No. 08-01-00336-CR
August 28, 2003 (Do Not Publish)
Appeal from the 205th District Court of El Paso County, Texas (TC#20000D03487)
Before: BARAJAS, C.J., LARSEN, and McCLURE, JJ.
SUSAN LARSEN, Justice
A jury found Ruben Valenzuela Garay guilty of recklessly causing serious bodily injury to a child and causing serious bodily injury to a child by criminal negligence. The jury assessed punishment at twelve years' confinement and a $10,000 fine for recklessly causing serious bodily injury and two years' confinement for negligently causing serious bodily injury. In his sole issue on appeal, Valenzuela argues that the trial judge erred by denying his motion for a continuance. We affirm.
We previously affirmed these convictions, stating that Valenzuela did not file a sworn, written motion for continuance. See Valenzuela Garay v. State, No. 08-01-00336-CR (Tex.App.-El Paso Dec. 12, 2002) (not designated for publication), 2002 WL 31777632, at *1-2. The Court of Criminal Appeals vacated our judgment and remanded the case to us to consider Valenzuela's issue on appeal. Valenzuela Garay v. State, No. 262-03 (Tex.Crim.App. May 7, 2003) (not designated for publication), 2003 WL 21024609, at *1.
Factual and Procedural Background
Valenzuela was charged with causing severe brain injuries to his girlfriend's daughter, Armida, when she was almost two-years old. Approximately six months before trial, the trial judge granted Valenzuela's motion for the appointment of a medical expert to assist in the preparation of his defense. The judge appointed Dr. Juan Contin, an expert in forensic pathology. Two or three weeks before trial, the prosecutor delivered Armida's medical records to Dr. Contin for him to review. During jury selection, Valenzuela's counsel announced that Dr. Contin's assistant called counsel's office that morning and stated that Dr. Contin had not reviewed the medical records and had decided not to serve as an expert in the case. Counsel stated that he was "surprised and shocked" about Dr. Contin's decision and that he was concerned that his representation would be inadequate without the assistance of an expert. The trial judge then asked counsel if he had someone in mind to replace Dr. Contin, and counsel responded that he did not because "[i]t's so difficult to get in-town people." The judge noted that the offense was committed approximately four years earlier, the case had already been reset a few times, and jury selection had begun. Nevertheless, the judge stated that once jury selection was completed, she would recess court for the day to give Valenzuela an opportunity to find a substitute for Dr. Contin, "and then we will see what you come up with between today and tomorrow." She added, "I will give you as much time as you need within reason. . . . I do not foresee allowing a continuance of the trial, though. I mean, I will give you time and we can delay maybe one day." The next morning, defense counsel stated, "I am pretty much in the same situation as I was yesterday." He made an oral motion for a three-month continuance because he was "unable to find a doctor here in town." Counsel also stated that he would reduce the motion to writing. The judge denied the oral motion. After the denial of the continuance, the State presented its evidence, which included a statement dictated by Valenzuela. Valenzuela stated that Armida was injured when she fell from a kitchen table. A crime scene technician testified that the distance from the kitchen table to the floor was thirty inches. The State's evidence also included testimony from three expert witnesses. Dr. Cheetan Moorthy, a specialist in pediatric radiology, testified that Armida had "acute blood surrounding the left side of the brain" and that "[t]he same side of the brain was significantly swollen, . . . to the point where it was pushing the other side of the brain over to the other side." He opined that the injury to the left side of the brain was caused by a "direct blow to that side of the head," involving a "very violent impact." Armida also had swelling and bruising on the right side of her head, which resulted from a separate impact. According to Dr. Moorthy, Armida's injuries were not consistent with a fall from a thirty-inch-high table. He noted that Armida did not have any other injuries. Ordinarily, one would expect to find defensive or reflexive injuries when a two-year-old child falls because the child will attempt to break the fall. Dr. Violetta Radenovich , a pediatric opthalmologist, testified that Armida sustained bilateral symmetrical retinal hemorrhages. This type of hemorrhage can result when a child is shaken. It would be "very unusual" to sustain these hemorrhages in a fall from a height of thirty-one inches. Although she could not state with certainty the mechanism of Armida's injuries, she believed the injuries could have resulted from hitting Armida against a wall or a "sudden throw" to the floor. Dr. Harry Wilson, a pediatric pathologist, testified that Armida sustained "some type of impact injury with acceleration to the left side of the head, along with some other type of more minor injury to the right forehead." He stated that the level of force required to cause Armida's injuries was equivalent to the force that would occur in a thirty-mile-per-hour or greater car accident in which an unrestrained child hits her head against an object or the force that would occur in a fall from a height of between ten feet and three stories. He testified that Armida's injuries were not consistent with an accidental fall from a table because she had two separate sites of injury — one on the right and one on the left — and because her injuries were too severe to have resulted from a short fall off of a table. Wilson suggested that shaking may have played a role in Armida's injuries, but he conceded that her injuries did not fit within the "classic" description of shaken-baby syndrome. He believed the most likely cause of the injuries was that "this child sustained a significant whack to the left side of her head, presumably while standing on the table. And that whack did two things. It sent her in a tumble fall onto the floor, and it created near lethal brain injury to the left side of her brain." On the next day of trial, defense counsel presented his written and sworn motion for a continuance to the trial judge and offered it for purposes of the appellate record. The motion recited the facts regarding Dr. Contin's decision not to serve as an expert and stated that Valenzuela "is now at a severe disadvantage and cannot obtain a fair trial." The motion concluded by requesting a continuance to obtain an expert "second opinion and to refute Dr. Wilson's opinion testimony." The judge denied the motion, but agreed to make the motion part of the appellate record. Valenzuela filed an unsworn motion for new trial, stating, "Defendant was denied his right to an expert to assist in his defense." Discussion
