CROSSOVER: Child-Abuse Retrial Clarifies Strict Continuance Requirements for Unavailable Defense Experts

Juan Morales a/k/a Juan Manuel Morales v. The State of Texas, 13-24-00459-CR, May 07, 2026.

On appeal from 103rd District Court of Cameron County, Texas

Synopsis

The Thirteenth Court of Appeals held that the trial court did not abuse its discretion in denying the defendant’s fourth and fifth continuance motions to secure a defense expert for retrial. The opinion underscores a rigid procedural point Texas litigators ignore at their peril: A continuance request tied to an unavailable witness must satisfy the Code of Criminal Procedure’s sworn-motion and specificity requirements, and repeated prior continuances will materially weaken any abuse-of-discretion argument.

Relevance to Family Law

Although this is a criminal appeal, its procedural logic carries directly into Texas family litigation, especially SAPCRs, modification proceedings, enforcement actions, and trials involving custody evaluations, therapists, forensic accountants, business valuators, or digital-evidence experts. Family lawyers routinely ask for trial resets because an expert is not ready, unavailable, under-retained, still reviewing records, or blocked by scheduling conflicts; Morales is a reminder that courts are far less receptive when counsel cannot demonstrate diligence, materiality, procedural compliance, and a realistic path to securing the witness within a defined time. In high-conflict divorce and custody cases, this decision is useful both defensively—to protect a long-set trial date—and offensively—to challenge vague last-minute continuance requests dressed up as fairness arguments.

Case Summary

Fact Summary

The defendant was charged with continuous sexual abuse of a young child. His first trial occurred in June 2023 and ended in a mistrial. The retrial was initially set for October 30, 2023, but the defense obtained multiple continuances over the following year.

The first three continuance motions were tied primarily to transcript delays from the first trial and counsel’s stated intention to retain an expert, who allegedly could not estimate project cost until the transcripts were complete. Those requests were granted, and the retrial was ultimately reset for August 19, 2024, with interim pretrial settings.

On August 7, 2024, defense counsel filed a fourth motion for continuance. This was the first motion squarely based on the unavailability of the proposed defense expert, Aaron Pierce. Counsel asserted that the expert was unavailable for the remainder of 2024, that counsel had other hearings, and that additional pretrial matters needed attention because the case was being retried. At the announcement setting, counsel also argued he was still missing part of the prior trial transcript, had not received a new witness list from the State, and was missing discovery. As to the expert, counsel represented that Pierce had been recovering from major surgery and had been “under the weather for a couple of months.”

The trial court denied that request, emphasizing that the case had been pending for over a year, had already been tried once, and had already received multiple continuances. The court also noted that trial was still more than a week away and directed that certain requested materials be provided promptly.

Defense counsel then filed a fifth motion for continuance on August 14, 2024. That motion was unverified. It asserted that Pierce had previously been unavailable for legitimate medical reasons and that his trial schedule made him unavailable for the rest of 2024. Attached were an April 8, 2024 letter stating he was then on medical leave until no later than June 17, 2024, along with an affidavit and calendar listing commitments through January 31, 2025. The motion stated that Pierce was critical to the defense. On the morning of trial, counsel re-urged the motion, and the trial court again denied it.

Issues Decided

• Whether the trial court abused its discretion by denying the defendant’s fourth motion for continuance to secure an unavailable defense expert for retrial.
• Whether the trial court abused its discretion by denying the defendant’s fifth motion for continuance to secure that expert.
• The opinion also identifies a separate appellate issue concerning admission of an unavailable complainant’s prior testimony, but the excerpt provided concerns only the continuance issue.

Rules Applied

The court relied principally on the continuance provisions in Chapter 29 of the Texas Code of Criminal Procedure and the familiar abuse-of-discretion framework governing review of continuance rulings.

