Affirmed and Memorandum Opinion filed May 4, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00735-CR
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DINH QUANG LE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1211417
M E M O R A N D U M O P I N I O N
A jury convicted appellant Dinh Quang Le of driving while intoxicated and the trial court sentenced him to ninety days confinement in the Harris County Jail and fined him $1500.00. In his sole issue, appellant claims the trial court erred in denying his motion for continuance. We affirm.
I. Factual and Procedural Background
The trial in this case began on May 3, 2004. On April 29, 2004, appellant filed a written motion for continuance[1] requesting a reset of the trial until May 5, 2004, so that he could obtain a transcript of the arresting officer=s testimony from a prior administrative licensing revocation hearing (Athe ALR hearing@). Appellant claimed he needed this transcript to impeach the officer’s testimony at appellant=s trial. A hearing was held by telephone and the trial court denied appellant=s motion. Appellant re-urged the motion on the date of trial, but the trial court again denied the motion, finding that appellant had not used due diligence in obtaining the transcript in question.
II. Discussion
A. Standard of Review
We review the trial court=s denial of a motion for continuance under an abuse of discretion standard. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). In order to establish an abuse of discretion, appellant must show that he was actually prejudiced by the denial of his motion. Id. Examples of specific prejudice include unfair surprise, an inability to effectively cross-examine the State=s witnesses, or the inability to elicit crucial testimony from potential witnesses. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (en banc).
B. Analysis
In the present case, appellant argues that the trial court abused its discretion by denying his motion for continuance to obtain the transcript from the ALR hearing. Appellant claims he needed the transcript to impeach Officer Michael Smith=s trial testimony regarding the horizontal gaze nystagmus test (“HGN test”) given to drivers suspected of driving while intoxicated.
At trial, Smith testified that when a suspect is given the HGN test, there are three characteristics to look for in determining whether that suspect is intoxicated. One of the characteristics is a “lack of smooth pursuit” when the suspect=s eyes follow an object from side to side. Before Smith could testify about appellant’s performance on the HGN, however, appellant’s trial counsel requested to voir dire Smith to determine if Smith properly administered the test. Outside the presence of the jury, Smith and appellant’s trial counsel engaged in the following dialogue:
APPELLANT’S TRIAL COUNSEL: For ‘lack of smooth pursuit,’ how many seconds do you take the pen, from the nose to the right and then back to the nose?
SMITH: Eight seconds, I believe.
APPELLANT’S TRIAL COUNSEL: I’m sorry, eight seconds?
SMITH: I believe so, sir. I’m not positive on that number.
APPELLANT’S TRIAL COUNSEL: And that’s eight seconds out here and then eight seconds back? Eight seconds here, eight seconds back?
SMITH: Six seconds out, six seconds back.
APPELLANT’S TRIAL COUNSEL: Six seconds out, six seconds back? That’s on ‘lack of smooth pursuit,’ correct?
SMITH: Yes, sir.
Appellant argues that the ALR transcript would have impeached Officer Smith=s trial testimony because Smith testified at that hearing that the time frame for testing lack of smooth pursuit was “four seconds in, four seconds out.” However, the jury never heard the portion of the trial record to which appellant cites. Appellant fails to cite to any testimony presented to the jury that could have been impeached had the ALR transcript been available. Therefore, appellant is unable to show the trial court abused its discretion in denying his motion for continuance because he is unable to show he was prejudiced. See Vasquez, 67 S.W.3d at 240; Janecka, 937 S.W.2d at 468. Accordingly, his sole issue is overruled.
/s/ Eva M. Guzman
Justice
Judgment rendered and Opinion filed May 4, 2006.
Panel consists of Justices Fowler, Edelman, and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] The State argues appellant has waived his claim because no written motion for continuance appears in the record. However, appellant=s written motion appears in the Exhibit Volume of the record as Defense Exhibit 1.