In the Interest of Natasha A. Cadena, A Minor Child--Appeal from 131st Judicial District Court of Bexar County

No. 04-98-00473-CV
IN THE INTEREST OF N.A.C., a Child,
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 96-EM5-01317
Honorable John D. Gabriel, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: October 21, 1998

AFFIRMED

Appellant, Uhrico Cadena ("Cadena"), appeals an order establishing his parent-child relationship with his daughter and ordering him to pay child support and arrearages upon his release from incarceration. In one point of error, Cadena contends that the trial court erred in denying his motion for continuance. We overrule Cadena's point of error and affirm the trial court's judgment.

We review the denial of a motion for continuance under an abuse of discretion standard. General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997); Klager v. Worthing, 966 S.W.2d 77, 80 (Tex. App.--San Antonio 1996, no writ). Absent a showing that the trial court's decision was arbitrary or unreasonable, the decision will not be disturbed on appeal. Klager, 966 S.W.2d at 80.

In determining whether the trial court abused its discretion, we view the evidence in the light most favorable to the trial court and indulge every legal presumption in favor of the judgment. Hatteburg v. Hatteburg, 933 S.W.2d 522, 526 (Tex. App.--Houston [1st Dist.] 1994, no writ).

Cadena's motion is predicated on his inability to be present at the hearing due to his incarceration. Cadena states in his motion that he does not deny paternity of the child and suggests and agrees to a provision requiring him to contact the attorney agency representing the petitioner within thirty days of his release. Cadena was not scheduled to be released until January 18, 2004.

A motion predicated on the absence of a party or witness must be accompanied by an affidavit setting forth specific facts to which the witness will testify at the time of trial. See Tex. R. Civ. P. 252; Hatteburg, 933 S.W.2d at 526; Babineaux v. Babineaux, 761 S.W.2d 102, 103 (Tex. App.--Beaumont 1988, no writ); Connor v. Wright, 737 S.W.2d 42, 44 (Tex. App.--San Antonio 1987, no writ). The affidavit must also specify that due diligence has been used to procure the testimony, stating such diligence. See Tex. R. Civ. P. 252; Babineaux, 761 S.W.2d at 103; Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.--Beaumont 1992, no writ); Echols v. Brewer, 524 S.W.2d 731, 734 (Tex. Civ. App.--Houston [14th Dist.] 1975, no writ). A mere conclusion that diligence was used in the accompanying affidavit is insufficient to satisfy this requirement. See Gregg, 844 S.W.2d at 853. Finally, the motion must contain some prognosis as to when or if the witness will testify. See Connor, 737 S.W.2d at 44. Under this final requirement, it must be shown that the testimony may reasonably be expected at the next term of court or within a reasonable period of time. See Condry v. Mantooth, 460 S.W.2d 513, 515 (Tex. Civ. App.--Houston [1st Dist.] 1970, no writ); Erback v. Donald, 170 S.W.2d 289, 292 (Tex. Civ. App.--Fort Worth 1943, writ ref'd w.o.m.).

In the instant case, no affidavit accompanied Cadena's motion for a continuance, and no showing was made regarding the specific facts to which Cadena would testify at trial. Unlike his previous letter to the court, Cadena did not request a telephonic hearing, and there is no motion in our record, indicating that Cadena requested a bench warrant. See In re M.M., No. 04-97-00825-CV, slip op. at 5-6 (Tex. App.--San Antonio, Aug. 5, 1998, n.w.h.); In re N.A.C., No. 04-96-00769-CV, slip op. at 2 (Tex. App.--San Antonio, Feb. 26, 1997, no writ) (not designated for publication). This demonstrates a lack of diligence on Cadena's part. Finally, Cadena requested that the hearing be postponed until his release in the year 2004. This request does not meet the requirement that the application show that the testimony may be expected within a reasonable time. Condry, 460 S.W.2d at 515; Erback, 170 S.W.2d at 292. We also note that the trial court's order does not require Cadena to begin making any payments until the month following his release from incarceration.

Viewing these facts in the light most favorable to the trial court's ruling, we cannot conclude that the trial court abused its discretion in overruling Cadena's motion for continuance. The judgment of the trial court is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

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