Jimenez v. State

CLINTION, Judge,

dissenting.

When this Court finds itself addressing a simple matter of exercise of discretion by a trial court with respect to a first motion for continuance in regular form whose grant is not shown to have been opposed by the prosecution, as starkly as can be revealed by any cause before us, the instant one demonstrates that something is awry in our appellate system of criminal justice.

The matter of a continuance is within the discretion of a trial court. Thus to the extent it is one the “standard” for appellate review on direct appeal is whether the trial court abused its discretion in denying a continuance. With its mind on equity an appellate court must exercise its own discretion in determining whether there was an abuse of discretion on the part of a trial court. Williams v. State, 159 Tex.Cr.R. 443 , 265 S.W.2d 92 (1954). 1

*3 Should the court of appeals decide there was an abuse of discretion and reverse judgment of conviction, of course this Court has jurisdiction, power and authority to consider a State’s petition for discretionary review in order to determine whether to review the decision of the court of appeals. Todd v. State, 661 S.W.2d 116 (Tex.Cr.App.1983). There is no “right” to discretionary review; it is a matter of “sound judicial discretion.” Article V, § 6; Article 4.04, § 2, V.A.C.C.P., and Todd v. State, supra. To inform its own discretion, as much as to guide practitioners, this Court formulated and enumerated in Tex.Cr.App. Rule 302(b) the “character of reasons” to measure exercise of its discretion. At least four judges must vote to grant discretionary review. Tex.Cr.App. Rule 304(k).

Here at least four judges found a reason to cause the Court to exercise its discretionary jurisdiction, power and authority to review such a finely discretionary decision of the court of appeals. 2 But, just what are we critically to examine in the premises?

At the outset, the opinion of the Court notes that the court of appeals found the trial court abused its discretion in denying a motion for continuance, and then says that we granted the State’s petition “to review that determination.’’ However, the majority proceeds critically to examine the record more for what it seems to believe the record should contain, but does not; 3 along the way it opines that “[e]very case must be reviewed on its own facts,” and finally concludes:

“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.

So, while it sets out to review a determination by the court of appeals that the trial court abused its discretion, the majority acts as if it were deciding a cause in the first instance on direct appeal, so its opinion ends up finding by its own lights “we cannot say” there was an abuse of discretion by the trial court. Ergo, the judgment of the court of appeals must be reversed.

Granting that this Court has jurisdiction, power and authority to review, but doubting that it wisely exercises sound judicial discretion in determining to address, a decision on an issue of this kind, still I fail to discern from its opinion on what principled basis the majority feels obliged to bring its own notions of equity to bear on a matter within the judicial discretion of the court of appeals in the first instance on direct appeal. The court of appeals went through the same analysis, even citing some of the same cases, as the majority does today. Three capable and experienced judges came to a reasonable conclusion from particularized aspects of the whole record — some of which the majority fails to take into account — not “solely from the allegation in the motion for continuance,” as the majority would have it. That the majority might have reached a different result had its numbers been sitting on direct appeal is *4 not an acceptable reason to cause this Court to overturn a rational determination by a court of appeals in exercise of its own discretion.

As judges on the court of last resort for criminal cases in this State, we would do well to heed the caution of Justice Jackson that “we are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 , 73 S.Ct. 397, 427 , 97 L.Ed. 469 (1953) (Concurring Opinion).

To creating precedent for another abuse of discretionary review, I must dissent.

. “We are cited to many cases of the different states of the Union relative to what is meant by ‘an abuse of discretion' and while not lending itself to an absolute measuring stick by which such abuse could be understood, the opinions seem to be in fair agreement that an abuse of discretion usually means doing differently from what the reviewing authority would have felt called upon to do. Such ordinarily finds itself depending upon the facts of the particular case, [citation omitted].

From the cases cited to us, the matter of equity would have some weight in finding an abuse of discretion.”

Id., 265 S.W.2d at 95 . Accord: Craddock v. Sunshine Bus Lines, 134 Tex. 388 , 133 S.W.2d *3 124, 126 (1939), affirming Sunshine Bus Lines v. Craddock, 112 S.W.2d 248, 252 (Tex.Civ.App.— Fort Worth 1937). (All emphasis is mine throughout unless otherwise indicated.)

. The opinion of the Court fails to reveal any "character of reason" for granting review. There was but one discrete question answered by the court of appeals. Certainly, nothing in its decision appears to conflict with a decision of another court of appeals "on the same matter," to implicate "an important question of state or federal law,” to misconstrue a statute, rule or ordinance, to reflect a disagreement in the court of appeals on “a material question of law” or "to call for an exercise the Court of Criminal Appeals’ power of supervision" — the six reasons listed in Rule 302(c), supra.

. Anent absence of "any evidence in support of the motion or a transcript from a hearing on the motion," perhaps the majority has overlooked the statutorily prescribed procedure for handling a motion for continuance: A motion showing "sufficient cause” is filed; only when a sworn denial is filed must the issue thus raised be heard by the trial judge on "testimony by affidavit," and without argument unless requested by the judge. Articles 29.03, 29.09, 29.10 and 29.11, V.A.C.C.P. That a docket entry may be ”[t]he only evidence” the motion was heard and overruled is contemplated by Article 33.07, V.A. C.C.P.