                            NUMBER 13-18-00339-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

TRISTAN KADE TORRES,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 18th District Court
                         of Johnson County, Texas.


                       MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      A jury convicted appellant Tristan Kade Torres of murder, a first-degree felony, and

aggravated assault with a deadly weapon, a second-degree felony. See TEX. PENAL CODE

ANN. §§ 19.02(c), 22.02(a)(2). The trial court sentenced Torres to thirty-five years of

incarceration in the Texas Department of Criminal Justice-Institutional Division for the
murder count and twenty years for the aggravated assault offense count, to run

concurrently.

        By four issues, Torres challenges: (1) the trial court’s failure to include a culpable

mental state in the indictment and jury charge, and whether deadly conduct can be used

as an underlying felony for felony murder; (2) the trial court’s allowance of continued

questioning after a witness invoked his Fifth Amendment right against self-incrimination;

(3) the prosecution’s alleged improper jury argument; and (4) the trial court’s failure to

grant a continuance for sentencing. We affirm.

                                        I.      BACKGROUND 1

A.      The Night of the Offense

        On April 22, 2017, two rival groups of teenagers met behind a movie theater in

Johnson County, Texas, to watch a member of each group fight. The first group consisted

of appellant Torres’s friends, including Christopher Castillo, Keon Mann, and Alexis Nevill

(Torres was not at the fight). The second group included Dylan Brown, Colton Fugitt, Cody

Hoffman, and twin brothers Cameron and Camden Lewis. Castillo represented the former

group and Brown represented the latter. After the fight, both sets of teenagers went their

separate ways.

        Later that evening, Torres met up with his friends at a local Walmart gas station.

Torres became upset upon seeing his friend Castillo’s battered face and injuries. He then

called Fugitt and demanded to fight him. Fugitt agreed. The groups arranged to meet



        1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

                                                    2
again at Mound Elementary, a local primary school. Before he left, Torres allegedly told

his friends, “I’m going to pull up and just start shooting and leave.”

       Fugitt and his friends arrived at the school first. Fugitt got out of his truck and was

joined by Brown and Camden Lewis. Cameron Lewis remained inside in the driver’s seat

and Hoffman sat in the passenger seat. Approximately fifteen minutes later, Torres

arrived in his own vehicle, and his friends Castillo, Mann, and Nevill followed in another

truck right behind him. Torres and his friends were approximately one hundred yards

away from the rival group. At this point, Torres grabbed a .40 caliber pistol he had inside

of his vehicle. He rolled down his passenger window and, reaching across the passenger

seat, shot the gun in the direction of Fugitt’s truck. One bullet struck Camden Lewis in the

foot and another bullet fatally struck Cameron Lewis on the left side of his head.

B.     The Indictment

       On May 4, 2017, the State indicted Torres on two counts: Count One was for

murder and Count Two was for aggravated assault with a deadly weapon. Count One

had three different paragraphs setting forth three different methods of committing murder.

Relevant to this case, Paragraph Three listed deadly conduct as the predicate felony for

the felony murder theory:

       Paragraph Three: And the Grand Jurors aforesaid upon their oaths do
       further present in and to said court that Tristan Kade Torres[,] on or about
       April 22, 2017[,] and before the presentment of this indictment in Johnson
       County, Texas, did then and there intentionally and knowingly commit or
       attempt to commit an act clearly dangerous to human life, to wit: shooting
       Cameron Lewis with a firearm, that caused the death of Cameron Lewis,
       and the Defendant was then and there in the course of intentionally and
       knowingly committing a felony, to wit: deadly conduct, and the death of the
       [sic] Cameron Lewis was caused while Defendant was in the course and in
       the furtherance of the commission or attempt of the felony.

                                              3
See id. § 19.02(b)(3).

      Nearly a year later, on April 16, 2018, the State filed a motion to amend the

indictment to change the language of “shooting Cameron Lewis with a firearm” to

“shooting in the direction of Cameron Lewis with a firearm.” Two days later, on April 18,

2018, the State filed yet another motion to amend, requesting that the culpable mental

states of “intentionally or knowingly” be deleted both times they appeared in Paragraph

Three of Count One.

      Torres objected to these motions and also filed a motion to quash the indictment.

