Rebecca Ulate Garcia v. State ( 2018 )

Opinion filed July 12, 2018
In The
Eleventh Court of Appeals
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No. 11-16-00187-CR
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REBECCA ULATE GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-41,110
MEMORANDUM OPINION
Appellant, Rebecca Ulate Garcia, pleaded guilty to the third-degree felony
offense of theft in the amount of $20,000 or more but less than $100,000. Pursuant
to the terms of the plea agreement, the trial court deferred a finding of guilt and
placed Appellant on community supervision for three years. The trial court also
assessed a fine of $1,000 and ordered Appellant to pay restitution in the amount of
$14,000.
The State subsequently filed a motion to proceed with an adjudication of
Appellant’s guilt. The State alleged four violations of the terms and conditions of
community supervision, including an allegation that Appellant used cocaine while
on community supervision. At a contested hearing on the motion, Appellant pleaded
true to one of the allegations. The trial court then heard testimony from Appellant’s
community supervision officer, Carmen Witt. Witt testified that Appellant tested
positive for cocaine while on community supervision. She also testified that, when
confronted with the test result, Appellant admitted using cocaine. Witt also detailed
various payments that Appellant did not make and stated that Appellant failed to
report for a required visit.
The trial court found three of the State’s allegations to be true, adjudicated
Appellant’s guilt, and assessed her punishment at confinement for ten years in the
Institutional Division of the Texas Department of Criminal Justice. In a single issue
on appeal, Appellant asserts that the trial court abused its discretion in denying her
motion for continuance. We affirm.
Appellant’s trial counsel asserted in the motion for continuance that a
postponement was necessary because he was retained only two weeks prior to the
hearing date and that he needed more time to prepare.1 At the hearing on the motion
to proceed, trial counsel advised the trial court that he had not received “discovery
documents” from previous counsel and that he had not received discovery from the
State. Counsel testified that he was not prepared to proceed with the hearing. In
denying the motion for continuance, the trial court noted that the case had been reset
at least three times.
1
The motion for continuance that is the subject of this appeal is actually the second request for a
postponement from Appellant’s trial counsel. The trial court granted counsel’s initial request by postponing
the hearing for ten days.
2
An appellate court reviews a trial court’s ruling on a motion for continuance
for an abuse of discretion. 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)). To
establish an abuse of discretion, Appellant must show that she was actually
prejudiced by the denial of her motion. Id. With respect to a motion for continuance
based on a need for more preparation time for counsel, an abuse of discretion will
be found “only if the record shows with considerable specificity how the defendant
was harmed by the absence of more preparation time than he actually had.”
Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010) (quoting George E.
Dix & Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure
§ 28.56 (2d ed. 2001)). A defendant can ordinarily make such a showing only at a
hearing on a motion for new trial because only then will she be able to produce
evidence regarding what additional information, evidence, or witnesses the defense
would have had available if the trial court had granted the motion for continuance.
Id. at 842–43; Nwosoucha v. State, 325 S.W.3d 816, 825–26 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d).
Appellant did not file a motion for new trial in an attempt to show how she
may have been prejudiced by the denial of the motion for continuance. Furthermore,
Appellant did not assert at the hearing on the motion to proceed any specific harm
she suffered because the trial court did not grant her motion for continuance. The
matters under consideration at the hearing were straightforward. No documentary
evidence was offered by either party. Counsel thoroughly cross-examined the
State’s only witness, and he elicited favorable testimony from Appellant in response
to the State’s allegations. In the absence of a showing of harm from not having more
time to prepare, the trial court did not abuse its denying in overruling the motion for
continuance. We overrule Appellant’s sole issue.
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This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE
July 12, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
4