Opinion issued May 19, 2016




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-14-00684-CV
                             ———————————
                  IN THE MATTER OF M.I.S., A JUVENILE



                     On Appeal from the 313th District Court
                             Harris County, Texas
                       Trial Court Case No. 2013-05802J


                                    OPINION

      A jury found that M.I.S. had engaged in delinquent conduct by committing

aggravated robbery. When the jury deadlocked on a second question asking it to

determine whether M.I.S. used or exhibited a firearm in connection with the

robbery, the trial court issued a supplemental instruction directing the jury that, if it

could not reach unanimity on the question, to answer that M.I.S. did not. The trial
court entered affirmative findings pursuant to the jury’s finding that M.I.S. had

committed aggravated robbery, found that M.I.S. was in need of rehabilitation, and

placed him in the custody of the Texas Juvenile Justice Department for ten years.

      M.I.S. appeals, contending the trial court erred by (1) giving a supplemental

instruction to the jury during its deliberations; (2) denying his motion to suppress

the complainant’s pretrial identification of M.I.S.; (3) admitting the complainant’s

in-trial identification of M.I.S.; and (4) denying M.I.S.’s motion for continuance.

We affirm.

                                 BACKGROUND

      Around nine in the evening in October 2013, Orlando Caval waited in a

Marshall’s store parking lot for his wife, who worked at the store. He sat inside his

car in a lighted area near the store entrance. As he waited, another car pulled into

the parking space on the passenger side of Caval’s car. The female driver and the

two male passengers, one wearing a hoodie sweatshirt with the hood pulled up,

attracted Caval’s attention. Caval rolled down his window, and the driver asked

Caval for directions. In an effort to assist them, Caval began to search for a

location on his cell phone. While Caval was looking at his phone, the passenger

wearing the hoodie, later identified as M.I.S., exited the car and headed for Caval’s

car door. M.I.S. tried to open the door, but it was locked. Caval told M.I.S. to wait

while Caval continued to search for directions.



                                         2
      M.I.S. went back to the other car and returned with a shotgun. He pushed

the gun’s barrel through the open window and held it, with his finger on the

trigger, no more than 12 inches from Caval’s head. The female driver then ordered

Caval to leave his wallet and walk away from the car. As Caval walked away from

his car and toward the store, he heard both cars drive away.

      Caval called 9-1-1. A police officer arrived, and Caval described the three

individuals involved. The day after the robbery, a witness identified Brenda Flores

as a suspect. Sergeant S. Ashmore, the lead investigator in the case, proceeded to

the district attorney’s office to secure a warrant for Flores’s arrest.   On his way

home from the district attorney’s office, Sergeant Ashmore overheard some “radio

traffic” about a burglary in progress nearby and headed to the scene. When

Sergeant Ashmore arrived, he found that officers had taken M.I.S., Flores, and

Neiman Gasper into custody for suspected commission of that burglary.

      Sergeant Ashmore transported the three suspects to a police substation. He

placed M.I.S. in a juvenile holding area while he conducted separate interviews

with Flores and Gasper. Both Flores and Gasper identified M.I.S. as the gunman

in the Caval carjacking. Later that day, Sergeant Ashmore showed Caval a photo

array containing images of six men. Caval selected the photo of M.I.S. from the

array and identified him as the person who held the gun to Caval’s head. Caval




                                          3
recounted that he was “very positive” of the identification. He also identified the

other two assailants from photo arrays.

      At trial, Caval testified that M.I.S. held the shotgun during the incident. The

jury also heard testimony, however, that Gasper lied to police in stating that M.I.S.

held the gun. On the witness stand, Gasper testified that he was the one who had

the gun:

      Q.     So on October 20th of 2013, you told Sergeant Ashmore that
             [M.I.S.], in Petitioner’s Exhibit 149, which you were looking at
             the time, is the person who carjacked the man with the red car,
             right?
      A.     I was lying.
      Q.     Oh okay. So why is it that you were lying?
      A.     Just talking.
      Q.     You were pissed off?
      A.     No, I was just talking. I was high.
      Q.     So who did carjack the man in the red car?
      A.     I jacked him.
      Q.     So you had the gun that day?
      A.     Yep.
      Q.     And this is what you looked like that day, Petitioner’s Exhibit
             121?
      A.     I don't know. Look like me.

