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Date: 05-02-2018

Case Style:

Zachary Thomas Collins v. The State of Texas

Zachary Thomas Collins - Registered Sex Offender

Case Number: 11-16-00123-CR

Judge: JIM R. WRIGHT

Court: Eleventh Court of Appeals

Plaintiff's Attorney: M. Alan Nash, District Attorney
John Terrill, Assistant

Defendant's Attorney:

Russell W. King

Description: After the grand jury indicted Appellant for the offense of sexual assault of a child, and after the State and Appellant entered into a plea agreement, Appellant pleaded guilty to the offense. The trial court followed the plea agreement, deferred any adjudication of Appellant’s guilt, placed him on community supervision for a term of ten years, and fined him $2,500. Ultimately, upon the State’s “Second Amended Second Motion to Adjudicate,” the trial court found that the allegations in
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that motion were true, found Appellant guilty of sexual assault of a child, revoked Appellant’s community supervision, and assessed his punishment at confinement for seventeen years and a fine of $5,000. We affirm. Because Appellant’s issues on appeal do not concern the procedural history of this case, we will not detail it. We simply note that the history includes various continuances of hearings on prior motions and amended motions to adjudicate and amendments to the terms and conditions of Appellant’s community supervision that followed. After it heard the evidence and arguments of counsel, the trial court found that each of the State’s allegations were true. Specifically, the trial court found that Appellant had violated the terms and conditions of his community supervision when he gave false identification to a peace officer, fled from a peace officer, failed to report as instructed, failed to report a change of address, failed to pay various fees and costs, had contact with a minor without the permission of his counselor and his community supervision officer, and lived in the same household as a minor child without the permission of his counselor and his community supervision officer. The State also alleged, and the trial court found as true, that Appellant had committed an additional sexual-assault-of-a-child-offense. Appellant has not challenged the sufficiency of the evidence to support those findings, and we need not detail it. At the beginning of the hearing that is the subject of this appeal, Appellant entered a plea of not true to the allegations. However, Appellant’s attorney then announced that he was not ready to proceed because two witnesses were not available that day. The trial court reviewed, on the record, the procedural history of the case, laid the blame for the absence of the witnesses personally at Appellant’s feet, and announced that it would proceed with the hearing. In his first issue on appeal, Appellant claims that the trial court erred when it did not grant a continuance.
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We review a trial court’s denial of a motion for continuance under the wellestablished abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007) (citing Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)). Article 29.03 of the Texas Code of Criminal Procedure provides in relevant part: “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). The motion “must be sworn to by a person having personal knowledge of the facts relied on for the continuance.” Id. art. 29.08. When a motion for continuance is based upon an absent witness, a defendant must show that he has exercised diligence to procure the witness’s attendance, that the witness is not absent by the procurement or consent of the defendant, and that the motion is not made for delay; he must also state the facts expected to be proved by the absent witness. Id. art. 29.06; Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). Also, it must appear to the trial court that the facts to which the absent witness would testify are material. Harrison, 187 S.W.3d at 434. Here, Appellant had not given his lawyer information about the whereabouts of the two witnesses until late—4:53 p.m.—on the day before the hearing. Appellant informed the trial court of neither the subject nor the content of the testimony that the witnesses would provide. The record does not reflect that Appellant requested subpoenas for the witnesses or otherwise used due diligence to obtain the presence of the witnesses that Appellant had not identified for his lawyer until the eve of trial. Equally as important, even if we consider the oral announcement of “not ready” to be a motion for continuance, the fact remains that Appellant did not file a written, sworn motion for continuance as required. We overrule Appellant’s first issue on appeal.
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In his second issue on appeal, Appellant finds fault with the trial court’s failure to allow him “to present mitigation evidence prior to sentencing him.” If Appellant had wanted to present evidence in mitigation of punishment at a separate hearing after the trial court adjudicated his guilt, he should have asked the trial court to allow him to do so. The record reflects that he did not do so at the hearing and neither did he complain in a motion for new trial. Appellant has not preserved the alleged error for review. See Euler v. State, 218 S.W.3d 88, 92 (Tex. Crim. App. 2007) (a defendant who wishes to present evidence in a separate punishment hearing in an adjudication and revocation proceeding must ask the trial court to allow him to do so unless the trial court affords him no opportunity to ask, as in Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992)); Andujo v. State, 2009 WL 1426909, at *1 (Tex. App.—Eastland May 21, 2009, pet. ref’d) (mem. op., not designated for publication).

Outcome: Appellant has failed to preserve for review the error that he has alleged in his second issue on appeal, and we therefore overrule it. We affirm the judgment of the trial court.

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