Motion for Continuance After Voir Dire

I recently took part in a Sexual Assault trial. After voir dire, the jury was impaneled but not sworn. Later that day, it came to the court’s attention that the state’s complaining witness could not attend trial due to being ill.

The questions that stemmed from this were the following:

(1) when will the trial take place and

(2) what will happen to the jury that was impaneled.

Both of these questions seem to hinge on whether the jury was sworn-in.


The point in time when trial begins is not explicitly defined in the Texas Code of Criminal Procedure (CCP). To begin, Code of Criminal Procedure 3.01 says that all phrases used in this code are to be taken and understood in their usual acceptation in common language, except where specially defined. It is important to note that jeopardy attaches when the jury is sworn. State v. Torres, 805 S.W.2d 418, 421.

In the situation like the one at hand, if a trial has not begun, then under CCP 29.03 the state can get a continuance for “sufficient cause shown.” The illness of a witness can be sufficient cause. For example, the judge in Younger v. State did not err when they granted a 2-day recess so the state could secure the testimony of an officer who was the only one who could testify as to a certain subject, was necessary to the state’s case, and the state was taken by surprise. 457 S.W.2d 67.

On the other hand, if the trial has begun, then the state could be granted a continuance under CCP 29.13 if (1) the situation is unexpected and occurred since the trial began (2) no reasonable diligence could have anticipated the occurrence and (3) the state is so taken by surprise that a fair trial cannot be had.


This issue was addressed in Pizano v. State (20 Tex. App. 139). In Pizano, the State’s key witness was not present and the jury had been impaneled and sworn-in.

The state was certainly surprised because they announced ready only after the sheriff told them the witness was present, although the witness was not. The issue regarding what would happen to the jury that had already been chosen depended on the fact that jeopardy had already attached because the jury had been sworn.

Because the jury had been sworn, the court explained that “in this case, when the postponement was granted, the jury should have been kept together in charge of an officer until the witness could be brought into court and the trial renewed.” Id. at 144. Although this is an old case, the law is the same.


In the case at hand, the judge reset the trial date. The jury panel was discharged and a new jury will be chosen at the new trial setting. As explained above, the key to this decision was that the jury had only been impaneled and not sworn.

If you’ve been accused of a criminal offense in the State of Texas, contact the criminal defense attorneys of Madrid Law PLLC.