The jury also heard testimony that the shotgun belonged to Brenda Flores.

      M.I.S. raised no objection to the court’s charge to the jury, which contained

two questions. Question 1 asked for a finding of guilt or innocence on the


                                           4
aggravated robbery charge. It instructed the jury to find that M.I.S. engaged in

delinquent conduct if, beyond a reasonable doubt, it unanimously concluded either

that:

        [M.I.S.] . . . while in the course of committing theft of property owned
        by ORLANDO CAVAL and with intent to obtain and maintain
        control of the property, intentionally OR knowingly threatened OR
        placed ORLANDO CAVAL in fear of imminent bodily injury OR
        death, and [M.I.S.] did then and there use or exhibit a deadly weapon,
        to wit: A FIREARM

or alternatively, that:

        BRENDA FLORES AND/OR NEIMAN GASPER, did then and there
        unlawfully, while in the course of committing theft of property owned
        by ORLANDO CAVAL and with intent to obtain and maintain
        control of the property, intentionally OR knowingly threaten OR place
        ORLANDO CAVAL in fear of imminent bodily injury OR death, and
        BRENDA FLORES AND/OR NEIMAN GASPER did then and there
        use OR exhibit a deadly weapon, to wit: A FIREARM, and that the
        respondent, [M.I.S.], with the intent to promote or assist the
        commission of the offense of AGGRAVATED ROBBERY, solicited,
        encouraged, directed, aided or attempted to aid to the other person or
        persons to commit the offense of AGGRAVATED ROBBERY, then
        you will find the respondent did engage in delinquent conduct of the
        offense of AGGRAVATED ROBBERY as charged in the petition.

Question 1 thus allowed the jury to affirmatively find that M.I.S. had committed

the offense of aggravated robbery either as a primary actor or under the law of

parties.




                                           5
      Question 2 asked the jury:

      Do you find from the evidence beyond a reasonable doubt that the
      respondent [M.I.S.] did then and there use or exhibit a deadly weapon,
      namely a firearm, during the commission of or during the immediate
      flight from the commission of the aggravated robbery alleged in the
      petition?
      After the jury retired to deliberate, it reported that it was

                   Hopelessly deadlocked on Question No. 2.
                   A, should we leave it blank; B, say deadlocked?”

In response, the trial court instructed the jury to refer to the general instruction

concerning a unanimous verdict.

      After the jury resumed deliberations the next day, the State moved the trial

court to withdraw Question 2; M.I.S. moved for a mistrial. The trial court denied

both motions. The State then asked for a supplemental instruction in connection

with Question 2, which read:

      You are further instructed that if you cannot unanimously agree on an
      answer to this question, then you will state in your answer for
      Question No. 2, “We do not.”
Over M.I.S.’s objection, the trial court submitted this supplemental instruction.

Fifteen minutes later, the jury returned its verdict, finding M.I.S. guilty of

aggravated robbery and answering “we do not” to whether it found that M.I.S. used

or exhibited a deadly weapon. A poll of the jury revealed that the 12 jurors

unanimously found M.I.S. guilty of aggravated robbery in response to Question 1,




                                           6
and one out of the 12 jurors refused to find that M.I.S. had used or exhibited a

deadly weapon in response to Question 2.

                                    DISCUSSION

I.    Supplemental Jury Charge

      M.I.S. contends that the supplemental instruction to Question 2—which told

the jury to answer “we do not” if it could not unanimously find that M.I.S. used or

exhibited a deadly weapon during the aggravated robbery—allowed the jury to

reach a verdict based on a non-unanimous finding and caused harmful error.

      A.       Standard of review

      The Texas Rules of Civil Procedure generally govern the jury charge in

juvenile proceedings. TEX. FAM. CODE ANN. § 56.01(b) (West Supp. 2015); see In

re L.D.C., 400 S.W.3d 572, 574 (Tex. 2013). But a juvenile proceeding is quasi-

criminal; thus, criminal law precedent may be instructive in juvenile cases. See In

re C.O.S., 988 S.W.2d 760, 765–67 (Tex. 1999).

      In reviewing a claim of jury charge error, we first decide whether there was

error in the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston

[14th Dist.] 2011, no pet.). If so, we evaluate whether sufficient harm resulted

from the error to require reversal. In re I.L., 389 S.W.3d 445, 449 (Tex. App.—El

Paso 2012, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim.

