Ruben Valenzuela Garay v. State

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RUBEN

VALENZUELA GARAY,

Appellant,

v .

THE STATE OF TEXAS,

Appellee .

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No. 08-01-00336-CR

Appeal from the

205th District Court

of El Paso County, Texas

(TC#20000D03487)

MEMORANDUM

OPINION

A jury found Ruben Valenzuela Garay guilty of recklessly causing serious bodily injury to

a child and causing serious bodily injury to a child by criminal

negligence. The jury assessed punishment

at twelve years = confinement and a $10,000 fine for recklessly causing

serious bodily injury and two years = confinement for negligently causing

serious bodily injury. In his sole issue

on appeal, Valenzuela argues that the trial judge erred by denying his motion

for a continuance. We affirm. [1]

Factual and Procedural Background

Valenzuela was charged with causing

severe brain injuries to his girlfriend = s daughter, Armida ,

when she was almost two-years old.

Approximately six months before trial, the trial judge granted

Valenzuela = s motion for the appointment of a

medical expert to assist in the preparation of his defense. The judge appointed Dr. Juan Contin , an expert in forensic pathology. Two or three weeks before trial, the

prosecutor delivered Armida = s medical records to Dr. Contin for him to review.

During jury selection, Valenzuela = s counsel announced that Dr. Contin = s assistant called counsel = s office that morning and stated that

Dr. Contin had not reviewed the medical records and

had decided not to serve as an expert in the case. Counsel stated that he was A surprised and shocked @ about Dr. Contin = s decision and that he was concerned

that his representation would be inadequate without the assistance of an

expert. The trial judge then asked

counsel if he had someone in mind to replace Dr. Contin ,

and counsel responded that he did not because A [ i ]t = s so difficult to get in-town people. @

The judge noted that the offense was committed approximately four years

earlier, the case had already been reset a few times, and jury selection had

begun. Nevertheless, the judge stated

that once jury selection was completed, she would recess court for the day to

give Valenzuela an opportunity to find a substitute for Dr. Contin ,

A and then we will see what you come up

with between today and tomorrow. @

She added , A I will give you as much time as you

need within reason. . . . I do not foresee allowing a continuance of the trial,

though. I mean, I will give you time and

we can delay maybe one day. @

The next morning, defense counsel

stated, A I am pretty much in the same

situation as I was yesterday. @ He made an oral

motion for a three-month continuance because he was A unable to find a doctor here in town. @

Counsel also stated that he would reduce the motion to writing. The judge denied the oral motion.

After the denial of the continuance,

the State presented its evidence, which included a statement dictated by

Valenzuela. Valenzuela stated that Armida was injured when she fell from a kitchen table. A crime scene technician testified that the

distance from the kitchen table to the floor was thirty inches.

The State = s evidence also included testimony

from three expert witnesses. Dr. Cheetan Moorthy , a specialist in

pediatric radiology, testified that Armida had A acute blood surrounding the left side

of the brain @ and that A [t]he same side of the brain was

significantly swollen, . . . to the point where it was

pushing the other side of the brain over to the other side. @

He opined that the injury to the left side of the brain was caused by a A direct blow to that side of the head, @ involving a A very violent impact. @

Armida also had swelling and bruising on the

right side of her head, which resulted from a separate impact. According to Dr. Moorthy ,

Armida = s injuries were not consistent with a

fall from a thirty-inch-high table. He

noted that Armida did not have any other

injuries. Ordinarily, one would expect

to find defensive or reflexive injuries when a two-year-old child falls because

the child will attempt to break the fall.

Dr. Violetta

Radenovich , a pediatric opthalmologist ,

testified that Armida sustained bilateral symmetrical

retinal hemorrhages. This type of

hemorrhage can result when a child is shaken.

It would be A very unusual @ to sustain these hemorrhages in a fall from a height of

thirty-one inches. Although she could

not state with certainty the mechanism of Armida = s injuries, she believed the injuries

could have resulted from

hitting Armida against a wall or a A sudden throw @ to the floor.

