
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00460-CR


Santos Suazo, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-07-500020, HONORABLE MELISSA YOUNG GOODWIN, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N	A jury convicted appellant Santos Suazo of three counts of indecency with a child,
his stepdaughter, and the trial court sentenced him to seven years' imprisonment for each count.  See
Tex. Penal Code Ann. § 21.11 (West Supp. 2010).  On appeal, he complains that the trial court erred
in denying his motion for continuance.  We affirm the trial court's judgments of conviction.

Standard of Review
	We review a trial court's ruling on a motion for continuance under an abuse of
discretion standard.  Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).  To establish
that the trial court abused its discretion in denying a motion for continuance, the defendant must
show that he was actually prejudiced by the court's denial of the motion.  Id.  We consider the
circumstances of the case and the reasons given to the trial court at the time the request is made, and
we should bear in mind the "'general interest in the prompt and efficient administration of justice.'"
Rosales v. State, 841 S.W.2d 368, 374 (Tex. Crim. App. 1992) (quoting Ungar v. Sarafite, 376 U.S.
575, 589 (1964); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)).  Some of the factors we
should consider are the length of the continuance requested; whether other continuances were
requested and whether they were granted or denied; the amount of time counsel had to prepare for
trial; whether another attorney was prepared to try the case; the convenience or inconvenience posed
to witnesses, opposing counsel, and the trial court; whether the reasons for requesting the
continuance were legitimate or contrived; the complexity of the case; and the quality of
representation the appellant received. (1) Id. (quoting Ex parte Windham, 634 S.W.2d 718, 720 (Tex.
Crim. App. 1982)).

Procedural Background
	Appellant was arrested in January 2007.  On January 29, 2007, appellant signed a
form stating that he would retain his own attorney.  In March 2007, a grand jury indicted appellant
for three counts of indecency.  Starting in January 2008, Jorge Pineda, appellant's attorney, filed
several defensive requests, and the cause was set and reset for pretrial hearings multiple times. 
	Jury selection began on Monday, April 14, 2008, and trial began on Tuesday, April
15.  On Friday, April 11, the trial court held a hearing during which Pineda made an oral request for
a two-week continuance of the next week's trial setting, saying he had spoken to appellant, who was
"adamant" that he would not accept a plea and wanted to go to trial.  Appellant told Pineda that "if
he has to spend the rest of his life in jail, he will, but he didn't do this, and he wants a trial."  Pineda
had spoken to appellant about the need for an expert and thought he had found an expert in Houston. 
He said, "I know that your docket resolved itself so we're standing right in front of you naked, but
then again, we've got one chance at this.  And give me two weeks, give me a short recess, and I'll
be ready."  Pineda also noted that the day before the hearing, the State had produced about 110 pages
of the victim's school records and that Pineda had not had a chance to review them yet.  
	The State opposed appellant's motion, saying, 

They put this on the jury docket months ago.  We picked this date.  I let them know
Sosa was first, but this was going to be number two.  Prior to that, they filed motions.
. . . They've known this has been set.  The offer was five TDC.  It has never changed. 
I brought my victims and witnesses in multiple times.  This is not a surprise to them
at all.  And there is no good cause being shown whatsoever.

The State noted that the motion was being made the Friday before the parties were to pick a jury the
following week and that "[e]veryone has announced ready."  The State's attorney also remarked that
he had reviewed the school records and did not believe they would be beneficial to appellant.  He
said he did not plan to introduce the records "unless they open the door."  The State asserted that it
had taken only twenty minutes to review the records and that the State did not intend to introduce
them into evidence.
	The court said, 

I appreciate [that appellant faced imprisonment].  I do.  But then somebody is going
to have stand--you know, if I grant this, eventually somebody is going to have to
stand up on a mountaintop with me and scream with me, this judge intends to try a
jury case.  Do not put this on a jury docket unless you intend to try it.  I mean, this
is driving me batty.  This is where they start.  And I give people priorities.  I try to
give them a heads up, you're one, you're two, you're three, you're four. . . . And then
they just drop, and then I'm left with nothing . . .  If we were resolving them, the
State had to--the State blinks and they have to dismiss or you-all blink and you have
to enter a plea, that's one thing.  But all people are doing is saying not ready.  And
quite frankly, that's what you're saying is not ready, after asking for this to be put on
a jury docket.

