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Criminal Law No. 1699-01, 5/21/2003. Click here for the full text of this decision FACTS: The appellant, Richard Glen Sturgeon, was indicted and tried by jury on a charge of aggravated robbery. During pretrial motions, and again at the conclusion of the state’s case, defense counsel requested a writ of attachment for alibi witnesses who had failed to appear for trial. The trial court denied the request, and the defense did not call any witnesses at trial. The jury convicted the appellant, and assessed punishment at 50 years’ imprisonment. The court of appeals affirmed the conviction. HOLDING: The judgment of the court of appeals is reversed, and the cause is remanded to the trial court. This court has established a three-step procedure for preserving error when a subpoenaed witness does not appear. Erwin v. State, 729 S.W.2d 709 (Tex. Crim. App. 1987). First, the party must request a writ of attachment, which must be denied by the trial court. Second, the party must show what the witness would have testified to. Third, the testimony that the witness would have given must be relevant and material. If all three requirements are met, reversible error will result unless the error made no contribution to the conviction or to the punishment. In this case, defense counsel requested a writ of attachment when a properly subpoenaed witness failed to appear, and the trial court denied the request. Therefore the court of appeals found that the first of the Erwinrequirements had been met. At issue, then, is whether the appellant properly showed what the witness would have testified to, and whether that testimony would have been relevant and material. The court of appeals found in this case that the trial court did not err in denying the requested writs because the appellant failed to offer any sworn testimony to establish materiality. The court notes that the question of how to preserve error in this context is really the question of how to establish for the record that the failure to attach the witnesses prevented appellant from presenting evidence that was “relevant, material, and vital” to his defense. Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002), citing Washington v. Texas, 388 U.S. 14 (1967). A recent opinion from another court of appeals has held that a bill of exceptions dictated by defense counsel is sufficient to preserve error. Trinidad v. State, 949 S.W.2d 22 (Tex. App. – San Antonio, 1997). Therefore, the court finds it necessary to resolve the conflict. Texas Rule of Appellate Procedure 33, governing preservation of the appellate complaints, is instructive. The rule sets out the prerequisites to presenting complaints for appellate review, and contains two sub-parts: Section 33.1 applies when the complained-of matter appears in the record. Section 33.2 applies when the matter would not otherwise appear in the record. That section requires the complaining party to present a formal bill of exceptions, and outlines the procedure for doing so. In this case, however, counsel’s request and the grounds for that request are contained in the record of the pre-trial motions and the trial itself. Therefore �33.1 is applicable. That section requires very few formalities, and in fact states that “[n]either a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal.” Rule 33.1(c). Based on this rule, appellant in this case made a proper showing of what the witnesses would have testified to under Erwin. The requirement of sworn testimony has not been clearly established, and the court believes that such a requirement is unnecessary. Here, the testimony of the missing witnesses was neither cumulative nor irrelevant. Denial of the right to attach the witnesses was, in effect, denial of the right to present a defense. The court finds that there was a proper showing of relevance and materiality, meeting the third Erwinrequirement. Defense counsel in this case did everything required to preserve the error for appellate review. He complied with Texas Rule of Appellate Procedure 33.1. He made his request for the writs, which was denied. He described, on the record, the basis for his request, i.e., the need to present alibi witnesses and the testimony which those witness would be expected to give if they were brought to testify. Despite the trial court’s reliance on the wrong section of the Code of Criminal Procedure, the plain language of the applicable section, article 24.12, makes it clear that attachment of a witness who has been duly served with a subpoena is a matter of right. Article 24.12 does not contain any language requiring sworn testimony or affidavits. The court does not believe that more should be required of counsel than to assert, on the record, the grounds for his motion or objection to the trial court’s ruling, and to articulate sufficient information about the expected testimony to show materiality. OPINION: Meyers, J.; Price, Johnson, Holcomb and Cochran, JJ., join. Keller, P.J., Womack, Keasler and Hervey, JJ., concur.

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