Opinion by: Patricia O. Alvarez, Justice.
Appellant Austin Prince was convicted of possession of marijuana, less than two ounces, and assessed punishment at 180-days' confinement in the Bexar County Jail, suspended and probated for 180 days, and a $300.00 fine. On appeal, Prince contends the trial court erred in failing to grant his motion for continuance and his motion for mistrial based on the State's failure to disclose the identity of a witness prior to the close of the evidence. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Testimony before the Jury
The case was called for trial on July 23, 2015, and Prince's pretrial motions to suppress evidence and Prince's statements were carried with the trial.
1. Officer Rodriguez's Testimony
The State's sole witness was San Antonio Police Department Officer David Rodriguez. Officer Rodriguez testified he was "working alone," on July 21, 2013, in an area with heavy traffic. Prince failed "to stop exiting a private driveway" and also failed to stop before crossing a pedestrian sidewalk. The officer initiated a traffic stop and Prince's car came to a slow stop in a private parking lot.
As Officer Rodriguez approached the car, he described Prince as extremely nervous, sweating profusely, and shaking. The officer testified that he recognized a strong odor of marijuana emanating from Prince's car. When Prince failed to produce a valid driver's license, Officer Rodriguez requested Prince exit his car and Prince was placed under arrest for operating a vehicle without a license. Officer Rodriguez testified that he read Prince his Miranda warnings and placed Prince in the rear seat of the patrol car. Prince's passenger was also Mirandized and detained. Based on Prince's arrest, Officer Rodriguez inventoried Prince's car to prepare the vehicle for towing. The officer removed a backpack from the rear-floorboard, within immediate reach of both the driver and the front-seat passenger.
Counsel approached the bench and defense counsel reurged his objection to the admissibility of Officer Rodriguez's testimony that Prince was given warnings consistent with Miranda. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The jury was excused and Prince was called to testify for the limited purpose of the motion to suppress. Contrary to the officer's testimony, Prince testified (1) he produced a driver's license, (2) the first time his Miranda rights were read was at the jail and not by Officer Rodriguez during the traffic stop, and (3) Officer Rodriguez "had his partner ... search the vehicle." During cross-examination, the State elicited the following testimony:
The trial court denied defense counsel's motion to exclude any post-arrest statements made by Prince.
The jury returned to the courtroom and the State's direct examination of Officer Rodriguez's testimony resumed. Officer Rodriguez testified that he asked both Prince and his passenger about the backpack. Although the passenger denied ownership, Prince conceded the backpack and the marijuana were "his property."
During cross-examination, defense counsel questioned Officer Rodriguez regarding the lack of independent evidence to support the officer's testimony. Specifically, defense counsel questioned the officer regarding
The remainder of defense counsel's cross-examination focused on the lack of independent evidence linking Prince to either the backpack or the marijuana found inside the backpack. Defense counsel did not ask Officer Rodriguez or solicit testimony relating to Prince's allegations that Officer Rodriguez's "partner" searched the vehicle.
The State rested and the jury was excused. Based on the testimony of Officer Rodriguez, the trial court denied Prince's motion to suppress the evidence based on lack of probable cause to support the traffic stop.
2. Prince's Testimony
The jury returned to the courtroom and the defense called its only witness — Prince. Prince's testimony directly contradicted much of Officer Rodriguez's testimony. Prince testified that he stopped before he entered the roadway, he activated his blinker before the turn, and there was no traffic on the roadway at the time. He further explained that when the officer approached his window, Prince asked the basis for the officer's traffic stop. Officer Rodriguez responded, "I've been getting complaints of somebody pen-striping around the area." After reportedly telling the officer, "I'm driving. I'm not mooning anybody," Prince contends the officer took him out of the car, "put me in handcuffs," "got everything out of my pockets while I was in handcuffs," and put him in the back of the patrol car. Prince was adamant that Officer Rodriguez never asked for identification and never read Prince his Miranda rights.
Prince testified that while sitting in the back of the patrol car, he saw Officer Rodriguez's "partner" search the car.
Defense Counsel: What was this other individual wearing?
According to Prince, Officer Rodriguez never searched the vehicle, but instead "was searching my phone the whole time." Prince further testified the backpack belonged to his passenger and that it was
During cross-examination by the State, Prince reiterated that Officer Rodriguez lied and perjured himself under oath, regarding the basis for the initial stop, the reading of Miranda warnings, the backpack's location, whether "[Officer Rodriguez] was acting alone," and Prince's statements regarding ownership of the marijuana.
Both sides rested and closed; the only testimony presented was that of Officer Rodriguez and Prince. The case was reset for further proceedings the following afternoon.
B. Proceedings Prior to the Case Being Given to the Jury
Prior to closing arguments, the State informed the trial court and defense counsel that, based on Prince's testimony, the State questioned Officer Rodriguez, and it advised defense counsel and the trial court as follows:
Both the State and defense counsel agreed neither the police report nor any other pretrial proceedings indicated a second person was present in the patrol car. The trial court denied defense counsel's motion
The court's charge was read to the jury. During closing argument, defense counsel contested the officer's legal authority to effectuate a traffic stop. He pointed out direct inconsistencies between Officer Rodriguez's testimony and that of Prince, including whether the officer read the Miranda warnings, who was present at the scene, and Prince's alleged statements acknowledging ownership of the marijuana. Defense counsel also questioned the officer's veracity and failure to provide any evidence to support his accusations. "You shouldn't be required to simply take [the officer's] word for it, especially when he is in a position to give you something more." Defense counsel further argued the State chose not to collect or present additional evidence to substantiate Officer Rodriguez's testimony.