He argued that the predicate felony (deadly conduct) is not necessarily the same as the

“act dangerous to human life” which caused Cameron Lewis’s death. At a hearing on the

motions, Torres urged this argument and also contended that the State should be

required to prove that Torres committed deadly conduct “intentionally” or “knowingly.” Not

requiring this, he argued, allowed the State to do an end-run around a manslaughter

charge, which only requires a “reckless” culpable mental state. See id. § 19.04(a). The

trial court granted the State’s motions to amend the indictment and denied Torres’s

motion to quash.

C.    Trial

      Trial began on May 1, 2018. Several witnesses testified, including Torres’s friends

Mann and Castillo. Mann testified that he heard Torres say, “I’m going to pull up and just

start shooting and leave. . . That’s exactly what he said. . . . As soon as I heard Tristan

say that he was about to shoot someone I was like, [m]an, just drop me off.”



                                            4
      Castillo was also called to the witness stand. Castillo was Torres’s friend who

initially fought against Brown behind the movie theater. After he was called to the stand,

Castillo unexpectedly invoked his Fifth Amendment right not to incriminate himself. The

judge immediately took a recess and dismissed the jurors from the courtroom. The court

asked the State if Castillo had any pending charges arising from this incident. The State

confirmed that that there were no pending charges. The court, out of an abundance of

caution, appointed counsel to Castillo. Trial proceeded with the following questioning:

      STATE:        Mr. Castillo, on April 22nd, 2017, did you and Dylan Brown get
                    into a fight?

      CASTILLO: I wish to use my 5th Amendment right.

      STATE:        Mr. Castillo, after that fight with Dylan Brown, did you and
                    Dylan shake hands or fist bump and basically call the fight
                    over?

      CASTILLO: I wish to use my 5th Amendment right.

      STATE:        And after that fight was over, did you in fact go to the Walmart
                    gas station to meet up with Tristan?

      CASTILLO: I wish to use my 5th Amendment right.

      STATE:        And after you met up with Tristan, did Tristan see your face
                    and that you were a little bit bloody from that fight?

      CASTILLO: I wish to use my 5th Amendment right.

      STATE:        And after Tristan saw your face, did he get mad?

      CASTILLO: I wish to use my 5th Amendment right.

      STATE:        And after Tristan got mad, did he say anything to you?

      CASTILLO: I wish to use my 5th Amendment right.

      STATE:        So did Tristan tell you that he was going to go shoot them?

                                            5
      CASTILLO: I wish to use my 5th Amendment right.

      STATE:        And after Tristan told you he was going to go shoot them—

      TORRES:       Your Honor, at this time I would object and ask to take the
                    witness briefly on Voir Dire.

      COURT:        Okay.

      TORRES:       Mr. Garcia [sic], is there any question—Castillo. Mr. Castillo,
                    excuse me. Is there any question that the prosecutor is going
                    to answer—ask you that you’re not going to answer with the
                    5th Amendment right of indication [sic]?

      CASTILLO: No, I’m going to use the 5th Amendment.

      TORRES:       Judge, at this point I would object to any further testimony
                    under 403 of Texas Rules—and 402 of the Texas Rules of
                    Evidence.

      COURT:        Response?

      STATE:        Judge, he’s not entitled to a blanket 5th Amendment right.
                    He’s a witness in this case. He's not the Defendant. He’s not
                    entitled to the blanket 5th Amendment right. If he doesn’t want
                    to answer the question, he has to respond after each question.

      The trial court overruled the objection. The prosecution asked Castillo four more

questions, all of which he responded to by asserting his Fifth Amendment right. Torres’s

counsel then asked a few questions to confirm that they had never met before. The court

then dismissed Castillo as a witness.

      After a two-day trial, a jury convicted Torres of murder and aggravated assault with

a deadly weapon. Torres elected for the court to sentence him.

D.    Punishment

      When the parties arrived on May 3, 2018 to begin the punishment phase, Torres’s


                                           6
counsel urged a sudden oral motion for continuance. He argued that the motion was

“based on evidence that was delivered to me in a timely manner by the prosecution

because they only received it last night.” The evidence was apparently a statement Torres

disclosed during a recorded phone call the night before, but the content of the statement

was not explained on the record. Torres’s counsel further contended,

      I’m not ready and am unable to effectively represent my client in the
      sentencing phase of these proceedings. We would ask that Dr. Price and
      associates be appointed to evaluate my client and we will return to court—
      hopefully return to court after such evaluation has been completed. This
      motion is being made in the interest of justice and I believe the Court would
      believe not for delay.

