# Heiselbetz v. State

> Court of Criminal Appeals of Texas · September 20, 1995 · 906 S.W.2d 500

URL: https://www.frixlaw.com/law-library/cases/9671876

## Case

- **Full name:** Earl Carl HEISELBETZ, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 20, 1995
- **Citations:** 906 S.W.2d 500; 1995 WL 379921
- **Precedential status:** Published
- **Opinion:** Dissent by Baird
- **Judges:** Keller, Maloney, Baird, Overstreet, Clinton
- **Cited by:** 642 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9671876

## How later opinions describe it (automated extraction)

- holding that the trial court did not abuse its discretion by denying a motion for continuance because appellant did not allege that he was unfairly surprised or unable to effectively cross-examine any witnesses in order to demonstrate specific prejudice from the adverse ruling
- holding that a defendant challenging a trial court’s denial of a motion for continuance due to an inability to prepare must show that he was actually prejudiced by his counsel’s inadequate preparation time
- holding “[a]bsent a showing of prejudice, we cannot hold that the trial court abused its discretion in overruling appellant’s motion for continuance”
- holding that the trial court did not err in questioning a veniremember when voir dire had not clearly established juror was challengeable for cause

## Opinion text

BAIRD, Judge,
dissenting.
Believing the trial judge erred in denying appellant’s motion for continuance, I respectfully dissent.
I.
A brief review of the procedural facts is necessary to put appellant’s twenty-fifth point of error in proper context. The instant capital murder prosecution is notable for the pace at which it proceeded through the adjudicatory process: from indictment to trial on the merits in only three months. Appellant was indicted for capital murder on July 16, 1991. An attorney was appointed approximately two weeks later on July 29. On September 9, the trial judge granted appellant’s motion for discovery of witnesses and evidence. Eleven days later, on September 20, the State submitted to appellant a list of 76 potential witnesses. Shortly thereafter, the State supplemented the list, raising the number of potential witnesses to 87. Additionally, the State tendered or made available for inspection more than 100 items of evidence.
On October 14, appellant filed a motion requesting a two month continuance in order to interview the State’s witnesses and review the evidence. On October 21, immediately prior to the commencement of voir dire, the motion was heard. Appellant’s counsel, a solo practitioner, explained that he was not ready to proceed to trial because he and his investigator had not had sufficient time to interview all the State’s potential witnesses. In opposing appellant’s motion, the prosecutor explained that he had informed appellant’s investigator of the probable witnesses and of the general subject matter of their testimony. The trial judge denied appellant’s motion, stating that appellant’s investigator could interview the State’s witnesses while appellant’s counsel conducted voir dire.
Appellant now contends the trial judge erred in denying the motion for continuance because counsel had insufficient time in which to prepare for trial. The majority holds there was no abuse of discretion because appellant has failed to show specific prejudice from the denial of the motion. Ante, 906 S.W.2d 500 , 512. However, because of the complexity of the case and the gravity of the offense, I believe prejudice should be presumed.
II.
The Sixth Amendment guarantees the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). But that right is “rendered meaningless if a defendant is forced to trial in the absence of adequate time to prepare.” United States v. Rojas-Contreras, 474 U.S. 231, 240 , 106 S.Ct. 555, 560 , 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring). In Ungar v. Sarafite, 376 U.S. 575 , 84 S.Ct. 841 , 11 L.Ed.2d 921 (1964), the United States Supreme Court warned that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” Id., 376 U.S. at 589 , 84 S.Ct. at 849 . Similarly, in Powell v. Alabama, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932), the Court stated:
... The prompt disposition of criminal eases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated *517 justice but to go forward with the haste of the mob. 1
Id., 287 U.S. at 59 , 53 S.Ct. at 60 . Accordingly, “[i]t is fundamental than an attorney must have a firm, command of the facts of the case as well as the law before he can render reasonably effective assistance of counsel.” Ex parte Lilly, 656 S.W.2d 490, 493 (Tex.Cr.App.1983). See also, Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Cr.App.1982); Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App.1980); and, Flores v. State, 576 S.W.2d 632, 634 (Tex.Cr.App.1978). Consequently, an attorney must not only have a reasonable opportunity to investigate the facts of his client’s case, Butler v. State, 716 S.W.2d 48, 54 (Tex.Cr.App.1986), but must also be afforded a reasonably sufficient amount of time to review those facts and determine how they relate to a potential defense. To deny an attorney reasonable time in which to review the results of his investigation endangers the effective assistance of counsel because it prevents him from effectively “present[ing] all available testimony and other evidence to support the defense of his client.” Ybarra, 629 S.W.2d at 948 .
