                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-15-00524-CR

                                           Austin PRINCE,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the County Court at Law No. 12, Bexar County, Texas
                                      Trial Court No. 432473
                              Honorable Scott Roberts, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 13, 2016

AFFIRMED

           Appellant Austin Prince was convicted of possession of marijuana, less than two ounces,

and assessed punishment at 180-days’ confinement in the Bexar County Jail, suspended and

probated for 180 days, and a $300.00 fine. On appeal, Prince contends the trial court erred in

failing to grant his motion for continuance and his motion for mistrial based on the State’s failure

to disclose the identity of a witness prior to the close of the evidence. We affirm the trial court’s

judgment.
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                           FACTUAL AND PROCEDURAL BACKGROUND

A.     Testimony before the Jury

       The case was called for trial on July 23, 2015, and Prince’s pretrial motions to suppress

evidence and Prince’s statements were carried with the trial.

       1.      Officer Rodriguez’s Testimony

       The State’s sole witness was San Antonio Police Department Officer David Rodriguez.

Officer Rodriguez testified he was “working alone,” on July 21, 2013, in an area with heavy traffic.

Prince failed “to stop exiting a private driveway” and also failed to stop before crossing a

pedestrian sidewalk. The officer initiated a traffic stop and Prince’s car came to a slow stop in a

private parking lot.

       As Officer Rodriguez approached the car, he described Prince as extremely nervous,

sweating profusely, and shaking. The officer testified that he recognized a strong odor of

marijuana emanating from Prince’s car. When Prince failed to produce a valid driver’s license,

Officer Rodriguez requested Prince exit his car and Prince was placed under arrest for operating a

vehicle without a license. Officer Rodriguez testified that he read Prince his Miranda warnings

and placed Prince in the rear seat of the patrol car. Prince’s passenger was also Mirandized and

detained. Based on Prince’s arrest, Officer Rodriguez inventoried Prince’s car to prepare the

vehicle for towing. The officer removed a backpack from the rear-floorboard, within immediate

reach of both the driver and the front-seat passenger.

       Counsel approached the bench and defense counsel reurged his objection to the

admissibility of Officer Rodriguez’s testimony that Prince was given warnings consistent with

Miranda. See Miranda v. Arizona, 384 U.S. 436 (1966). The jury was excused and Prince was

called to testify for the limited purpose of the motion to suppress. Contrary to the officer’s

testimony, Prince testified (1) he produced a driver’s license, (2) the first time his Miranda rights
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were read was at the jail and not by Officer Rodriguez during the traffic stop, and (3) Officer

Rodriguez “had his partner . . . search the vehicle.” During cross-examination, the State elicited

the following testimony:

          State:    So the officer’s statement that he was working by himself is not true?
          Prince:   It’s not true.

The trial court denied defense counsel’s motion to exclude any post-arrest statements made by

Prince.

          The jury returned to the courtroom and the State’s direct examination of Officer

Rodriguez’s testimony resumed. Officer Rodriguez testified that he asked both Prince and his

passenger about the backpack. Although the passenger denied ownership, Prince conceded the

backpack and the marijuana were “his property.”

          During cross-examination, defense counsel questioned Officer Rodriguez regarding the

lack of independent evidence to support the officer’s testimony. Specifically, defense counsel

questioned the officer regarding his failure to memorialize Prince’s statements in either written,

audio, or video format.

          Defense Counsel:    So by your testimony, there is no one else who can testify to
                              the veracity of what you said?
          Officer Rodriguez: Yes, sir.
          Defense Counsel:    So essentially, you’ve created a situation where the jury
                              simply has to take your word for it that everything you’ve said
                              is true?
          Officer Rodriguez: Yes, sir.

The remainder of defense counsel’s cross-examination focused on the lack of independent

evidence linking Prince to either the backpack or the marijuana found inside the backpack.

Defense counsel did not ask Officer Rodriguez or solicit testimony relating to Prince’s allegations

that Officer Rodriguez’s “partner” searched the vehicle.


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        The State rested and the jury was excused. Based on the testimony of Officer Rodriguez,

the trial court denied Prince’s motion to suppress the evidence based on lack of probable cause to

support the traffic stop.

        2.        Prince’s Testimony

        The jury returned to the courtroom and the defense called its only witness—Prince.