Valenzuela argues that the denial of the continuance deprived him of a fair trial. He asserts that because he did not have an expert, he was unable to cross-examine the State's expert witnesses or to present expert testimony that Armida's injuries were accidental. We review a trial judge's denial of a motion for continuance for abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002). To establish an abuse of discretion, the defendant must show that he was actually prejudiced by the denial of the motion. Id. To preserve error in the denial of a continuance based on the absence of a witness, a defendant must make a showing as to what the witness's testimony would have been. See Gentry v. State, 770 S.W.2d 780, 787 (Tex.Crim.App. 1988); Lemmons v. State, 75 S.W.3d 513, 526 (Tex.App.-San Antonio 2002, pet. ref'd); cf. Sturgeon v. State, 106 S.W.3d 81, 82-83 (Tex.Crim.App. 2003) (holding that error in the trial court's denial of a writ of attachment for a subpoenaed witness is preserved if counsel states the witness's anticipated testimony on the record in open court). The defendant may make this showing by attaching affidavits to the motion for continuance or to a motion for new trial or by providing testimony at a new trial hearing. See Gentry, 770 S.W.2d at 787-88; Lemmons, 75 S.W.3d at 526. Valenzuela's motion for continuance did not state what Dr. Contin's testimony would have been or that it would have been material and beneficial and to him. And Valenzuela's motion for new trial merely asserted that he was denied an expert to assist in his defense. Therefore, Valenzuela has not preserved error in the denial of the continuance. Even if the issue were preserved, the trial judge did not err in denying the continuance because Valenzuela's motion does not comply with the statutes that govern continuance motions. A motion for continuance must be in writing and must be sworn to by a person having personal knowledge of the facts relied on for the continuance. Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 1989); Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999). If a continuance is sought because of the absence of a witness, the motion must state the name and residence of the witness, the diligence used to procure the witness's attendance, the material facts expected to be proved by the witness, that the witness is not absent by the procurement or consent of the defendant, that the motion is not made for delay, and that there is no reasonable expectation that attendance of the witness can be secured during the present term of court. Tex. Code Crim. Proc. Ann. art. 29.06; see also id. art. 29.07 (setting forth additional requirements for a subsequent continuance motion). After a trial has begun, a continuance may be granted "when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had." Id. art. 29.13. Valenzuela did not comply with these statutory requirements in at least two respects. First, he did not state, either in his written motion or in open court, the material facts expected to be proved by the witness. See id. art. 29.06. Because Valenzuela failed to comply with this requirement, he cannot demonstrate that he was prejudiced by the denial of the continuance. See Gentry, 770 S.W.2d at 787 (holding that to show that he was injured by the denial of a continuance, the defendant must establish that the missing witness's testimony would have been material and beneficial to him); Rische v. State, 746 S.W.2d 287, 289 (Tex.App.-Houston [1st Dist.]) ("For appellant to have been deprived of his constitutional right to a fair trial, the expert's proposed testimony must have been material to his case."), remanded on other grounds, 755 S.W.2d 477 (Tex.Crim.App. 1988). Second, the record does not reflect that Valenzuela acted diligently to secure Dr. Contin's testimony or that he could not have anticipated Dr. Contin's failure to appear by exercising reasonable diligence. See Tex. Code Crim. Proc. Ann. arts. 29.06, 29.13. There is nothing in the record to suggest that Valenzuela attempted to subpoena Dr. Contin. See Hughes v. State, 962 S.W.2d 89, 90 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (holding that a defendant failed to exercise diligence because he did not attempt to subpoena his expert witness until the first day of trial). Moreover, according to Valenzuela's counsel, Dr. Contin informed counsel on the morning of jury selection that he had not reviewed Armida's medical records. If counsel intended to call Dr. Contin as a witness, he should have determined before the trial began whether Dr. Contin's findings were favorable to the defense. Furthermore, a trial judge does not err in denying a continuance if the defendant does not demonstrate that a substitute witness can be secured or that the continuance will not result in an indefinite delay. Rische, 746 S.W.2d at 290. Valenzuela did not demonstrate that he would be able to find a substitute for Dr. Contin. His counsel's statements to the court suggested that finding a substitute would be difficult. Although the trial judge indicated she might delay the trial for a day, counsel sought a three-month continuance to secure a new expert. He also stated that he could not find a substitute in town. Because Valenzuela failed to demonstrate that a substitute witness could be secured or that the continuance would not result in an indefinite delay, the trial judge did not err in denying the continuance. Valenzuela relies on three cases to establish that the denial of the continuance amounted to a denial of due process. In two of the cases, the trial judge refused to appoint an expert to assist the defense. See Ake v. Oklahoma, 470 U.S. 68, 72, 105 S.Ct. 1087, 1090-91, 84 L.Ed.2d 53 (1985); Rey v. State, 897 S.W.2d 333, 335 (Tex.Crim.App. 1995). Here, the trial judge did appoint an expert. Thus, Ake and Rey are inapposite. In the third case, the court held that the trial judge erred by refusing to grant a continuance when the appointed expert became unavailable. See Lighteard v. State, 982 S.W.2d 532, 535 (Tex.App.-San Antonio 1998, pet. ref'd). In Lighteard, the court held that the defense exercised reasonable diligence in attempting to use the appointed expert. Id. at 534-35. Here, we have concluded that the defense did not exercise reasonable diligence. Thus, Lighteard is distinguishable. Conclusion
For the reasons stated herein, Valenzuela's sole issue is overruled, and the judgment of the trial court is affirmed.