Although the decision to grant a continuance under Tex.Code Crim.Proe.Ann. art. 29.03 lies within the discretion of the trial judge, Cooks v. State, 844 S.W.2d 697, 725 (Tex.Cr.App.1992); and, Collier v. Poe, 732 S.W.2d 332, 334 (Tex.Cr.App.1987), “[wjhere denial of a continuance has resulted in representation by counsel who was not prepared ... this Court has not hesitated to declare an abuse of discretion.” Rosales v. State, 841 S.W.2d 368, 372 (Tex.Cr.App.1992). In reviewing whether a trial judge has abused his discretion, an appellate court must determine if the “trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.Cr.App.1992); Kelly v. State, 824 S.W.2d 568, 574 (Tex.Cr.App.1992); and, Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1990) (Op. on reh’g). In spite of the deference granted to a trial judge under an abuse of discretion standard, an appellate court’s review must not devolve into a rote exercise. The abuse of discretion standard does not require a court to examine the trial judge’s decision in a vacuum. Rather, the answer to whether a trial judge has abused his discretion in denying a motion for continuance “must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar, 376 U.S. at 589 , 84 S.Ct. at 850 . Thus, where the circumstances indicate that the trial judge’s decision is beyond the “zone of reasonable disagreement,” an appellate court should not hesitate to find an abuse of discretion. Some of the factors to be considered in determining whether a trial judge has abused his discretion in denying a motion for continuance include: the severity of the offense and gravity of the punishment, the length of time in which counsel had to prepare for trial, the complexity of the case and the number of witnesses, the length of additional time requested, and the inconvenience to the opposing parties and trial judge resulting from a continuance. See generally, Ex Parte Windham, 684 S.W.2d 718, 720 (Tex.Cr.App.1982).
III.
In the instant case, the majority purports to review the trial judge’s decision for an abuse of discretion but ignores the aforementioned factors which determine the reasonableness of that decision.
First, this was a capital case and was, therefore, qualitatively different from all other offenses for which appellant could have been charged. Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976). Because of this qualitative difference, there is a heightened need for reliability in the determination that death is the appropriate punishment. Ibid. Consequently, in capital cases, it is fundamental that appellant’s counsel have sufficient time in which to interview witnesses, acquaint himself with the facts and prepare an adequate defense. Ybarra, 629 S.W.2d at 946 .
The question of whether the trial judge abused his discretion in denying the motion *518 for continuance also necessitates an examination of the circumstances confronting appellant’s counsel. Ungar, supra; and, Windham, supra. The record reflects that appellant was represented by a solo practitioner who had been appointed less than three months prior to the time voir dire began. Prom the date the State disclosed its potential witnesses and made available its evidence, appellant’s counsel had 32 days to interview the State’s 87 potential witnesses and to review more than 100 items of evidence. Of course, during this time, counsel also had the obligation to seek out and interview his own witnesses. Duffy, 607 S.W.2d at 617 . In denying appellant’s motion for continuance, the trial judge explained that appellant’s investigator could continue interviewing potential witnesses during voir dire. But we have emphasized that counsel’s duty to investigate and interview witnesses “may not be sloughed off to an investigator if one is appointed. It is counsel’s responsibility.” Flores, 676 S.W.2d at 634. See also, Butler, 716 S.W.2d at 66 .
Moreover, this was a complex case: the record reflects much of the State’s case rested on scientific testimony, including medical and dental records, as well as detailed forensic analysis, which was necessary to prove the identity of the victims and their causes of death. In light of this considerable burden, appellant requested a two month continuance. Had appellant’s motion been granted, the prosecution still would have proceeded within six months from the date of indictment.
Finally, it is notable that appellant presented his motion one week prior to the commencement of voir dire. Consequently, the State and trial judge had notice of appellant’s need for additional time and would not have been subject to the inconvenience of granting a continuance during voir dire or after trial on the merits commenced. Under these circumstances, there is no indication that a two month continuance would have inconvenienced the State or the trial judge.
When reviewed in the appropriate light, no reasonable person could conclude the trial judge’s denial of appellant’s motion for continuance was reasonable. Accordingly, I respectfully dissent.
. All emphasis is supplied by author unless otherwise noted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9671876. Public record. Not legal advice.