Jimenez v. State

717 S.W.2d 1, 1986 Tex. Crim. App. LEXIS 1258

• Court: Court of Criminal Appeals of Texas
• Decided: April 30, 1986
• Docket: 297-83
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

The Court of Appeals for the Fifth Supreme Judicial District reversed appellant’s conviction for murder on the ground that the trial judge abused his discretion in denying appellant’s motion for continuance. Jimenez v. State, 648 S.W.2d 782 (Tex.App. —Dallas 1983). We granted the State’s petition for discretionary review to review that determination.

Appellant was indicted for murder in January, 1980. On September 29, 1980, a trial date of November 10,1980, was scheduled and a pretrial hearing was scheduled for October 24, 1980. On November 10, the day the trial was to begin, appellant’s counsel filed a motion for continuance in which he alleged several grounds, the third of which read:

Since this case was first set for trial on November 10, 1980, Defendant’s attorney has been advised by his doctor, Robert Hamas, M.D. that he has a carcinoma, which must be removed at the earliest time when such an operation could be scheduled. That surgery is scheduled for 7:30 A.M. on Wednesday November 12, 1980 and that the said attorney must check into Doctors Hospital at 3:00 P.M. on November 11, 1980. In the event this trial is not concluded on Monday, November 10, or Tuesday, November 11, 1980, by 3:00 P.M. then such surgery cannot be performed as scheduled.

The record does not contain any evidence in support of the motion or a transcript from a hearing on the motion. The only evidence that it was heard is a notation on the docket sheet that the motion was overruled prior to voir dire. The trial began on November 10 and ended at about 4:45 P.M. on November 11.

The Court of Appeals properly noted that the granting of a continuance is a matter within the discretion of the trial court and that Art. 29.03, V.A.C.C.P., provides that a criminal action may be continued “upon sufficient cause shown; which cause shall be fully set forth in the motion_” The Court then concluded, solely from the allegation in the motion for continuance, that appellant was forced to stand trial “represented by counsel with mind distracted by medical problems who must hurry through the trial in order to have carcinoma surgery when scheduled.”

Every case must be reviewed on its own facts. In the matter of a continuance abuse of discretion and, thus, harm is evaluated by examining the record of the proceedings to determine if appellant was ably represented by counsel throughout the trial. Ex Parte Windham, 634 S.W.2d 718 (Tex.Gr.App.1982); Harris v. State, 516 S.W.2d 931 (Tex.Cr.App.1975); Compton v. State, 500 S.W.2d 131 (Tex.Cr.App.1973); Gray v. State, 477 S.W.2d 635 (Tex.Cr.App. 1972); Day v. State, 57 S.W.2d 581 (Tex.Cr. App.1933); Webb v. State, 40 S.W. 989 (Tex.Cr.App.1897). In the instant case there is no record of any proceeding or evidence offered in support of the motion. Counsel did not allege that his physical condition was in any way a hindrance to his effective representation of appellant. Cf. White v. State, 475 S.W.2d 927 (Tex.Cr. App.1972). Appellant had been indicted about ten months before the trial. On September 29 the case was scheduled to be tried on November 10. The motion was filed the day of trial requesting a continuance for an unspecified length of time. The case was not complex and lasted only two days. No harm has been shown. Cf. Ex Parte Windham, supra, and factors listed therein.

A review of the record before us reflects that appellant was ably represented by counsel. Cf. Harris, supra; Gray, supra; and Moore v. State, 144 Tex.Cr.R. 145,161 S.W.2d 83 (1942). The record does not support the Court of Appeals’ conclusion that counsel was distracted and hurried through trial. Counsel’s motion does not allege such effect and we will not speculate on such, particularly when the record does not reflect it. Appellant did not file a motion for new trial or otherwise develop a record as to counsel’s performance at trial and the effect, if any, of his medical condition on that performance. The record reflects that counsel effectively represented appellant. No harm is presented and we cannot say, on the basis of this record, that the trial court abused his discretion in overruling the motion for continuance.

The judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Appeals for consideration of other grounds of error.

McCORMICK, J., concurs in the result.