finding no abuse of discretion in denying motion for continuance when appellant failed to allege any specific prejudices such as unfair surprise, an inability to effectively cross-examine the State's witnesses, or that crucial testimony would have been given by potential witnesses
How later courts described this case
- finding no abuse of discretion in denying motion for continuance when appellant failed to allege any specific prejudices such as unfair surprise, an inability to effectively cross-examine the State's witnesses, or that crucial testimony would have been given by potential witnesses
- holding that, absent positive evidence of coercion, appellant’s contention that jury “could have” disbelieved officer testimony or “could have interpreted” officers’ statements as coercive was no evidence of coercion
- determining no specific prejudice was shown warranting a continuance when appellant failed to demonstrate inability to effectively cross-examine a witness or when appellant was unable to demonstrate any unfair surprise during trial stemming from limited time to inspect evidence prior to trial
- holding that assertion of inadequate time to prepare defense does not establish specific prejudice necessary to find abuse of discretion in denying motion for continuance
Written by the judges who cited it.
The opinion
OVERSTREET, Judge,
dissenting.
I dissent to the majority’s discussion of points of error twenty-five through forty regarding limiting appellant’s voir dire questioning of several veniremembers. I believe that the appropriate analysis of these points of error involves a determination of whether appellant was prevented from asking proper questions.
This Court has held that in the voir dire of a capital murder trial, if a disallowed question was proper, harm is presumed because the defendant has been denied the intelligent use of his peremptory strikes. Cockrum v. State, 758 S.W.2d 577, 584 (Tex.Cr.App.1988), cert, denied, 489 U.S. 1072 , 109 S.Ct. 1358 , 103 L.Ed.2d 825 (1989). In Allridge v. State, 762 S.W.2d 146, 162-64 (Tex.Cr.App.1988), cert, denied, 489 U.S. 1040 , 109 S.Ct. 1176 , 103 L.Ed.2d 238 (1989), in discussing the restriction of voir dire in a capital murder *479 trial, this Court noted that the trial court’s decision in making such a restriction was reviewed as to whether it was an abuse of discretion, with the test turning on whether the question was proper, i.e. if it sought to discover a prospective juror’s views on an issue applicable to the case. If the question was proper, an answer denied prevented intelligent use of the peremptory challenge and harm is shown. Id.
In another capital case, Caldwell v. State, 818 S.W.2d 790, 793-94 (Tex.Cr.App.1991), cert. denied, 503 U.S. 990 , 112 S.Ct. 1684 , 118 L.Ed.2d 399 (1992), this Court stated that when a defendant challenges a trial judge’s limitation on voir dire, such must be reviewed under an abuse of discretion standard, the focus of which is upon whether the defendant proffered a proper question concerning a proper area of inquiry, and if a proper question is disallowed, harm to the defendant is presumed because he has been denied the ability to intelligently exercise his peremptory strikes; with a proper question being one that seeks to discover a venire-member’s views on an issue applicable to the case. In another capital case, this Court stated, “The trial court abuses its discretion when it prevents defense counsel from asking a proper voir dire question.” Etheridge v. State, 903 S.W.2d 1, 9 (Tex.Cr.App.1994), cert. denied, — U.S. -, 116 S.Ct. 314 , 133 L.Ed.2d 217 (1995). In another capital murder case, this Court pointed out that we have long acknowledged that voir dire is an integral part of defense counsel’s role in providing adequate legal assistance because it allows counsel to intelligently exercise peremptory challenges and challenges for cause during the jury selection process, and that a trial judge abuses his discretion when he limits a proper question concerning a proper area of inquiry. Dinkins v. State, 894 S.W.2d 330, 345 (Tex.Cr.App.1995), cert. denied, — U.S. -, 116 S.Ct. 106 , 133 L.Ed.2d 59 (1995).
Thus, based upon the above-discussed precedent, the issue in points of error twenty-five through forty is whether appellant was denied the opportunity to ask “proper” questions. These questions involved, for example, whether various veniremembers could consider such things as: the full punishment range, duress as mitigating evidence, a life sentence under any factual situation, the presumption of innocence after learning that the defendant had been previously convicted but was given a new trial, and any evidence as mitigating. The majority should examine each of the alleged restrictions in questioning veniremembers and determine whether appellant was denied the opportunity to ask “proper” questions, regardless of his use or non-use of peremptory challenges against those veniremembers. As this Court has acknowledged, the problem with limiting proper questioning is depriving the defendant of the opportunity to intelligently exercise his peremptory challenges and challenges for cause during the jury selection process. Preventing proper questioning precludes such intelligent exercise of challenges and such is not cured by using peremptory chaEenges — allowing such proper questioning on occasion reveals information which results in a veniremember being accepted as a juror rather than being peremptorily challenged.
Because the majority declines to analyze each of appellant’s claims as to whether he was denied the opportunity to ask proper questions of veniremembers, and in truth and fact procedurally defaults appellant, I respectfully dissent to the discussion and disposition of points twenty-five through forty. Otherwise, I concur with the remainder of the opinion.