The judge, in considering the motion, stated:

      Just for the record, I have talked with all three attorneys back in my office
      about this issue. It’s too important of an issue to hurry through, to rush
      through. I want to consider everything and I want both sides to have an
      equal opportunity, fair opportunity to present their cases. I don’t like delays
      but sometimes they’re necessary.

      The judge granted the continuance and rescheduled the sentencing for May 15,

2018. On May 15, however, Torres’s counsel moved for another continuance. He claimed

that his expert performed a competency exam instead of the risk assessment he wanted

and he asked the court to delay punishment again. The prosecution countered that a

continuance had already been granted and that it was defendant’s lack of diligence in

following up with his expert that caused this problem. The court denied the second motion

for continuance and proceeded with the punishment phase.

      During closing argument, the State made the following argument:

      And the reason we played those recordings for you, Judge, is so you can
      understand the mind-set of Tristan. He’s been in jail for over a year now and
      he still does not accept responsibility for what he did. He still does not accept

                                             7
      responsibility for shooting and killing Cameron Lewis. Not once have you
      heard him say I’m sorry that Cameron’s dead. I’m sorry that I shot Cameron,
      I’m sorry that I shot Camden, because he’s not. He’s sorry that he got in
      trouble, he’s sorry he’s in jail and he’s sorry that he’s going to go to prison
      but he’s not sorry at all for killing Cameron, for shooting Camden, and for
      taking this young man away from his family.

      ....

      Judge, up to this point after spending over a year in jail not once has he
      shown any remorse. Not once has he ever shown any type of sympathy,
      any type of remorse, any type of emotion on the fact that he killed Cameron
      Lewis. And because of that, Judge, there’s—he deserves a significant
      sentence and, honestly, there’s no sentence that can be too high in this
      case.

      The trial court sentenced Torres to thirty-five years of incarceration for the murder

count and twenty years for the aggravated assault offense count, and it ordered the

sentences to run concurrently. Torres appealed.

                          II.    THE FELONY MURDER CHARGE

      By his first issue, Torres argues that the factfinder in a felony murder prosecution

where deadly conduct is the predicate felony should be required to determine whether

the defendant “intentionally” or “knowingly” committed the act that caused the death of

the individual. Here, the court granted the State’s motion to amend the indictment to

delete the culpable mental states, and it also failed to include the culpable mental states

in the jury charge. Torres argues that the failure to include a culpable mental state gave

“the State free reign to use deadly conduct to get around the manslaughter exception out

of the felony murder rule for all cases in which a firearm was knowingly discharged.”

A.    Applicable Law and Standard of Review

      Under the felony murder doctrine, a person may be convicted of murder if he


                                            8
commits or attempts to commit a felony other than manslaughter, and in the course of

and in furtherance of the commission or attempt, he commits or attempts to commit an

act clearly dangerous to human life that causes the death of an individual. See TEX. PENAL

CODE ANN. § 19.02(b)(3).

       In this case, the State charged Torres with deadly conduct as the predicate felony

for felony murder. Texas Penal Code § 22.05(b) sets out the felony offense of deadly

conduct as follows:

       A person commits an offense if he knowingly discharges a firearm at or in
       the direction of:

              (1)     one or more individuals; or

              (2)     a habitation, building, or vehicle and is reckless as to whether
                      the habitation, building, or vehicle is occupied.

Id. § 22.05(b).

       Torres claims it was error to fail to include a culpable mental state in the indictment

or the jury charge. We review a trial court’s decision to deny a motion to quash an

indictment under a de novo standard. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.

Crim. App. 2007). And when determining whether there was jury charge error, an

appellate court must first determine whether error actually existed in the charge. Ngo v.

State, 175 S.W. 3d 738, 743 (Tex. Crim. App. 2005). If error is found, then we must

determine whether it caused sufficient harm to require reversal. Id. at 744. The degree of

harm required for reversal depends on whether the error was preserved. Arline v. State,

721 S.W. 2d 348, 351 (Tex. Crim. App. 1986). If no proper objection was made at trial,

then the error requires reversal only if is so egregious and created such harm that the


                                              9
appellant has not had a fair and impartial trial. Almanza v. State, 686 S.W. 2d 157, 171

(Tex. Crim. App. 1984). When there is a timely objection to an improper jury charge, we

need only inquire if there was some harm. Id.

