Opinion filed Sep tember 1 0, 2009



### In The 

# Eleven th Court of Appeals

__________ 

### No. 1 1- 07 -0 03 37 -CR

____ ____ OFR AEL AM AD OR, Ap pellant

V.
STA TE OF TEX AS , A ppellee

On App eal from the 161st Distr ict Court

Ector C ounty, Texas Trial Court Cause No. B-33,929

M E M O R

A N D U M O P I N I O N Ofra el Amador

appea ls his conviction by a jury of the off

ense of sexual assaul t

. The jury assessed his punishment at seve n y ear s i n the Texas Depa rtment of Criminal J ustice, Institut ional Division. He contends in a sing le point of err or that the trial c ourt abused its di scre tion by denying his mot ion

fo r c on tin

ua nc e . We a ff

ir m. Amador c ontends that the trial cour t abused its d i s cr et i o n by denying his motion for continuance . The g ranting or deny ing of a motion for continuanc e is within the sound discretion of the trial cour

t. Re nte ria v . S

tat e , 2 06 S.W. 3d

68 9, 69 9 ( Te x. Cr im. Ap p. 20 06 ). A d e fe nd ant m us t sh ow“ sp e c if

ic pr e jud ic e to h is d e fe ns e ” to e sta bli shthat th e tr ia l c ourt

a bu se d it s d isc re tion i n ref using to g rant a

continuance

. Id.2

Amador’ s motion for continuance was ba sed upon the fa cts t h at h e was a rre sted on additional char g es t h e d ay befor e the tria l and that his counsel nee ded time to prepa re f or trial be c a us e the State ha d g ive n him no tic e that it

pla nn e d to pr od

uc e e vid e nc e of

Am a do r’ s c on du c t in that in c ide nt d

ur ingthe tr ia l. T he re is no e vid e nc e in the re c or d sh ow ing any sp e c if ic pr e jud ic e to the de fe ns e that w ou ld e sta bli shtha t th e tr ial cou rt abuse d it s d isc re tio n in re fu sin g to g ra

nt a continuance

. I n urg ing that Amador did suf fer prejudice due to the trial court’s denial of his continuanc e, Amador r efe rs to his counsel’s st atement at trial that he had not ha d time to prepar e, that he did not y et know much a

bout the substance of

what had ha

ppened the day befor e, and that he had not bee n able to intervie w the witnesses or do any prepa

ration for cross-e x amination. The only witness called by the State who testified co n ce rning what happe ned the da y befor e trial wa s Amador’ s wife, the complainant. She wa s cross-e x amined by Amador’ s counsel. The complainant testified that, on the da y be fo re tr ia l, A ma do r b ro ke int o h e r h ome and too k h e r t o a

mot e l a g a ins t he r w ill fo r t he purp os e
o f p r e v e n t i n g h e r f

r o m a p p e ar i n g a t t r i a l

. A m a d o r m a k e s n o s u g g e s t i o n a s t o w h a t qu e sti on s h is

c ouns e l w ou ld h a ve a sk e d o r w hat que sti on s he wo uld no t hav e a sk e d ha d he ha d ad dit ion a l ti me to pr e pa re fo r t he c ro ss- e xami natio n o f t he c omp la ina

nt. Amador c alled Enrique Nava rre te, who testified that, at t he request of Amador, he ha d rente d the motel room wher e Amador took the complainant on the da y befor e the trial. Nava

rre te indicated that he sawthe complainant and that there was no indication she was at t he mot el i nvoluntarily . He testified on cr oss-examination that he had a pr ior conviction for sexual a ssault a nd a prior c onviction for “fa ilure to c omply with se x offe nder reg istration” and that he was fac ing a cha rge o f e v ad ing

arr e st. A m a d o r

a s s e rt s i nh i s b r i e f

, r e f e r r i n g t o e v i d e n c e o f

N a v ar r e t e ’ s p r i o r

c o n v i c t i o n s , t h a t : “ It is evident, in the rec ord that the Assistant District Attorney knew more about Nava

rre te that [sic] Ap pe lla nt’ s trial c ouns e l.” Am a do r f ur the r d e c lare s th a t hi s tr ia l c ouns e l w a s n ot f a mil iar w ith Nava rre te or his criminal hi story

. He refe rs t o the S tate’s question, “So y ou are a two time convicte d fe lon of se xua l a ssa

ult ? ” a s sh ow ingtha

t his co un se l wa s una

wa re of the c ri min a l histo ry . In f a c t, th e r e is n o th in g in

th e r e c o r d

to s h o w th a t, a t t

h e ti me th is qu e s ti o nw a s a s k e d , A ma d o r ’ s c o u n sel

wa s n ot a wa re of Na va rr e te ’s c ri min a l histo ry
. Ra the r, the e vid e nc e sh ow s th a t N a va rr e te ha d ju st

rec ounted hi s criminal hi story during cross-e x amination. We note that Nava rre te himself answe red the State ’s qu e sti on

in t he a ff ir ma tiv e
. Am a do r su g g e sts that, i f h is t ri a l c ouns e l ha d b e e n a

ble toJohn G . H ill , For m er Just ic e, Cour

t of A ppea ls , 2nd D is tri ct

of T ex as a t For

t W orth, s itt ing by

a ss ig nm ent

. 1 3 investiga t e t h e i n cident fr om the day befor e, it is highly

unlikely he would have called N avar rete , g iven a sig nificant c riminal history . Amador’ s assertion is speculative and is outsid e t he re cord. There is no evidence in the rec ord showing that Amad o r’s trial counsel was una war e at tria l of Nava rre te’s prior c riminal rec ord or, if he had not bee n, that h e wo u l d not have c alled Navarr ete. Finally , Amador asser

ts that his trial counsel was surprised at the complaina nt’s testimony

that she and her children w ere taken a g ainst their will to a motel, saying, “ I t is plain fr om the rec ord that [defense c ounsel] did not have any time [sic] to investiga

te what turne d out to be a sig nificant portion of the a lleg ed victim ’s claims and eventual t estimony .” Whil e Amador’s counsel stated at trial that he did not y et know much ab o u t t h e substance of the incident the da

y befor e, the r ecor d does not support the claim that he w as surprise d at the complaina nt’s testimony

conce rning what had ha pp e ne d. Al tho ug h A ma do r’ s tr ia l c ouns e l st a te d th a t he ha d n ot b e e n a ble to i nte rv ie w w itn e sse s, there is nothing in the re cord to show what additional investigation he could have conducte d, had he bee n g iven additional time, that would have ma de any differ ence in the trial. Be cause there is no evidence o f s p ecif

ic pre judice to the def

ense shown in the r ecor d to have r esulted fr om the trial

c ourt ’s de nia l of

Am a do r’ s mo tio n f

or c on tin ua nc e , w e ho ld t

hat th e tr ia l c ourt

did no t a bu se its discretion by

denying the motion. W e over rule Ama dor’s sole point of e rror
. The judg ment is affirme d.

PER C URI AM
September 10, 2009 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., S t r an g e , J. , an d

H i l l , J. 1