                             Fourth Court of Appeals
                                    San Antonio, Texas
                                              OPINION

                                       No. 04-18-00905-CR

                               Cesar Daniel RODRIGUEZ-CRUZ,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                    From the County Court at Law No. 12, Bexar County, Texas
                                     Trial Court No. 527406
                             Honorable Scott Roberts, Judge Presiding

Opinion by:      Liza A. Rodriguez, Justice

Sitting:         Rebeca C. Martinez, Justice
                 Beth Watkins, Justice
                 Liza A. Rodriguez, Justice

Delivered and Filed: August 28, 2019

REVERSED AND REMANDED

           After a jury trial, Cesar Daniel Rodriguez-Cruz was found guilty of driving while

intoxicated and was sentenced to one year in jail and a fine of $600.00. His sentence was then

suspended, and he was placed on probation for one year. On appeal, Rodriguez-Cruz argues that

the trial court erred (1) in denying his motion for continuance; (2) in denying his motion to suppress

based on the length of detention; and (3) in allowing the DWI officer to testify about horizontal

gaze nystagmus. Because we conclude the trial court erred in denying Rodriguez-Cruz’s motion

for continuance, we reverse the trial court’s judgment and remand the cause for a new trial.
                                                                                     04-18-00905-CR


                                          BACKGROUND

       At about 9:00 p.m. on the evening of September 25, 2016, Rodriguez-Cruz was driving his

motorcycle in the rain when he turned into a gas station; his motorcycle slid and fell over, hitting

the side of a parked pick-up truck. Because Rodriguez-Cruz’s insurance papers were at his home

a few blocks away, he and the owner of the pick-up truck relocated to Rodriguez-Cruz’s home. At

9:17 p.m., Officer Chase Meneley arrived at Rodriguez-Cruz’s home to investigate the accident.

At 9:38 p.m., Officer Meneley completed his investigation of the accident and called for a DWI

officer to have Rodriguez-Cruz evaluated for DWI. At 10:19 p.m., Officer Kenneth Williams, an

officer with the DWI Task Force, arrived to evaluate Rodriguez-Cruz for DWI. He performed three

field sobriety tests and determined that Rodriguez-Cruz was intoxicated by alcohol. He arrested

Rodriguez-Cruz and took him to the magistrate’s office. At 11:00 p.m., Rodriguez-Cruz submitted

to a breath test; the results showed an alcohol concentration of .192 and .197, which was more than

twice the legal limit. After a jury trial, Rodriguez-Cruz was found guilty of driving while

intoxicated. He now appeals.

                                  MOTION FOR CONTINUANCE

       In his first issue, Rodriguez-Cruz argues the trial court erred in denying a motion for

continuance he made during trial. Article 29.13 of the Texas Code of Criminal Procedure governs

a continuance requested after trial has begun:

       A continuance or postponement may be granted on the motion of the State or
       defendant after the trial has begun, when it is made to appear to the satisfaction of
       the court that by some unexpected occurrence since the trial began, which no
       reasonable diligence could have anticipated, the applicant is so taken by surprise
       that a fair trial cannot be had.

TEX. CODE CRIM. PROC. ANN. art. 29.13. The court of criminal appeals has explained that when a

defendant’s motion for continuance is based on an absent witness, he must show that (1) he “has

exercised diligence to procure the witness’s attendance”; (2) the witness was “not absent by the


                                                 -2-
                                                                                     04-18-00905-CR


procurement or consent of the defense”; (3) the motion was “not made for delay”; and (4) the facts

expected to be proved by the witness “are material.” Harrison v. State, 187 S.W.3d 429, 434 (Tex.

Crim. App. 2005). “We review a trial court’s denial of a mid-trial continuance on an abuse of

discretion standard.” Medina v. State, No. AP-76,036, 2011 WL 378785, at *16 (Tex. Crim. App.

2011) (citing Vasquez v. State, 67 S.W.3d 229, 240-41 (Tex. Crim. App. 2002)); see also Harrison,

187 S.W.3d at 434.

       The appellate record reflects that on the third day of trial (Thursday, July 19, 2018), the

State moved to continue the trial because Officer Williams, the officer who performed the field

sobriety tests, was sick in the emergency room and was unable to testify. Defense counsel objected,

explaining that the defense’s expert witness, Matthew Malhiott, was on a plane and was arriving

in San Antonio that day to testify. The trial court granted the State’s motion and ordered the trial

to continue the next day (Friday, July 20, 2018).

