TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 49,928, HONORABLE JOE CARROLL, JUDGE PRESIDING
Robert Lyall testified that appellant shot him three times with a pistol following a brief argument. Another State witness testified that appellant showed her a pistol earlier that day and made threatening remarks concerning Lyall. Appellant denied threatening Lyall, and testified that he shot Lyall when Lyall attacked him with a trowel without provocation. The issue of self-defense was submitted to the jury.
The attorney who represented appellant at trial was appointed in May 1999, one month after the shooting. On October 4, 1999, the day trial was scheduled to begin, counsel filed a motion for continuance. As grounds, the motion said, "The Defendant has requested that his counsel do additional investigation after defense counsel completed informal discovery with the State . . . ." At the hearing on the motion, counsel stated, "[T]he things that we determined in the discovery are the different identities of people who are connected with it, [appellant] raised a request with me to follow up some additional loose ends prior to trial." Counsel added that appellant "believes very strongly that there are some important issues that still need to be chased down." The motion was overruled.
Appellant filed a motion for new trial complaining of the denial of a continuance. The motion stated that additional time had been needed "to locate witnesses as to the violent and abusive character of the complainant . . . ." At the new trial hearing, trial counsel named several persons he would have talked to had the continuance been granted, but there is no evidence that any of these persons would have been able to offer testimony favorable to appellant.
The grant or denial of a motion for continuance is within the sound discretion of the trial court. See Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). Appellant's motion did not comply with the statutory requisites. See Tex. Code Crim. Proc. Ann. art. 29.06 (West 1989). A motion for continuance based on the absence of a witness that is filed on the day trial is set to begin does not show the diligence required to support the motion. See Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999). To find an abuse of discretion in refusing a continuance, there must be evidence that the defendant was prejudiced by his counsel's inadequate preparation time. See Heiselbetz, 906 S.W.2d at 511. In the absence of a showing of either diligence or prejudice, we conclude that the district court did not abuse its discretion by overruling the motion for continuance and the later motion for new trial.
Having resolved the only issue on appeal adversely to appellant, we affirm the judgment of conviction.
J. Woodfin Jones, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: August 10, 2000
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