J. W. Marshall v. State ( 2007 )

NO. 07-06-0381-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 7, 2007 ______________________________

J. W. MARSHALL, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;

NO. 92977; HONORABLE LARRY GIST, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ON ABATEMENT AND REMAND

Appellant J. W. Marshall has given notice of appeal from a judgment of conviction and sentence for the possession of a controlled substance. The appellate court clerk received and filed the trial court clerk's record on September 21, 2006. The trial court reporter's record was filed on October 12, 2006.

New counsel for appellant was appointed on December 19, 2006 and appellant's brief due date was extended to March 2, 2007. By our letter dated April 26, 2007, appellant was granted an extension to file the brief to May 21, 2007 with the admonition that no other extensions would be granted absent extreme and unusual circumstances. Appellant was also notified that this appeal could be abated pursuant to Rule 38.8(b). No brief or other response has been received from appellant.

Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine:

(1) whether appellant desires to prosecute this appeal;

• if appellant desires to prosecute this appeal, then whether appellant is indigent, and if not indigent, whether counsel for appellant has abandoned the appeal;
• if appellant desires to prosecute this appeal, whether appellant's present counsel should be replaced; and
• what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued.

If the trial court determines that the present attorney for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney.

In support of its determination, the trial court shall prepare and file written findings of fact and conclusions of law and cause them to be included in a supplemental clerk's record. The hearing proceedings shall be transcribed and included in a supplemental

reporter's record. Those supplemental records shall be submitted to the clerk of this court no later than July 9, 2007.

Per Curiam

Do not publish.

underline"> The record reveals that appellant's trial attorney prepared a bench warrant on October 7, 2003 and that the trial court signed the bench warrant on November 4, 2003. The record lacks any references, motions, letters, or requests regarding a hearing or certification under art. 24.29. Although appellant claims that the trial court should have held a hearing sua sponte or issued an appropriate certification in addition or in lieu to the requested bench warrant, a trial court has no duty to assist a party in determining the correct course of action or assist an attorney in the performance of his duties. In our adversarial system of criminal justice, a trial judge may not abandon his position as neutral arbiter and take on the role of an advocate. See Bethany v. State, 814 S.W.2d 455, 462 (Tex.App.-Houston [14^th Dist.] 1991, pet. ref'd). Unless the trial judge maintains his neutral role, our judicial system cannot function and fairness is lost. Id. Further, we cannot obligate a trial court to sua sponte grant a request other than that presented by a party or subject a trial court's action to reversal for failure to ascertain what different relief a party might be entitled to than that which the party requested. See Elliot v. State, 56 S.W.3d 780, 782 (Tex.App.-Houston [14^th Dist.] 2001, pet. ref'd). Therefore, we conclude that the trial court did not err in complying with appellant's request for a bench warrant, even though such request did not comply with the requirements of art. 24.29. We overrule appellant's first issue.

Issue two: Denial of motion for continuance

Appellant contends that the trial court erred in refusing to grant her motion for continuance because the witness was material to appellant's defense. Appellant filed her first motion for continuance on the morning of trial, March 31, 2004. At that time, appellant informed the court that the basis of the motion for continuance was that Levone Madden, the subject of the bench warrant, was not available for trial. Appellant informed the court that she did not become aware that Madden was not available until a week prior to trial.

A trial court's ruling on a motion for continuance is reviewed for an abuse of discretion. Art. 29.06; Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000). Further, in order to show an abuse of discretion, appellant must show that the denial of her motion resulted in actual prejudice. Id. To be entitled to such a continuance, appellant must comply with all statutory prerequisites. Gentry v. State, 770 S.W.2d 780, 786 (Tex.Crim.App. 1988) (en banc). Under art. 29.06, a motion for continuance based on an absent witness must state (1) the name of the witness and his residence, (2) the diligence used to procure his attendance, (3) the facts expected to be proven by the witness such that it appears to the court that the witness is material, (4) that the witness's absence is not the result of appellant's action, (5) that motion is not for delay, and (6) that there is no reasonable expectation that attendance of the witness can be secured for the present trial setting. Further, such a motion for continuance must be in writing, see art. 29.03, and sworn to by a person having personal knowledge of the facts relied on for the continuance, see art. 29.08. Appellant's first motion for continuance failed to state (1) name and address of the witness, (2) the diligence used to procure his attendance, (3) the facts expected to be proven by the witness, and (4) that the witness's absence was not the result of appellant's action. ⁽²⁾ Although appellant makes the conclusory statement that the witness is material, appellant's motion does not reflect what the absent witness would have testified to. Gentry, 770 S.W.2d at 786. Additionally, the first motion for continuance was not verified as required by art 29.08. Since appellant failed to comply with the statutory requirements necessary for a motion for continuance, we conclude that the trial court did not err in denying appellant's requested continuance. We overrule appellant's second issue.  

Conclusion

Having overruled appellant's issues, we affirm.

Mackey K. Hancock

Justice

1. Further reference to the Texas Code of Criminal Procedure will be by reference to "art. __."

2. Appellant filed a second motion for continuance entitled "First Amended Motion for Continuance." The trial court addressed both motions separately, and overruled both motions. This second motion was filed after trial had commenced and would be subject to additional requirements, see art. 29.13. However, this First Amended Motion for Continuance also fails to comply with statutory prerequisites.