Dr. Harry Wilson, a pediatric

pathologist, testified that Armida sustained A some type of impact injury with

acceleration to the left side of the head, along with some other type of more

minor injury to the right forehead. @

He stated that the level of force required to cause Armida = s injuries was equivalent to the

force that would occur in a thirty-mile-per-hour or greater car accident in

which an unrestrained child hits her head against an object or the force that

would occur in a fall from a height of between ten feet and three stories. He testified that Armida = s injuries were not consistent with

an accidental fall from a table because she had two separate sites of

injury--one on the right and one on the left--and because her injuries were too

severe to have resulted from a short fall off of a table. Wilson suggested that shaking may have played

a role in Armida = s injuries, but he conceded that her

injuries did not fit within the A classic @ description of shaken-baby

syndrome. He believed the most likely

cause of the injuries was that A this child sustained a significant whack to the left side of

her head, presumably while standing on the table. And that whack did two things. It sent her in a tumble fall onto the floor,

and it created near lethal brain injury to the left side of her brain. @

On the next day of trial, defense

counsel presented his written and sworn motion for a continuance to the trial

judge and offered it for purposes of the appellate record. The motion recited the facts regarding Dr. Contin = s decision not to serve as an expert and stated that

Valenzuela A is now at a severe disadvantage and

cannot obtain a fair trial. @ The motion

concluded by requesting a continuance to obtain an expert A second opinion and to refute Dr.

Wilson = s opinion testimony. @

The judge denied the motion, but agreed to make the motion part of the

appellate record. Valenzuela filed an unsworn motion for new trial, stating, A Defendant was denied his right to an

expert to assist in his defense. @

Discussion

Valenzuela argues that the denial of

the continuance deprived him of a fair trial.

He asserts that because he did not have an expert, he was unable to

cross-examine the State = s expert witnesses or to present expert testimony that Armida = s injuries were accidental.

We review a trial judge = s denial of a motion for continuance

for abuse of discretion. Vasquez v. State , 67 S.W.3d 229, 240 (Tex. Crim . App. 2002).

To establish an abuse of discretion, the defendant must show that he was

actually prejudiced by the denial of the motion. Id .

To preserve error in the denial of a

continuance based on the absence of a witness, a defendant must make a showing

as to what the witness = s testimony would have been.

See Gentry v. State , 770 S.W.2d 780, 787 (Tex. Crim . App. 1988); Lemmons

v. State , 75 S.W.3d 513, 526 (Tex. App.--San Antonio 2002, pet. ref = d); cf. Sturgeon v. State , 106

S.W.3d 81, 82-83 (Tex. Crim . App. 2003) (holding that

error in the trial court = s denial of a writ of attachment for a subpoenaed witness is

preserved if counsel states the witness = s anticipated testimony on the record

in open court). The defendant may make

this showing by attaching affidavits to the motion for continuance or to a

motion for new trial or by providing testimony at a new trial hearing. See Gentry , 770 S.W.2d at 787-88 ; Lemmons , 75 S.W.3d at 526 .

Valenzuela = s motion for continuance did not

state what Dr. Contin = s testimony would have been or that

it would have been material and beneficial and to him. And Valenzuela = s motion for new trial merely

asserted that he was denied an expert to assist in his defense. Therefore, Valenzuela has not preserved error

in the denial of the continuance.

Even if the issue were preserved, the

trial judge did not err in denying the continuance because Valenzuela = s motion does not comply with the

statutes that govern

continuance motions.

A motion for continuance must be in

writing and must be sworn to by a person having personal knowledge of the facts

relied on for the continuance. Tex. Code Crim . Proc. Ann. arts.

29.03, 29.08 (Vernon 1989); Dewberry v. State , 4

S.W.3d 735, 755 (Tex. Crim . App. 1999). If a continuance is sought because of the

absence of a witness, the motion must state the name and residence of the

witness, the diligence used to procure the witness = s attendance, the material facts

expected to be proved by the witness, that the witness is not absent by the

procurement or consent of the defendant, that the motion is not made for delay,

and that there is no reasonable expectation that attendance of the witness can

be secured during the present term of court.

Tex. Code Crim . Proc. Ann. art.

29.06; see also id. art . 29.07

(setting forth additional requirements for a subsequent continuance motion). After a trial has begun, a continuance may be

granted A when it is made to appear to the

satisfaction of the court that by some unexpected occurrence since the trial

began, which no reasonable diligence could have anticipated, the applicant is

so taken by surprise that a fair trial cannot be had. @

Id. art. 29.13.

