Frances Unoka Nwosoucha v. The State of Texas--Appeal from 185th District Court of Harris County
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Affirmed and Majority and Dissenting Opinions filed November 4, 2010.
In The
Fourteenth Court of Appeals
___________________
NO. 14-08-01131-CR
___________________
FRANCES UNOKA NWOSOUCHA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1157990
DISSENTING OPINION
In my opinion, the trial court committed reversible error when it denied appellant’s
motion for continuance, and therefore we should sustain appellant’s first issue.
Accordingly, I respectfully dissent.
Following are some reported facts about Hurricane Ike:
Hurricane Ike . . . was the third costliest hurricane ever to make
landfall in the United States. . . . . Ike made its final landfall near Galveston,
Texas as a strong Category 2 hurricane, with Category 5 equivalent storm
surge, on September 13, 2008, at 2:10 a.m. CDT. . . .
. . . Damages from Ike in U.S. coastal and inland areas are estimated at
$29.6 billion . . . . The hurricane also resulted in the largest evacuation of
Texans in that state’s history. It became the largest search-and-rescue
operation in U.S. history.
HURRICANE IKE, http://www.en.wikipedia.org/wiki/Hurricane_Ike (last visited October
19, 2010) (footnotes omitted); see also HURRICANE IKE FAST FACTS (updated Dec. 2,
2008), http://www.HoustonHurricaneRecovery.org/node/163.
The storm roared ashore hours before daybreak Saturday with
110-mph winds and towering waves, smashing houses, flooding thousands
of homes, blowing out windows in Houston’s skyscrapers, and cutting off
power to more than 3 million people, perhaps for weeks.
....
Storm surge topped out at 15 feet
Because Ike was so huge—some 500 miles across, making it nearly as
big as Texas itself—hurricane winds pounded the coast for hours before and
after the storm’s center came ashore.
CREWS FAN OUT TO SEARCH FOR IKE VICTIMS, (Sept. 14, 2008, updated 2:03 a.m. ET),
http://www.MSNBC.MSN.com/id/26637482/.
In the present case, the following facts are set forth in appellant’s sworn motion for
continuance.
Appellant’s attorney’s law office was on Galveston Island. On September 11,
2008, he closed his office because of Galveston’s mandatory evacuation order in advance
of the September 13, 2008 landfall of Hurricane Ike. After Ike hit, Galveston Island was
closed and appellant’s counsel was unable to get back to his office for many days. It was
only after appellant’s counsel prevailed in a lawsuit against Galveston that he was able to
gain access to the island and his office.1
1
See Anthony P. Griffin, et al. v. Mayor Lyda Ann Thomas, City Manager Steven Le Blanc, City of
Galveston; In the United States District Court for the Southern District of Texas; Civil Action No.
H-08-2801, filed on September 19, 2008.
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On return, appellant’s counsel found that his office had been flooded with four feet
of water. Counsel’s office equipment, including computers, sustained water damage.
One-third to one-half of his client files, for approximately 250 clients, were water
damaged. In addition, the warehouse where counsel stored many files was inundated with
ten to twelve feet of water, resulting in a total loss of most of those files. Attached to the
sworn motion for continuance are pictures of the damage caused by Ike to counsel’s office
and warehouse.
Appellant’s counsel’s office had no electricity for seventeen days, until September
29, 2008. When counsel gained access to his office, he began the herculean task of
assessing his damages, including losses to his client files, and cleaning up. During the
time counsel was excluded from his office with no access to his files or scheduling orders,
many deadlines had passed, hearings were held, and orders were entered in cases he was
handling; he therefore devoted his law practice first to those matters that he missed due to
his absence, as well as to other client matters that were of an emergency nature. In
addition to his office, counsel had his home on Galveston Island to worry about. He did
not move back into his home until October 18, 2008, just two days before the trial in the
present case.
Appellant’s sworn motion for continuance of the October 20, 2008 trial additionally
states the following:
Counsel was simply not able to complete the process of preparing for trial in
this matter and has not been able to determine whether the file survived in
toto. . . .
. . . Counsel has also determined that his working folder/trial
preparation/theory of case folder was damaged . . . . Counsel is still culling
damaged materials to determine whether there are other parts of the client’s
file that were compromised.
....
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. . . Because of the circumstances described in this motion, counsel
has been incapable of completing the preparation for trial and cannot
currently proceed to trial for a two week period. . . .
....
. . . This case is a complex criminal matter. . . . The State has made
clear that it intends to call at least twenty physicians and a review of the file
reveals that multiple medical files will be used to establish the State’s case. .
..
. . . Without a sufficient period of time between the storm and trial,
counsel would be performing a disservice to the client and this Court.
The State’s attorney had spoken with appellant’s attorney by phone on September
29, 2008, and had learned that Hurricane Ike had caused flood damage to the office.
Appellant’s attorney faxed the motion for continuance to the State’s attorney on Thursday,
October 16, 2008; the State’s attorney stated she opposed the motion for continuance. On
Friday, October 17, the State’s attorney showed a copy, albeit incomplete, of appellant’s
motion for continuance to the trial judge. Even though the motion for continuance was
not officially filed with the court until the day of trial, Monday, October 20, the court and
the State’s attorney had both seen a copy of the motion for continuance in advance.
