NO. 07-04-0232-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C OCTOBER 27, 2005

______________________________ CHARLENE D. DAVIS, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE CO UNTY COURT AT LAW NO. ONE OF L UBBOCK CO UNTY; NO. 2003-483305; H ONORABLE LARR Y B. (RU STY) LADD, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS an d HANCOCK, JJ.
MEMORA NDUM OPIN ION Appellant

Charlene D. Davis w

as convicted of hindering a pprehension of a fugi tive. The jury f oun d app ella nt gui lty an d sen tenc ed ap pell ant t o 90 d ays in the c oun ty jai l. Appell ant appe als he r conv icti on. We affirm. Background
W hile on patrol, Lubbock police officer, Christophe r Daniel, stopped a vehicle for a traffic violati on and identified Lev one Madden as one of the pas sengers of that vehicle.2

During the invest igatory detention of the occupants of the car, Madden fled and, accordi ng to Daniel, pass ed near appellant who was standing beside a gr een SUV. Appell ant entered her v ehicle and left the scene. Daniel notified dispatch of Madden flee ing the scene, and gave t hem a descripti on of the green SU V which he believed may hav e le ftto pick up Madden.
After hearing Daniel’s descriptio n of the green SU V over the r adio, Officer Jonatha n Stewartobser

ved a vehi cle ma tchi ng the descr iption run a r ed light. Stewart i nitiated a traffic stop and identi fied appellant asthe driv er and Madden as a pass enger. Appel lant claimed that

she did not k now

that Mad den w

as fl eein g fr

om the polic e. According to appellant, Madden had asked her for a ride, and did nottell her he was runni ng from the police. Appel lant was a rrested and ch arged w ith hindering apprehension. During pretrial preparation, appellant d iscovered that Madden was incarcerated in Oklah oma and would not be availab le to testify at trial. Appellant requested a ben ch warrant to secure M adden’ s tes timony at trial, and drafted a bench warr ant for the trial judge’s signature. The trial cour t honored appella nt’s reques t and issued abench warr ant directed to the warden of the penal institu tion housing Madden. On the mo rnin g of tria l, appellant

requested a continuance and not ified the trial court of the war den’s failure to comply with the bench warrant. The tri al court denied app ellant’s moti on for continuance, and appellant proceed ed to trial. Appellant

was convic ted o f hin deri ng ap preh ensi on an d sen tenc ed to 90 da ys confinement in county

jail. Appel lant filed notice of appeal.1 Fur ther refere nce to the Texas Code ofCriminal Procedure will be by reference to “art. __.” 3 Appellant

raises tw

o issues: ( 1) whether

the trial cour

t erred in fail ing to proc ure an out-of-state witnessutiliz ing T EX . C ODE C RIM . P ROC
. A NN art. 24.29 (Vernon 1989); 1 and (2) whether the trial cour

t erred in den ying appel lant’s motion for continuance.
Issue one: Out-of-sta te witness Appellant

con tends that once she made a request of the trial court for assistance in obtaining an out-of-state w itness, the bur den shifted to the tr ial court to ensure the witness’s presence for trial, and that th e trial court erred because it failed to correctly follow art. 24.29. We disagree.
The record reveals that appell ant’s trial atto rney prepa red a bench warrant on October 7, 2003 and that the trial court sig ned the bench warrant on November 4, 2003. The record lac ks any re feren ces , motions, letters, or req uests regar ding a heari ng or certification under art. 24.2 9. Although ap pellant clai ms that the tri al court shou ld ha ve held a hearin g sua sponteor issued an appropriate ce rtification i n addition or in lieu to t he requested bench warra n t, a trial court has no duty to assist a party in determining the correct course of acti on or as sist an attor ney in the per formance of his duties . In our adversari al system of cr iminal justi ce, a trial judge may not abandon his positi on as neutral arbiter and take on the rol e of an advocate. See Bethany v . State , 814 S.W.2d 455, 462 (Tex.App.–Hous ton [14 th Dist.] 1991, pet. ref’d). Unless the trial judge ma intains his neutral role, our judicial system cannot function and fairness is lost

. Id . Furthe r, we can not4

obligate a trial cour

t to sua spontegrant a r equest other than that

presented by

a party or subject a trial co urt’s acti on to rever sal for failure to ascertain what different r elief a party might be entitled to than that whi ch the party requested. See E ll iot v. State , 56 S.W.3d 780, 782 (Tex.App.–H ouston [14 th Dist.] 2001, pet. ref’d). Therefore, we concl ude that the trial court did not err in compl ying w ith appellant’ s request for a bench warrant, eve n though such request did not comply with the requirements of art. 24.29. W e overrule appellant’s first issue.
Issue two: Denial of motion fo r continuance Appellant

contends that the trial court erre d 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 th e morning of trial, March 31, 2004. At that time, ap pellant informed the court that the basis of the moti on for continuance w

as that Levone Madden, the subject of the bench warrant, was not available for trial. Appellant informed the court that she did not becom e aware that Madden was not available until a week prior to trial.
Atrial cour t’s ruling o n a mo tion fo r continuance i s review ed for an abuse of discretion. Art. 29.06; Wright v. State , 28 S.W.3d 526, 532 (Tex.Crim.App. 200 0). Further, in order to show

an abuse of discr

etion, appellant

must show t hat the denial of her motion resulted in actual pr

ejudice. Id . To be entitled to such a continu an ce , appellant must comply w ith all sta tutory pr erequisites. Gentry v . State , 770 S.W.2d 780, 786 (Tex.Cri m.App. 1988) (en banc)

. Under art. 29.06, a motion for continuance bas ed on an absentwitnessmust state (1) the name of the witness and his residence, (2) the diligence2 Appellant filed a second motion for continua nce entitled “First Amended Motion for

Continuance.”The trial co urt addressed both motions separ ately, and ov

erruled both motions. This second moti on was filed after trial had commenced and would be subject to additional requir e ments, see art. 29.13. H owever , this Fir st Amended Motion for Continuance also fa ils to comply with statutory prerequisites. 5 used to procure his attendance, (3) the facts expec

ted to be proven by the witness such thatit appears tothe court that the witness is material, (4) that the witness’ s absence is n ot the r esult of appella nt’s action, (5) that motion is not for delay , and (6) that there is no reasonable expectation that attendance of the w itness can be secured for th e present trial setting. Fur

ther, su ch a motion for cont inuance must be i n writi ng, see art. 29.03, and
sworn to by a per

son having personal know ledge of the facts r elied on for

the continuance,
see art . 29.08. A ppellant’s fir st motion for conti nuance failed to sta te (1) name and address of the witnes s, (2) the diligence u sed to procurehis attendance, (3) the facts expected to be proven by the witnes s, and (4) tha t the witn ess’s absence was not the result of appellant’s a ction. 2 Although appellant makes th e conclusory statement that the witness is material, appel lant’s motion d oes not reflect wh at the absent wi tness woul d have testi fied to. Gentry , 770 S.W .2d a t 786 . Add itio nall y, the firs t mot ion f or co ntin uan ce wa s not verified as requir

ed by art 29. 08. Since appell antfailed to c omply with the statutory requirements

necessary

for a motion for continuance, we conclude that the trial court did noterr in denyin g appellant’ s requested continuance. We overrule appellant’s s econd issue.6 Conclusion Having overrul ed appellant’s issues, we affirm.

Mackey K. Hancock Justice