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Rodriguez-Cruz v. State

Court of Appeals of Texas, Fourth District, San Antonio

August 28, 2019

Cesar Daniel RODRIGUEZ-CRUZ, Appellant
v.
The STATE of Texas, Appellee

          From 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

          OPINION

          LIZA A. RODRIGUEZ, JUSTICE

         After a 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.

          Background

         At 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.

         Motion for Continuance

         In his 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.

         The 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).

         The 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.

         The clerk's record reflects that at 3:33 p.m. on that Friday, Rodriguez-Cruz filed a sworn motion for continuance.[1] 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 Rodriguez-Cruz's motion:

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 ...

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