PATRICK O'RARDEN,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00513-CR
 
PATRICK O'RARDEN,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, ROWE, AND OVARD
DISSENTING OPINION BY JUSTICE OVARD
AUGUST 29, 1989
 
 
ON MOTION FOR REHEARING
        I respectfully dissent. The majority reverses and remands this case based upon O'Rarden's third and fourth points of error. An analysis of these points shows that the trial court did not err.
        In point of error three, O'Rarden argues that the trial court erred in overruling the oral motion for continuance that he made after discovering exculpatory evidence. He asserts that he was denied due process of law. As a general rule, an application for continuance is left to the sound discretion of the trial court, and unless it appears that the court abused its discretion with respect thereto, no error can be shown. Williams v. State, 168 S.W.2d 261, 263 (Tex. Crim. App. 1943). A criminal action may be continued on the written motion of either party. TEX. CODE CRIM. PROC. ANN. art. 29.03, (Vernon 1987); Minx v. State, 615 S.W.2d 748, 749 (Tex. Crim. App. 1981). Texas Code of Criminal Procedure article 29.08 provides that all motions for continuance must be sworn to by a person having personal knowledge of the facts relied upon for the continuance. Minx, 615 S.W.2d at 749. Where the motion for continuance is neither in writing nor sworn, nothing is presented for review. Minx 615 S.W.2d at 749; Lopez v. State, 535 S.W.2d 643, 650 (Tex. Crim. App. 1976).
        Prior to trial, O'Rarden filed motions requesting any exculpatory evidence. These motions were granted by the trial court prior to the first day of trial. On the first day of trial, during jury selection, O'Rarden read in a DHR file that when Dr. Ashworth conducted a physical examination of the complainant two days after the alleged offense, the complainant showed no symptoms of sexual abuse. O'Rarden then presented an oral motion for continuance, prior to any opening statement or presentation of any evidence. The trial court overruled his oral motion for continuance. Additionally, during the trial, Dr. Ashworth testified that the complainant had denied any "bad touching." Dr. Ashworth concluded that no sexual abuse had occurred. The record showed that the State previously was aware of Dr. Ashworth's physical examination, finding no symptoms of sexual abuse. There was no showing that the State had previous knowledge of complainant's denial of "bad touching" or Dr. Ashworth's conclusion of the absence of sexual abuse. The jury received Dr. Ashworth's testimony concerning these exculpatory matters. O'Rarden made no motions or requests at the conclusion of Dr. Ashworth's testimony. He now argues that the late disclosure of the doctor's findings caused O'Rarden harm by adversely affecting his trial strategy.
        O'Rarden's oral motion for continuance did not properly preserve error for this Court's review. A motion for continuance is required to be in writing and must be sworn. TEX. CODE CRIM. PROC. ANN. art 29.03 and art. 29.06 (Vernon 1987). These requirements apply whether a motion for continuance is made before or after the trial commences. Allen v. State, 505 S.W.2d 923, 924 (Tex. Crim. App. 1974); Stubbs v. State, 457 S.W.2d 563, 564 (Tex. Crim. App. 1970); see Juarez v. State, 439 S.W.2d 346, 348 (Tex. Crim. App. 1969). There was no abuse of discretion by the trial court.         The majority relies on several cases for the proposition that suppression of Dr. Ashworth's exculpatory evidence by the State denies O'Rarden due process and results in reversible error. They base their reasoning on factors set out in Butler v. State, 736 S.W.2d 668, 670 (Tex. Crim. App. 1987). They attempt to reinforce this position by citing United States v. Bagley, 473 U.S. 667 (1985); Brady v. Maryland, 373 U.S. 83, 87 (1963); Ex Parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989). These cases are readily distinguishable because, in each case, the exculpatory evidence was discovered after the trial was completed. In this case, the exculpatory evidence was disclosed to the defense on the first day of the trial and during the trial.
        When exculpatory evidence is discovered prior to or during the trial, a different situation exists, particularly, as in this case, where the jury actually receives the exculpatory evidence. An essential factor, materiality, as enumerated in Butler, is no longer applicable. See Coe v. State, 683 S.W.2d 431, 438 (Tex. Crim. App. 1984). O'Rarden's third point of error should be overruled.
        In his fourth point of error, O'Rarden contends that the trial court erred in overruling his motion for mistrial because of the late presentation of exculpatory evidence. He makes reference to his denial of effective use of the exculpatory evidence as argued in point of error three.
        In order to preserve a complaint for appellate review, a party must have presented the trial court a timely request, objection, or motion. TEX. R. APP. P. Rule 52(a). To be timely, the request, objection or motion must be made as soon as the ground becomes apparent. See Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1985).
        O'Rarden became aware of Dr. Ashworth's physical examination, showing no symptoms of physical abuse, on the first day of trial. After a day's recess, he called DHR worker Jones as his first witness. During a recess in Jones's testimony, O'Rarden's counsel apparently spoke with Dr. Ashworth. He was permitted to present Dr. Ashworth's testimony to the jury prior to Jones concluding her testimony. At the conclusion of the doctor's testimony, he made no motion or request of the trial court. After Dr. Ashworth's testimony, O'Rarden recalled Jones and presented five additional witnesses, including himself, prior to urging his motion for a mistrial based on the tardy disclosure of exculpatory evidence. Due process requires O'Rarden to urge his remedy when the ground becomes apparent. See Thompson, 691 S.W.2d at 635. Due process does not permit him to pursue his original strategy, and then, at any point that he elects, obtain a mistrial. Point of error four should be overruled.
        Under due process, remedies were available to O'Rarden. He did not move for a continuance in writing. He did not timely move for a mistrial. Since the jury heard the exculpatory evidence, I am not persuaded that a different result was a reasonable probability. Finding no reversible error in any of O'Rarden's points of error, I would affirm the judgment of the trial court.
                                                  
                                                  JOHN OVARD
                                                  JUSTICE
 
PUBLISH
TEX. R. APP. P. 90
880513RD.P05
 
 
File Date[01-02-89]
File Name[880513RD]