                         NUMBER 13-18-00096-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


KEVIN DANIEL CERRILLO,                                                      Appellant,

                                               v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                       MEMORANDUM OPINION
            Before Justices Benavides, Hinojosa, and Perkes
              Memorandum Opinion by Justice Benavides

      By one issue, appellant Kevin Daniel Cerrillo argues the trial court erred by denying

his motions for continuance. We affirm.
                                         I.      BACKGROUND

            Cerrillo was indicted for two counts of assault family violence with a previous

conviction, a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). After

both Cerrillo and the State announced ready for trial on January 17, 2018, the State

produced close to seventeen hours of jail calls involving Cerrillo.                       Following the

disclosure of the jail calls, Cerrillo’s counsel filed a motion for continuance on January 23,

2018, requesting more time to listen and discuss the calls with Cerrillo, as well as gather

information regarding a current investigation with the Department of Family and Protective

Services (DFPS) involving the complainant. The motion explained that the complainant

had recanted her allegation multiple times, so Cerrillo’s counsel required more time to

review the calls for possible exculpatory evidence. The trial court conducted a hearing

on January 25, 2018, ordered the State to disclose which jail calls it intended to use at

trial, and denied Cerrillo’s motion. The trial court also informed Cerrillo that he did not

need to file an amended motion for continuance with a sworn verification, as its ruling

would preserve his right to appeal.

        The following day, Cerrillo’s counsel filed a supplemental motion for continuance

based upon “newly discovered evidence.” The motion claimed there was a “substantial

amount of evidence that was favorable to [Cerillo] and necessary for trial” and based on

the “lateness of its disclosure, Movant does not believe that there is adequate time to

prepare and effectively utilize the jail call evidence at trial.” Cerrillo also alleged that the

late disclosure of the phone calls could be considered a Brady violation.1 See Brady v.


        1 Following Cerrillo’s conviction, Cerrillo’s counsel apologized to the prosecutor on the record for
making a Brady violation accusation. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
                                                     2
Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution has a duty to disclose

evidence favorable to a defendant if it is material to either guilt or punishment). The State

filed a response to Cerrillo’s motion for continuance. In its response, the State argued

the jail calls did not constitute Brady material because the “evidence would be

inadmissible at trial,” contained “hearsay,” and included Cerrillo’s own statements, so he

would have known of their existence. The State also discussed the fact that Cerrillo’s

counsel would have ample time by the start of trial to review the jail calls. The trial court

denied the motion on January 26, 2018. Trial began on January 29, 2018.

       During trial, Cerrillo and the State both had the opportunity to cross-examine the

complainant in this case. The jury found Cerrillo guilty of both counts of assault family

violence with a prior conviction. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). The trial

court assessed punishment at ten years’ imprisonment in the Texas Department of

Criminal Justice–Institutional Division on both counts to run concurrently and a $10,000

fine on both counts. This appeal followed.

                             II.    MOTION FOR CONTINUANCE

       By his sole issue, Cerrillo argues the trial court abused its discretion by denying

his motions for continuance.

       A.     Standard of Review

       A trial court’s ruling on a motion for continuance is reviewed for an abuse of

discretion. Cruz v. State, 565 S.W.3d 379, 381 (Tex. App.—San Antonio 2018, no pet.);

see Rodriguez v. State, 553 S.W.3d 733, 741 (Tex. App.—Amarillo 2018, no pet.) (citing

Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007)). A trial court does not abuse


                                             3
its discretion as long as its decision is within the zone of reasonable disagreement. Cruz,

565 S.W.3d at 381; see Heiselbetz v. State, 906 S.W.2d 500, 517 (Tex. Crim. App. 1995)

(en banc). To find an abuse of discretion in refusing to grant a motion for continuance,

there must be a showing that the defendant was prejudiced by his counsel’s inadequate

preparation time. Heiselbetz, 906 S.W.2d at 511. Where denial of a continuance has

resulted in representation by counsel who was not prepared, the court of criminal appeals

has “not hesitated to declare an abuse of discretion.” Id.

       B.     Applicable Law and Discussion

              Denial of [a pretrial motion for delay or continuance] will be found an
       abuse of discretion on appeal only if the record shows with considerable
       specificity how the defendant was harmed by the absence of more
       preparation time than he actually had. This showing can ordinarily be
       made only at a hearing on a motion for new trial, because almost always
       only at that time will the defendant be able to produce evidence as to what
       additional information, evidence, or witnesses the defense would have had
       available if the motion for delay had been granted.

Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010) (quoting George Dix &

Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure § 28.56 (2d ed.

2001), at 532–33)). In order to show reversible error predicated on the denial of a pretrial

motion for continuance, a defendant must demonstrate both that the trial court erred in

denying the motion and that the lack of a continuance harmed him. Id. at 843. Case-

law requires more than just speculation to justify an appellate reversal of a case for the

trial court’s failure to grant a continuance. Renteria v. State, 206 S.W.3d 689, 702 (Tex.

Crim. App. 2006).

       At both hearings, Cerrillo’s counsel argued that the amount of time necessary to

listen to and analyze the jail calls for use at trial would be significant. At the start of trial

                                               4
the following week, Cerrillo’s counsel re-urged his request for a continuance but the trial

court denied it due to the fact that there were not any “distinguishing features” from what

had been argued and denied the week before.                      The record provides that Cerrillo’s

counsel was able to effectively examine the complainant and allowed to question her

regarding the pending DFPS case against her. Cerrillo was also able to effectively

question her regarding inconsistent statements she made to law enforcement, as well as

her motives behind the statements that she made to Cerrillo via letters or phone

conversations.

        Cerrillo did not file a motion for new trial alleging that the denial of the motion for

continuance harmed him or prevented him from presenting specific information or

evidence to the jury that would have benefitted his case. See Gonzales, 304 S.W.3d at

842; see also TEX. R. APP. P. 21.2. Although the State’s disclosure of the jail calls was

rather late,2 we conclude it was with enough time for Cerrillo’s counsel to present his

case to the jury without being hindered.               See id.     Cerrillo has not shown the harm

necessary to prove the trial court abused its discretion by denying the motions for

continuance. Id. at 843. We hold the trial court did not abuse its discretion and overrule

Cerrillo’s sole issue.




        2
            According to argument presented at the hearings, the State did disclose the jail calls the same
day it received them from jail personnel, although Cerrillo’s counsel did not request discovery under article
39.14 prior to trial. See TEX. CODE CRIM. PROC. ANN. art. 39.14(a). However, the State is required to
disclose to 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 or would tend
to reduce the punishment for the offense charged.” Id. art. 39.14(h).
                                                      5
                                   III.   CONCLUSION

       We affirm the trial court’s judgment.




                                                       GINA M. BENAVIDES,
                                                       Justice

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

Delivered and filed the
15th day of August, 2019.




                                               6
