Art. 29.06. [543][608][597] FIRST MOTION BY DEFENDANT. In the first motion by the defendant for a continuance, it shall be necessary, if the same be on account of the absence of a witness, to state: 1. The name of the witness and his residence, if known, or that his residence is not known. 2. The diligence which has been used to procure his attendance; and it shall not be considered sufficient diligence to have caused to be issued, or to have applied for, a subpoena, in cases where the law authorized an attachment to issue. 3. The facts which are expected to be proved by the witness, and it must appear to the court that they are material. 4. That the witness is not absent by the procurement or consent of the defendant. 5. That the motion is not made for delay. 6. That there is no reasonable expectation that attendance of the witness can be secured during the present term of court by a postponement of the trial to some future day of said term. The truth of the first, or any subsequent motion, as well as the merit of the ground set forth therein and its sufficiency shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right. If a motion for continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the motion was of a material character, and that the facts set forth in said motion were probably true, a new trial should be granted, and the cause continued or postponed to a future day of the same term. Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

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