Valenzuela did not comply with these

statutory requirements in at least two respects. First, he did not state, either in his

written motion or in open court, the material facts expected to be proved by

the witness. See id. art . 29.06 . Because Valenzuela failed to comply

with this requirement, he cannot demonstrate that he was prejudiced by the

denial of the continuance. See Gentry ,

770 S.W.2d at 787 (holding that to show that he was injured by the denial of a

continuance, the defendant must establish that the missing witness = s testimony would have been material

and beneficial to him); Rische v. State ,

746 S.W.2d 287, 289 (Tex. App.--Houston [1st Dist.]) ( A For appellant to have been deprived

of his constitutional right to a fair trial, the expert = s proposed testimony must have been

material to his case. @ ), remanded on other grounds , 755 S.W.2d 477 (Tex. Crim . App. 1988).

Second, the record does not reflect

that Valenzuela acted diligently to secure Dr. Contin = s testimony or that he could not have

anticipated Dr. Contin = s failure to appear by exercising

reasonable diligence. See Tex. Code Crim . Proc. Ann. arts.

29.06, 29.13.

There is nothing in the record to suggest that Valenzuela attempted to

subpoena Dr. Contin .

See Hughes v. State , 962 S.W.2d 89, 90 (Tex. App.--Houston [1st

Dist.] 1997, pet. ref = d) (holding that a defendant failed to exercise diligence

because he did not attempt to subpoena his expert witness until the first day

of trial). Moreover, according to Valenzuela = s counsel, Dr. Contin

informed counsel on the morning of jury selection that he had not reviewed Armida = s medical records. If

counsel intended to call Dr. Contin as a witness, he

should have determined before the trial began whether Dr. Contin = s findings were favorable to the

defense.

Furthermore, a trial judge does not

err in denying a continuance if the defendant does not demonstrate that a

substitute witness can be secured or that the continuance will not result in an

indefinite delay. Rische ,

746 S.W.2d at 290 .

Valenzuela did not demonstrate that he would be able to find a

substitute for Dr. Contin . His counsel = s statements to the court suggested

that finding a substitute would be difficult.

Although the trial judge indicated she might delay the trial for a day,

counsel sought a three-month continuance to secure a new expert. He also stated that he could not find a

substitute in town. [2] Because Valenzuela failed to demonstrate that

a substitute witness could be secured or that the continuance would not result

in an indefinite delay, the trial judge did not err in denying the continuance.

Valenzuela relies on three cases to

establish that the denial of the continuance amounted to a denial of due

process. In two of the cases, the trial

judge refused to appoint an expert to assist the defense. See Ake v.

Oklahoma , 470 U.S. 68, 72 , 105 S.Ct . 1087,

1090-91, 84 L.Ed.2d 53 (1985); Rey v. State ,

897 S.W.2d 333, 335 (Tex. Crim . App. 1995). Here, the trial judge did appoint an

expert. Thus, Ake

and Rey are inapposite. In the third case, the court held that the

trial judge erred by refusing to grant a continuance when the appointed expert

became unavailable. See

Lighteard v. State , 982 S.W.2d 532, 535 (Tex.

App.--San Antonio 1998, pet. ref = d). In Lighteard ,

the court held that the defense exercised reasonable diligence in attempting to

use the appointed expert. Id. at 534-35 .

Here, we have concluded that the defense did not exercise reasonable

diligence. Thus, Lighteard

is distinguishable.

Conclusion

For the reasons stated herein,

Valenzuela = s sole issue is overruled, and the

judgment of the trial court is affirmed.

SUSAN

LARSEN, Justice

August 28, 2003

Before Panel No. 4

Barajas, C.J., Larsen, and

McClure, JJ.

(Do Not Publish)

[1] We

previously affirmed these convictions, stating that Valenzuela did not file a

sworn, written motion for continuance. See

Valenzuela Garay v. State , No. 08-01-00336-CR

(Tex. App.--El Paso Dec. 12, 2002) (not designated for publication), 2002 WL

31777632 , at *1-2. The Court of Criminal

Appeals vacated our judgment and remanded the case to us to consider Valenzuela = s issue on appeal. Valenzuela Garay v. State , No. 262-03 (Tex. Crim .

App. May 7, 2003) (not designated for publication), 2003 WL 21024609 , at *1.

[2] Dr.

Moorthy testified that there was one other pediatric

radiologist in El Paso County. The

record does not reflect whether Valenzuela tried to contact that radiologist.