Prince’s testimony directly contradicted much of Officer Rodriguez’s testimony. Prince testified

that he stopped before he entered the roadway, he activated his blinker before the turn, and there

was no traffic on the roadway at the time. He further explained that when the officer approached

his window, Prince asked the basis for the officer’s traffic stop. Officer Rodriguez responded,

“I’ve been getting complaints of somebody pen-striping around the area.” After reportedly telling

the officer, “I’m driving. I’m not mooning anybody,” Prince contends the officer took him out of

the car, “put me in handcuffs,” “got everything out of my pockets while I was in handcuffs,” and

put him in the back of the patrol car. Prince was adamant that Officer Rodriguez never asked for

identification and never read Prince his Miranda rights.

        Prince testified that while sitting in the back of the patrol car, he saw Officer Rodriguez’s

“partner” search the car.

        Defense Counsel: What was this other individual wearing?
        Prince:             He was wearing a gray outfit that looked like a security guard,
                            like, maybe he was in training or something, and Officer
                            Rodriguez was, like, training him, but that’s what he was
                            wearing, like, a gray outfit.
                  ....
        Defense Counsel: Okay. Do you know where the other individual was [when
                         Officer Rodriguez approached you]?
        Prince:             He was in the police car. Whenever I got detained, he got out of
                            the police car.
                  ....



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       Defense Counsel: [D]id you have a clear enough line of sight to see the activities
                        around the car, opening of doors, who would get in and out of
                        the car, and what was going on with someone in the car?
       Prince:             Yes.
       Defense Counsel: Okay. What did this other we’ll say person—do immediately
                        upon you entering the vehicle?
       Prince:             He got out of the police vehicle and Officer Rodriguez told him
                           to search the vehicle I was in, and he searched it.

According to Prince, Officer Rodriguez never searched the vehicle, but instead “was searching my

phone the whole time.” Prince further testified the backpack belonged to his passenger and that it

was located in the passenger’s seat, between his passenger’s legs.

       During cross-examination by the State, Prince reiterated that Officer Rodriguez lied and

perjured himself under oath, regarding the basis for the initial stop, the reading of Miranda

warnings, the backpack’s location, whether “[Officer Rodriguez] was acting alone,” and Prince’s

statements regarding ownership of the marijuana.

       Both sides rested and closed; the only testimony presented was that of Officer Rodriguez

and Prince. The case was reset for further proceedings the following afternoon.

B.     Proceedings Prior to the Case Being Given to the Jury

       Prior to closing arguments, the State informed the trial court and defense counsel that,

based on Prince’s testimony, the State questioned Officer Rodriguez, and it advised defense

counsel and the trial court as follows:

       State:              [T]he officer indicated that the person who was with him was a
                           young, high school student who was interested in being a police
                           officer, so he was essentially job shadowing Officer Rodriguez.
       Trial Court:        And why didn’t Officer Rodriguez state that during his
                           testimony?
       State:              I—I do not know, your Honor.
                 ....
       Defense Counsel: Your Honor, we would ask that a motion for continuance be
                        granted or that the evidence portion of the trial be reopened. We
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                          feel this is a violation of both the Michael Morton Act and a
                          violation of the prosecutor’s allegation [sic] to furnish Brady
                          material. This goes directly to Officer Rodriguez’s credibility.
                              He, on the stand, perhaps not lied about that incident, but he
                          did make a carefully calculated choice of words to give the jury
                          the impression that he was alone when he was not, which is a
                          matter that Mr. Prince testified directly to and supports his
                          testimony.
                               We think that it is an impeachment issue and we would ask
                          that we be given an opportunity to investigate who this person
                          is, find out what he actually saw, if anything, and that we be
                          allowed to present this information to the jury.
                ....
       State:             [D]efense counsel was aware that there was potentially this other
                          person there. They had an opportunity to cross-examine—they
                          had an opportunity to talk to their own defendant about this
                          when the defendant decided to take the stand and question him
                          regarding who this other person was. So I just wanted to state
                          that and get that on the record as well.
                ....
       Defense Counsel: Considering that Officer Rodriguez had already testified that he
                        was alone, it doesn’t seem that cross-examining him on that
                        issue would have elicited any further information.
                              But even knowing what we with knew [sic] from Mr. Prince,
                          we had no way of proving this person’s identity or even being
                          able to locate him at all. There’s no way that we would have
                          been able to find him, to interview him, and find out if he knew
                          any potentially exculpatory information.

Both the State and defense counsel agreed neither the police report nor any other pretrial

proceedings indicated a second person was present in the patrol car. The trial court denied defense

counsel’s motion for continuance and subsequent motion for a mistrial.

