In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-00-00660-CR
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WILLIAM ADOLPH SHECKELLS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 296th Judicial District
Collin County, Texas
Trial Court Cause No. 296-80438-99
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OPINION
Before Justices Lagarde, Morris, James
Opinion By Justice James
William Adolph Sheckells
appeals his conviction for aggravated sexual assault of a child. After appellant pleaded not guilty to the charged offense,
the jury found him guilty and assessed punishment at thirty-five years'
confinement in the state penitentiary. In eight points of error, appellant
contends the evidence is legally and factually insufficient to support his
conviction, and the trial court erred by admitting unreliable DNA evidence, by
not granting a mistrial sua sponte, and by denying his motion for a
continuance. Because we conclude the evidence is legally and factually
sufficient to support his conviction, the trial court properly admitted DNA
evidence, and properly denied the motion for continuance, we affirm the trial
court's judgment.
Background
In February 1999, S.R., a
twelve-year old girl, lived at the Manor House Apartments and appellant, Bill Sheckells, was the maintenance person for
the apartment complex. On February 8, 1999, S.R.was home from school and noticed
a water leak. She called the manager's office and requested to have maintenance
stop by to repair the leak. Just after noon, S.R. heard a knock at the door,
allowed appellant into her apartment, and went into her mother's bedroom to
watch television while appellant fixed the leak.
According to S.R., a few minutes after he arrived, appellant hit her in the face with a pillow and smothered her while she lay on the bed. She testified she was asthmatic, could not breathe, and feared for her life. During this time, S.R. stated appellant pulled down her pants and panties, undid his pants, and “stuck his private part into her private part.” Next, appellant held her by her hair and put his penis in her mouth until “white stuff” came out. Afterward, S.R. testified appellant cleaned-up with some tissue which he disposed of in the toilet, pulled up his pants, and told her he was leaving to retrieve his camera. When he left, S.R. locked appellant out and immediately called her mentor, Christine Crowley, who called the police.
Officer Neil Knowlton responded to the call and testified he found S.R. crying, upset, and scared. He further stated S.R. identified the perpetrator as the maintenance man named Bill and described him as having grey hair and wearing a blue jacket. When he was apprehended, appellant matched this description given by S.R. Melissa Fowler was the paramedic on the scene and she testified S.R. was complaining that her “privates” were hurting. Dr. Donna Persaud stated she examined S.R. after Ms. Fowler took her to the hospital. Dr. Persaud testified S.R. had swollen, red vaginal tissue and submucosal hemorrhages which were consistent with trauma and “indicates penetration.” Additionally, the State presented John Donahue, a criminalist with the Texas Department of Public Safety Lab, who testified he completed a STR DNA analysis of evidence retrieved from the crime scene and could not exclude either S.R. or appellant from the stain sample tested. The State also introduced testimony from Dr. M. Al Salih, who discussed the mitochondrial DNA test he performed on evidence recovered from S.R.'s apartment. Like the STR DNA results, Dr. Salih's test results could not exclude appellant or S.R. from evidence recovered at the scene. Appellant presented two experts, Dr. John Planz and Dr. Robert Benjamin. Dr. Planz stated the mitochondrial DNA testing procedures of Dr. Salih were “unreliable and sloppily prepared,” and Dr. Benjamin felt Dr. Salih was “incompetent.”
According to S.R., a few minutes after he arrived, appellant hit her in the face with a pillow and smothered her while she lay on the bed. She testified she was asthmatic, could not breathe, and feared for her life. During this time, S.R. stated appellant pulled down her pants and panties, undid his pants, and “stuck his private part into her private part.” Next, appellant held her by her hair and put his penis in her mouth until “white stuff” came out. Afterward, S.R. testified appellant cleaned-up with some tissue which he disposed of in the toilet, pulled up his pants, and told her he was leaving to retrieve his camera. When he left, S.R. locked appellant out and immediately called her mentor, Christine Crowley, who called the police.
