Donald Eugene Bruce v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00011-CR ______________________________



DONALD EUGENE BRUCE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 33,756-A

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Donald Eugene Bruce had reached the day of his Gregg County jury trial on multiple counts of aggravated sexual assault of a child and one count of indecency with a child by contact. ⁽¹⁾ Just before voir dire was to begin, Bruce presented the trial court with motions for continuance in both cases. Bruce argued in his motions that he had not been able to secure allegedly alibi testimony from a representative of Warner Enterprises, the company with which he was employed as a long-distance truck driver at the time of his alleged crimes.

After the trial court overruled Bruce's motions for continuance, trial was conducted, resulting in Bruce being convicted and sentenced to ninety-nine years' incarceration on each count of aggravated sexual assault of a child, to run concurrently, and twenty years for the indecency count, which was ordered to run consecutive to the ninety-nine-year sentences.

Bruce's appeal in each case complains only that the trial court erred in denying Bruce his requested continuance. We overrule Bruce's point of error and affirm the judgments.

The trial court's ruling on a motion for continuance is reviewed for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06(6) (Vernon 2006). To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his or her motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz, 906 S.W.2d at 511. To obtain a continuance because of the absence of a witness, a defendant must show, among other things, he or she exercised due diligence to secure the witness' attendance. Tex. Code Crim. Proc. Ann. art. 29.06(2) (Vernon 2006). In situations where a witness is not subpoenaed until near the date of trial, courts regularly hold that the party has failed to exercise the due diligence necessary to support a motion for continuance. Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999); Peoples v. State, 477 S.W.2d 889, 891 (Tex. Crim. App. 1972); see also Norton v. State, 564 S.W.2d 714, 716-17 (Tex. Crim. App. [Panel Op.] 1978). We affirm because we find a lack of due diligence in securing any such witness.

On January 16, 2007, just before voir dire, the trial court heard Bruce's argument in support of his motions for continuance. Counsel stated that his investigator had spoken to Bruce sometime around Thanksgiving 2006, to obtain information the investigator would need to contact Bruce's former employer. Counsel said the investigator had contacted the employer and on "several occasions" the employer had "not contacted him back." Believing that information in the employer's possession "would be of some benefit to the defendant," Bruce, through counsel, urged the trial court to continue the case. The trial court said the instant cases had been set for trial for "an extended period of time," and the State told the trial court the cases had been set since the previous July.

Bruce had previously filed motions for continuance in both cases in July 2006. His motions for continuance filed at that time cited the replacement of his court-appointed investigator and the need for further general investigation. The investigator Bruce's counsel mentioned was appointed sometime in August 2006, several months after the indictments were returned and five months before trial. The motions for continuance filed in January 2007, the day trial began (those on which the instant appeal are based) stated that the investigator had attempted to locate Bruce's employer "at the time [Bruce] allegedly committed the acts" specified in each indictment, but had not been able to contact that employer. The motions further assert that "[c]ertain records and documents available from the employer could establish an alibi or, in the alternative, dispute some of the allegations and accusations made by the complaining witness." The motions did not provide information about the name of the proposed witness; explanations of the diligence used to find such witness; what facts Bruce believed that witness would supply; or other information required by statute. See Tex. Code Crim. Proc. Ann. arts. 29.06, 29.07 (Vernon 2006). The record does not indicate Bruce obtained any subpoenas to secure the testimony of any witness, and his counsel conceded as much at the pretrial hearing, saying, "we've got to have some contact through the phone to find out who to subpoena. We don't even have contact. I don't think we have a contact . . . . " Bruce did not move for a new trial or take any steps to adduce a summary of what evidence he hoped the former employer would have offered.

The trial court was well within its discretion in finding Bruce had not exercised due diligence in pursuing the witness or the evidence he claimed he needed. Accordingly, we find no abuse of discretion in the trial court's denial of the motions for continuance. ⁽²⁾  

We overrule Bruce's point of error and affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 4, 2007

Date Decided: October 4, 2007

Do Not Publish

1. In this appeal, bearing cause number 06-07-00011-CR (trial court cause number 33,756-A), Bruce was indicted December 15, 2005, on two counts of aggravated sexual assault of "Jane Doe 41692" occurring on or about August 1 and 15, 2005, respectively; in a companion appeal bearing cause number 06-07-00012-CR (trial court cause number 34,094-A), on March 1, 2006, Bruce was indicted for one count of aggravated sexual assault of "Jane Doe #2" and one count of indecency with a child by contact, against the same victim, on or about January 1, 2005. In the companion case, we affirm the judgment in a separate opinion issued this day.

2. Another reason also dooms Bruce's appeal. Bruce argues that he wished to secure evidence he was on the road at the time of some of the allegations. Bruce, however, testified he did not work for Warner Enterprises from the spring of 2004 to around June 27, 2005. Even assuming arguendo that he could have produced evidence he was on the road every day during his employment with Warner, he would still have faced the indictment in trial cause number 34,094-A. That case alleged one count of aggravated sexual assault and one count of indecency with a child by contact, on or about January 1, 2005, when Bruce did not work for Warner. His convictions on those counts netted Bruce sentences of ninety-nine years and twenty years, respectively. The trial court ordered the sentence for the indecency count to run consecutive to the sexual assault sentences. Therefore, even if Bruce had been acquitted of the two counts of aggravated sexual assault in the case alleging August 2005 offense dates, the sentence resulting from this trial would not have been altered.