             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00430-CR
     ___________________________

   JASON DEAN TRUSSELL, Appellant

                     V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 2
           Tarrant County, Texas
        Trial Court No. 1560173R


   Before Gabriel, Birdwell, and Bassel, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Jason Dean Trussell appeals from his conviction for continuous sexual abuse

of a child, arguing in a single point that the trial court abused its discretion by denying

his motion for continuance. See Tex. Penal Code Ann. § 21.02(b). We affirm.

                                 I. BACKGROUND1

      In early 2005, Natalie began a relationship with Trussell. At that time, Natalie

had two children from a previous marriage: Cody and Annie. Shortly after their

relationship started, Natalie and Trussell began living together.             Annie was

approximately two years old when this occurred. Shortly after Natalie and Trussell

moved in together, Natalie became pregnant with Isabel.                In approximately

October 2006, Natalie and Trussell, together with Cody, Annie, and Isabel, moved to

a house in Fort Worth,2 where they lived for about three years before moving to

another house in late 2009. Shortly after that move, Natalie’s relationship with

Trussell ended, and Trussell moved out.

      While Natalie, Trussell, and the children were living at the Fort Worth house,

Trussell sexually abused Annie on multiple occasions. Annie testified that on one

occasion, Trussell had completely undressed her, held her down on the living room


      1
       Because this case involves a minor child, we will refer to the complainant and
her family using aliases in order to protect the child’s privacy. See McClendon v. State,
643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
      2
       We refer to this particular house as the “Fort Worth house.”


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sofa, and photographed her. Annie said that after Trussell did this, he rubbed his

sexual organ on her buttocks. Annie further testified that Trussell had touched her

sexual organ with his fingers on multiple occasions; rubbed his sexual organ on her

sexual organ on one occasion; touched her sexual organ with his mouth on one

occasion; and made her touch his sexual organ with her hand on one occasion. Annie

made an outcry to Natalie in 2012, several years after Trussell moved out. She

testified that she did not tell anyone about the abuse because Trussell had told her

that if she did, he would kill her family.

       After learning of Trussell’s abuse against Annie, Natalie notified the police, and

Dennis Hutchins, a detective with the Fort Worth police department, was assigned to

investigate. In the course of the investigation, Natalie gave Detective Hutchins the

camera Trussell had used to photograph Annie. Although photographs taken with

that camera were stored on a removable memory card, Natalie did not provide

Detective Hutchins with any memory cards because the cards had been reformatted

and were consequently unusable. That notwithstanding, Detective Hutchins informed

Natalie that it was possible for the police department’s forensic team to recover

images from the camera even if they had been deleted and even though there were no

memory cards. But after Natalie handed over the camera to Detective Hutchins and

an initial forensic interview and physical examination of Annie was performed, Natalie

did not hear anything from Detective Hutchins or the Fort Worth police department



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for several years. At that time, another Fort Worth police detective, Pawel Nabialek,

who is now a Sergeant, contacted her about the case.

      Sergeant Nabialek became involved in this case after the Fort Worth police

department discovered that Detective Hutchins had mishandled a case and formed a

task force to audit all of Detective Hutchins’s cases. Sergeant Nabialek joined that

task force and was assigned to this case. Sergeant Nabialek testified that when he

received the assignment, the case was marked “pended” within the department’s

system, meaning it was awaiting further leads and was not closed. Sergeant Nabialek

said that a case status of “closed” meant that all investigative leads had been

exhausted and that there was nothing to do on the case.            Sergeant Nabialek

acknowledged that a report from Child Protective Services (CPS) in connection with

its investigation of the allegations underlying the case indicated that Detective

Hutchins had previously told a CPS investigator that he was going to close the case.

Sergeant Nabialek also stated that Natalie had provided a statement indicating her

belief that Detective Hutchins had closed the case for lack of sufficient evidence. But

Sergeant Nabialek reiterated that notwithstanding the CPS report and the statement

from Natalie, when he was assigned the case, its status was pended, not closed.

      Sergeant Nabialek reinvestigated the case and determined there was probable

cause to arrest Trussell for continuous abuse of a child. Consequently, Sergeant

Nabialek obtained an arrest warrant, and Trussell was arrested. A jury ultimately



                                          4
convicted him of continuous sexual abuse of a child and assessed his punishment at

thirty years’ confinement.

       Four days before trial started, Trussell filed a motion for continuance based on

the absence of a witness, namely, Detective Hutchins. The record does not show that

Trussell requested, or that the trial court held, an oral hearing on this motion. But the

record contains a written order denying the motion, which the trial court signed the

same day trial started. Trussell did not file a motion for new trial.

       In his sole point on appeal, Trussell complains that the trial court abused its

discretion by denying his motion for continuance.

                             II. STANDARD OF REVIEW

       We review a trial court’s denial of a defendant’s motion for continuance for an

abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002);

Cantu v. State, No. 02-05-00436-CR, 2006 WL 1919684, at *1 (Tex. App.—Fort Worth

July 13, 2006, no pet.) (mem. op., not designated for publication).          Under that

standard, we will not find the trial court’s ruling to be an abuse of discretion unless it

fell outside the zone of reasonable disagreement. See Gallo v. State, 239 S.W.3d 757,

777 (Tex. Crim. App. 2007).

                                  III. DISCUSSION

       When a defendant bases a motion for continuance on an absent witness, he

must show (1) that he has exercised diligence to procure the witness’s attendance,

(2) that the witness is not absent by the procurement or consent of the defense,

                                            5
(3) that the motion is not made for delay, and (4) the facts he expects the witness to

prove. Tex. Code Crim. Proc. Ann. art. 29.06; Harrison v. State, 187 S.W.3d 429, 435

(Tex. Crim. App. 2005). The motion must show on its face the absent testimony’s

materiality to the court; mere conclusions and general averments do not suffice.

Harrison, 187 S.W.3d at 435

      With regard to the facts Trussell expected Detective Hutchins’s testimony to

establish and the materiality of that testimony, Trussell’s motion contained only a

couple of assertions. First, he asserted that he “expect[ed] [Detective] Hutchins to

testify to and establish” that “he was the initial investigator in the case and that he

dropped the case based on insufficient evidence in 2012.” Second, he alleged that

“[t]he testimony to be procured from [Detective] Hutchins is material to the

Defendant’s cause.”    These are merely conclusory, general averments:        the first

provides no factual basis for Trussell’s expectation that Detective Hutchins would

testify to the facts asserted in the motion, and the second is nothing more than a bare

conclusion that the expected testimony was material to Trussell’s case. Consequently,

Trussell failed to show on the face of his motion that Detective Hutchins would

provide testimony that was material to the case. See Harrison, 187 S.W.3d at 434–35

(stating that a motion for continuance based on the absence of a witness must show

on its face the absent testimony’s materiality to the court and that mere conclusions

and general averments are insufficient). We conclude the trial court did not abuse its

discretion by denying Trussell’s motion for continuance when the motion failed to

                                          6
show, beyond conclusory, general averments, the materiality of the testimony he

expected Detective Hutchins to provide. See id. Accordingly, we overrule Trussell’s

sole point.

                               IV. CONCLUSION

      Having overruled Trussell’s sole point, we affirm the trial court’s judgment. See

Tex. R. App. P. 43.2(a).

                                                     /s/ Lee Gabriel

                                                     Lee Gabriel
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019




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