App. 1994)).



                                        7
      M.I.S. preserved his objection to the supplemental instruction through timely

objection. See TEX. R. APP. P. 33.1(a). To reverse the case based on jury charge

error, therefore, we must find that the error, if any, caused some harm. See TEX. R.

APP. P. 44.2; Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Ngo

v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

      B.    Jury unanimity

      Texas Family Code section 54.03(c) requires that “[j]ury verdicts under this

title must be unanimous.” TEX. FAM. CODE ANN. § 54.03(c) (West 2014); In re

L.D.C., 400 S.W.3d at 573. To meet the jury unanimity requirement, the jury must

agree that the defendant committed one specific crime. Landrian v. State, 268

S.W.3d 532, 535 (Tex. Crim. App. 2008). The jury need not, however, find that

the defendant committed that crime in one specific way or even with one specific

act. Id.; see Leza v. State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011)

(explaining that alleged theories of culpability as principal or party are merely

alternate methods or means by which defendant committed one charged offense,

which does not require juror unanimity); Martinez v. State, 129 S.W.3d 101, 103

(Tex. Crim. App. 2004) (explaining that unanimity requirement is not violated

when jury is instructed on alternative theories, or manner and means, of

committing same offense); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.

App. 1991) (jury need not reach unanimous agreement on preliminary factual



                                         8
issues that underlie verdict, such as manner and means by which one offense was

committed); see also Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct.

1707, 1710 (1999) (noting by example that disagreement about means of offense of

robbery “would not matter so long as all 12 jurors unanimously concluded that the

Government had proved the necessary related element, namely, that the defendant

had threatened force”).

      C.     Analysis

      The challenged instruction specifically directed the jury to answer “no” if it

could not find unanimously that M.I.S. used or exhibited a deadly weapon during

the aggravated robbery. We agree with M.I.S. that the trial court erred in directing

a verdict based upon a non-unanimous answer.

      M.I.S. contends that the error was harmful because he would have been

entitled to a mistrial. But this contention assumes that Question 2 affected the

jury’s adjudication of delinquency for having committed the offense of aggravated

robbery. On this record, it did not.

      First, M.I.S. concedes that he could be adjudicated delinquent for the crime

of aggravated robbery based on an affirmative response to Question 1, standing

alone. A person commits robbery if, in the course of committing theft and with

intent to obtain or maintain control of the property being stolen, such person

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or



                                         9
(2) intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death. TEX. PENAL CODE ANN. § 29.02 (West 2011). That person

commits aggravated robbery if he or she “uses or exhibits a deadly weapon” during

the robbery. Id. § 29.03(a)(2). “A person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another

for which he is criminally responsible, or by both.” Id. § 7.01(a). “A person is

criminally responsible for an offense committed by the conduct of another if . . .

acting with intent to promote or assist the commission of the offense, he solicits,

encourages, directs, aids, or attempts to aid the other person to commit the

offense.”   Id. § 7.02(a)(2). “Each party to an offense may be charged with

commission of the offense.” Id. § 7.01(b).          Question 1 contains all of the

elements necessary to support a finding that M.I.S. committed aggravated robbery.

      Second, M.I.S. has not shown that the supplemental instruction, which

focused solely on Question 2, had any harmful influence on the jury’s answer to

Question 1, the guilt-innocence question. The jury was polled after the verdict;

each juror individually confirmed that the jury’s verdict to Question 1 was

unanimous. M.I.S. contends that the jury’s answers are in conflict because the

overwhelming evidence at trial was that M.I.S. used or exhibited the shotgun; the

jury’s negation of that in answer to Question 2, he contends, calls into question the

jury’s answer to Question 1. But the jury could answer Question 1 affirmatively



                                         10
for M.I.S. either as the primary actor or as a party. Although most of the evidence

at trial supported a finding that M.I.S. used the shotgun during the commission of

the robbery, Gasper recanted his statement implicating M.I.S. and testified that he

held the shotgun during the robbery. Because the court charged the jury on the law

of parties, a juror could find that M.I.S. committed aggravated robbery either as the

person who used or exhibited the firearm or as an accomplice. The jury need not

have been unanimous as to the manner in which he committed the offense, that is,

whether he was a primary actor or a party to the offense. See Leza, 351 S.W.3d at

357.

