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Date: 02-27-2021
Case Style:
Leo Brito v. The State of Texas
Case Number: 11-19-00023-CR
Judge: JIM R. WRIGHT
Court: Eleventh Court of Appeals
Plaintiff's Attorney: Laura Nodolf, District Attorney
Eric Kalenak, Assistant
Defendant's Attorney:
OR
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Description:
Eastland, TX - Criminal defense attorney represented Leo Brito with an Aggravated Assault charge.
The grand jury indicted Appellant for “intentionally, knowingly and
recklessly caus[ing] serious bodily injury to JORGE MORALES, by cutting,
stabbing, and slashing him” with “a deadly weapon, to-wit: a knife.” In its witness
list, the State included Morales among those it intended to call during trial.
However, because Morales’s whereabouts were unknown, the State’s attempts to
locate and serve Morales with a subpoena were unsuccessful. By the time of trial,
Morales still had not been served with a subpoena to testify as a witness.
When the trial court called Appellant’s case for trial, both sides announced
“ready.” The parties argued motions in limine and proceeded with voir dire. After
the jury had been sworn, Appellant objected to the unavailability of Morales as a
witness and requested a continuance. Appellant, through his counsel, argued that
Morales’s presence was critical to his ability to develop his claim of self-defense and
that, as the victim named in the indictment, Morales’s absence violated Appellant’s
Sixth Amendment right to confrontation.
The trial court overruled Appellant’s objection and request for a continuance.
The jury found Appellant guilty of the charged offense, and upon Appellant’s
election, the trial court assessed punishment. Appellant’s sole issue challenges the
trial court’s denial of his motion for continuance as a violation of his right to face
his accuser under the Confrontation Clause.
We review a trial court’s denial of a motion for continuance for abuse of
discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). The
ruling on a motion for continuance is within the sound discretion of the trial court,
and a defendant must show “specific prejudice to his defense” to establish an abuse
of that discretion. Id.
Appellant asserts that the trial court abused its discretion when it denied his
oral motion for “a continuance of his trial in the absence of the victim named in the
3
indictment,” and he submits that the denial of his motion deprived him of his rights
under the Confrontation Clause of the United States Constitution. We cannot agree.
The record indicates that, in the week before trial, the prosecutor notified
defense counsel that Morales had not been subpoenaed to testify as a witness as part
of the State’s case-in-chief. The record also indicates that the defense did not attempt
to subpoena Morales. After the trial had begun, defense counsel argued that he could
not “develop any self-defense claims” without Morales as a witness; however, when
the trial court asked whether the defense had tried to subpoena Morales, counsel
responded that it was not the defense’s burden to subpoena him. Further, Appellant
did not show the trial court what Morales’s testimony would be if he were to appear.
The State had the burden to establish the elements of the offense beyond a
reasonable doubt, and Appellant has not provided any authority to support his
contention that the Confrontation Clause requires the availability of the victim to
testify as a witness at trial. Because Appellant has not established that he suffered
any specific prejudice when the trial court denied his oral motion for continuance
after the trial had begun, we cannot hold that the trial court abused its discretion
when it denied Appellant’s request for a continuance. We overrule Appellant’s issue
on appeal.
Outcome: We affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: