                                  NO. 07-07-0022-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  APRIL 10, 2008
                         ______________________________

                                   JOHN A. REDER,

                                                              Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2006-414,285; HON. CECIL PURYEAR, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      John A. Reder (appellant) appeals his conviction for indecency with a child. Via

three issues, he contends the trial court erred by failing to 1) admit evidence from a CPS

report and 2) grant his motions for continuance. We affirm.

      Issue One

      The evidence that appellant thought the court wrongfully excluded consisted of

information contained in a report to the Child Protective Services. The information
concerned an allegation that the victim (who was four years old at the time) was “purging”

at home and in school and was caught by her uncle in bed with her four-year-old cousin’s

head between her legs. During the latter episode, the child purportedly said “‘do it like

daddy does it.’” Who made the report to CPS went unmentioned and so did the identity

of the uncle. So, it is unknown if the information was communicated by the uncle, by the

child, by the child’s mother, or by the next door neighbor after hearing it as gossip in a local

beauty shop. Moreover, CPS made no disposition of the allegation; in other words, it made

no determination of whether the allegations in the report were true or not. Given these

circumstances, and assuming that the report had relevance, see Johnson v. State, 933

S.W.2d 195, 198-99 (Tex. App.–Waco 1996, pet. ref’d) (stating that the decision about

whether evidence of prior sexual conduct is admissible is one of relevance), it at the very

least would be within the realm of reasonable disagreement to conclude that any potential

value of the report was far outweighed by the potential prejudice or confusion of issues

accompanying it. This is especially so when nothing in the document purports to suggest

that someone other than appellant committed the acts underlying the indictment at bar.1

Consequently, we cannot say that the trial court abused its discretion in excluding the

information. Metts v. State, 22 S.W.3d 544, 550 (Tex. App.–Fort Worth 2000, no pet.)

(holding that in matters of evidence, the trial court’s decision can be upheld by any

legitimate ground). Therefore, we overrule the issue.




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          Through the indictm ent, the State alleged that appellant (who was the live-in boyfriend of the victim ’s
m other) im properly touched the victim when she was five. The allegations in the CPS report encom passed
an utterly independent occurrence between two children.

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       Issues Two and Three

       In the next and final two issues, appellant contends that the trial court erred in

denying his motions to continue the trial. Continuance was necessary, in his view, so that

he could flesh out the allegations in the aforementioned CPS report, which allegations he

believed were exculpatory. We overrule the issues.

       Whether the trial court erred in denying the continuances depends upon whether

it abused its discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007).

Furthermore, when a continuance is sought after trial begins, the movant must establish

that the delay is needed because of “some unexpected occurrence since the trial began,

which no reasonable diligence could have anticipated” and which caused him surprise.

TEX . CODE CRIM . PROC . ANN . art. 29.13 (Vernon 2006).

       Two motions for continuance are at issue. One was filed before trial began, the

other after trial began. Regarding the latter, appellant had received the CPS report in

question during the week prior to trial. Having received the report before trial, the discovery

of its contents falls outside the scope of “some unexpected occurrence since trial began.”

(Emphasis supplied).

       As for the initial motion to continue filed before the jury was selected, appellant

effectively sought time to find someone he considered to be a material witness. The

witness sought was the “uncle” mentioned in the CPS report to which we previously

alluded. Given this reason for seeking a continuance, appellant had the burden to illustrate

how the uncle’s testimony was material before he could obtain a continuance. Hubbard

v. State, 912 S.W.2d 842, 844 (Tex. App.–Houston [14th Dist.] 1995, no pet.). And, he



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attempted to satisfy this requirement by arguing that the uncle’s testimony could be used

to show that appellant never assaulted the child and that someone else did.

       We do not question that evidence indicating someone other than the accused

committed the crime indeed may be material. Yet, appellant’s argument is founded on a

defective factual basis. That is, nothing in the CPS report exculpates him. Nothing in it

suggests that he did not molest the child as alleged in the indictment, even if the

circumstances mentioned in the report were deemed true. Rather, the circumstances

described (when intertwined with imagination) suggest that the child could have been the

victim of other molestation at the hands of unknown parties, or so a reasonable jurist could

have interpreted the circumstances. But, nothing in the report suggests that appellant

never committed the acts for which he was charged. Consequently, we cannot say that

a trial court was obligated to postpone trial so that appellant could find the “uncle” and have

him testify about what he saw. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

2006) (holding that when the standard of review is one of abused discretion, then the trial

court’s decision must be affirmed if supported by any valid ground).

       Accordingly, we affirm the judgment rendered below.



                                                  Brian Quinn
                                                  Chief Justice
Do not publish.




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