The court said, "We're going to trial.  I don't make this decision lightly, but fair warning to you-all,
too, we're going to trial on all cases from here on out.  If anybody announces ready and puts them
on a jury docket, I mean it, everyone else now means it."  The case proceeded to trial, and appellant
was found guilty of all three counts and sentenced to three concurrent seven-year sentences.
	Appellant filed a timely motion for new trial, complaining that he was harmed by the
trial court's refusal to grant a continuance because his attorneys were unable to examine the late-disclosed school records, interview several witnesses, or retain an expert.  Appellant attached
affidavits from his attorneys.  Pineda, his lead attorney, averred that he and his co-counsel, Elsa
Ramos, met with appellant on March 19, 2008.  During that meeting, they discussed the case,
whether appellant might want to plead guilty, and costs, including expert witness fees, and appellant
"made it very clear that he was not going to plead guilty."  Pineda averred, "At that point we knew
then that we were going to have to move forward on trial and that there were things we needed to
do that had not been done, such as hire an expert and contact potential witnesses for trial."  Appellant
needed time to raise money to pay for an expert, and Pineda told appellant "that we would have time
to do all that . . . because we were on our first jury setting and we could ask for a continuance." 
Pineda was confident the continuance would be granted because it was his first request and it was
intended "not for delay but for legitimate reasons."  Pineda enumerated the following disadvantages
suffered by appellant as a result of the trial court's denial of the request for a continuance: appellant
was not able to interview the three pastors at the victim's church, one pastor's wife, the principal of
Victory Christian School, the victim's teacher, or other students at the school; appellant was unable
to contravene the State's sequence of events, factual allegations, or time line; appellant was unable
to discover that the victim's pastors had met with the prosecutor and "voiced their doubts and
concerns about [the] alleged victim's credibility"; appellant was unable to discover that the victim's
mother found pornographic images on her children's computer after appellant moved out of the
house and "appeared to now doubt the accusations" against appellant; appellant was unable to
interview the victim's mother; appellant was unable to discover from two witnesses information
related to a meeting they had with appellant; appellant was unable to investigate the family's
dynamics and to explore "antagonistic feelings" between the children and appellant; and appellant
was unable to retain Susan Robbins as an expert.