B.     Analysis

       Torres contends that he was guilty of manslaughter, not felony murder. 2 A person

commits manslaughter if he recklessly causes the death of an individual. See TEX. PENAL

CODE ANN. § 19.04(1). And a person acts recklessly when he or she is aware of but

consciously disregards a substantial and unjustifiable risk that the result will occur. Id.

§ 6.03(c). Here, Torres suggests that his deadly conduct—shooting out of his passenger

window—was “reckless.” See id. § 19.02(a). Consequently, given his “reckless” mental

state, he asserts his crime should have been charged as manslaughter, which is

specifically excluded as a predicate felony under § 19.02(b)(3). See id. § 19.02(b)(3).

       We note, however, that a person commits felony deadly conduct only if he acts

“knowingly.” See id. § 22.05(b)(1). This is how the State charged Torres. See id. The

“knowingly” mental state is a higher culpable mental state than the recklessness one

required for manslaughter. See id. §§ 6.02(d), 19.04(a), 22.05(b)(1). Accordingly, it was

proper for deadly conduct to be used as the underlying felony for felony murder under

penal code § 19.02(b)(3) in this case. See Miles v. State, 259 S.W.3d 240 (Tex. App.—

Texarkana 2008, pet. ref’d) (holding that deadly conduct was a proper underlying felony

under the felony murder rule); Yandell v. State, 46 S.W.3d 357 (Tex. App.—Austin 2001,

pet. ref’d) (same); see also Freeland v. State, No. 05-02-01746-CR, 2003 WL 22456353,


       2   The jury charge included manslaughter as a lesser included offense.

                                                   10
at *2 (Tex. App.—Dallas Oct. 30, 2003, no pet.)(mem. op., not designated for publication)

(same).

       Furthermore, felony murder, as set out in § 19.02(b)(3), does not require a specific

culpable mental state for the “act clearly dangerous to human life” which causes death.

The Texas Court of Criminal Appeals has interpreted § 19.02(b)(3) to indicate a clear

legislative intent to dispense with a culpable mental state. See Lomax v. State, 233 S.W.

3d 302, 304 (Tex. Crim. App. 2007) (citing Aguirre v. State, 22 S.W.3d 463, 470 (Tex.

Crim. App. 1999)). This construction is consistent with the historical purpose of the felony

murder rule, which is to convict a person of an “unintentional” murder when he or she

causes another person’s death during the commission of a felony. See id. at 305 (citing

Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004)).

       In light of this, we conclude that the trial court did not err when it denied Torres’s

motion to quash the indictment for failing to include a culpable mental state. See

Lawrence, 240 S.W.3d at 915. In addition, there was no jury charge error as a culpable

mental state for the “act clearly dangerous to human life” is not necessary for the offense

of felony murder. See Ngo, 175 S.W.3d at 743. Because we find no error, no harm

analysis is required. Id. at 744. We overrule Torres’s first issue.

                        III.   RIGHT AGAINST SELF-INCRIMINATION

       Torres’s third issue claims that it was “harmful error for the trial court to allow the

State to ask fact-laden questions to a witness who validly asserted his Fifth Amendment

right against self-incrimination in order to establish a material fact that was not proven by

any other evidence in the record.”


                                             11
A.     Applicable Law

       Both the United States Constitution and the Texas Constitution guarantee an

accused the right not to be compelled to testify or give evidence against himself. See U.S.

CONST. amend. V (“No person . . . . shall be compelled in any criminal case to be a

witness against himself . . . .”); TEX. CONST. art. I, § 10; In re Medina, 475 S.W.3d 291,

299 (Tex. Crim. App. 2015).

       The scope of the Fifth Amendment is comprehensive, protecting the
       individual not only against being involuntarily called as a witness against
       himself in a criminal prosecution, but also permitting him “not to answer
       official questions put to him in any other proceeding, civil or criminal, formal
       or informal, where the answers might incriminate him in future criminal
       proceedings.”

In re Medina, 475 S.W.3d at 299 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).

