Id. art. 29.06(2) (Vernon 1989). To obtain relief from the denial of a motion for continuance, an affidavit of the absent witness or an application for subpoena of the witness is necessary to show an abuse of discretion. Robinson v. State, 454 S.W.2d 747, 748 (Tex.Crim.App. 1970). Appellant failed to exercise the due diligence necessary to support a motion for continuance because he did not subpoena his witnesses, but relied solely upon promises from the witnesses to be present. Appellant neither secured an affidavit of the absent witnesses nor made applications for subpoenas for them.
This Court is not authorized to reverse a conviction for failure to grant a continuance unless the record shows that the evidence sought to be secured by the delay was material to the case and that appellant was prejudiced by the inability to produce it. Robinson v. State,454 S.W.2d 747 (Tex.Cr.App.1970); Parkhill v. State, 156 Tex.Cr.R. 580, 244 S.W.2d 827 (1951); Sands v. State, 131 Tex.Cr.R. 177, 97 S.W.2d 190 (1936); 13 Tex.Jur.2d, Continuance, Sec. 140, p. 82, et seq. For that reason it is required that when complaint is made of the denial of a motion for a continuance to secure evidence, an affidavit or other evidence be presented on the motion for new trial showing the nature and materiality of the missing evidence.
A requisite is that an affidavit of a missing witness is necessary to establish abuse of judicial discretion in overruling the motion for new trial. Kelly v. State, Tex.Cr.App., 471 S.W.2d 65; Robinson v. State, Tex.Cr.App., 454 S.W.2d 747; Thames v. State, Tex.Cr.App., 453 S.W.2d 495. No error is shown. We have reviewed appellant's contentions set forth in his pro se briefs and find them to be wholly without merit.
A requisite is that an affidavit of a missing witness is necessary to establish abuse of judicial discretion in overruling the motion for new trial. Kelly v. State, Tex.Cr.App., 471 S.W.2d 65; Robinson v. State, Tex.Cr.App., 454 S.W.2d 747; Thames v. State, Tex.Cr.App., 453 S.W.2d 495. No abuse of discretion has been shown by the court in overruling appellant's motion for continuance. See Art. 29.13, Vernon's Ann.C.C.P.
A requisite is that an affidavit of a missing witness is necessary to establish abuse of judicial discretion in overruling the motion for new trial. Robinson v. State, Tex.Cr.App., 454 S.W.2d 747; Thames v. State, Tex.Cr.App., 453 S.W.2d 495. No abuse of discretion has been shown.
We conclude that there was no abuse of discretion by the trial court, and perceive no error. See Article 29.03, Vernon's Ann.C.C.P. See also Baker v. State, Tex.Cr.App., 467 S.W.2d 428 (1971); Palasota v. State, Tex.Cr.App., 460 S.W.2d 137; Robinson v. State, Tex.Cr.App., 454 S.W.2d 747; Johnson v. State, Tex.Cr.App., 453 S.W.2d 840; Thames v. State Tex.Cr.App., 453 S.W.2d 495; Pitcock v. State, Tex.Cr.App., 420 S.W.2d 719. Appellant's reliance on Henderson v. State, 137 Tex.Crim. R., 127 S.W.2d 902, and Stroebel v. State, Tex.Cr.App., 366 S.W.2d 575, is misplaced.
Another answered, "There is a resemblance"; another, "It resembles him, but it is not him, sir," then this witness was asked if he was positive about his identification of appellant and he answered, "I am certain"; still another witness answered, "No sir, it doesn't" and he also made positive identification of appellant. We conclude that the trial court did not abuse its discretion by overruling the motion for continuance. Robinson v. State, Tex.Cr.App., 454 S.W.2d 747; Thames v. State, Tex.Cr.App., 453 S.W.2d 495. Ground of error number one is overruled.
A party seeking a new trial based on the denial of a motion for continuance for an absent witness must file a sworn motion for new trial, stating the testimony that the missing witness would have provided. Harrison v. State, 187 S.W.3d 429, 435 (Tex. Crim. App. 2005) (citing McCloud v. State, 494 S.W.2d 888, 891 (Tex. Crim. App. 1973)); Robinson v. State, 454 S.W.2d 747, 748 (Tex. Crim. App. 1970). The motion for new trial must include an affidavit of the missing witness or a sworn statement from some source that the witness would actually testify to the facts set forth in the motion for new trial.
Thus, diligence was not shown. Robinson v. State, 454 S.W.2d 747 (Tex.Cr.App. 1970). Although Texas has adopted the Uniform Act to Secure Attendance of Witnesses From Without State, Code Crim.Pro. art. 24.28, no effort was made to comply with the act.
Taylor v. State, 612 S.W.2d 566 (Tex.Cr.App. 1981); Corley v. State, 582 S.W.2d 815, cert. denied, 444 U.S. 919, 100 S.Ct. 238, 62 L.Ed.2d 176 (1979). An abuse of discretion will not be shown unless the record reflects that the defendant was deprived of material evidence resulting in harm or prejudice. Leach v. State, 548 S.W.2d 383 (Tex.Cr.App. 1977); Robinson v. State, 454 S.W.2d 747 (Tex.Cr.App. 1970). There is no affirmative indication that a continuance would have allowed appellant to produce evidence meeting this standard.