in Re the Commitment of Arturo Abella ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-435 CV ____________________

IN RE THE COMMITMENT OF ARTURO ABELLA

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On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 05-02-01385 CV

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MEMORANDUM OPINION   

The State of Texas filed a petition to commit Arturo Abella as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (Vernon 2003 & Supp. 2005). A jury found Abella suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court entered a final judgment and order of civil commitment. Abella filed this appeal. We affirm.

In his sole issue, Abella argues the trial court erred in denying his motion for continuance. After announcing "ready" for trial, Abella's counsel made an oral motion for continuance on the grounds that, due to an error made by the office of the State Counsel for Offenders, Abella could not be present until the following day. Abella asserts that although his oral motion for continuance did not comply with the requirements of Rule 251 of the Rules of Civil Procedure, section 841.063 of the Health and Safety Code governs his motion for continuance. See Tex. R. Civ. P. 251 ("No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law."); Tex. Health & Safety Code Ann. § 841.063 (Vernon Supp. 2005) ("The judge may continue a trial or hearing conducted under this chapter if the person is not substantially prejudiced by the continuance and: (1) on the request of either party and a showing of good cause; or (2) on the judge's own motion in the due administration of justice.").

The State responds that Abella waived any error by announcing "ready" before seeking a continuance. We agree. An announcement of "ready" waives the right to seek a continuance based upon any facts that are known, or with proper diligence should have been known, when the announcement is made. Reyna v. Reyna, 738 S.W.2d 772, 775 (Tex. App.- Austin 1987, no writ); see also E. C., Jr. ex rel. Gonzales v. Graydon, 28 S.W.3d 825, 828 (Tex. App.-Corpus Christi 2000, no pet.). Here, the record reflects that Abella was not present in court when his counsel announced "ready." Abella's counsel conceded in her oral motion for continuance that an error in her office caused Abella's absence. In addition, while presenting the motion for continuance, Abella's counsel called as a witness the chief of the Appellate and Civil Commitment Sections of the State Counsel for Offenders. This witness testified that his office knew since the preceding Friday that it did not give timely notice to those responsible for transporting Abella to court. Therefore, because Abella's counsel knew or should have known before she announced "ready" that Abella could not be present, counsel's announcement of "ready" waived Abella's right to seek a continuance. See Reyna, 738 S.W.2d at 775. We overrule Abella's issue and affirm the judgment of the trial court.

AFFIRMED.

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HOLLIS HORTON

Justice

Submitted on May 8, 2006

Opinion Delivered June 1, 2006

Before McKeithen, C.J., Kreger and Horton, JJ.