Officer Neil Knowlton responded to the call and testified he found S.R. crying, upset, and scared. He further stated S.R. identified the perpetrator as the maintenance man named Bill and described him as having grey hair and wearing a blue jacket. When he was apprehended, appellant matched this description given by S.R. Melissa Fowler was the paramedic on the scene and she testified S.R. was complaining that her “privates” were hurting. Dr. Donna Persaud stated she examined S.R. after Ms. Fowler took her to the hospital. Dr. Persaud testified S.R. had swollen, red vaginal tissue and submucosal hemorrhages which were consistent with trauma and “indicates penetration.” Additionally, the State presented John Donahue, a criminalist with the Texas Department of Public Safety Lab, who testified he completed a STR DNA analysis of evidence retrieved from the crime scene and could not exclude either S.R. or appellant from the stain sample tested. The State also introduced testimony from Dr. M. Al Salih, who discussed the mitochondrial DNA test he performed on evidence recovered from S.R.'s apartment. Like the STR DNA results, Dr. Salih's test results could not exclude appellant or S.R. from evidence recovered at the scene. Appellant presented two experts, Dr. John Planz and Dr. Robert Benjamin. Dr. Planz stated the mitochondrial DNA testing procedures of Dr. Salih were “unreliable and sloppily prepared,” and Dr. Benjamin felt Dr. Salih was “incompetent.”
Sexual Assault
A person commits the offense of aggravated sexual assault by intentionally or knowingly causing the penetration of the female sexual organ of a child by any means or by causing the penetration of the mouth of a child by the sexual organ of the actor and the child is younger than fourteen years of age. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2001). Testimony of a child victim alone is sufficient evidence of penetration to support a conviction for aggravated sexual assault. See Empty v. State, 972 S.W.2d 194, 196 (Tex. App._Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App._Dallas 1994, no pet.).
A person commits the offense of aggravated sexual assault by intentionally or knowingly causing the penetration of the female sexual organ of a child by any means or by causing the penetration of the mouth of a child by the sexual organ of the actor and the child is younger than fourteen years of age. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2001). Testimony of a child victim alone is sufficient evidence of penetration to support a conviction for aggravated sexual assault. See Empty v. State, 972 S.W.2d 194, 196 (Tex. App._Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App._Dallas 1994, no pet.).
Legal Sufficiency
In points of error four
and six, appellant argues the evidence is legally insufficient to show his male sexual organ penetrated the victim's female
sexual organ or mouth. When reviewing a challenge to the legal sufficiency of
the evidence, we view the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); Dumas v. State, 812 S.W.2d 611, 615 (Tex.
App._Dallas 1991, pet. ref'd). The factfinder, who is the exclusive judge of the
witnesses credibility and the weight to be given their testimony, resolves
conflicts in the testimony, weighs the evidence, and draws reasonable inferences
from basic to ultimate facts. See Dumas, 812 S.W.2d at 615. The
factfinder may accept or reject any or all of the evidence. See Saxton v.
State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Additionally, the
evidence is not rendered insufficient because the appellant presents a different
factual version of events. See Anderson v. State, 701 S.W.2d 868, 872
(Tex. Crim. App. 1985).
Appellant argues the State failed to prove penetration beyond a reasonable doubt. At trial, however, S.R. identified appellant and testified he “stuck his private part into my private part,” and “put his penis in my mouth.” S.R. further testified she was twelve years old when this occurred. Additionally, the State presented testimony from Dr. Persaud, who examined S.R. after the assault. Dr. Persaud noted S.R. had pinhead size hemorrhages on the hymen and swollen red tissue in the vestibule which can be indicative of assault and penetration. Because S.R.'s testimony alone would be enough to establish penetration, her testimony coupled with Dr. Persaud's statements are sufficient evidence for any rational jury to find beyond a reasonable doubt that appellant was guilty of the aggravated sexual assault of S.R. See Empty, 972 S.W.2d at 196; Karnes, 873 S.W.2d at 96. Accordingly, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's fourth and sixth points of error.
