PATSY HUNT v. THE STATE OF TEXAS--Appeal from County Court at Law of Liberty County

  NUMBER 13-01-00490-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

PATSY HUNT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

  On appeal from the County Court at Law of Liberty County, Texas.

  O P I N I O N

  Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Hinojosa

A jury found appellant, Patsy Hunt, guilty of the offense of resisting arrest, and the trial court assessed her punishment at one year confinement in the county jail and a $1,200.00 fine. However, the trial court suspended the confinement and placed appellant on community supervision for a term of two years. By two points of error, appellant contends the trial court abused its discretion by refusing to give her additional time to locate exculpatory evidence and the jury=s verdict is against the great weight of the evidence. We affirm.

A. Background

On April 16, 2000, Liberty County Sheriff=s Department Deputies Brett Audilet and John Rountree responded to a disturbance call. When they arrived at the scene, Audilet and Rountree encountered appellant struggling with a male. Rountree asked both individuals to stop and walk to him. The male walked toward him, but appellant walked away toward a fence, uttering obscenities at people gathered behind the fence. After appellant did not respond to Rountree=s request that she walk toward him, Audilet attempted to arrest her. Appellant resisted and had to be physically restrained.

Appellant testified she did not know she was under arrest and that she offered resistance only after being assaulted by the deputies. On the second day of the trial, appellant subpoenaed her book-in records and photograph. The trial court granted appellant a recess which lasted one hour and forty minutes, to locate the records and photograph. During the recess, the State provided appellant with the book-in records, but the records did not contain any photographs.

After the recess, appellant asked the trial court for another recess, to find out why the book-in records did not contain any photographs. The State informed the trial court that it had provided appellant with all the book-in records. The following then occurred:

Prosecutor: But there=s no evidence, Judge, that there was a photograph taken. As far as we know at this particular juncture, there is no photograph that was taken of Ms. Hunt in book-in.

The Court: Well, the Defendant testified, as I recall, that at the hospitals where she went, they made photographs of her. Are those available?

Defense Attorney: I don=t know. I subpoenaed all of their records, and they didn=t bring photographs, either.

* * * * *

The Court: You have medical records that reflect what you were attempting to show by those photographs; isn=t that correct?

Defense Attorney: Yes , sir, I certainly do.

The trial court then denied appellant=s request for another recess.

B. Denial of Request for Another Recess

In her first point of error, appellant contends the trial court abused its discretion by refusing to grant her request for additional time to secure exculpatory evidence, to wit: the book-in photograph.

In Munoz v. State, we noted that an argument in equity can be made against the erroneous denial of counsel=s oral motion to recess the trial. See Munoz v. State, 24 S.W.3d 427, 431 (Tex. App. Corpus Christi 2000, no pet.). "[A] motion for continuance, based on equitable grounds rather than statutory grounds, is entirely within the sound discretion of the court, and will only call for reversal if it is shown that the court clearly abused its discretion." Alvarado v. State, 818 S.W.2d 100, 103 (Tex. App.BSan Antonio 1991, no pet.) (citing Hernandez v. State, 492 S.W.2d 466, 467 (Tex. Crim. App. 1973)); see Collection Consultants, Inc. v. State, 556 S.W.2d 787, 795 (Tex. Crim. App. 1977); Chance v. State, 528 S.W.2d 605, 607 (Tex. Crim. App. 1975); Coleman v. State, 481 S.W.2d 872, 873 (Tex. Crim. App. 1972); Ward v. State, 427 S.W.2d 876, 881 (Tex. Crim. App. 1968); Darty v. State, 193 S.W.2d 195 (Tex. Crim. App. 1946). Therefore, the trial court's decision will only be overturned if there was an abuse of discretion. Munoz, 24 S.W.3d at 431-32. To establish abuse of discretion, appellant must show that she was actually prejudiced by the denial of her motion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002) (statutory motion for continuance; defendant did not show prejudice because defendant did not show that he was unable to procure a helpful witness that he could have procured had he been granted a continuance).

Appellant contends she was prejudiced by the court=s denial of her request for a recess because the introduction of the photograph would have: (1) provided proof of the condition of appellant at the time she was booked in, (2) given credence to appellant=s testimony, and (3) impeached Deputy Audilet=s testimony regarding the existence of the photograph.

We conclude appellant was not prejudiced by the trial court=s denial of her request for a recess. Appellant testified that a book-in photograph was taken. The record shows that medical records were introduced into evidence which reflected appellant=s condition after the book-in, and they corroborated appellant=s testimony.

Furthermore, appellant requested a recess for an indefinite period of time to locate the book-in photograph, in contrast to a short delay of trial. See White v. State, 982 S.W.2d 642, 647 (Tex. App.BTexarkana 1998, pet. ref=d); Deaton v. State, 948 S.W.2d 371, 373 (Tex. App.BBeaumont 1997, no pet.) (delay of less than one hour); Petrick v. State, 832 S.W.2d 767, 771 (Tex. App.BHouston [1st Dist.] 1992, pet. ref=d) (delay of no more than two and one-half hours). Appellant's request was oral and unsworn. The code of criminal procedure permits a continuance only upon a written sworn motion. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). The court of criminal appeals has stated: A[a] motion for continuance not in writing and not sworn preserves nothing for review.@ Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000); see also Mosley v. State, 960 S.W.2d 200, 206 (Tex. App.BCorpus Christi 1997, no pet.).

We hold the trial court did not abuse its discretion in denying appellant=s request for an additional recess. We overrule appellant=s first point of error.

C. Factual Sufficiency

In her second point of error, appellant challenges the factual sufficiency of the jury's verdict as being against the great weight of the evidence.

When we review the factual sufficiency of the evidence, we view all the evidence in a neutral light, favoring neither party. Vasquez, 67 S.W.3d at 236; Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Evidence is factually insufficient if it is so weak as to render the conviction clearly wrong and manifestly unjust, or if the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. In performing this review, we are to give due deference to the fact finder's determinations. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 8 9. The appellate court should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Vasquez, 67 S.W.3d at 236 (citing Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000), cert. denied, 121 S. Ct. 1407 (2001)).

At trial, appellant contended her resistence to the arrest was justified under section 9.31(c) of the penal code. Tex. Pen. Code Ann. ' 9.31(c) (Vernon Supp. 2002). Appellant testified the deputies assaulted her before she resisted arrest. The medical records reflect appellant suffered a contusion to the head. However, the deputies testified that the use of force, if any, occurred only after appellant resisted arrest. Furthermore, the deputies testified appellant appeared to be intoxicated.

We cannot say that the evidence is so weak as to render the conviction clearly wrong and manifestly unjust, or that the adverse finding is against the great weight and preponderance of the available evidence. As the sole judge of the weight and credibility of witnesses= testimony, the jury obviously gave more weight and credence to the officers= testimony than to appellant=s testimony. See Vasquez, 67 S.W.3d at 236. Accordingly, we hold the evidence is factually sufficient to support appellant=s conviction. We overrule appellant=s second point of error.

The judgment of the trial court is AFFIRMED.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

30th day of August, 2002.