       Finally, although the record does not elucidate Question 2’s intended

purpose, it does show that the jury’s answer to Question 2 did not affect the

disposition or punishment based on the finding of delinquency. Because M.I.S. did

not elect for the jury to determine punishment, the jury’s answer to Question 2 did

not affect any punishment determination. See TEX. FAM. CODE ANN. § 54.04(a)

(West Supp. 2015) (requiring disposition hearing to “be separate, distinct, and

subsequent to” adjudication hearing). The record also shows that the trial court did

not consider a deadly weapon finding in connection with the punishment actually

assessed. In its order of commitment to the Texas Juvenile Justice Department, the

trial court left blank the box provided for a deadly weapon finding and the space

for the type of weapon used. Accordingly, we hold that the trial court’s error in



                                         11
providing supplemental instruction to the jury does not require reversal. TEX. R.

APP. P. 44.2; see L.D.C., 400 S.W.3d at 575–56 (applying both criminal and civil

standards to conclude that error did not warrant reversal).

II.   Denial of Motion to Suppress

      A.     Standard of review

      M.I.S. next contends that the trial court erred in denying his motion to

suppress an impermissibly suggestive photographic array. We use the same

standard to review a court’s ruling on a motion to suppress in a juvenile case that

we use in an adult criminal proceeding. In re D.J.C., 312 S.W.3d 704, 711 (Tex.

App.—Houston [1st Dist.] 2009, no pet.). Under that bifurcated standard, we defer

to a trial court’s express and implied findings of fact, as the trial court is the

exclusive trier of fact and judge of the credibility of the witnesses, as well as the

weight to be given their testimony. Baird v. State, 398 S.W.3d 220, 226 (Tex.

Crim. App. 2013); Smith v. State, 236 S.W.3d 282, 289 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). We review de novo the legal significance of those facts.

See Baird, 398 S.W.3d at 711. We sustain the trial court’s ruling if it is reasonably

supported by the record and correct on any theory of law applicable to the case.

See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).




                                         12
      B.      Substantive law

      A pretrial identification procedure may be so suggestive and conducive to

mistaken identification that the use of that identification at trial would deny the

accused due process. Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App.

1995).     A pretrial identification procedure may be suggestive by the manner in

which it is conducted, such as if a police officer points out the suspect or suggests

that the suspect is included in the photo array.       Barley, 906 S.W.2d at 33.

Suggestiveness may also arise if the suspect is the only individual closely

resembling the pre-procedure description. Id. However, a failure to comply with a

model policy or other policy adopted by law enforcement for administering a

photograph lineup identification procedure, standing alone, does not require

exclusion of the identification. See TEX. CODE CRIM. PROC. ANN.         ART.   38.20,

§ 5(b) (West 2011).

      We use a two-step analysis to determine the admissibility of the proffered

identification, inquiring (1) whether the pretrial procedure was impermissibly

suggestive, and if so, (2) whether the suggestive pretrial procedure gave rise to a

very substantial likelihood of irreparable misidentification at trial. Barley, 906

S.W.2d at 33 (citing Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967,

971 (1968)).     The analysis requires an examination of the totality of the

circumstances surrounding the particular case and a determination of the reliability



                                         13
of the identification. Id.; Barley, 906 S.W.2d at 33. The defendant bears the

burden to show by clear and convincing evidence that the in-court identification is

unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993); Mims v.

State, 434 S.W.3d 265, 272 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

      The United States Supreme Court has identified a number of nonexclusive

factors to use in determining whether a pretrial photographic identification

procedure    has   created   a   very    substantial   likelihood   for   irreparable

misidentification. See Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 382

(1972). These include:

       the witness’s opportunity to view the criminal when the crime
        occurred;
       the witness’s degree of attention;
       the accuracy of the witness’s prior description of the criminal;
       the witness’s level of certainty demonstrated at the confrontation;
        and
       the length of time between the crime and the confrontation.
Id.; see Barley, 906 SW.2d at 35 n.8. We weigh these nonexclusive factors

“against the corrupting effect of any suggestive identification procedure in

assessing reliability under the totality of the circumstances.” Loserth v. State, 963

S.W.2d 770, 772 (Tex. Crim. App. 1998) (citing Biggers, 409 U.S. at 199, 93 S.