Discussion
	Appellant argues that the trial court abused its discretion in denying his motion for
continuance and that he suffered specific prejudice as a result. (2)  Appellant argues that his attorneys
had only two days to prepare for trial, from Friday, April 11, to the morning of Monday, April 14. (3) 
However, this overlooks the fact that appellant was charged in January 2007 and retained his attorney
sometime before the end of January 2008.
	Although appellant insists he was harmed because his attorneys were unable to
interview witnesses, determine the witnesses' view of the victim's credibility, or retain an expert,
the record reflects that the State disclosed its witness list in February and that appellant and his
attorneys knew they were going to go to trial almost a month before the trial setting.  Despite
deciding in March that they were going to proceed to trial, counsel did not reset the case at that time
for a later jury trial docket and instead left the cause set for April, assuming that they would receive
a continuance.  Pineda began representing appellant in late January, almost four months before trial. 
Appellant argues that he needed an additional two weeks, during which time his attorneys could have
interviewed witnesses and uncovered any discrepancies or issues with the victim's credibility or
family dynamic.  But appellant provides no explanation of why counsel could not have interviewed
the various witnesses or hired an expert witness sometime between February and April.  See Vasquez
v. State, 67 S.W.3d 229, 240-41 (Tex. Crim. App. 2002) (trial court did not abuse discretion in
denying continuance where counsel found out after voir dire that State would be calling co-defendant
as witness).  Further, appellant did not provide affidavits or other evidence showing what testimony
he would have elicited from the witnesses had he been given the continuance, nor did he provide a
report or other summary of what Susan Robbins would have testified to, saying only that he would
have engaged Robbins "regarding family dynamics and the motivation the victim had to fabricate
allegations of indecency."  See Janecka, 937 S.W.2d at 468 (defendant did not explain that crucial
testimony would have been given by potential witnesses; "That counsel merely desired more time
to prepare does not alone establish an abuse of discretion."); Heiselbetz v. State, 906 S.W.2d 500,
511-12 (Tex. Crim. App. 1995) ("The bare assertion that counsel did not have adequate time to
interview the State's potential witnesses does not alone establish prejudice.  The assertion that
counsel did not have time to adequately investigate medical records for potential mitigating evidence
without any showing of harm likewise fails to establish an abuse of discretion.  Absent a showing
of prejudice, we can not hold that the trial court abused its discretion in overruling appellant's
motion for continuance." (citations omitted)).
	As for the school records that were disclosed the week before trial, appellant refers
to those records, saying the State "had just completed delivery of 110 pages of required discovery,"
but does not make any argument that the records contained relevant information that appellant failed
to discover in time for trial or that the records affected his attorneys' preparation or strategy for trial
in any way.  Pineda did not mention the records in his affidavit, the motion for new trial mentioned
them only in passing, referring only to the late date of their disclosure, and the records were not
introduced at trial, attached to the motion, or otherwise introduced into the record.  If the records
were not relevant to the case, which the state of the record and appellant's motion for new trial
would seem to indicate, appellant cannot show that he was harmed by their late production.
	Although the request was appellant's first request for a continuance and Pineda asked
for only two weeks of additional time, Pineda was retained more than two months before trial, the
trial was not overly complex, the witnesses had been subpoenaed by the State, and Pineda presented
a competent defense.  See Rosales, 841 S.W.2d at 374; Ex parte Windham, 634 S.W.2d 718, 720
(Tex. Crim. App. 1982).  Appellant had one month during which he and his attorneys knew they
were going to trial, and they knew the identities of the State's witnesses for two months before trial. 
The late-produced records were not introduced into evidence and seem not to have contained any
relevant information.  We cannot conclude that, based on this record and these circumstances, the
trial court abused its discretion in denying appellant's request for a continance.  See Janecka, 937
S.W.2d at 468 (defendant must establish specific prejudice).  We overrule appellant's issue on appeal
and affirm the trial court's judgments of conviction.

					__________________________________________
					David Puryear, Justice
Before Chief Justice Jones, Justices Puryear and Henson
Affirmed
Filed:   December 10, 2010
Do Not Publish
1.   In Rosales v. State, the court of criminal appeals listed factors to be considered in
determining whether a denial of a continuance is an abuse of discretion.  841 S.W.2d 368, 374 (Tex.
Crim. App. 1992).  The court included in the list whether the denial resulted in identifiable harm to
the defendant.  Id.  However, in later cases, the court held, "To establish an abuse of discretion, there
must be a showing that the defendant was actually prejudiced by the denial of his motion."  Janecka
v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (citing Heiselbetz v. State, 906 S.W.2d 500,
512 (Tex. Crim. App. 1995)).  Thus, we interpret the court's opinions to mean that whether the
defendant was harmed is not simply one factor of many to be considered.  Instead, a defendant must
show actual harm, relying on the other Rosales factors to help make that showing.  See id.
2.  As noted by the State, motions for continuance must generally be written and sworn, and
a "motion for continuance not in writing and not sworn preserves nothing for review."   Dewberry
v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); see Tex. Code Crim. Proc. Ann. arts. 29.03
(criminal case may be continued "on the written motion" of State or defendant if sufficient case is
shown), 29.08 ("All motions for continuance must be sworn to by a person having personal
knowledge of the facts relied on for the continuance.") (West 2006).  Appellant's motion for
continuance was made orally during a pretrial hearing, rather than through a written motion. 
Although we could hold that appellant waived any complaint related to the trial court's denial of his
motion for continuance, in the interest of justice, we will address appellant's issue.
3.   Appellant states in his brief, "When the parties appeared on Friday, April 11, 2008,
Appellant's counsel and the prosecutor were still discussing plea negotiations; however, when the
negotiations fell through and when the cases set on the docket before Appellant's were resolved,
Appellant found his case next set for trial."  This is contrary, however, to Pineda's and Ramos's
affidavits, in which they stated that at their meeting with appellant in March, almost one month
before trial, appellant insisted that he would not accept a plea and wanted to go to trial.  Pineda made
statements to this effect at the pretrial hearing, when he said he had spoken to appellant, who was
insisting on going to trial.