Appellant argues the State failed to prove penetration beyond a reasonable doubt. At trial, however, S.R. identified appellant and testified he “stuck his private part into my private part,” and “put his penis in my mouth.” S.R. further testified she was twelve years old when this occurred. Additionally, the State presented testimony from Dr. Persaud, who examined S.R. after the assault. Dr. Persaud noted S.R. had pinhead size hemorrhages on the hymen and swollen red tissue in the vestibule which can be indicative of assault and penetration. Because S.R.'s testimony alone would be enough to establish penetration, her testimony coupled with Dr. Persaud's statements are sufficient evidence for any rational jury to find beyond a reasonable doubt that appellant was guilty of the aggravated sexual assault of S.R. See Empty, 972 S.W.2d at 196; Karnes, 873 S.W.2d at 96. Accordingly, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's fourth and sixth points of error.
Factual Sufficiency
In points of error five, seven, and eight, appellant argues the evidence is factually insufficient to prove penetration of S.R.'s female sexual organ or mouth and insufficient to prove he committed the offense. When reviewing the factual sufficiency of the evidence, we must review all of the evidence in a neutral light and determine if the proof on a contested issue is so obviously weak as to undermine confidence in the verdict, or if the evidence proving a contested issue, otherwise adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000 ). In conducting this review, we may not substitute our determination for that of the factfinder. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996); Scott v. State, 934 S.W.2d 396, 399 (Tex. App._Dallas 1996, no pet.). Rather, we must defer to the jury' s determination concerning what weight to give contradictory testimony. Johnson, 23 S.W.3d at 9. We reverse only if (1) the evidence is so weak that the verdict is clearly wrong and unjust or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 11.
Appellant makes the same arguments here as he presented under his legal sufficiency points of error. He argues the State's failure to present conclusive medical testimony that appellant engaged in intercourse merits a finding of factual insufficiency. Again, S.R.'s testimony of penetration was supported by the medical testimony of Dr. Persaud, and S.R. identified appellant as the person who assaulted her. Additionally, testimony from various witnesses supported her version of events. After reviewing all of the evidence, we conclude the verdict is not so obviously weak as to be clearly wrong and unjust. See id. Therefore, we conclude the evidence is factually sufficient to show appellant committed aggravated sexual assault by penetrating the victim's female organ and mouth. We overrule appellant's fifth, seventh, and eighth points of error.
In points of error five, seven, and eight, appellant argues the evidence is factually insufficient to prove penetration of S.R.'s female sexual organ or mouth and insufficient to prove he committed the offense. When reviewing the factual sufficiency of the evidence, we must review all of the evidence in a neutral light and determine if the proof on a contested issue is so obviously weak as to undermine confidence in the verdict, or if the evidence proving a contested issue, otherwise adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000 ). In conducting this review, we may not substitute our determination for that of the factfinder. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996); Scott v. State, 934 S.W.2d 396, 399 (Tex. App._Dallas 1996, no pet.). Rather, we must defer to the jury' s determination concerning what weight to give contradictory testimony. Johnson, 23 S.W.3d at 9. We reverse only if (1) the evidence is so weak that the verdict is clearly wrong and unjust or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 11.
Appellant makes the same arguments here as he presented under his legal sufficiency points of error. He argues the State's failure to present conclusive medical testimony that appellant engaged in intercourse merits a finding of factual insufficiency. Again, S.R.'s testimony of penetration was supported by the medical testimony of Dr. Persaud, and S.R. identified appellant as the person who assaulted her. Additionally, testimony from various witnesses supported her version of events. After reviewing all of the evidence, we conclude the verdict is not so obviously weak as to be clearly wrong and unjust. See id. Therefore, we conclude the evidence is factually sufficient to show appellant committed aggravated sexual assault by penetrating the victim's female organ and mouth. We overrule appellant's fifth, seventh, and eighth points of error.