       “Trial courts are not to simply take the word of potential witnesses who claim to

fear prosecution.” Walters v. State, 359 S.W.3d 212, 215 (Tex. Crim. App. 2011). A

danger of “imaginary and unsubstantial character” will not support the assertion of a Fifth

Amendment right against self-incrimination. Id. (citing Ohio v. Reiner, 532 U.S. 17, 21

(2001)). “The privilege’s protection extends only to witnesses who have ‘reasonable

cause to apprehend danger from a direct answer.’” Id. (citing Hoffman v. United States,

341 U.S. 479, 486 (1951)). Furthermore, “[b]lanket assertions of the federal or state

privilege against self-incrimination are impermissible.” In re Verbois, 10 S.W.3d 825, 828

(Tex. App.—Waco 2000, no pet.). “Rather, the privilege must be asserted on a question-

by-question basis.” Id.; see Stephens v. State, 59 S.W.3d 377, 380–81 (Tex. App.—

Houston [1st Dist.] 2001, pet. ref'd) (concluding that because “each additional question

may raise new potential for self-incrimination, . . . once the witness invokes the privilege,

                                             12
the court must determine ‘whether the question present[s] a reasonable danger of further

crimination in light of all the circumstances, including any previous disclosures’” (citing

Rogers v. United States, 340 U.S. 367, 374 (1951))).

B.     Analysis

       Torres’s main argument regarding this issue contends that it was error to allow the

State to continue questioning Castillo because its questions “craft[ed] a narrative that no

witness could actually testify to.” Specifically, Torres argued that, though the State asked

questions such as, “So did Tristan tell you that he was going to go shoot them?”, no

witness testified regarding Torres’s alleged intent to shoot a person. Torres’s brief

asserted:

       None of [Torres’s] friends actually testified at trial that [Torres] stated he
       was going to Mound Elementary School because he planned to shoot
       someone. The jury only learned of this statement through the State’s line of
       questioning that conveyed the knowledge allegedly possessed by Castillo,
       without Castillo ever giving a substantive response for the jury to properly
       consider.

       We disagree. In his testimony, Keon Mann explicitly testified that Torres told him,

“I’m going to pull up and just start shooting and leave.” Mann further clarified, “That’s

exactly what he said. . . . As soon as I heard Tristan say that he was about to shoot

someone I was like, [m]an, just drop me off.” Torres argues that there is a difference

between Torres saying, “I’m going to pull up and start shooting and leave” and “I’m going

to go shoot somebody.” This difference is negligible and it did not “craft[] a narrative that

no witness could actually testify to.”

       Because blanket assertions of the Fifth Amendment right against self-incrimination

are not allowed, Castillo had to assert this right on a question-by-question basis. In re

                                             13
Verbois, 10 S.W.3d at 828. We hold that it was not error for the trial court to allow the

State to continue to question Castillo, even when it knew he would continue to assert his

Fifth Amendment right. We overrule this issue.

                            IV.     IMPROPER JURY ARGUMENT

       By his fourth issue, Torres argued the prosecution made an improper jury

argument by allegedly commenting on Torres’s failure to testify. See U.S. CONST. amend.

V; TEX. CONST., art. 1 § 10 (“In all criminal prosecutions the accused . . . shall not be

compelled to give evidence against himself . . . .”); TEX. CODE CRIM. PROC. ANN. art. 38.08.

Torres focuses on counsel’s statements during punishment closing argument such as,

“Not once have you heard him say I’m sorry that Cameron’s dead. I’m sorry that I shot

Cameron, I’m sorry that I shot Camden, because he’s not . . . . Not once has he ever

shown any type of sympathy, any type of remorse, any type of emotion on the fact that

he killed Cameron Lewis.” (Emphasis added).

       Torres, however, did not object to these statements during the prosecution’s

argument. The Texas Court of Criminal Appeals has held that a “defendant's ‘right’ not to

be subjected to incurable erroneous jury arguments is one of those rights that is forfeited

by a failure to insist upon it.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

To preserve this type of error for appellate review, one must: (1) object; (2) request an

instruction to disregard; and (3) move for a mistrial. See McFarland v. State, 989 S.W.2d

749, 751 (Tex. Crim. App. 1999)(en banc). This procedure applies to complaints

regarding alleged improper argument, and Torres failed to follow it. See id.; Cockrell, 933

S.W.2d at 89. We conclude this issue has not been preserved for our review and is thus


                                             14
waived. See TEX. R. APP. P. 33.1.

