# Jimenez v. State

> Court of Criminal Appeals of Texas · April 30, 1986 · 717 S.W.2d 1

URL: https://www.frixlaw.com/law-library/cases/9777856

## Case

- **Full name:** Ruben Hernandez JIMENEZ, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 30, 1986
- **Citations:** 717 S.W.2d 1; 1986 Tex. Crim. App. LEXIS 1258
- **Precedential status:** Published
- **Opinion:** Dissent by Teague
- **Judges:** Davis, Clintion, Teague, McCormick
- **Cited by:** 5 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/9777856

## How later opinions describe it (automated extraction)

- noting defendant did not file a motion for new trial or otherwise' develop a record regarding counsel’s performance

## Opinion text

TEAGUE, Judge,
dissenting.
In the opinion that Justice Whitham authored for the Dallas Court of Appeals, which reversed the trial court’s judgment because it found that the visiting trial judge in this cause erred in overruling the uncontroverted motion for continuance that had been filed by counsel for Ruben Hernandez Jimenez, hereinafter referred to as the appellant, he remarked: “Apparently, the milk of human kindness did not flow in (this kind of situation).” Jimenez v. State, 648. S.W.2d 782 (Tex.App. — Dallas 1983). Nor, I might add, does it flow from this Court’s majority opinion, which reverses the judgment of the court of appeals.
On November 10, 1980, the day the case was set for trial, in his uncontroverted motion for continuance, counsel for the appellant informed the visiting trial judge that after the case had been set for trial his doctor had informed him that he had a carcinoma, which is the existence of a malignant tumor derived from epithelial tissue, and that surgery had been scheduled for November 12, 1980. 1 We are now informed that four hours of skin surgery were subsequently performed on counsel, and that it was also necessary for counsel to undergo on another date a second skin grafting operation. Thus, when counsel filed his motion for continuance, his concern consisted of a little more than where one might have a boil on his buttocks.
Of course, neither the court of appeals nor this Court can unequivocally state just what thoughts might have been on counsel’s mind during the trial of the case. However, I must wonder how many members of our trial judiciary, having been diagnosed as having a carcinoma, would have shown up for work at all the week that surgery was scheduled to be performed, much less the day of the trial. And yet, the majority opinion has the audacity to conclude that the visiting trial judge in this instance did not abuse his discretion in overruling counsel’s motion for continuance.
Given the facts that we have, one must also wonder just what would constitute grounds for a motion for continuance. Perhaps death of counsel or the defendant?
The majority opinion states that the appellant was not harmed by the trial judge's overruling counsel’s motion for continuance. However, the short answer to this conclusion is as pointed out by counsel for the appellant: “The State contends on the one hand that Appellant’s counsel was not distracted by medical problems and on the other hand that any error committed by the Assistant District Attorney during final argument on punishment was waived by Appellant because he failed to timely object, to request an instruction or a mistrial. Surely, this one example alone substantiates that counsel was preoccupied and distracted during the trial of the case. The foregoing error on the part of appellant's counsel did in fact occur during that part of the trial when he was already late for check-in at the hospital where he was to have surgery that would require the rest of the year for him to recover.”
I have always believed that Justice was firm. However, I also thought that she tempered her rulings with mercy, and, as Justice Whitham might have put it, “with the milk of human kindness.” Today, the majority opinion destroys those beliefs, by holding that the milk of human kindness *5 that was in this Court’s pail has now evaporated.
I dissent.
. Counsel'' was to check into the hospital the next day, November 11, 1980.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777856. Public record. Not legal advice.