The jury returned a guilty verdict against Prince for possession of marijuana and assessed punishment at 180-days' confinement in the Bexar County Jail, suspended and probated for a term of 180 days, and a $300.00 fine.
C. Defense Counsel's Motion for New Trial
A hearing was held on Prince's motion for new trial on October 5, 2015. During the hearing, defense counsel questioned Officer Rodriguez regarding his previous testimony that he was "working alone" at the time of Prince's arrest. The officer explained that on the day in question, he had an "Explorer" in his patrol car. An Explorer is an observer, generally a teenager who "has aspirations of becoming a policeman one day." Officer Rodriguez reiterated that although he remembers having another individual at the scene, he did not know the Explorer's name, the Explorer does not work for the police department, and the Explorer was not "working" that day. Officer Rodriguez testified the Explorer's presence was not a secret and was never hidden from Prince.
Defense counsel argued Prince was denied his due process rights based on Officer Rodriguez's use of either false or misleading testimony. Defense counsel maintained credibility was a key issue in the case and the State failed to produce any independent evidence to corroborate Officer Rodriguez's testimony regarding the reading of the Miranda warnings or whether Prince made statements asserting possession of the marijuana.
The trial court denied Prince's motion for new trial.
On appeal, Prince contends the trial court erred in denying the motion for continuance and the motion for mistrial.
MOTION FOR CONTINUANCE
A. Preservation of Error
Texas Code of Criminal Procedure article 29.03 provides, "A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006); Anderson v. State, 301 S.W.3d 276, 278-79 (Tex.Crim. App.2009). Likewise, article 29.08 provides, "All motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the
Anderson, 301 S.W.3d at 279 (footnotes omitted); accord Blackshear v. State, 385 S.W.3d 589, 591 (Tex.Crim.App.2012) (refusing to "recognize a due process exception" to the requirement that motion for continuance be written and sworn).
B. Prince's Argument on Appeal
Prince contends the trial court's denial of his motion for continuance to cross-examine the "ride-along witness" violated his Sixth Amendment right to confrontation and his due process rights afforded by Article 39.14 of the Texas Code of Criminal Procedure. See U.S. CONST. amend. VI; TEX. CODE CRIM. PROC. ANN. art. 39.14(h) (West Supp. 2015) ("[T]he state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant....").
Prince's argument that the trial court's denial of his motion for continuance violated his Sixth Amendment right to confront his accuser is subject to procedural default. See Anderson, 301 S.W.3d at 280; Cerf v. State, 366 S.W.3d 778, 787 (Tex. App. — Amarillo 2012, no pet.). Here, the record does not contain a sworn, written motion for continuance. We, therefore, conclude that Prince's appellate argument challenging the trial court's denial of his unsworn, oral motion for continuance failed to comply with the procedural requirements of articles 29.03 and 29.08. See Anderson, 301 S.W.3d at 280; Cerf, 366 S.W.3d at 787.
Similarly, Prince's appellate contention regarding the trial court's denial of his motion for continuance based on the State's failure to comply with Criminal Procedure article 39.14, i.e. Brady material, is also subject to procedural default. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also Palomo v. State, No. 06-14-00076-CR, 2015 WL 1546148, at *8 (Tex.App. — Texarkana Apr. 1, 2015, pet. ref'd) (mem. op., not designated for publication) ("The Brady doctrine is founded on protecting the defendant's due process rights."). By failing to file a sworn, written motion for continuance, Prince failed to preserve error on either ground — the Sixth Amendment right to confrontation or any alleged discovery violation.
Accordingly, we overrule Prince's appellate issues regarding the trial court's denial of his motion for continuance.
MOTION FOR MISTRIAL
A. Standard of Review
An appellate court reviews the denial of a motion for mistrial for an abuse of discretion. See Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007). "[A]n appellate court must uphold the trial court's ruling if it was within the zone of reasonable disagreement." Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004)). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Id. (citing Hawkins
B. Prince's Argument on Appeal
Prince contends the trial court erred in denying his motion for mistrial because the State's failure to disclose the "ride-along witness" constituted a Brady violation and prevented the defense from exposing the officer's bias and motive.
Defense counsel rigorously attacked Officer Rodriguez's credibility during his cross-examination,
After both sides rested, defense counsel argued to the trial court that the presence of another individual in the officer's patrol car was directly tied to Officer Rodriguez's credibility. And again during his closing argument to the jury, defense counsel suggested Officer Rodriguez was lying and pointed to the State's failure to recall the officer to rebut the officer's motivation for misleading the jury as an ongoing theme throughout trial.
Despite defense counsel's arguments, the record supports Prince clearly remembered another individual was present in Officer Rodriguez's patrol car on the day in question. He remembered exactly what the individual was wearing and his approximate age. Despite knowing the existence of this other individual, Prince never requested the State provide him with the ride-along witness's identity.
In light of the entire record, we cannot say the trial court abused its discretion in denying Prince's request for a mistrial or that such determination was outside the zone of reasonable disagreement. See Archie, 221 S.W.3d at 699. Accordingly, we overrule Prince's appellate issue relating to the trial court's denial of his motion for mistrial.
Having overruled each of Prince's issues on appeal, we affirm the judgment of the trial court.