565 S.W.3d 379
Tex. App.2018Background
- Richard Cruz was charged with possession of a controlled substance (<1 gram); he pleaded not guilty and proceeded to trial.
- Cruz filed a written motion for a two-week continuance alleging severe kidney-stone pain; the written motion was not sworn.
- The trial court reviewed Cruz’s medical records, denied the written motion, and allowed Cruz to seek hospital treatment.
- Cruz then testified under oath that he had sought treatment, was still in pain, and believed the pain impaired his ability to assist counsel; defense counsel reurged the continuance and the court again denied it.
- The jury convicted Cruz; the court assessed a $1,500 fine and sentenced him to two years’ confinement, suspended in favor of two years’ community supervision.
- Cruz appealed solely arguing the court erred in denying his motion for continuance, claiming denial deprived him of due process and impaired his assistance to counsel.
Issues
| Issue | Cruz's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Cruz preserved appellate review of denial of continuance | Failure to have a sworn written motion was cured by Cruz’s later sworn testimony supporting the continuance | Motion was not sworn as required by art. 29.08; sworn testimony after ruling does not preserve error | Not preserved: written motion must be sworn; post-denial testimony did not satisfy statutory requirement |
| Whether denial of continuance was an abuse of discretion | Denial prevented Cruz from assisting counsel due to continuing kidney-stone pain, violating due process | Even if preserved, record showed minimal treatment (ibuprofen), Cruz answered coherently, counsel was effective, and no further trial interruptions occurred | No abuse of discretion: based on cold record, trial court’s decision was within zone of reasonable disagreement |
Key Cases Cited
- Anderson v. State, 301 S.W.3d 276 (Tex. Crim. App. 2009) (a sworn written motion is required to preserve appellate review of a continuance denial)
- Compton v. State, 500 S.W.2d 131 (Tex. Crim. App. 1973) (when continuance is based on health, appellate review is from the cold record and trial court’s observations are afforded deference)
- Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995) (abuse-of-discretion standard: reversal only if decision lies outside zone of reasonable disagreement)
- Woodman v. State, 491 S.W.3d 424 (Tex. App.—Houston [14th Dist.] 2016) (unsworn written motion without affidavit presents nothing for review)