Opinion filed August 11, 2016




                                               In The


            Eleventh Court of Appeals
                                           __________

                                    No. 11-15-00221-CR
                                        __________

                THOMAS EUGENE THOMPSON, Appellant
                               V.
                   THE STATE OF TEXAS, Appellee

                        On Appeal from the 238th District Court
                               Midland County, Texas
                           Trial Court Cause No. CR44770


                         MEMORANDUM OPINION
        Upon his plea of not guilty, the jury found Thomas Eugene Thompson guilty
of the state jail felony offense of theft of property valued at $1,500 or more but less
than $20,000.1 The jury assessed punishment at confinement for two years.2 The

        1
         TEX. PENAL CODE ANN. § 31.03(a), (b)(1) (West Supp. 2015); former PENAL CODE
§ 31.03(e)(4)(A) (2011). We note that Section 31.03(e) was amended in 2015 but that the former version
applies in this case based upon the date of the offense. Act of May 31, 2015, 84th Leg., R.S., ch. 1251,
§§ 10, 30, 2015 Tex. Gen. Laws 4209, 4213, 4221.
        2
         PENAL § 12.35(a) (West Supp. 2015).
trial court sentenced Appellant accordingly. Appellant asserts in one issue that the
trial court abused its discretion when it denied his pretrial motion to continue the
trial so that defense counsel could secure the attendance at trial of a witness who
Appellant claimed was material. We affirm.
                                       I. The Charged Offense
        The grand jury indicted Appellant for the offense of theft of property valued
at $1,500 or more but less than $20,000. American X-Ray & Inspection Services
(AXIS) accused Appellant of theft of four of its generators, but Appellant claimed
that the generators, which were worth $2,000 each, had “do not use” tags on them.3
Appellant testified that he had been told they were part of the “trash pile,” so he took
them, worked on them, and then pawned them. He later testified that he offered to
return them to AXIS.
        A person commits the offense of theft of property if he unlawfully
appropriates property with the intent to deprive the owner of the property without
the owner’s consent. PENAL § 31.03(a), (b)(1). At the time of this offense, the
offense was a state jail felony if the value of the property was between $1,500 and
$20,000. Former PENAL § 31.03(e)(4)(A).
                                  II. Evidence at Pretrial Hearing4
        On August 17, 2015, Appellant filed, and the trial court heard, Appellant’s
motion for continuance. Appellant sought the continuance so that he could obtain
the presence of a witness, Frank Armendariz, a former AXIS employee. Appellant
claimed that Armendariz would testify that Appellant had permission to take the



        AXIS’s president, Trey Spencer, and its operations manager, Shane Richardson, both testified that
        3

Appellant did not have permission to take the generators.
        4
        Appellant does not challenge the sufficiency of the evidence. Therefore, we will set forth only the
evidence relevant to resolve Appellant’s sole issue.



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generators. At the hearing, the trial court noted that Appellant was indicted in March
2015 and was appointed counsel a month later. The trial court inquired into defense
counsel’s knowledge of the witness’s name and location and of the attempts made
to locate him. Six days before trial, Appellant texted Armendariz’s name to defense
counsel. Four days before trial, Appellant sent his defense counsel Armendariz’s
address, an address that apparently was no longer valid. The next day, defense
counsel submitted an application for subpoenas of trial witnesses, but he did not list
Armendariz as a witness. The trial court also noted that Appellant’s trial was initially
set for July 20, 2015, but was rescheduled three times.5
                                       III. Standard of Review
       We review a trial court’s denial of a motion for continuance for an abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Janecka v.
State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). An appellate court should not
intercede when a trial court’s ruling is within the zone of reasonable disagreement.
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
                              IV. Discussion and Analysis
       Counter to Appellant’s argument that the trial court abused its discretion when
it denied his motion for continuance, the State argues that Appellant failed to use
diligence to secure Armendariz’s presence at trial and failed to explain how his
testimony was material. As we explain below, we agree with the State that Appellant
failed to use diligence to secure the attendance at trial of Armendariz.




       5
         The trial was set for July 20, 2015. Because of the trial court’s docket, the case could not be
reached and was reset for August 3, 2015, only to be reset for the same reason for August 10, 2015, and
then again for the same reason for August 17, 2015.



                                                   3
      Whether to grant a motion for continuance is within the sound discretion of
the trial court. TEX. CODE CRIM. PROC. ANN. art. 29.06(6) (West 2006). For a
defendant to be entitled to a continuance due to an absent witness, the defendant
must show:
               (1) the name and residency of the witness, if known;
               (2) that the defendant exercised diligence in securing the witness;
               (3) that the witness would give testimony that tends to establish material
      facts;
               (4) that the defendant did not cause the witness’s absence;
               (5) that the motion is not being made for delay; and
            (6) that the probability of securing the witness’s attendance is within a
      reasonable and predictable timeframe.

Id. art. 29.06. The Court of Criminal Appeals has “interpreted [Article 29.06(2)] to
mean not only diligence in procuring the presence of the witness, but also diligence
as reflected in the timeliness with which the motion for continuance was presented.”
Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999).
      To establish that a trial court abused its discretion when it denied a motion for
continuance, an appellant must show (1) that the trial court erred when it denied his
motion and (2) that he was harmed by the denial of the continuance. Gonzales v.
State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). In this case, defense counsel
was appointed a month after Appellant was indicted. Four months later, and only
six days before a fourth trial setting, Appellant finally told defense counsel about
Armendariz. Appellant then failed to provide an address for Armendariz until four
days before trial; that address turned out to be invalid. After that, defense counsel
did not list Armendariz as a witness on the subpoena list and did not file a motion
for continuance until the day of trial. Neither in the motion for continuance nor at




                                            4
the hearing on the motion did defense counsel explain what diligence he had used to
locate Armendariz or how probable it was to secure Armendariz’s attendance at trial
within a reasonable timeframe. As a result, the trial court denied the motion. If an
appellant fails to demonstrate the required diligence in seeking a motion for
continuance, a trial court does not abuse its discretion when it denies the motion. Id.
      After the trial, Appellant did not move for a new trial or present additional
evidence to show that his motion for continuance was supported by sufficient cause.
Appellant never presented evidence of his diligence to secure Armendariz’s
attendance at trial and never showed how soon Armendariz could be located to give
testimony at trial. Given that Appellant’s motion for continuance was filed on the
day of trial because of his own delay in providing defense counsel with Armendariz’s
name, we cannot say that the trial court abused its discretion when it denied
Appellant’s motion. We overrule Appellant’s sole issue.
                                   V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


August 11, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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