       The next day, the State called two witness to testify: Officer Williams and Debra Stephens,

a forensic scientist in charge of the breath-alcohol testing program in Bexar County. Officer

Williams testified that he had performed field-sobriety tests on Rodriguez-Cruz and those tests

indicated Rodriguez-Cruz was intoxicated. He then arrested Rodriguez-Cruz and drove him to the

magistrate’s office where Rodriguez-Cruz submitted to a breath test. After the State’s direct

examination of Officer Williams, the trial court recessed for lunch. When trial resumed, the

defense cross-examined Officer Williams. After Officer Williams left the witness stand, the State

called Stephens, who testified the results of Rodriguez-Cruz’s breath test were .192 and .197,

which was “more than twice the legal limit.” She then testified about alcohol absorption and

elimination rates of the human body. She testified that in her opinion, Rodriguez-Cruz was

intoxicated at the time he was driving. The State then rested its case.




                                                -3-
                                                                                                         04-18-00905-CR


         The clerk’s record reflects that at 3:33 p.m. on that Friday, Rodriguez-Cruz filed a sworn

motion for continuance. 1 The reporter’s record reflects that after the State rested, defense counsel

moved for a continuance, explaining that the defense’s expert witness would not be able to testify

that day and asked the trial court to continue trial until Monday. Defense counsel argued his expert

witness was unavailable due to the trial court’s granting of the State’s motion for continuance the

day before. The trial court denied Rodriguez-Cruz’s motion:

         Court: I’m going to deny the motion, and I’m going to make a point on the record
                that I offered you the opportunity to take the witness out of order yesterday,
                but you refused to do that, so—

         Defense: Just the fact that we refused to do that, it shouldn’t affect my client’s rights
               in terms of the procedure [of] allowing him to testify to something that
               hasn’t been admitted. He has no duty or fair opportunity to fight that case
               without his expert based on . . . simply on an issue that the State requested
               a continuance.

         Court: Your expert was present yesterday and we were ready to go and he could
                have come, and . . . there is no reason that he couldn’t have been taken out
                of order. I don’t know of any testimony that couldn’t have been given at
                that time. . . .

         Defense: I heard the Court indicate[] that we had the opportunity to bring our
               witness out of order; however, Judge, there’s absolutely no way that we
               could effectively ask this individual, an expert, to testify when we haven’t
               heard what the State was offering with respect to their expert. It wouldn’t
               make much sense for us to have him testify when we can’t foresee or tell
               what they’re going to testify to. And so the expert testifying yesterday
               would not have provided [Rodriguez-Cruz with] a fair trial because we
               haven’t heard testimony from their expert. And so it wouldn’t put
               [Rodriguez-Cruz] in a situation where he has a fair trial . . . and where we
               can actually effectively advocate for his defense in the case.




1
  The verified and written motion stated that trial was set for Tuesday, July 17, 2018, and that the State moved for a
continuance on Thursday, July 19, 2018. According to the motion, the defense’s expert witness was unavailable to
testify “on this date and time” of Friday, July 20, 2019, but was available to testify on Monday, July 23, 2019. The
motion then requested the trial court grant a continuance of the trial, explaining that denial of the request would “result
in denial of a fair trial, effective assistance of counsel, due process, due course of law, and equal protection under the
law in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution”
and the Texas Constitution.


                                                           -4-
                                                                               04-18-00905-CR


Court: Okay. Your objection is noted. And the Court will deny the motion for
       continuance. Are you going to present any testimony? We can be off the
       record now. This is just scheduling.

(Off-the-record discussion)

Defense: Yes. The motion for continuance, Judge, was filed –

Court: Okay.

Defense: --in this case, and just with a request again, Judge, that we made earlier
      that it’s our position that – that by not allowing [Rodriguez-Cruz] to have
      an expert, it’s affecting his due process rights, his right to a fair trial. And
      it’s through no fault of [Rodriguez-Cruz] that the expert isn’t available. To
      be honest, we also believe it’s shifting the burden to the defense to have to
      bring their expert in before any expert testimony was presented from the
      State. And we believe it’s affecting his substantial rights, your honor. And
      – and specifically, we will make a bill as to what our expert would testify to,
      again, the inaccuracy of the machine, the –what his actual alcohol
      concentration should have been or could have been. Those are things that
      the jury will not be able to hear based on the fact that his expert can’t come
      in and testify for him under Acme as well as entitled to experts, but
      essentially, again, affecting his substantial rights. [Rodriguez-Cruz] is, in
      our position, not being afforded a right to a fair trial.