Ct. at 382–83).




                                         14
      C.     Analysis

      During the hearing on the motion to suppress, Sergeant Ashmore explained

that, in a blind photo array procedure, one officer prepares the photo array and

another officer—one who does not know the suspect’s identity—shows the photo

array to the witness. This procedure avoids the possibility that an officer might

give subtle visual cues to the witness examining the photo array. Here, however,

Sergeant Ashmore knew the suspect, prepared the photo array, and administered

the photo array procedure to Caval.

      M.I.S. contends that five flaws with the identification procedure rendered

Caval’s identification of M.I.S. inadmissible, specifically, that

    Sergeant Ashmore failed to use a “double-blind” procedure;

    Sergeant Ashmore was seated so that he could view Caval and the
     photo array while Caval examined it;

    after Caval selected M.I.S.’s photo, Sergeant Ashmore told him
     M.I.S.’s name and possibly confirmed that Caval had picked the right
     person;

    M.I.S. was the only person in the photo array who wore a striped shirt,
     while the rest of the images showed solid-color shirts; and

    Sergeant Ashmore did not know whether one person’s photo appeared
     twice in the array.
      We first consider M.I.S.’s contentions relating to the content of the array,

specifically, his complaint that his striped shirt set him apart from the other images


                                          15
and that the array had two images of the same person. A photo array may be

impermissibly suggestive if, for example, other participants are greatly dissimilar

in appearance from the suspect. Withers v. State, 902 S.W.2d 122, 125 (Tex.

App.—Houston [1st Dist.] 1995, pet. ref’d) (citing United States v. Wade, 388 U.S.

218, 232–33, 87 S. Ct. 1926, 1935 (1967)). Minor discrepancies among lineup

participants, however, will not render a lineup impermissibly suggestive: “neither

due process nor common sense requires” that the other pictures used in a

photographic array exactly match the defendant’s characteristics. Turner v. State,

600 S.W.2d 927, 933 (Tex. Crim. App. 1980).         Rather, the array must show

individuals who fit a rough description of the suspect. Wilson v. State, 15 S.W.3d

544, 553 (Tex. App.—Dallas 1999, pet. ref’d).

      A difference in the shirt colors or patterns does not, by itself, render a

photographic lineup impermissibly suggestive.      See Cienfuegos v. State, 113

S.W.3d 481, 492 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“The mere fact

that appellant wore a red shirt did not render the lineup impermissibly

suggestive.”); Epps v. State, 811 S.W.2d 237, 244 (Tex. App.—Dallas 1991, no

pet.) (holding photographic lineup not suggestive where defendant was only

subject wearing jacket or jacket and red shirt), cited in Cienfuegos, 113 S.W.3d at

492; Rodriguez v. State, Nos. 07-11-00270-CR, 07-11-00271-CR, 2013 WL

3355724, at *4 (Tex. App.—Amarillo June 26, 2013, no pet.) (mem. op., not



                                        16
designated for publication) (rejecting assertion that photo array was impermissibly

suggestive where defendant was only subject in array wearing dark shirt and

seemed closer to camera).

      M.I.S. also points to two images of the same or very similar-looking person,

who appear in the array wearing different clothes and hair styles at possibly

different juvenile ages. Assuming that these photos were of the same person at

different times, the array nonetheless contains a total of five different, but similar

looking teens.

       M.I.S.’s complaints concerning Sergeant Ashmore’s administration of the

identification procedure are likewise unavailing.      First, the failure to use the

“double-blind” procedure recommended in United States Department of Justice

Guidelines does not render the array impermissibly suggestive. See TEX. CODE

CRIM. PROC. ANN. art. 38.20, § 5(b); see also Kelly v. State, No. 14-13-00087-CR,

2014 WL 2446616, at *4 (Tex. App.—Houston [14th Dist.] May 29, 2014, no pet.)

(mem. op., not designated for publication). Second, the record contains disputed

evidence concerning Sergeant Ashmore’s position during the procedure. At the

suppression hearing, Caval testified that Sergeant Ashmore sat across a desk from

him, in view of the photospread. Sergeant Ashmore, however, testified that he was

behind Caval and specifically denied having been positioned where he could have

seen the photo spread. With respect to the third complaint—Sergeant Ashmore’s



                                         17
confirmation that Caval had identified the right person—M.I.S. cites to the

observation in Ibarra v. State that suggestiveness “may be created . . . by police

pointing out the suspect or suggesting that a suspect is included in the line-up or

photo array . . . .” 11 S.W.3d 189, 196 (Tex. Crim. App. 1999). Unlike the

circumstances in Ibarra, though, Sergeant Ashmore’s confirmation did not occur

until after Caval had selected M.I.S. from the array.

