State's evidence, four young, black men, including appellant, robbed Martin Flores in the parking lot of his apartment complex. In contrast, according to appellant, he did not commit robbery, but he was only at the complex to drop off the other men after giving them a ride. On May 20, 2003, the trial court granted appellant's motion requiring the State to produce exculpatory evidence. In his motion, appellant requested information regarding another aggravated robbery committed by four young, black men two months after the robbery in this case while appellant was in jail. On May 28, 2003, the State provided appellant the names and addresses of two witnesses to the second robbery. Appellant attempted to contact those witnesses, but they had moved. He filed a motion for continuance claiming he needed additional time to locate and interview the witnesses. The trial court denied his motion and proceeded to trial on May 30, 2003. DISCUSSION
In his sole issue, appellant claims the trial court erred by denying his motion for continuance. We review the denial of a motion for continuance for an abuse of discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996). To establish an abuse of discretion, appellant must show on appeal he was actually prejudiced by the denial of his motion. Id. Appellant claims he was denied the right to present the defensive theory of alternate suspects because he was not allowed more time to locate the witnesses. However, appellant has presented no evidence concerning what information the witnesses would have provided, or even that the information would have been favorable to his defense. Further, he has not claimed that he would have been able to locate and interview the witnesses had his motion for continuance been granted. Appellant has failed to establish any prejudice. See id. Appellant also claims his motion for continuance should have been granted because the State was negligent in failing to disclose the names and addresses of the witnesses until two days before trial. The State has a duty to turn over favorable, material evidence to the defense. Brady v. Maryland, 373 U.S. 83, 87 (1963). However, in order to prove a Brady violation, appellant must show he was prejudiced by the State's tardy disclosure. Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App. 1999). Prejudice is shown by a reasonable probability that had the State disclosed the evidence earlier, the result of the proceeding would have been different. Id. Appellant has not indicated what information the witnesses would have provided, or even that he would have been able to locate them. Accordingly, he has failed to show that he was prejudiced by the State's failure to provide him with the witnesses' names and addresses sooner. Appellant's issue is overruled. The judgment of the trial court is affirmed.