Texas Motion for Continuance- Criminal Trials

Well, my jury trial got continued. One of the state’s witnesses was unavailable. What is the law on continuances for criminal trials in Texas?

For the first continuance filed by the State-
It shall be sufficient, upon the first motion by the State for a continuance, if the same be
for the want of a witness, to state:

1. The name of the witness and his residence, if known, or
that his residence is unknown;
2. The diligence which has been used to procure his
attendance; and it shall not be considered sufficient diligence to
have caused to be issued, or to have applied for, a subpoena, in
cases where the law authorized an attachment to issue; and
3. That the testimony of the witness is believed by the
applicant to be material for the State.

For some reason, the same motion filed by the defense has a few extra requirements.

First Motion By Defendant-
1-3 similar to the State’s.
4. That the witness is not absent by the procurement or
consent of the defendant.
5. That the motion is not made for delay.
6. That there is no reasonable expectation that attendance of
the witness can be secured during the present term of court by a
postponement of the trial to some future day of said term. The
truth of the first, or any subsequent motion, as well as the merit
of the ground set forth therein and its sufficiency shall be
addressed to the sound discretion of the court called to pass upon
the same, and shall not be granted as a matter of right. If a motion
for continuance be overruled, and the defendant convicted, if it
appear upon the trial that the evidence of the witness or witnesses
named in the motion was of a material character, and that the facts
set forth in said motion were probably true, a new trial should be
granted, and the cause continued or postponed to a future day of the
same term.

3 extra requirements for defendants. #4 is a requirement that the defendant didn’t collude with the witness (or kill him). #5 means what it says and should apply to the State, but it doesn’t. #6 makes judges think twice before denying the motion, or they may have to try the whole thing again.

Continuances are good and bad for defendants. The longer a case goes by the tougher it is to prove. Most people can not remember an event in detail after many months. Usually, this makes a case tougher to prosecute.

However, one problem with older cases (especially DWI) is that police officers are often allowed to read their offense reports on the stand, even though offense reports themselves are inadmissible as evidence. Offense reports only contain information that supports the officer’s conclusion- that the defendant is guilty. Evidence of innocence is never intentionally put in an offense report.

So if a case is 18 months old, the officer will have little independent recollection and will therefore simply parrot the offense report. Go to any criminal courthouse before a trial and you can usually find a few police officers scanning a police report to try and memorize as many facts as they can.