Pat Barcenas v. The State of Texas--Appeal from County Court at Law No 4 of Bexar County

No. 04-98-01045-CR

Pat BARCENAS,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 4, Bexar County, Texas

Trial Court No. 644438

Honorable Sarah Garrahan Moulder, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: December 6, 2000

AFFIRMED

Pat Barcenas (ABarcenas@) appeals her misdemeanor conviction of driving while intoxicated. In her sole point of error, Barcenas contends the trial court erred in denying her motion for continuance. We overrule Barcenas=s contention and affirm the trial court=s judgment.

Procedural History

On the second day of trial, after the State rested its case, defense counsel notified the trial court that he had paged a witness whom he intended to call, but the witness did not get off work until 4:00. Defense counsel further stated that if the witness did not show, defense counsel intended to ask the trial court Ato allow us to put him on tomorrow.@ The trial court stated that it would wait until 4:30, and if the witness failed to show, defense counsel could assume that the witness was not at work and was not coming.

Defense counsel proceeded with the questioning of Barcenas. After the conclusion of Barcenas=s testimony, defense counsel went outside to determine if the witness had arrived. Defense counsel returned to the courtroom and requested Athat the case be continued until tomorrow so that we can inquire about another witness.@ The trial court denied the motion for continuance, and defense counsel stated that they had nothing further and rested. The jury charge was read and closing arguments were made. The jury found Barcenas guilty, and the trial court imposed sentence. Barcenas timely filed this appeal.

Discussion

Article 29.03 of the Texas Code of Criminal Procedure permits a criminal action to be continued on written motion. See Tex. Code. Crim. Proc. Ann. art. 29.03 (Vernon 1989). A motion for continuance not in writing and not sworn preserves nothing for review. See Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 2008 (2000); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Vega v. State, 898 S.W.2d 359, 361 (Tex. App.CSan Antonio 1995, pet. ref=d); see also Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 1989) (setting forth requisite contents of motion for continuance based on absence of a witness); Gonzales v. State, 470 S.W.2d 700, 701 (Tex. Crim. App. 1971) (no abuse of discretion if motion for continuance not in writing as required by article 29.03 and fails to meet the requirements of article 29.06). Because Barcenas failed to file a written motion for continuance containing the contents specified in article 29.06, she has preserved nothing for appellate review.

Conclusion

The trial court=s judgment is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH