No. 06-03-00246-CR
Submitted: August 11, 2004.
Decided: October 28, 2004. DO NOT PUBLISH.
On Appeal from the 8th Judicial District Court, Franklin County, Texas, Trial Court No. 7,445. Overruled.
Before MORRISS, C.J., ROSS and CARTER, JJ.
Memorandum Opinion by Justice ROSS.
Hollie Mac Cathey appeals from his conviction by a jury for indecency with a child by exposure. The conviction was enhanced to a second degree felony, and the court assessed punishment at fifteen years' imprisonment and a $2,000.00 fine. Sufficiency of the evidence is not at issue in this case. The victim, a fifteen-year-old girl, testified Mac Cathey took her to the lake in his automobile, exposed himself to her, and attempted to convince her to masturbate him. She declined, and he did not touch her, but took her home. On appeal, Mac Cathey contends (1) that the trial court abused its discretion by denying his motion for continuance made to attempt to locate a subpoenaed witness who did not appear, and (2) that the court erred by allowing a witness to testify at trial despite the State's failure to reveal that it intended to call her as a witness.
Continuance
A trial court's ruling on a motion for continuance is reviewed for abuse of its discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995); see TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.06(6) (Vernon 1989). A motion for continuance not in writing and not sworn to preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995); see TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.08 (Vernon 1989). The motion here was made orally, and no sworn written motion was filed. Thus, the issue has not been preserved for appellate review. See Dewberry, 4 S.W.3d at 755; Matamoros, 901 S.W.2d at 478; see also Mathews v. State, 40 S.W.3d 179, 186 (Tex.App.-Texarkana 2001, pet. ref'd). Testimony by Audrey Whiteley
Mac Cathey next contends the trial court abused its discretion by allowing Audrey Whiteley to testify at the trial. It is uncontroverted that Whiteley was not on the State's witness list. Mac Cathey rests his argument on the trial court's standing pretrial and trial management order. That order directs the State to file a completed "Discovery Compliance Form" on or before twenty-one days following the date of the first pretrial setting. In relevant part, it requires the State to disclose the "names and addresses of persons whom the State may call as a witnesses [sic] in their case in chief." The record shows that the State was not aware of Whiteley until 6:30 p.m. the evening after jury selection, during a meeting with the victim. The prosecutor located her, but spoke with her for only about ten minutes on the morning the trial on the merits commenced. Whiteley was sleeping in the victim's room when she returned after the incident, and she testified about everything the victim told her at that time regarding the night's events. Her testimony concerning what the victim told her was the same as the victim's testimony concerning those events. If the trial court allows a witness who is not on the state's list to testify, we review that decision for abuse of discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App. 1993); Hardin v. State, 20 S.W.3d 84, 88 (Tex.App.-Texarkana 2000, pet. ref'd); Lafayette v. State, 835 S.W.2d 131, 132-33 (Tex.App.-Texarkana 1992, no pet.). Our review encompasses various factors. The factors most often discussed are whether the state's actions constituted bad faith and whether the defendant could have reasonably anticipated the witness would testify. Nobles v. State, 843 S.W.2d 503, 514-15 (Tex.Crim.App. 1992); Lafayette, 835 S.W.2d at 132-33. Any error in allowing the witness to testify over a claim of surprise is made harmless by the defendant's failure to object or to move for a continuance. Barnes v. State, 876 S.W.2d 316, 328 (Tex.Crim.App. 1994). In this case, counsel objected and requested an opportunity to interview Whiteley before she testified. The court did not recess or provide a continuance, but stated Whiteley would first be questioned outside the presence of the jury, which is the procedure that was then followed. To the extent counsel's request for an opportunity to interview Whiteley was a request for a continuance, that request was oral and not sworn to; thus, our preceding discussion concerning the requisites of a motion for continuance controls. Counsel also did not explicitly ask the court to recess the trial. He asked to interview the witness on several different occasions, but seeking to question a witness is not necessarily the same as recessing the trial. Under these conditions, the trial court's decision to provide the opportunity for both counsel to question Whiteley in camera appears to address the request actually made by counsel. Further, even had a claim of error been preserved for review, under this record, bad faith has not been shown. It is uncontroverted the State discovered the existence of this witness the night before trial, and the prosecutor stated he had a chance to talk with her for about ten minutes on the day of trial. Therefore, the evidence shows that Whiteley was a "surprise" to both sides. See Fincher v. State, 980 S.W.2d 886, 888 (Tex.App.-Fort Worth 1998, pet. ref'd). Providing a short recess so that defense counsel could talk with the witness was the procedure used by the trial court under similar facts in Stoker v. State, 788 S.W.2d 1, 15 (Tex.Crim.App. 1989), and the court found that proceeding after allowing such an interview was an act within the discretion of the trial court. The effect of the procedure used here is the same. We conclude that the procedure used by the trial court is sufficiently similar to that used in Stoker for us to conclude that, likewise, in this situation, the court did not abuse its discretion. We affirm the judgment.