Lawyer's Right to Make An Oral Motion for a Continuance

A separate line of cases in the intermediate appellate courts has generally, but not uniformly, recognized counsel's right to make an oral motion for a continuance enforceable by the appellate courts' powers in equity. White v. State, 982 S.W.2d 642, 647 (Tex. App.--Texarkana 1998, pet. ref'd); Deaton v. State, 948 S.W.2d 371, 374 (Tex. App.--Beaumont 1997, no pet.); Petrick v. State, 832 S.W.2d 767, 770-71 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd); O'Rarden v. State, 777 S.W.2d 455, 459 (Tex. App.--Dallas 1989, pet. ref'd). One situation from this line of cases where such a motion was not granted at trial, but then reversed on appeal, occurred when a witness who was present at trial disappeared briefly just before he was called to testify. Deaton, 948 S.W.2d at 377. Another reversal occurred when the State rested earlier on a Friday afternoon then expected, and the defendant's witnesses were not due to arrive from out of town until the following Monday. Petrick, 832 S.W.2d at 770-71. Only one case fully rejects counsel's right to make an oral motion for a continuance enforceable by the appellate courts' powers in equity. Rodriguez v. State, 903 S.W.2d 405, 411-12 (Tex. App.--Texarkana 1995, pet. ref'd). The issue in this line of cases is phrased such that if the trial court's decision to not grant the oral unsworn motion amounts to a denial of fundamental principles of due process, the ruling is subject to appellate review. Petrick, 832 S.W.2d at 770; O'Rarden, 777 S.W.2d at 459. In O'Rarden, the prosecution inadvertently failed to disclose favorable evidence until after trial commenced despite defendant's discovery motions that clearly requested it. O'Rarden 777 S.W.2d at 456-57. The court determined that this failure to disclose was a violation of due process, and, once the evidence became available at trial, the denial of the oral motion for a continuance prevented a fair trial. 777 S.W.2d at 460. The facts of O'Rarden were unusual. at trial, the defense did not receive the file of a social worker who had investigated child abuse allegations against the defendant until the day of trial. 777 S.W.2d at 457-58. The file contained a report of a pediatrician expert in child sexual abuse who knew the children she was testifying about for years, and was satisfied that no abuse had occurred. Id. Evidence this important warranted a new trial. O'Rarden, 777 S.W.2d at 460.