*2 prohibit testimony. The court de- his LIVINGSTON, Before DAUPHINOT request for a continuance and Mc- nied HOLMAN, JJ.
Donald later testified.
OPINION
FOR
MOTION
CONTINUANCE
Granting
denying
LIVINGSTON,
or
a motion for
Justice.
continuance is within the
court’s sound
Fincher,
appeals
discretion. See Heiselbetz v.
his
murder
murder conviction
(Tex.Crim.App.1995).
To
Appellant presents
of Andrew Kline.
two
refusing
establish an abuse
discretion
points
point,
In the
he claims
of error.
continuance,
grant a motion for
the defen
denying
request
by.his
dant must show he was
depose
a continuance
order
inadequate preparation time. See
witness and
id.
without the continuance.
Second,
appellant contends the trial court
contends
submitting jury charge on the
of the continuance rendered
by not
court’s denial
investigate
him unable to
McDonald’s back-
“independent impulse.”
We affirm.
issue
motives,
“Independent
impulse”
but he fads to establish
embraces the
fact,
accused,
prejudice.
appellant
although admittedly
actual
In
in-
that the
conduct,
wrongful
terviewed McDonald and obtained a criminal
intent on some
history report. Appellant
contemplate
also
the extent of criminal conduct
interviewed
Attorney’s
actually engaged
conspira
members of
his fellow
the District
Office
*3
tors,
vicariously
regarding
cannot
held
whether McDonald had received
thus
responsible
Mayfield
for their conduct. See
favorable treatment. The mere asser-
State,
509,
(Tex.Crim.App.
v.
716
513
tion that
S.W.2d
counsel did not have time to ade-
1986). Independent impulse
a
to
is
defense
quately investigate
background
McDonald’s
theory
accomplice liability.
evidence,
the
of
Section
providing potential
and motives for
7.02(b)
penal
accomplice
of the
code defines
harm,
any showing
of actual
fails to
liability and states:
establish an abuse of discretion. See Heisel
betz,
(citing
conspirators felony guilty are of the actual- committed, further tri having contends the though no intent to judge it, al erred in McDonald to testi commit the was committed if offense fy. The decision to a purpose allow witness who was the furtherance of unlawful not on the anticipated State’s witness list to is was one that should have been also a matter within the carrying court’s discretion. as a result the out the of of State, (Tex.Crim.App.1989), 1, v. Stoker 788 S.W.2d 15 conspiracy. denied, 951, t. 498 U.S. cer 111 7.02(b) (Vernon 1994) Pen.Code 371, S.Ct. L.Ed.2d 333 added). (emphasis Among reviewing the factors a court consid- Although the trial court did not sub determining ers whether there has been independent impulse theory mit the to the (1) an showing abuse of discretion are: a jury, required jurors the find instruction part prosecutor faith bad on the of the “that such offense was committed [murder] failing to disclose the witness’s name before purpose in furtherance of the unlawful (2) trial; whether the defendant could have robbery commit and was an offense that reasonably anticipated that the witness [appellant] should have a been as testify, although his or her name was carrying agreement.” result of the out of the not included on the witness list. See id. given charge jury acquit the State, (citing Hightower v. 629 S.W.2d appellant if the offense of murder was be 1981)). (Tex.Crim.App. Op.] [Panel yond contemplation. charge tracks language simply penal the of the code and also
The record does not reflect bad requires a not part prosecutor. faith on the of the that murder was be As was Stoker, yond appellant’s contemplation. a the situation in the When re witness was Here, charge adequately fused covered the to both sides. See id. the notification, charge given, though no harm is shown. See Davis close time (Tex.Crim.App. provided in a manner that does not given charge adequately Because the demonstrate bad faith. ap charge, the we overrule point is overruled. covered refused pellant’s point second and affirm the trial judgment. court’s JURY INSTRUCTION point alleges error second DAUPHINOT, J., concurring filed a jury charge. Specifically, in the trial court’s opinion. appellant challenges the court’s refusal DAUPHINOT, Justice, concurring. jury indepen
instruct the impulse charge Although I concur in the result reached dent even the con accomplice liability. majority, respectfully disagree tained an instruction on tively witness unless did with notice of new their conclusion that because the State faith, deviating good cause for was not enti- finds act bad Trial am- tled to a continuance in order to rule. from the well-established reasoning testimony. civil and long witness’s abhorred both Such bush has been Surely to an rule when an leads untenable mur- prosecutions. criminal adequate of the of Fred just stature as der defendant is entitled honesty reputation and the whose in civil case. preparation as is known, integrity well is in- standards preparation danger volved, obligated to the trial court is never nor the through fault of neither grant prepara- opposing party additional outweighs slight inconve- greatly defense unexpected tion time when days. delaying a trial for a few nience of *4 emerges. justified on the danger cannot be good faith. ground that the State acted mate, jail undisputed
It is that McDonald, against Ap- testify volunteered our state have exam- courts pellant Thursday evening on trial the before rules evidence and determined ined the following immediately week. The State judicial system is served that our better Friday this on faxed information to adopting uniform rules evidence. We morning. following Monday 166b, carefully look at rule con- should also court heard and denied motion policy implications, and and its sider its bases Nothing continuance. the record even a criminal defendant is entitled to hold that that hints could have prepare for trial after the reasonable time to that McDonald would discovery provid- has learns that the it State Indeed, against had rea- him. no incomplete longer accurate. ed is either or no anticipate son to a wit- McDonald would be hold Thursday evening. until ness denying Appellant’s motion for continuance. attorney knowledge It is common It is rare that a can show a court prohibited interviewing a criminal specific if he harm he will suffer advance permission of that defendant without defen- But motion a continuance. denied attorney.1 Appellant’s attorney, dant’s prove vehicle to new trial is often a sufficient therefore, permission needed time to obtain provide harm. Because attorney from McDonald’s he con- so could any record of how was duct his own of McDonald. interview preparation time or of solely rely lant was not by hav- what benefit he would have attained representations doing addi- trial, I concur more time to investigation. investigate is tional Failure to majority’s result. ineffective assistance Tuesday. Any began counsel.2 Voir dire is well developed must have
aware that both sides their case the time voir dire
begins.
The framers of the Texas Rules of Civil long recognized impor-
Procedure have preparation. of trial Rule 166b sets
tance supplementing pai’-
thirty-day deadline for Thirty
ty’s days list.3 is considered necessary to deal effec-
the minimum time Washington, U.S. 4.02(a), 2. See R. Prof’l Conduct Strickland Disciplinary 2052, 2066, 690-91, 104 S.Ct. L.Ed.2d reprinted G Ann., tit. subtit. Tex. Gov’t Code X, (Vernon 1998) (Tex app. Bar R. art. A 166b(6). 3. See TexR. Civ. P.