       The court’s charge was read to the jury. During closing argument, defense counsel

contested the officer’s legal authority to effectuate a traffic stop.      He pointed out direct

inconsistencies between Officer Rodriguez’s testimony and that of Prince, including whether the

officer read the Miranda warnings, who was present at the scene, and Prince’s alleged statements

acknowledging ownership of the marijuana. Defense counsel also questioned the officer’s veracity

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and failure to provide any evidence to support his accusations. “You shouldn’t be required to

simply take [the officer’s] word for it, especially when he is in a position to give you something

more.” Defense counsel further argued the State chose not to collect or present additional evidence

to substantiate Officer Rodriguez’s testimony.

       The jury returned a guilty verdict against Prince for possession of marijuana and assessed

punishment at 180-days’ confinement in the Bexar County Jail, suspended and probated for a term

of 180 days, and a $300.00 fine.

C.     Defense Counsel’s Motion for New Trial

       A hearing was held on Prince’s motion for new trial on October 5, 2015. During the

hearing, defense counsel questioned Officer Rodriguez regarding his previous testimony that he

was “working alone” at the time of Prince’s arrest. The officer explained that on the day in

question, he had an “Explorer” in his patrol car. An Explorer is an observer, generally a teenager

who “has aspirations of becoming a policeman one day.” Officer Rodriguez reiterated that

although he remembers having another individual at the scene, he did not know the Explorer’s

name, the Explorer does not work for the police department, and the Explorer was not “working”

that day. Officer Rodriguez testified the Explorer’s presence was not a secret and was never hidden

from Prince.

       Defense counsel argued Prince was denied his due process rights based on Officer

Rodriguez’s use of either false or misleading testimony. Defense counsel maintained credibility

was a key issue in the case and the State failed to produce any independent evidence to corroborate

Officer Rodriguez’s testimony regarding the reading of the Miranda warnings or whether Prince

made statements asserting possession of the marijuana.

       [I]f the jury had been allowed to know that Officer Rodriguez had, in fact, had
       someone with him, someone who might have seen his activities and who could
       testify independently to the veracity of his statements, the jury might have come to
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       the conclusion that Officer Rodriguez’s other statements might similarly lack
       credibility.

The trial court denied Prince’s motion for new trial.

       On appeal, Prince contends the trial court erred in denying the motion for continuance and

the motion for mistrial.

                                  MOTION FOR CONTINUANCE

A.     Preservation of Error

       Texas Code of Criminal Procedure article 29.03 provides, “A criminal action may be

continued on the written motion of the State or of the defendant, upon sufficient cause shown;

which cause shall be fully set forth in the motion.” TEX. CODE CRIM. PROC. ANN. art. 29.03 (West

2006); Anderson v. State, 301 S.W.3d 276, 278–79 (Tex. Crim. App. 2009). Likewise, article

29.08 provides, “All motions for continuance must be sworn to by a person having personal

knowledge of the facts relied on for the continuance.” TEX. CODE CRIM. PROC. ANN. art. 29.08;

Anderson, 301 S.W.3d at 279. In Anderson, the Texas Court of Criminal Appeals explained,

       We have construed these statutes to require a sworn written motion to preserve
       appellate review from a trial judge’s denial of a motion for a continuance. Thus, if
       a party makes an unsworn oral motion for a continuance and the trial judge denies
       it, the party forfeits the right to complain about the judge’s ruling on appeal.

Anderson, 301 S.W.3d at 279 (footnotes omitted); accord Blackshear v. State, 385 S.W.3d 589,

591 (Tex. Crim. App. 2012) (refusing to “recognize a due process exception” to the requirement

that motion for continuance be written and sworn).

B.     Prince’s Argument on Appeal

       Prince contends the trial court’s denial of his motion for continuance to cross-examine the

“ride-along witness” violated his Sixth Amendment right to confrontation and his due process

rights afforded by Article 39.14 of the Texas Code of Criminal Procedure. See U.S. CONST. amend.

VI; TEX. CODE CRIM. PROC. ANN. art. 39.14(h) (West Supp. 2015) (“[T]he state shall disclose to
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the defendant any exculpatory, impeachment, or mitigating document, item, or information in the

possession, custody, or control of the state that tends to negate the guilt of the defendant . . . .”).

