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Click here for the full text of this decision FACTS:The appellant was charged with capital murder and sentenced to life imprisonment. Before trial, the appellant filed a motion for continuance, based on an absent witness, which was denied. On appeal, the appellant claimed that the trial court abused its discretion in denying his motion for continuance. The 1st Court of Appeals affirmed the appellant’s conviction, holding that the appellant failed to preserve error as to the denial. The appellant filed a petition for discretionary review, complaining that the court of appeals issued an opinion that did not correctly reflect “the facts in the appellate record and the arguments presented in [the appellant's] brief on direct appeal.” HOLDING:The court affirms the judgment of the court of appeals. The court of appeals did not review the appellant’s complaint about the motion for continuance on the merits, because it held that the appellant had not preserved error. The court of appeals held that the appellant did not preserve error, because he did not file a motion for new trial that contained an affidavit stating what the missing witness would have testified. The court of appeals relied on its opinion in Flores v. State, 789 S.W.2d 694, 698-99 (Tex. App. – Houston [1st Dist.] 1990, no pet.) and Benoit v. State, 561 S.W.2d 810 (Tex. Crim. App. 1977). Upon close inspection of Benoit, the court notes that it represented a departure from the court’s prior holdings on the interplay between a motion for continuance based on an absent witness and a motion for new trial. Preservation of error is generally governed by the Rules of Appellate Procedure. Rule 33.1(a)(1)(A) provides, in relevant part, that for a complaint to be presented on appeal, a timely request, objection or motion must have been made to the trial court, which “states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” The court sees no reason to depart from the general rule in the context of a motion for continuance. The court holds that, to preserve for review a claim that the trial court erred in denying a motion continuance, the defendant must timely file a motion that sufficiently advises the trial court of the defendant’s request and the grounds therefor. “The court of appeals followed the Benoit line of cases and concluded that the appellant did not preserve error. While we do not fault the court of appeals for attempting to follow our case law diligently, we conclude that the court of appeals applied the wrong standard for determining whether the appellant preserved for appellate review his complaint that the trial court erred in denying his motion for continuance.” In this case, although the appellant explained the general topics about which he hoped to have the missing witness testify, he did not list any specific facts. The prospective testimony was no more specific or material than the prospective testimony held to be inadequate in Brito. With nothing more specific than these general averments as to the topics of the witness’s expected testimony, the trial court did not abuse its discretion in denying the motion for continuance. If an appellant seeks a new trial based on the denial of a motion for continuance for an absent witness, he must file a sworn motion for new trial, stating the testimony that the missing witness would have provided. The appellant’s motion for new trial is sworn because the investigator’s affidavit is attached. In the context of a motion for new trial that complains of the denial of a continuance for a missing witness, however, a sworn motion must include an affidavit with the specific facts to which the missing witness would have testified. The motion and the affidavit cite the same general assertions of the missing witness’ prospective testimony as put forward in the motion for continuance. Neither the private investigator nor any other party acting on behalf of the appellant actually contacted the missing witness and determined whether he would have been willing to testify at all, let alone what the substance of his testimony might have been. The appellant’s assertion that the missing witness’ prospective testimony would “go to the Defendant’s lack of intent to kill the victim of this crime” did not constitute the required showing that would result in reversal for abuse of discretion. OPINION:Price, J., delivered the court’s opinion.

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