Admissibility
In his first point of error, appellant argues the trial court erred by admitting Dr. Salih 's testimony that mitochondrial DNA test results did not exclude appellant or S.R. from a semen stain. We review the evidence in the light most favorable to the trial court's decision and, absent an abuse of discretion, we will not disturb the trial court's decision. See Kelly v. State, 824 S.W.2d 568, 571, 574 (Tex. Crim. App. 1992); Barnes v. State, 839 S.W.2d 118, 124 (Tex. App._Dallas 1992, pet. ref'd). We must uphold the trial court's ruling if it is within the zone of reasonable disagreement, and we review the trial court's ruling in light of what was before the court at the time the ruling was made. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
Under rule 702, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. However, evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403.
To be considered reliable, novel evidence derived from a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. See Kelly, 824 S.W.2d at 573; Barnes, 839 S.W.2d at 124. The trial court may, but is not required to, consider the following factors in determining reliability: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question. See Kelly, 824 S.W.2d at 573.
The record reflects Dr. Salih graduated from veterinary medical school, holds a Masters and Ph.D. in both microbiology and molecular biology, and has taught genetic engineering, molecular biology, and basic molecular biology in Utah and at the UT Health Science Center. He is also certified in blood banking and immunohematology, and at the time of trial he had been the director of the DNA Reference Lab for over two years. This lab is one of a handful in the country and only two in Texas that performs DNA testing. Additionally, Dr. Salih testified he has been involved with DNA research and testing since 1986 and has performed over two hundred DNA paternity tests, about forty-five forensic DNA tests, and approximately twenty-seven mitochondrial DNA tests.
The trial court held a hearing before admitting Dr. Salih's testimony and found the lab is certified by the College of American Pathologists and the Clinical Laboratory Inspector and Inspection Agency. Additionally, Dr. Salih stated the two-stain testing technique of mitochondrial DNA is in its infancy stage but that he completed two, two-stain tests prior to appellant's test. Although it is a rather new process, he stated there have been numerous studies and papers written about mitochondrial DNA and the scientific theory behind it has been tested and proven. Dr. John Planz, appellant's expert, agreed with Dr. Salih that mitochondrial DNA testing is generally accepted. Further, Dr. Planz stated he could think of no reason Dr. Salih should not be qualified as an expert. On the other hand, Dr. Planz did disagree about whether two-stain tests were acceptable and he felt Dr. Salih's testing procedures were poor and “subjective.” The trial court determined such evidence went to the weight and not the admissibility of the evidence and allowed Dr. Salih to testify before the jury.
Viewing this evidence in the light most favorable to the trial court's decision, we conclude the trial court did not abuse its discretion when it decided the methods that Dr. Salih used to conduct appellant's DNA test were reliable, relevant, and probative. See Kelly, 824 S.W.2d at 574; Barnes, 839 S.W.2d at 125. Although appellant's experts disputed Dr. Salih's methodology, the trial court can believe one expert over another. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Barnes, 839 S.W.2d at 125. The trial court did not abuse its discretion in admitting Dr. Salih's testimony. Therefore, we overrule appellant's first point of error.
In his first point of error, appellant argues the trial court erred by admitting Dr. Salih 's testimony that mitochondrial DNA test results did not exclude appellant or S.R. from a semen stain. We review the evidence in the light most favorable to the trial court's decision and, absent an abuse of discretion, we will not disturb the trial court's decision. See Kelly v. State, 824 S.W.2d 568, 571, 574 (Tex. Crim. App. 1992); Barnes v. State, 839 S.W.2d 118, 124 (Tex. App._Dallas 1992, pet. ref'd). We must uphold the trial court's ruling if it is within the zone of reasonable disagreement, and we review the trial court's ruling in light of what was before the court at the time the ruling was made. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
Under rule 702, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. However, evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403.