      The Biggers factors weigh against a finding that any suggestibility in the

procedure affected Caval’s identification of M.I.S. Caval had parked in a lighted

area of the lot and had the opportunity to observe M.I.S.’s facial features clearly

and in close range when M.I.S. twice approached the car window. Caval made a

prompt and confident identification of M.I.S. within a day of the incident based on

a detailed recollection of M.I.S.’s facial features. As a result, it is unlikely that the

content of the array led Caval to misidentify M.I.S. as a participant in the robbery.

See Loserth, 963 S.W.2d at 772 (adopting Biggers factors).

      Accordingly, we hold that M.I.S. did not meet his burden of showing, by

clear and convincing evidence, that Caval’s positive identification of M.I.S. from

the photo array gave rise to a very substantial likelihood of irreparable

misidentification at trial. We therefore affirm the trial court’s denial of the motion

to suppress.




                                           18
III.   Admissibility of In-Court Identification

       M.I.S. also challenges the trial court’s admission of Caval’s in-court

identification of M.I.S. An in-court identification is inadmissible if it is tainted by

an impermissibly suggestive pretrial photographic identification. Luna v. State,

268 S.W.3d 594, 605 (Tex. Crim. App. 2008); Ibarra v. State, 11 S.W.3d 189, 195

(Tex. Crim. App. 1999).      M.I.S.’s contention that the in-court identification was

unreliable stands on the same claimed errors that, according to M.I.S., tainted

Caval’s pretrial identification.    M.I.S.’s failure to demonstrate a substantial

likelihood of irreparable misidentification with respect to Caval’s pretrial

identification of M.I.S. means that his argument concerning the reliability of

Caval’s in-court identification also fails. We therefore hold that the trial court did

not err in admitting the in-court identification of M.I.S.

IV.    Denial of Motion for Continuance

       Finally, M.I.S. contends that the trial court erred in denying his motion for

continuance based on a missing witness. We review a trial court’s ruling denying a

motion for continuance for an abuse of discretion. BMC Software Belg., N.V. v.

Marchand, 83 S.W.3d 789, 800 (Tex. 2002). In determining whether there has

been an abuse of discretion, we view the evidence in the light most favorable to the

trial court and indulge every presumption in favor of the judgment. Hatteberg v.

Hatteberg, 933 S.W.2d 522, 526 (Tex. App.—Houston [1st Dist.] 1994, no writ).



                                          19
      The State contends that M.I.S. waived any error in the ruling on his motion

for continuance because he failed to include an affidavit or verify any facts relied

on in support of the motion. Both the civil and criminal rules of procedure require

sworn facts to support a motion for continuance.          See TEX. R. CIV. P. 251

(requiring affidavit in absence of consent or operation of law); TEX. CODE CRIM.

PROC. ANN. art 29.08 (West 2006) (requiring motion for continuance be sworn to

by person having personal knowledge of facts relied on in motion). During the

trial court’s hearing on the motion, both sides related the circumstances giving rise

to the motion and argued its merits. We therefore review the ruling out of an

abundance of caution.

      The State initially subpoenaed the prospective witness to testify about

alleged criminal activity involving an unidentified person with Flores and Gasper

that occurred approximately two-and-a-half hours after the carjacking, but later

cancelled the subpoena. M.I.S. claimed that the witness’s testimony would tend to

cast doubt on whether M.I.S. was the third person involved in the carjacking by

showing that M.I.S. was not with Flores and Gasper the entire day before the three

were arrested at a vacant house. The record does not make clear whether the

witness would be able to exclude the possibility that M.I.S. was the third person or

otherwise provide in detail how her testimony would be material. Further, the

State had identified the prospective witness sufficiently in advance of trial to allow



                                         20
defense counsel to contact her. We hold that the trial court did not abuse its

discretion in denying the motion for continuance.

                                 CONCLUSION

      We affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Jennings, Keyes, and Bland.




                                        21
