Our facts were litigated in DECEMBER 2002 in a revocation hearing in Federal Court. The Federal Judge made no finding and continued the probation, so no jeapordy/estoppel issues. Today the defense lawyer comes in to ask the State judge to continue the case (set #1 for Monday 6/9/03) because he doesn't have the transcript of the federal hearing. I have vigorously objected. I need a Fort Worth or CCA case on point. While I am researching, time is runnig....help!

[This message was edited by BLeonard on 06-09-03 at .]

Under the old law, right to continuance on this ground was pretty limited. Perbetsky, 429 S.W.2d at 474. Now not nearly so clear. White, 823 S.W.2d 296. Seems to me unless you are pretty sure you can show "the defendant had no need for a transcript of the prior testimony of the State's witnesses in order to present an effective defense", you may not want to oppose the continuance too vigorously. Might argue the motion must meet the standards of de la Paz, 901 S.W.2d at 584-5.

Thanks, Martin. I did find White and it gave me some pause. My contention is that counsel should have exercised some diligence in acquiring the record. I guess that would go to D's Strickland claim later, but wouldn't the D have to show harm in that there was something in the record of the revocation which would have inured to his benefit at our trial?

That would be my thought, but unless you have a very good reason for demanding trial start on Monday, why begin it with a potential Strickland claim?

McKibbon, 749 SW2d 83, seems pretty clear and on point. The reason the trial needs to be next week is because, as usual, it will be the third or fourth case we worked up for trial next week and there just isn't time to prepare another. I'm willing to risk a Strickland claim on this one because it is a weak and de minimus assault on public servant anyway....