Key rules applied included:

• Under Texas Code of Criminal Procedure article 29.03, a criminal action may be continued on written motion for sufficient cause shown.
• Under article 29.08, the motion must be sworn by a person with personal knowledge of the relevant facts.
• An unsworn motion for continuance preserves nothing for appellate review. The court cited authorities including Harrison v. State, Woodman v. State, and Blackshear v. State for that proposition.
• When a continuance is sought because of an absent witness, including an expert witness, article 29.06 requires specific showings, including:
• the witness’s name and, if known, residence;
• diligence used to secure attendance;
• the facts expected from the witness and their materiality;
• that the witness’s absence was not procured or consented to by the defense;
• that the motion is not made for delay; and
• that the witness cannot reasonably be secured during the present term by a short postponement.
• For subsequent motions, article 29.07 imposes additional requirements, including:
• that the testimony cannot be procured from another known source; and
• that the defendant reasonably expects to procure the testimony at the next term of court.
• The standard of review is abuse of discretion, and reversal requires not only error but actual, specific prejudice to the defense. The court cited Gallo v. State, Gonzales v. State, and related authority.
• The court also rejected the appellant’s contention that article 29.03 “mandates” a continuance upon a showing of witness illness supported by affidavit, emphasizing that the statute says a case “may” be continued, not “must” be.

Application

The court’s reasoning was procedural, strict, and unsurprising. The appellant attempted to frame the expert’s medical circumstances as effectively requiring a continuance, but the court would not accept that premise. First, the statutory text did not support any mandatory-reset theory. Article 29.03 is permissive, not compulsory.

Second, the record did not show that the expert was actually unavailable on the trial date because of illness. The attached medical letter reflected medical leave beginning in April and expected return by mid-June 2024. Trial, however, began on August 19, 2024. The expert’s own affidavit and calendar showed that the relevant August dates were blocked for “personal days and trial preparation,” not medical incapacity. That distinction mattered. The court treated the “illness” argument as factually unsupported by the record before it.

Third, the defense failed to satisfy the statutory prerequisites for an absent-witness continuance. The fourth motion—the first one expressly predicated on the expert’s absence—did not include several elements required by article 29.06. According to the court, it did not adequately set out the expert’s identifying information, diligence to secure attendance, the material facts expected from the expert, or a statement that the expert’s absence was not procured or consented to by the defense. The fifth motion fared no better because it was unverified, which meant error was not preserved at all. The court further noted that even if it considered that motion, it still did not satisfy all requirements of articles 29.06 and 29.07.

Finally, the procedural context cut strongly against any abuse-of-discretion finding. This was not an initial setting. The case had been pending for more than a year post-mistrial, had already been continued multiple times, and had a firm retrial date. That history allowed the trial court to view the defense request as one more delay request rather than a genuinely unavoidable breakdown in trial readiness. In that posture, the appellate court had little difficulty concluding that denial of the continuance fell within the trial court’s discretion.

Holding

The court held that the trial court did not abuse its discretion in denying the fourth motion for continuance. The motion did not comply with the statutory requirements governing continuances based on an absent witness, and the record did not establish that the expert’s trial-date unavailability was caused by illness in the manner argued by the defense. The procedural defects alone were enough to undermine the complaint.

The court also held that no appellate complaint was preserved as to the fifth motion for continuance because it was unverified. The court further indicated that, even if it reached the merits, the fifth motion still failed to satisfy the statutory requirements applicable to first and subsequent absent-witness continuance motions. On the continuance issue, the conviction was affirmed.

Practical Application

For family-law trial lawyers, Morales is less about criminal procedure than about trial management, preservation, and credibility. In divorce cases, custody trials, relocation disputes, reimbursement claims, and valuation-heavy property fights, lawyers often assume a court will reset a case if a key expert suddenly becomes unavailable. That assumption is dangerous. Texas trial courts—especially in crowded urban dockets—expect a documented explanation of diligence, a concrete description of the testimony’s materiality, and a record showing the problem was not created by strategic delay, late retention, funding disputes, or avoidable scheduling failures.

This case is particularly useful in expert-dependent family cases. If opposing counsel claims the custody evaluator cannot appear, the business valuation expert needs more time, the tracing expert is still reviewing records, or a therapist is medically unavailable, Morales offers a strong template for opposition: insist on a sworn motion, insist on specifics, insist on a showing of diligence, and emphasize prior resets. If the motion is vague or unsupported, the trial court has broad discretion to deny it.

Conversely, if you are the movant in a family case, the lesson is not merely “file something in writing.” The lesson is to build a record that would survive appellate scrutiny. That means showing when the expert was retained, what records were requested and received, why earlier preparation was not possible, what testimony the expert will actually offer, why no substitute witness can fill the role, and when precisely the witness will be available. In conservatorship litigation, that may mean specifying how the evaluator’s testimony bears on best interest, family violence allegations, parental alienation claims, substance abuse concerns, or mental-health issues. In property cases, it may mean articulating how the absent expert’s opinion affects value, characterization, reimbursement, fraud-on-the-community theories, or tax consequences.