To be considered reliable, novel evidence derived from a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. See Kelly, 824 S.W.2d at 573; Barnes, 839 S.W.2d at 124. The trial court may, but is not required to, consider the following factors in determining reliability: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question. See Kelly, 824 S.W.2d at 573.
The record reflects Dr. Salih graduated from veterinary medical school, holds a Masters and Ph.D. in both microbiology and molecular biology, and has taught genetic engineering, molecular biology, and basic molecular biology in Utah and at the UT Health Science Center. He is also certified in blood banking and immunohematology, and at the time of trial he had been the director of the DNA Reference Lab for over two years. This lab is one of a handful in the country and only two in Texas that performs DNA testing. Additionally, Dr. Salih testified he has been involved with DNA research and testing since 1986 and has performed over two hundred DNA paternity tests, about forty-five forensic DNA tests, and approximately twenty-seven mitochondrial DNA tests.
The trial court held a hearing before admitting Dr. Salih's testimony and found the lab is certified by the College of American Pathologists and the Clinical Laboratory Inspector and Inspection Agency. Additionally, Dr. Salih stated the two-stain testing technique of mitochondrial DNA is in its infancy stage but that he completed two, two-stain tests prior to appellant's test. Although it is a rather new process, he stated there have been numerous studies and papers written about mitochondrial DNA and the scientific theory behind it has been tested and proven. Dr. John Planz, appellant's expert, agreed with Dr. Salih that mitochondrial DNA testing is generally accepted. Further, Dr. Planz stated he could think of no reason Dr. Salih should not be qualified as an expert. On the other hand, Dr. Planz did disagree about whether two-stain tests were acceptable and he felt Dr. Salih's testing procedures were poor and “subjective.” The trial court determined such evidence went to the weight and not the admissibility of the evidence and allowed Dr. Salih to testify before the jury.
Viewing this evidence in the light most favorable to the trial court's decision, we conclude the trial court did not abuse its discretion when it decided the methods that Dr. Salih used to conduct appellant's DNA test were reliable, relevant, and probative. See Kelly, 824 S.W.2d at 574; Barnes, 839 S.W.2d at 125. Although appellant's experts disputed Dr. Salih's methodology, the trial court can believe one expert over another. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Barnes, 839 S.W.2d at 125. The trial court did not abuse its discretion in admitting Dr. Salih's testimony. Therefore, we overrule appellant's first point of error.
Mistrial
In his second point of error, appellant claims the trial court erred by not granting a mistrial sua sponte after hearing the “unreliable” testing standards of Dr. Salih. A trial judge has the power to declare a mistrial sua sponte when “in [his] opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. [Panel Op.] 1981); Plunkett v. State, 883 S.W.2d 349, 354 (Tex. App._Waco 1994, pet. ref'd). In a battle between experts, the trial court acts as the gatekeeper and evaluates the credibility of the witnesses and the weight to attach to the testimony. See Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). The court of criminal appeals has recognized the power to grant a mistrial sua sponte should be used with “the greatest caution, under urgent circumstances, and for very plain and obvious causes.” Torres, 614 S.W.2d at 442; Plunkett, 883 S.W.2d at 354. The circumstances presented here do not rise to this level. As stated above, we found the trial court did not abuse its discretion in determining the evidence was relevant and reliable; thus, the court was under no duty to grant a mistrial. Accordingly, we overrule appellant's second point of error.
In his second point of error, appellant claims the trial court erred by not granting a mistrial sua sponte after hearing the “unreliable” testing standards of Dr. Salih. A trial judge has the power to declare a mistrial sua sponte when “in [his] opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. [Panel Op.] 1981); Plunkett v. State, 883 S.W.2d 349, 354 (Tex. App._Waco 1994, pet. ref'd). In a battle between experts, the trial court acts as the gatekeeper and evaluates the credibility of the witnesses and the weight to attach to the testimony. See Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). The court of criminal appeals has recognized the power to grant a mistrial sua sponte should be used with “the greatest caution, under urgent circumstances, and for very plain and obvious causes.” Torres, 614 S.W.2d at 442; Plunkett, 883 S.W.2d at 354. The circumstances presented here do not rise to this level. As stated above, we found the trial court did not abuse its discretion in determining the evidence was relevant and reliable; thus, the court was under no duty to grant a mistrial. Accordingly, we overrule appellant's second point of error.
