in Re: Commitment of Daniel Mark Gagliardo, Jr. ( 2022 )

NO. 12-22-00015-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: § APPEAL FROM THE 7TH
COMMITMENT OF § JUDICIAL DISTRICT COURT
DANIEL MARK GAGLIARDO, JR. § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
This is an appeal from a civil commitment judgment declaring Daniel Mark Gagliardo,
Jr. a sexually violent predator (SVP) under Chapter 841 of the Texas Health and Safety Code.
Gagliardo’s sole issue on appeal is that the trial court abused its discretion when it denied his
motion for continuance. We affirm.
BACKGROUND
In January 2021, the State filed a petition seeking the involuntary civil commitment of
Gagliardo as a sexually violent predator pursuant to Chapter 841 of the Texas Health and Safety
Code. On October 4, both parties announced ready for trial, a jury was selected, and trial began.
The next morning, Gagliardo informed the court that his sole witness may be too ill to testify.
The trial court asked whether the witness could appear via Zoom, and the parties agreed to wait
and see how the witness’s symptoms progressed. Later that day, Gagliardo informed the court
the witness would be unavailable and requested a continuance. The trial court noted that it made
arrangements for the witness to appear via Zoom. The trial court also refused to rule on the
continuance, stating that the issue was not ripe because the State had not rested its case. The
next morning, Gagliardo requested a continuance until “either he [the witness] gets better or that
we’re able to get some type of written testimony from him.” The trial court denied the request,
noting that the witness had not been subpoenaed or deposed and no medical evidence had been
presented regarding his current illness. In an offer of proof, Gagliardo stated that the missing
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witness was a Catholic priest he had known since 2010 through the prison system. Gagliardo
expected the priest to testify that he helped Gagliardo convert to Catholicism and that
Gagliardo’s character is different now than it was in the past. The witness would further testify
that he would support Gagliardo upon his release from prison.
At the conclusion of trial, the jury found beyond a reasonable doubt that Gagliardo is a
sexually violent predator. The trial court signed a final judgment and order of commitment in
accordance with the jury’s verdict. Gagliardo filed a motion for new trial, which was denied.
This appeal followed.
DENIAL OF MOTION FOR CONTINUANCE
In his sole issue, Gagliardo argues the trial court abused its discretion when it denied his
motion for continuance based on an unavailable witness.
Standard of Review and Applicable Law
An appellate court will not reverse a judgment based on a denial of a motion for
continuance absent a clear abuse of discretion. BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 800 (Tex. 2002); Snider v. Stanley, 44 S.W.3d 713, 718 (Tex. App.—Beaumont
2001, pet. denied). An abuse of discretion occurs when the trial court “‘reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’” Marchand, 83
S.W.3d at 800 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.
1985)).
The SVP statute requires trial to take place not later than the 270th day after the petition
is served on the person. TEX. HEALTH & SAFETY CODE ANN. § 841.061(a)(1) (West Supp. 2021).
However, the court can continue the trial past the 270th day if the person is not substantially
prejudiced by a continuance. Id. § 841.063(a) (West Supp. 2021). A judge may grant a motion
to continue a trial under the SVP statute on the request of either party and a showing of good
cause. Id. § 841.063 (West Supp. 2021).
Rule 251 of the Texas Rules of Civil Procedure requires a party seeking a continuance to
show sufficient cause by affidavit, consent of the parties, or operation of law as support for the
motion. TEX. R. CIV. P. 251. “A motion for continuance must be in writing, state the specific
facts supporting the motion, and be verified or supported by an affidavit.” Serrano v. Ryan’s
Crossing Apts., 241 S.W.3d 560, 564 (Tex. App.—El Paso 2007, pet. denied).
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Analysis
Gagliardo urges that the trial court erred when it denied his motion for continuance after
his witness became ill during the trial. Gagliardo did not file a written motion or affidavit with
the trial court. Instead, he made an oral motion when he learned his witness might be too ill to
appear in court. He argues that Section 841.063, which applies to SVP cases, does not require a
written motion and that Rule 251 does not apply. We disagree.
Previous SVP cases have applied Rule 251 and Section 841.063 together. See In re
Commitment of Nicholson, No. 09-13-00498-CV, 2014 WL 4460417, at *2 (Tex. App.—
Beaumont Sept. 11, 2014, no pet.) (mem. op.) (overruling appellant’s issue when filed unsworn
written motion for continuance in SVP case); In re Commitment of Mitchell, No. 09-07-002CV,
2007 WL 5011545, at *2 (Tex. App.—Beaumont Mar. 20, 2008, pet. denied) (mem. op.)
(addressing Rule 251 and 252 requirements in a SVP case); In re Commitment of Holt, No. 09-
06-00465-CV, 2007 WL 3101935, at *1 (Tex. App.—Beaumont Oct. 25, 2007, no pet) (mem.
op.) (applying both Rule 251 and Section 841.063 in SVP case). Furthermore, Section 841.146
provides that a civil commitment proceeding is subject to the rules of civil procedure and appeal
for civil cases. TEX. HEALTH & SAFETY CODE ANN. § 841.146(b) (West Supp. 2021). Reading
Section 841.063 and Rule 251 together, it appears that Section 841.063 allows for a continuance
and Rule 251 prescribes the manner in which one is requested.
Because Gagliardo’s motion for continuance does not comply with Rule 251, we cannot
say the trial court abused its discretion in denying the motion. Nicholson, 2014 WL 4460417, at
*2; see Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (failure to comply with Rule 251
creates a rebuttable presumption that the trial court did not abuse its discretion in denying a
motion for continuance); Metro Aviation, Inc. v. Bristow Offshore Helicopters, Inc., 740
S.W.2d 873, 874 (Tex. App.—Beaumont 1987, no writ) (“When the provisions of rule 251 have
not been satisfied, it will be presumed that the trial court did not abuse its discretion in denying a
continuance.”). Therefore, we overrule Gagliardo’s sole issue.
DISPOSITION
Having overruled Gagliardo’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN
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Chief Justice
Opinion delivered July 29, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 29, 2022
NO. 12-22-00015-CV
IN RE: COMMITMENT OF DANIEL MARK GAGLIARDO, JR.
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 21-0175-A)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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