C.      Analysis

        Prince’s argument that the trial court’s denial of his motion for continuance violated his

Sixth Amendment right to confront his accuser is subject to procedural default. See Anderson, 301

S.W.3d at 280; Cerf v. State, 366 S.W.3d 778, 787 (Tex. App.—Amarillo 2012, no pet.). Here,

the record does not contain a sworn, written motion for continuance. We, therefore, conclude that

Prince’s appellate argument challenging the trial court’s denial of his unsworn, oral motion for

continuance failed to comply with the procedural requirements of articles 29.03 and 29.08. See

Anderson, 301 S.W.3d at 280; Cerf, 366 S.W.3d at 787.

        Similarly, Prince’s appellate contention regarding the trial court’s denial of his motion for

continuance based on the State’s failure to comply with Criminal Procedure article 39.14, i.e.

Brady material, is also subject to procedural default. See TEX. CODE CRIM. PROC. ANN. art.

39.14(h); Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Palomo v. State, No. 06-14-00076-

CR, 2015 WL 1546148, at *8 (Tex. App.—Texarkana Apr. 1, 2015, pet. ref’d) (mem. op., not

designated for publication) (“The Brady doctrine is founded on protecting the defendant’s due

process rights.”). By failing to file a sworn, written motion for continuance, Prince failed to

preserve error on either ground—the Sixth Amendment right to confrontation or any alleged

discovery violation.

        Accordingly, we overrule Prince’s appellate issues regarding the trial court’s denial of his

motion for continuance.




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                                       MOTION FOR MISTRIAL

A.      Standard of Review

        An appellate court reviews the denial of a motion for mistrial for an abuse of discretion.

See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). “[A]n appellate court must

uphold the trial court’s ruling if it was within the zone of reasonable disagreement.” Id. (citing

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). “Only in extreme circumstances,

where the prejudice is incurable, will a mistrial be required.” Id. (citing Hawkins v. State, 135

S.W.3d 72, 77 (Tex. Crim. App. 2004)).

B.      Prince’s Argument on Appeal

        Prince contends the trial court erred in denying his motion for mistrial because the State’s

failure to disclose the “ride-along witness” constituted a Brady violation and prevented the defense

from exposing the officer’s bias and motive.

C.      Analysis

        Defense counsel rigorously attacked Officer Rodriguez’s credibility during his cross-

examination,

        So essentially, you’ve created a situation where the jury simply has to take your
        word for it that everything you’ve said is true?

After both sides rested, defense counsel argued to the trial court that the presence of another

individual in the officer’s patrol car was directly tied to Officer Rodriguez’s credibility. And again

during his closing argument to the jury, defense counsel suggested Officer Rodriguez was lying

and pointed to the State’s failure to recall the officer to rebut the officer’s motivation for misleading

the jury as an ongoing theme throughout trial.

        Despite defense counsel’s arguments, the record supports Prince clearly remembered

another individual was present in Officer Rodriguez’s patrol car on the day in question. He


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remembered exactly what the individual was wearing and his approximate age. Despite knowing

the existence of this other individual, Prince never requested the State provide him with the ride-

along witness’s identity. 1 “[D]efense counsel was aware that there was potentially this other

person” present, yet the record shows the prosecutor only learned about the “ride-along witness”

after Prince testified to the ride-along witness’s presence at the scene. Cf. TEX. CODE CRIM. PROC.

ANN. art. 39.14 (requiring disclosure of exculpatory evidence in the possession, custody, or control

of the State). Contrary to Prince’s assertion that he was denied the right to full cross-examination,

defense counsel was presented with an opportunity to cross-examine the officer regarding the ride-

along witness, but Prince chose not to do so. As defense counsel stated, “Considering that Officer

Rodriguez had already testified that he was alone, it doesn’t seem that cross-examining him on

that issue would have elicited any further information.”

         In light of the entire record, we cannot say the trial court abused its discretion in denying

Prince’s request for a mistrial or that such determination was outside the zone of reasonable

disagreement. See Archie, 221 S.W.3d at 699. Accordingly, we overrule Prince’s appellate issue

relating to the trial court’s denial of his motion for mistrial.

                                                  CONCLUSION

         Having overruled each of Prince’s issues on appeal, we affirm the judgment of the trial

court.

                                                          Patricia O. Alvarez, Justice

PUBLISH




1
 The record contains Prince’s motion to suppress evidence, filed several months prior to the start of trial, and his
motion to suppress Prince’s statements, filed on July 22, 2013, the day before Officer Rodriguez and Prince testified
before the jury.

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