During voir dire, defense counsel discovered that a medical expert refused to testify on Appellant's behalf. Defense counsel then moved for a continuance in order to procure an expert and stated that the motion would be reduced to writing. The trial court denied the motion for continuance. After the State's case-in-chief, defense counsel offered the written motion for continuance. The trial court admitted the written motion for continuance as defense exhibit A-2 and denied the written motion for continuance. The trial proceeded and the jury found Appellant guilty of two counts of serious bodily injury to a child. The jury assessed punishment at twelve years and a $10,000 fine and two years in state jail.

On appeal, Appellant complained, in his sole point of error, that the trial court erred in denying his motion for continuance. The Eighth Court of Appeals stated that no written motion for continuance was filed and, therefore, did not reach the merits of Appellant's appeal. Garay v. State, No. 08-01-00336-CR (Tex. App.-El Paso, delivered December 12, 2002). In his petition for discretionary review, Appellant contends that the Court of Appeals should have addressed his point of error because the record contains a written motion for continuance. We agree. Even though the motion was not filed, because the record contains a written motion for continuance offered and admitted into evidence, the Court of Appeals should have addressed the merits of Appellant's point of error. See Tex. R. App. P. 47.1.

Therefore, we grant Appellant's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand to that court for consideration of Appellant's point of error.

Date delivered: May 7, 2003

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