Motion for Continuance
In his third point of error, appellant argues the trial court erred by denying his motion for continuance. He claims he did not have adequate time to review DNA test results, meet with experts, and prepare the case for trial. The trial court's ruling on a motion for continuance is reviewed under an abuse of discretion standard. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). We will not hesitate to declare an abuse of discretion where the denial of a continuance has resulted in demonstrated prejudice. See id. Nevertheless, to find an abuse of discretion, there must be a showing that the defendant was prejudiced by his counsel's inadequate preparation time. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995).
On November 5, 1999, appellant filed for and was granted a motion for continuance until DNA test results were released. In December 1999, the State orally notified appellant's attorney of the actual results of the DNA test and gave appellant a paper copy of the results in January; however, the actual physical notes and report were not given to appellant until February 25, 2000, or ten days before trial. Appellant subsequently filed another motion for continuance claiming he did not have enough preparation time. He claimed the DNA test was incorrect but failed to provide any evidence in support . The court subsequently denied the motion. Appellant had known the results of the test for almost four months, he could have begun tests of his own sooner .
At trial, appellant did not show he was unfairly surprised by any evidence. Further, he cross- examined the State's expert witness, and he presented two experts of his own. Thus, appellant's bare assertion that he did not have time to review the evidence and prepare experts does not alone establish prejudice, and appellant fails to identify any specific prejudice to his defense. See Heiselbetz, 906 S.W.2d at 512. Absent a showing of prejudice, we cannot hold the trial court abused its discretion in denying appellant's motion for continuance. We overrule appellant's third point of error.
We affirm the trial court's judgment.
TOM JAMES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
000660F.U05
File Date[10/08/2001]
File Name[000660F]
Disclaimer on Opinions![]()
In his third point of error, appellant argues the trial court erred by denying his motion for continuance. He claims he did not have adequate time to review DNA test results, meet with experts, and prepare the case for trial. The trial court's ruling on a motion for continuance is reviewed under an abuse of discretion standard. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). We will not hesitate to declare an abuse of discretion where the denial of a continuance has resulted in demonstrated prejudice. See id. Nevertheless, to find an abuse of discretion, there must be a showing that the defendant was prejudiced by his counsel's inadequate preparation time. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995).
On November 5, 1999, appellant filed for and was granted a motion for continuance until DNA test results were released. In December 1999, the State orally notified appellant's attorney of the actual results of the DNA test and gave appellant a paper copy of the results in January; however, the actual physical notes and report were not given to appellant until February 25, 2000, or ten days before trial. Appellant subsequently filed another motion for continuance claiming he did not have enough preparation time. He claimed the DNA test was incorrect but failed to provide any evidence in support . The court subsequently denied the motion. Appellant had known the results of the test for almost four months, he could have begun tests of his own sooner .
At trial, appellant did not show he was unfairly surprised by any evidence. Further, he cross- examined the State's expert witness, and he presented two experts of his own. Thus, appellant's bare assertion that he did not have time to review the evidence and prepare experts does not alone establish prejudice, and appellant fails to identify any specific prejudice to his defense. See Heiselbetz, 906 S.W.2d at 512. Absent a showing of prejudice, we cannot hold the trial court abused its discretion in denying appellant's motion for continuance. We overrule appellant's third point of error.
We affirm the trial court's judgment.
TOM JAMES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
000660F.U05
File Date[10/08/2001]
File Name[000660F]
Disclaimer on Opinions