The strategic point is equally important: repeated continuances change the optics. By the fourth or fifth request, the issue is no longer simply witness availability. It becomes counsel diligence, case management, docket integrity, and prejudice to the other side. In family court, where temporary orders may have been in place for months and children are waiting for finality, that concern can be even more pronounced than in criminal practice.

Checklists

Continuance Motion for an Unavailable Expert

• File the motion in writing well before trial if the issue is known in advance.
• Verify the motion with a sworn affidavit from someone with personal knowledge.
• Identify the expert by name and location, if known.
• State exactly when the expert was retained or first contacted.
• Detail every step taken to secure the expert’s attendance.
• Explain why the expert is unavailable for the specific trial date.
• Distinguish true medical unavailability from scheduling conflicts, travel, or workload.
• Describe the substance of the expected testimony with enough specificity to show materiality.
• Explain why the testimony matters to a disputed issue actually being tried.
• State that the witness’s absence was not procured or consented to by the movant.
• State that the request is not made for delay only.
• Give the court a realistic date by which the expert will be available.

Building a Better Family-Law Record

• Attach the expert’s affidavit, not just counsel’s argument.
• Attach correspondence reflecting retention, scheduling efforts, and conflicts.
• Attach calendars or medical documentation tied to the actual trial setting.
• Show diligence in requesting records, transcripts, or source data.
• Identify alternative means considered, including remote testimony or substitute experts.
• Explain why a substitute expert is not reasonably available.
• Tie the expert’s testimony directly to conservatorship, possession, support, valuation, tracing, reimbursement, or enforcement issues.
• Make a record of actual prejudice if the continuance is denied.

Opposing a Continuance Request

• Check immediately whether the motion is sworn.
• Compare the motion against the required statutory or rule-based elements.
• Highlight vagueness about the expected testimony.
• Emphasize late retention or lack of diligence.
• Point out prior continuances and the age of the case.
• Argue the difference between inconvenience and true unavailability.
• Show prejudice to your client from further delay, especially in child-related matters.
• Offer targeted alternatives short of a full reset, such as a brief accommodation for remote testimony.
• Ask the court to make an express record about the case history and prior settings.

Expert Management in Divorce and Custody Cases

• Retain essential experts early.
• Confirm availability for all likely trial windows, not just the current setting.
• Build backup options if the case depends heavily on one witness.
• Calendar disclosure, supplementation, and deposition deadlines around the expert’s schedule.
• Secure a trial affidavit or updated declaration as a contingency measure where procedurally useful.
• Reconfirm availability after every reset.
• Do not assume a prior mistrial, prior continuance, or complex case posture guarantees another continuance.

Citation

Juan Morales a/k/a Juan Manuel Morales v. The State of Texas, No. 13-24-00459-CR, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Corpus Christi–Edinburg May 7, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

This ruling can be weaponized effectively in Texas divorce and custody cases because it supplies a disciplined framework for attacking weak continuance requests that are nominally based on expert necessity but are actually grounded in preparation gaps, scheduling conflicts, or late strategic repositioning. If opposing counsel seeks a reset because the custody evaluator, therapist, accountant, appraiser, tracing expert, or social-study witness is “unavailable,” Morales supports a response built around three themes: procedural noncompliance, insufficient diligence, and the court’s legitimate interest in moving long-pending cases to trial.

In custody litigation, that can matter enormously. A parent facing an adverse temporary-orders regime may try to postpone final trial under the banner of needing a better expert record. Morales gives the opposing side a basis to argue that the court should not reward undeveloped expert preparation after months of litigation, particularly when children need stability. In property disputes, the same logic applies to late-stage requests for more time to complete business valuations, separate-property tracing, or reimbursement analyses. The case is especially useful where there have already been multiple settings or prior accommodations.

At the same time, family practitioners should read Morales as a warning shot. If your case truly depends on expert testimony, you need a preservation-grade record, not a generalized plea for more time. In that sense, the opinion is both shield and sword: a shield against poorly supported reset requests, and a sword against your own case if you do not build the continuance record correctly.

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