A hearing was held on the motion for continuance on Monday, October 20. After
describing to the court the severe damage he had incurred from Hurricane Ike, appellant’s
counsel explained that for the past three weeks, since his office was open again, he had
been cleaning up and getting his office organized, and he had been essentially practicing
emergency law, taking care of everything that was amiss as a result of his long, unplanned
absence from his office, such as missed deadlines, missed appearances, and orders entered
during his absence. Appellant’s counsel pleaded:
I recognize this Court told us in the last setting that there would be no
continuances, but I did not plan Ike and no one in the Galveston community
planned for a hurricane.
I ask the Court to continue this matter so that justice can be done. It
is literally impossible for me to go to trial this morning without all of my file
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intact. I spent most of this weekend trying to locate the remaining portions
of the file and have not been able to do so.
....
I cannot, in good faith, cannot hold out to the Court that I’m effective
as from the Sixth Amendment standpoint. I think it denies my client her due
process rights. She’s entitled to effective assistance of counsel.
The trial court denied appellant’s motion for continuance. The jury trial lasted
more than two weeks. Appellant was convicted.
In her first issue, appellant asserts the trial court erred in denying her motion for
continuance. In my opinion, the trial court abused its discretion when it denied the
motion.
A criminal action may be continued on the written motion of the State or of the
defendant, upon sufficient cause shown, which shall be fully set forth in the motion. Tex.
Code Crim. Proc. art. 29.03. When denial of a continuance has resulted in representation
by counsel who was not prepared, the appellate courts have not hesitated to declare an
abuse of discretion. See Heiselbetz v. State, 906 S.W. 2d 500, 511 (Tex. Crim. App.
1995). To find an abuse of discretion in refusing to grant a motion for continuance, there
must be a showing that the defendant was prejudiced by her counsel’s inadequate
preparation time. See id.
Appellant’s counsel was clearly not prepared to proceed to trial in this very complex
criminal case.2 Not only were key parts of his case file missing or damaged, including his
trial preparation/theory of case folder, but counsel simply had not had the opportunity to
focus on and prepare for this trial. As judges, the longer we wear our black robes, we must
be on guard against the tendency to forget what it is like to be in the trenches as a trial
attorney. Counsel’s office was flooded with four feet of water and his warehouse was
2
The jury trial lasted from October 20 to November 5, more than two weeks. In the
guilt-innocence phase, the State called thirty-nine witnesses, including thirteen medical doctors. The
defense called seven witnesses.
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inundated with ten to twelve feet of water, his files and equipment were submerged, he was
banned from his office and case files for a lengthy period of time, his home was not
habitable. The present case was set for trial a mere three weeks after counsel’s power was
restored to his office. Understandably, during those three weeks, counsel’s focus was on
cleaning up his office, drying out his files, repairing/replacing equipment, finding files,
handling clients’ immediate needs, and dealing with missed deadlines and orders entered in
his absence—he was putting out fires. And counsel’s damaged home required attention.
Faced with such nightmare circumstances, there is no doubt that appellant’s counsel was
totally credible in his representations to the court that he was not prepared to proceed with
the defense of his client in this complex case, and he needed a continuance in the interest of
justice. Prejudice to appellant under these circumstances can and should be deemed.
According to the U.S. Supreme Court,
The matter of continuance is traditionally within the discretion of the
trial judge, and it is not every denial of a request for more time that violates
due process even if the party fails to offer evidence or is compelled to defend
without counsel. Contrariwise, a myopic insistence upon expeditiousness
in the face of a justifiable request for delay can render the right to defend
with counsel an empty formality. There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due
process. The answer must be found in the circumstances present in every
case, particularly in the reasons presented to the trial judge at the time the
request is denied.
Ungar v. Sarafite, 376 U.S. 575, 589–90, 84 S. Ct. 841, 849–50 (1964) (citations omitted).
The Texas Supreme Court recognized the devastating effect that Hurricane Ike had
on the legal community when it issued its September 17, 2008 Emergency Order Number
08-9140 and Opinion, stating:
This past weekend, Texas was struck by Hurricane Ike, resulting in
the closure or inaccessibility of court clerks’ offices and lawyers’ offices.
The resulting exigencies should be considered in enlarging time periods
prescribed by the Texas Rules of Civil Procedure and the Texas Rules of
Appellate Procedure.
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....
. . . To provide clarity to the judiciary and to the bar in this difficult
period in the aftermath of a natural disaster, the Court orders that the closure
of a court clerk’s office is ―good cause‖ for enlarging the time of filing any
document within the meaning of Rule 5, Tex. R. Civ. P., and . . . [o]f course,
there may be other good cause for an enlargement of time, including the
dislocation of counsel. . . .
....
This Order is issued in response to a natural disaster and is temporary.
It expires October 31, 2008, unless extended by further Order of the Court.
In the spirit of this Texas Supreme Court Emergency Order and Opinion, the trial
court in the present case should have considered the exigencies resulting from the closing
of appellant’s counsel’s office and the damage caused by Hurricane Ike, not only with
regard to the timing of the filing of the motion for continuance, but also with regard to the
merits of the motion.
Hurricane Ike and its aftermath presented extraordinary
circumstances. The trial court abused its discretion in this matter.
I would sustain appellant’s first issue, reverse the judgment, and remand this case
for a new trial.
/s/
Margaret Garner Mirabal
Senior Justice*
Panel consists of Justices Brown and Christopher and Senior Justice Mirabal (Christopher,
J., majority).
Publish — Tex. R. App. P. 47.2(b).
___________________
*Senior Justice Margaret Garner Mirabal sitting by assignment.
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