                                  MEMORANDUM OPINION
                                          No. 04-10-00598-CR

                                         Ramon SALINAS, Jr.,
                                             Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                     From the 218th Judicial District Court, Karnes County, Texas
                                 Trial Court No. 09-02-00006-CRK
                               Honorable Stella Saxon, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: November 9, 2011

AFFIRMED

           A jury convicted appellant, Ramon Salinas, Jr., of aggravated kidnapping, aggravated

assault with a deadly weapon, and felon in possession of a firearm, and the trial court sentenced

him to confinement for sixty years. We affirm.

                                            BACKGROUND

           A grand jury indicted appellant on February 3, 2009, and the trial court set a jury trial for

May 17, 2010. Appellant’s first court-appointed attorney withdrew after appellant hired new
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counsel, who filed his appearance on April 16, 2009.               Appellant’s retained counsel later

withdrew, and the trial court appointed a third attorney on October 29, 2009. Appellant’s third

and final attorney filed a motion for continuance on May 14, 2010 and argued the motion on the

first day of trial.

           In the motion for continuance, appellant’s attorney stated she “recently learned” that

forensic fingerprint analysis was not performed on the weapon in question and argued the results

of such analysis might be exculpatory. During argument before the trial court, appellant’s

attorney explained: “[R]ecently since last week as we’ve gone through all the discovery I learned

that the weapon that is a very crucial element in this case was not tested for fingerprints. Now,

it’s important for our defense because it’s the defense’s position that it was somebody else

involved and that somebody else fired the gun.” 1 Appellant’s attorney advised the trial court the

other person involved was Henry Valdonado and that she had only recently learned appellant had

acknowledged this person was present during the alleged crimes.

           After hearing arguments from appellant’s attorney and the State, the trial court stated on

the record: “The court notes that the case was indicted on February the 3rd, 2009. The alleged

date of offense, December 19th, 2008. And motion for continuance is filed here on . . . the eve

and day of jury selection. Motion is denied.”

                                         STANDARD OF REVIEW

           In his sole issue on appeal, appellant asserts the trial court erred in denying his motion for

continuance.        We review a trial court’s ruling on a motion for continuance for abuse of

discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); De Vaughn v. State,

239 S.W.3d 351, 355 (Tex. App.—San Antonio 2007, pet. ref’d). To establish an abuse of the

trial court’s discretion, the appellant must show he was actually prejudiced by his attorney’s
1
    We note appellant was not charged with shooting the weapon.

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inadequate preparation time. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995);

De Vaughn, 239 S.W.3d at 355. That the appellant’s attorney merely desired more time to

prepare for trial does not alone establish abuse of discretion. Janecka, 937 S.W.2d at 468.

       On appeal, appellant argues the trial court’s denial of his motion for continuance was a

clear abuse of discretion because he could not present evidence of the fingerprint analysis nor

present Valdonado’s testimony to the jury. Thus, appellant contends he was prejudiced because

his counsel was prevented from discovering and presenting the testimonial and physical

connection to Valdonado’s presence at the alleged crimes.

                                  FINGERPRINT ANALYSIS

       A review of the record shows appellant’s attorney was appointed in October of 2009, but

trial did not begin until May of 2010. Appellant’s attorney had more than six months from the

time of her appointment until trial to request forensic fingerprint analysis of the weapon. At the

hearing on the motion for continuance, appellant’s attorney stated on the record: “And I’m not

saying that [any] of the discovery was not provided to me, Your Honor. It’s just as we went

along that’s when we started finding out, because even the State did not know they did not have

an analysis on the gun.” Accordingly, appellant has not shown any specific prejudice because he

cannot show he was unfairly surprised by the lack of a fingerprint analysis on the gun. See

Butler v. State, 990 S.W.2d 298, 303 (Tex. App.—Texarkana 1999, no pet.) (concluding

appellant did not show any specific prejudice by the trial court’s denial of his motion for

continuance based on a lack of latent fingerprint analysis).




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                                      ABSENT WITNESS

       The record shows appellant’s attorney reviewed a copy of the police report—which

mentions Valdonado’s name—upon her appointment.               Thus, appellant was capable of

discovering and inquiring into Valdonado’s involvement at least six months prior to trial.

       Appellant also contends he was entitled to rely on the State’s subpoena of Valdonado to

appear at trial. However, the record reflects that the subpoena was never served on Valdonado.

Due diligence requires appellant’s attorney to take further steps to ensure Valdonado’s presence

at trial. See Gentry v. State, 770 S.W.2d 780, 787 (Tex. 1988); Hughes v. State, 962 S.W.2d 89,

90 (Tex. App.—Houston [1st Dist.] 1997, pet ref’d). When a motion for continuance is based on

an absent witness, a defendant must “show: (1) that the defendant has exercised diligence to

procure the witness’s attendance, (2) that the witness is not absent by the procurement or consent

of the defense, (3) that the motion is not made for delay, and (4) the facts expected to be proved

by the witness.” Harrison v. State, 187 S.W.3d 429, 434 (Tex. 2005).

       In order to be entitled to a continuance based on an absent witness, “the record must

contain an affidavit or otherwise reflect what the absent witness would have testified to.” Gentry

at 786.   Here, appellant’s attorney failed to raise this argument both in the motion for

continuance and at the hearing on the day of trial. As a result, appellant’s attorney did not

provide the facts she expected to prove by Valdonado’s testimony to the trial court. Therefore,

appellant has not shown specific prejudice because he did not prove any crucial testimony would

be provided by Valdonado. See Janecka, 937 S.W.2d at 468.

                                        CONCLUSION

       The record reflects appellant’s attorney had ample time to review the discovery, ensure

and prepare for Valdonado’s testimony, and request additional forensic testing. We conclude the



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trial court did not abuse its discretion in denying the motion for continuance. We overrule

appellant’s sole issue on appeal and affirm the trial court’s judgment.

                                                      Sandee Bryan Marion, Justice

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