Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law No. 12, Bexar County, Texas Trial
Court No. 527406 Honorable Scott Roberts, Judge Presiding
Sitting: Rebeca C. Martinez, Justice, Beth Watkins, Justice
Liza A. Rodriguez, Justice
A. RODRIGUEZ, JUSTICE
jury trial, Cesar Daniel Rodriguez-Cruz was found guilty of
driving while intoxicated and was sentenced to one year in
jail and a fine of $600.00. His sentence was then suspended,
and he was placed on probation for one year. On appeal,
Rodriguez-Cruz argues that the trial court erred (1) in
denying his motion for continuance; (2) in denying his motion
to suppress based on the length of detention; and (3) in
allowing the DWI officer to testify about horizontal gaze
nystagmus. Because we conclude the trial court erred in
denying Rodriguez-Cruz's motion for continuance, we
reverse the trial court's judgment and remand the cause
for a new trial.
about 9:00 p.m. on the evening of September 25, 2016,
Rodriguez-Cruz was driving his motorcycle in the rain when he
turned into a gas station; his motorcycle slid and fell over,
hitting the side of a parked pick-up truck. Because
Rodriguez-Cruz's insurance papers were at his home a few
blocks away, he and the owner of the pick-up truck relocated
to Rodriguez-Cruz's home. At 9:17 p.m., Officer Chase
Meneley arrived at Rodriguez-Cruz's home to investigate
the accident. At 9:38 p.m., Officer Meneley completed his
investigation of the accident and called for a DWI officer to
have Rodriguez-Cruz evaluated for DWI. At 10:19 p.m., Officer
Kenneth Williams, an officer with the DWI Task Force, arrived
to evaluate Rodriguez-Cruz for DWI. He performed three field
sobriety tests and determined that Rodriguez-Cruz was
intoxicated by alcohol. He arrested Rodriguez-Cruz and took
him to the magistrate's office. At 11:00 p.m.,
Rodriguez-Cruz submitted to a breath test; the results showed
an alcohol concentration of .192 and .197, which was more
than twice the legal limit. After a jury trial,
Rodriguez-Cruz was found guilty of driving while intoxicated.
He now appeals.
first issue, Rodriguez-Cruz argues the trial court erred in
denying a motion for continuance he made during trial.
Article 29.13 of the Texas Code of Criminal Procedure governs
a continuance requested after trial has begun:
A continuance or postponement may be granted on the motion of
the State or defendant after the trial has begun, when it is
made to appear to the satisfaction of the court that by some
unexpected occurrence since the trial began, which no
reasonable diligence could have anticipated, the applicant is
so taken by surprise that a fair trial cannot be had.
Tex. Code Crim. Proc. Ann. art. 29.13. The court of criminal
appeals has explained that when a defendant's motion for
continuance is based on an absent witness, he must show that
(1) he "has exercised diligence to procure the
witness's attendance"; (2) the witness was "not
absent by the procurement or consent of the defense";
(3) the motion was "not made for delay"; and (4)
the facts expected to be proved by the witness "are
material." Harrison v. State, 187 S.W.3d 429,
434 (Tex. Crim. App. 2005). "We review a trial
court's denial of a mid-trial continuance on an abuse of
discretion standard." Medina v. State, No.
AP-76, 036, 2011 WL 378785, at *16 (Tex. Crim. App. 2011)
(citing Vasquez v. State, 67 S.W.3d 229, 240-41
(Tex. Crim. App. 2002)); see also Harrison, 187
S.W.3d at 434.
appellate record reflects that on the third day of trial
(Thursday, July 19, 2018), the State moved to continue the
trial because Officer Williams, the officer who performed the
field sobriety tests, was sick in the emergency room and was
unable to testify. Defense counsel objected, explaining that
the defense's expert witness, Matthew Malhiott, was on a
plane and was arriving in San Antonio that day to testify.
The trial court granted the State's motion and ordered
the trial to continue the next day (Friday, July 20, 2018).
next day, the State called two witness to testify: Officer
Williams and Debra Stephens, a forensic scientist in charge
of the breath-alcohol testing program in Bexar County.
Officer Williams testified that he had performed
field-sobriety tests on Rodriguez-Cruz and those tests
indicated Rodriguez-Cruz was intoxicated. He then arrested
Rodriguez-Cruz and drove him to the magistrate's office
where Rodriguez-Cruz submitted to a breath test. After the
State's direct examination of Officer Williams, the trial
court recessed for lunch. When trial resumed, the defense
cross-examined Officer Williams. After Officer Williams left
the witness stand, the State called Stephens, who testified
the results of Rodriguez-Cruz's breath test were .192 and
.197, which was "more than twice the legal limit."
She then testified about alcohol absorption and elimination
rates of the human body. She testified that in her opinion,
Rodriguez-Cruz was intoxicated at the time he was driving.
The State then rested its case.
clerk's record reflects that at 3:33 p.m. on that Friday,
Rodriguez-Cruz filed a sworn motion for
continuance. The reporter's record reflects that
after the State rested, defense counsel moved for a
continuance, explaining that the defense's expert witness
would not be able to testify that day and asked the trial
court to continue trial until Monday. Defense counsel argued
his expert witness was unavailable due to the trial
court's granting of the State's motion for
continuance the day before. The trial court denied
Court: I'm going to deny the motion, and I'm going to
make a point on the record that I offered you the opportunity
to take the witness out of order ...