Ruben Valenzuela Garay v. The State of Texas--Appeal from 205th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RUBEN VALENZUELA GARAY,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-01-00336-CR

Appeal from the

205th District Court

of El Paso County, Texas

(TC# 20000D03487)

O P I N I O N

Appellant Ruben Valenzuela Garay (AValenzuela@) appeals from his conviction for recklessly causing serious bodily injury to a child and causing serious bodily injury to a child by criminal negligence. We affirm the conviction.

Facts

Valenzuela challenges his conviction in a single issue. He alleges that his conviction should be reversed and this cause remanded for a new trial because the trial court denied his oral motion for continuance. The oral motion was made in the middle of voir dire when defense counsel learned that Valenzuela=s only expert on medical matters had refused to come to testify on his behalf. No written motion for continuance with regard to this issue was filed with the trial court.

Valenzuela was indicted on August 1, 2000 for an incident that occurred on August 20, 1997. His case was previously continued on three occasions for reasons unrelated to the expert witness problem. Indeed, prior to his trial in August 2001, the trial court granted a continuance three months earlier in May 2001. It was in this context that the trial court entertained Valenzuela=s oral motion.

In response to Valenzuela=s motion, the trial court acknowledged that the case was of a sensitive nature, that three prior continuances had been granted, that jury selection had begun, and that all other witnesses were available and ready for trial. After weighing these factors, the trial court offered defense counsel the opportunity of one day recess before the start of trial to find another expert to testify on Valenzuela=s behalf.

After the close of all evidence and prior to the charge being read to the jury, defense counsel made a bill of exception which included testimony from Valenzuela that he was indigent and could not afford to pay an expert for his testimony. On August 17, 2001, Valenzuela was convicted on two counts of injury to a child.

On August 22, 2001, Valenzuela filed a motion for new trial alleging three grounds. First, that he should be granted a new trial in the interest of justice, second, that the evidence was insufficient to support the conviction, and third, that he was denied his right to an expert to assist in his defense. On the same day, Valenzuela filed a notice of appeal.

No written motion for continuance

Article 29.03 of the Texas Code of Criminal Procedure requires that a motion for continuance must be made in writing. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). The Code also mandates specific information be included in the motion of continuance, much of which was not provided by defense counsel in either written or oral form. See Tex. Code Crim. Proc. Ann. art. 29.06-29.08, 29.13 (Vernon 1989). There is no dispute in this case that a sworn written motion for continuance based on the unexpected withdrawal of Valenzuela=s expert from the case was never filed.

A motion for continuance not in writing and not sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000); see Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App. 1989), cert. denied, 502 U.S. 961, 112 S. Ct. 426, 116 L. Ed. 2d 446 (1991); Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1061, 105 S. Ct. 2173, 85 L. Ed. 2d 490 (1985); Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Porter v. State, 623 S.W.2d 374, 381 (Tex. Crim. App. 1981), cert. denied, 456 U.S. 965, 102 S. Ct. 2046, 72 L. Ed. 2d 491 (1982). We are unable to reach the merits of this appeal because Valenzuela never filed a written and sworn motion for continuance with the trial court. The issue is overruled.

Conclusion

We therefore affirm the trial court=s judgment.

SUSAN LARSEN, Justice

December 12, 2002

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)