Court: Counsel, response?

State: Your Honor, defense counsel’s expert was here yesterday. The State asked
       for a continuation of this trial as a result of an issue with an officer to next
       week. Defense counsel objected. Defense counsel said that they needed to
       go on this trial now. He objected to our request for a continuance. When our
       request for a continuance to today was granted and he said that his expert
       would not be available today, we offered him the opportunity to have his
       expert testify out of order. We offered him the opportunity to continue
       yesterday. Defense counsel declined that offer. He’s now asking for a
       continuance to next week, which is the exact issue that he objected to
       yesterday here in front of this Court. Therefore, we would ask that you deny
       defense counsel’s motion for continuance.

Court: Okay.

Defense: Judge, I would just like to address some of those statements, Judge.

Court: Yes.

Defense: It wasn’t that the defense objected to the continuance. Yesterday when the
      expert was here, we made it clear to the Court that the defense expert had a


                                         -5-
                                                                                    04-18-00905-CR


              subpoena for Friday. So we asked for us to go forward and to move forward
              on the case yesterday. As far as the defense objecting to a continuance to
              next week, it was our understanding that the State wanted the continuance
              to Thursday of next week, which we would not be available because we
              would be out of town—I would be out of town. So I’m not sure if there was
              some misunderstanding with what our objection is with respect to moving
              the trial because the expert was here. He was anticipated to testify yesterday
              with respect to moving forward and completing the case yesterday after the
              State would go on their case. And I believe under [article] 36.01, Judge, in
              the orders of proceedings and trial, I believe [article 36.01] addresses some
              of the issues as well with respect to [] testimony that’s offered from the
              State’s experts. That would be something that would be addressed. And I
              believe there’s some—

       Court: The Court—the Court will note that I never heard anything about Thursday.
              My recollection is they asked to move it to Tuesday–

       State: Correct.

       Court: –probably knowing that I have mental health court on Monday. And Monday
               is an absolute impossibility for me. They asked to move it to Tuesday. My
               recollection is you objected, “They’ve already had two continuances,” etc.
               I said–then so I denied their motion for continuance. Then they asked,
               “Well, give us—we ask for a continuance for one day.” I granted that
               continuance for one day. At that time then you told me, “My expert is here
               and ready to go, [and] he cannot be here tomorrow because he’s under
               subpoena.” So those are the facts as the Court remembers them. Based upon
               that, I’m going to deny the defendant’s motion for continuance.

(emphasis added).

       After Rodriguez-Cruz was convicted, he filed a motion for new trial, again arguing that the

trial court’s denial of his motion for continuance deprived him of his right to a fair trial, due

process, and due course of law under the federal and Texas Constitutions because it left him

“without an expert witness to testify on his behalf and use for proper cross-examination of the

State’s expert.” Rodriguez-Cruz also filed an affidavit by his expert, Matthew Malhiott. In the

affidavit, Malhiott affirmed that on Thursday, July 19, 2018, he flew to San Antonio and appeared

at the courthouse to testify in this case. He was then informed by defense counsel that the trial

court had granted the State’s motion for continuance. Malhiott affirmed that he was not able to



                                               -6-
                                                                                       04-18-00905-CR


testify on Friday, July 20, 2018. He then affirmed what his testimony would have included. First,

his testimony

       would have included that the breathalyzer assumes a specific blood to breath ratio.
       This is commonly referenced as the partition ratio of 2100:1. Unlike the State’s
       expert [who] testified that this is not important, I would have testified that
       understanding this principle and the ranges for the ratio are critical to an accurate
       breath test reading. The results could vary significantly if the Defendant had a
       different partition ratio than the average. It is impossible to determine what partition
       ratio Mr. Rodriguez-Cruz has and this could influence the results. The judge in this
       case did not allow [defense counsel] to discuss this with the State’s expert but a
       scientific explanation of this principle would have assisted the jury in understanding
       the inherent mistakes a reading can possess in overestimating a breath test result.
       This would have countered the State’s testimony.

Second, he

       would have testified that there is no way of knowing what [Rodriguez-Cruz]’s
       blood alcohol concentration was at the time [Rodriguez-Cruz] was driving because
       we didn’t have enough details to make that determination. It is my understating that
       the State’s expert testified that [Rodriguez-Cruz’s] alcohol concentration was over
       the legal limit at the time of driving. This is not a scientifically valid opinion
       without additional details which the expert did not possess.

       On appeal, Rodriguez-Cruz argues he has shown the testimony his expert would have given

was material to his defense and he was prejudiced as a result of the trial court’s denial of his motion

for continuance. In response, the State argues that he has failed to preserve error for appellate

review. We disagree. At the time the State moved for a continuance, Rodriguez-Cruz objected and

explained his expert was flying in from out-of-town and would not be available the next day due

to a subpoena in another case. Rodriguez-Cruz then immediately filed a written and sworn motion

for continuance, which again made the trial court aware of the reasons why his expert witness was

unavailable. Rodriguez-Cruz also made an offer of proof of what the expert’s testimony would

have addressed. After his conviction, he filed a motion for new trial and an affidavit from the

expert affirming what his testimony would have included. See Gonzales v. State, 304 S.W.3d 838,

842-43 (Tex. Crim. App. 2010) (explaining that the showing of prejudice resulting from a trial



                                                 -7-
                                                                                       04-18-00905-CR


court’s denial of a motion for continuance can ordinarily be made only in a motion for new trial

when a defendant can produce evidence or witnesses that would have been available if the motion

for continuance would have been granted). The record reflects the trial court was fully aware of

the circumstances surrounding the request for a continuance. We hold that Rodriguez-Cruz

preserved error for appeal. See Harrison, 187 S.W.3d at 433-35.

       With regard to the merits, the record shows that Rodriguez-Cruz exercised diligence to

procure his expert witness’s attendance. His witness, Malhiott, was present on the day he was due

to testify at trial. See Harrison, 187 S.W.3d at 434. It was only when the trial court unexpectedly

granted the State’s motion for continuance and thereby continued the trial to Friday that Malhiott

was unable to testify due to a subpoena in another case. See id. Although the trial court stated on

the record that it would have allowed Rodriguez-Cruz to call his expert out of order, we agree with

Rodriguez-Cruz that such an option was unreasonable as the purpose of Malhiott’s testimony was

to rebut testimony given by the State’s expert witnesses. See id. Moreover, the record is clear that

Rodriguez-Cruz’s motion for continuance was “not made for delay” but was instead made to allow

his expert to testify at trial. See id. Finally, the record shows that Malhiott’s testimony was

“material,” as it would have related to the reliability of both the results of the intoxilyzer machine

and the extrapolation evidence given by the State’s expert. See id. The record further shows that

Rodriguez-Cruz was prejudiced as a result of the trial court’s denial of the motion for continuance

as Malhiott’s testimony would have been favorable and was essential to the defense. Further,

Malhiott’s testimony would not have been cumulative of other testimony given. We therefore hold

the trial court abused its discretion in denying Rodriguez-Cruz’s motion for continuance. See

Deaton v. State, 948 S.W.2d 371, 376-77 (Tex. App.—Beaumont 1997, no pet.) (holding trial

court’s denial of motion for continuance to locate defense’s expert witness, who had checked in

but was unable to be located during a fifteen-minute recess, was an abuse of discretion); Petrick v.


                                                 -8-
                                                                                                   04-18-00905-CR


State, 832 S.W.2d 767, 771 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) (holding trial court

abused its discretion in denying motion for continuance and thereby denying appellant the

opportunity to put on an alibi defense). 2

                                                 CONCLUSION

        Having held that the trial court abused its discretion in denying Rodriguez-Cruz’s motion

for continuance, we need not reach his remaining two issues. We reverse the judgment of the trial

court and remand the cause for a new trial.

                                                         Liza A. Rodriguez, Justice

PUBLISH




2
 Both Deaton and Petrick involved oral motions for continuance where the courts of appeals concluded oral motions
amounting to a denial of due process were subject to review. See Deaton, 948 S.W.2d at 376-77; Petrick, 832 S.W.2d
at 770-71. Although Deaton and Petrick have not been specifically overruled, the law is now clear that a motion for
continuance must be in writing and an oral motion does not preserve the matter for appellate review. See Dewberry v.
State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999). Nonetheless, the analyses presented in Petrick and Deaton regarding
why the trial courts abused their discretion in denying the motions for continuance remain good law.


                                                       -9-