                              V.     MOTION FOR CONTINUANCE

       By his final issue, Torres claims the trial court abused its discretion when it denied

his second motion for continuance of the punishment and sentencing phase.

A.     Applicable Law

       “The granting or denying of a motion for continuance is within the sound discretion

of the trial court.” Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006) (citing

Heiselbetz v. State, 906 S.W.2d 500, 511–12 (Tex. Crim. App. 1995)). “A defendant must

show ‘specific prejudice to his defense’ to establish that the trial court abused its discretion

in refusing to grant a continuance.” Id. (quoting Hernandez v. State, 643 S.W.2d 397,

399–400 (Tex. Crim. App. 1982). A trial court abuses its discretion when it acts without

reference to any guiding rules or principles or when its decision is so clearly wrong that it

lies outside the zone of reasonable disagreement. Gallo v. State, 239 S.W.3d 757, 777

(Tex. Crim. App. 2007).

B.     Analysis

       At the outset, we note that the court granted Torres’s first motion for continuance.

When the sentencing phase was about to begin on May 3, 2018, Torres’s counsel

revealed that he had just received notice regarding a statement his client made. In light

of this knowledge, Torres’s counsel requested a continuance to allow a mental health

professional to “evaluate” his client. The type of evaluation counsel sought was not

mentioned on the record, nor does the clerk’s record show that Torres followed up his

request with a formal written motion requesting a certain type of evaluation. The trial court


                                              15
agreed to the continuance, commenting that Torres’s apparent recorded statement

created too “important of an issue to hurry through, to rush through.” The trial court

granted a twelve-day continuance and ordered the parties to return on May 15, 2018.

      On the day punishment and sentencing was set to begin, however, Torres’s

counsel moved for yet another continuance. He explained that his expert performed a

competency evaluation instead of the risk assessment evaluation he wanted:

      I had not heard anything from Dr. Price’s office so I followed up a couple of
      days later to have a discussion with them only to find out that Dr. Reed had
      already visited my client, which I thought was odd. Being, as I said, we
      hadn't had a conversation at all about what it was she was to be doing. So,
      I found out that she had already visited with my client. We played phone
      tag. I got ahold of her after she submitted the report wherein she determined
      that my client was competent. I never said the words “competency.” It was
      never discussed. It’s not in an order, not anything I asked for, not anything
      that was intended but that’s what she did. And that's what we have paid her
      for up to this point. When we—we got together on the phone, I discussed
      what my intentions were. She reported back to me that she could see him
      to do a risk assessment by the end of the week and possibly be ready to
      testify the following week in regards to what her findings were.

      So at this point we would ask for a continuance just long enough to allow
      Dr. Reed to complete the task that was initially the intent was to request.

      The prosecution countered that a continuance had already been granted and that

defendant’s failure to properly communicate with his expert caused this scenario. The

State argued, “Dr. Reed is the defense’s expert and . . . it’s their responsibility to

communicate with Dr. Reed as to what type of evaluation they want to have performed.”

The court denied Torres’s second motion for continuance and proceeded with the

punishment phase.

      While the record shows Torres made a statement on a recorded phone call that

prompted his attorney to request an evaluation and the trial court to grant an initial

                                           16
continuance, we do not know the substance of that statement. We also do not know, and

Torres fails to explain, how a risk assessment would have affected punishment or

sentencing. Accordingly, we conclude that Torres did not show “specific prejudice” as to

how the denial of the continuance would have affected this case. See Hernandez, 643

S.W.2d at 399–400 (denying a continuance where “no specific, serious matter has been

raised by the appellant and the record does not otherwise show that the appellant’s

defense was prejudiced by counsel not having more time to prepare . . .”); Renteria, 206

S.W.3d at 699. Considering this record, we cannot conclude the trial court abused its

discretion when it denied Torres’s second request for continuance. Gallo, 239 S.W.3d at

777. We overrule this issue.

                                     V. CONCLUSION

       We affirm the trial court’s judgment.


                                                            LETICIA HINOJOSA
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
2nd day of April, 2020.




                                               17
