Nos. 05-08-00271-CR, 05-08-00272-CR, 05-08-00273-CR, 05-08-00274-CR
Opinion Filed April 2, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause Nos. F07-33425-X, F07-33426-X, F07-33427-X, F07-33428-X.
Before Justices RICHTER, LANG, and MURPHY.
Opinion By Justice LANG.
Appellant Pablo Geovany Almendarez-Funez pleaded not guilty to one count of indecency with a child and three counts of aggravated sexual assault of a child younger than fourteen years of age. The cases were tried before a single jury. During trial, appellant changed his plea in trial court cause number F07-33427-X to guilty. The jury found appellant guilty of all four offenses and assessed punishment at ten years' confinement in the indecency with a child case and sixty years' confinement in each of the cases involving aggravated sexual assault of a child younger than fourteen years of age. In two issues on appeal, appellant contends (1) the trial court abused its discretion by denying his motion for continuance and "effectively denying him of his constitutional right to counsel of his choosing" and (2) the evidence is factually insufficient to support the jury's verdicts in trial court cause numbers F07-33425-X, F07-33426-X, and F07-33428-X in light of the complainant's "recantation and subsequent recantation of her recantation." Based on the record and the analysis below, we decide appellant's two issues against him. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgments are affirmed.
Trial court cause number F07-33425-X.
Trial court cause numbers F07-33426-X, F07-33427-X, and F07-33428-X.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant, a Spanish-speaking immigrant, was arrested on April 28, 2007, after his son told police he witnessed appellant and appellant's thirteen-year-old daughter, K.A., having sexual intercourse. Appellant was charged by indictments with the four offenses described above. At a pretrial hearing on February 7, 2008, appellant's court-appointed counsel announced ready for trial. However, appellant, through an interpreter, stated to the trial court he believed his family had retained an attorney named Mark Fernandez. The trial judge told appellant Fernandez had stopped by the courtroom earlier that day and informed her he was not appellant's attorney. When asked whether he had any specific complaints regarding his appointed counsel, appellant stated, "No, I just want [retained counsel] because [he is] Hispanic." At the conclusion of the pretrial hearing, appointed counsel orally moved for a continuance "until such time as [appellant's] retained counsel or some other counsel of [appellant's] choosing may enter an appearance and prepare himself for trial." The trial court denied that request for a continuance. The guilt-innocence phase of trial commenced February 12, 2008. On the second day of trial, appellant changed his plea in trial court cause number F07-33427-X from "not guilty" to "guilty." The State's witnesses during the guilt-innocence phase of trial included, among others, K.A., who testified appellant committed the acts alleged in the indictments. At the conclusion of the guilt-innocence phase of trial, the jury found appellant guilty in each of the four cases. During the punishment phase of trial, K.A. testified she "was lying about everything [she] said" during the guilt-innocence phase of trial. However, after a recess, K.A. testified she was not "being honest" when she claimed to have lied. She testified several members of her extended family had been in the courtroom before the recess, but, at her request, were no longer in the courtroom. She stated she had falsely recanted her earlier testimony because her family "really loves" appellant and she did not want him to go to jail. She testified "all the things" she described during the guilt-innocence phase of trial happened to her, and appellant "did those things" to her. Following his sentencing, appellant filed timely motions for new trial in all four cases. The record is silent as to the disposition of those motions. In addition, timely notices of appeal were filed in each case. II. MOTION FOR CONTINUANCE
In his first issue, appellant contends the trial court abused its discretion by denying his motion for continuance "because that denial forced him to proceed to trial on four cases simultaneously with court-appointed counsel rather than retained counsel." According to appellant, the trial court "arbitrarily refused to allow [his] retained counsel more than two to three weeks to prepare cases for trial" and "deprived [him] of his constitutional right to counsel of his choosing." Appellant argues there is nothing in the record to indicate he was attempting to delay the trial for any reason other than "to have retained counsel." Further, appellant asserts it is undisputed (1) he would have remained in custody throughout the entire period of the continuance and (2) this was his first request for a continuance. The State responds appellant has not preserved his first issue for this Court's review because he "only orally requested a continuance to hire new counsel; he never filed a written and sworn motion." In addition, the State asserts the trial court could have reasonably concluded the fair and efficient administration of justice weighed heavily in favor of denying appellant's motion for continuance. A. Applicable Law
Article 29.03 of the Texas Code of Criminal Procedure provides in relevant part "[a] criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). Further, pursuant to Texas Code of Criminal Procedure article 29.08, "[a]ll motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance." Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 2006). The Texas Court of Criminal Appeals has repeatedly held oral motions for continuance preserve nothing for appellate review. See, e.g., Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex.Crim.App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995). B. Application of Law to Facts
Appellant does not dispute his motion for continuance was not in writing and was not sworn to as required. See Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08. Rather, appellant argues the State "waived those requirements by failing to object to the motion on those grounds." However, appellant provides no authority for the proposition that the absence of such an objection by the State waives the requirements of articles 29.03 and 29.08. Because appellant's motion for continuance was neither sworn nor in writing, we conclude he has failed to preserve error. See Dewberry, 4 S.W.3d at 756; Shavers v. State, 881 S.W.2d 67, 75 (Tex.App.-Dallas 1994, no pet.); see also Ricketts v. State, 89 S.W.3d 312, 317 (Tex.App.-Fort Worth 2002, pet. ref'd) ("language in Dewberry does not permit equitable review of an oral motion for continuance"). We decide against appellant on his first issue. III. COMPLAINANT'S RECANTATIONS
In his second issue, appellant contends the jury's verdicts in trial court cause numbers F07-33425-X, F07-33426-X, and F07-33428-X are against the great weight and preponderance of the evidence in light of K.A.'s recantation of her testimony regarding the offenses in those cases. Appellant asserts "[t]he only evidence to support the jury's verdicts in [those three cases] was [K.A.'s] testimony, which she recanted." The State argues the only evidence to which appellant cites in support of his sufficiency argument was admitted during the punishment phase of trial and should not be considered by this Court in conducting a sufficiency review. According to the State, because appellant has not made any contentions regarding evidence presented at the guilt-innocence stage of trial, this Court should overrule appellant's second issue. A. Standard of Review and Applicable Law
In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, or (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts, 220 S.W.3d at 524; Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Crim.App. 2001). It is the function of the jury to resolve any conflicts in the evidence. See Lancon, 253 S.W.3d at 705; see also Marshall, 210 S.W.3d at 625 (jury is in best position to evaluate credibility of witnesses and evidence). The jury is free to accept or reject any or all of the evidence presented by either side. See Lancon, 253 S.W.3d at 707; Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex.Crim.App. 2000). Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to be given to contradictory testimony. Lancon, 253 S.W.3d at 705. In a bifurcated trial before a jury on a plea of not guilty, "`our consideration of the evidence is necessarily limited to that evidence before the jury at the time it rendered its verdict of guilt.'" Barfield v. State, 63 S.W.3d 446, 450 (Tex.Crim.App. 2001) (quoting Munoz v. State, 853 S.W.2d 558, 560 (Tex.Crim.App. 1993)). "Absent a judicial confession by the defendant, evidence from the punishment phase of a trial will not be considered in determining the sufficiency of the evidence to support a conviction." Munoz, 853 S.W.2d at 560 n. 3. B. Application of Law to Facts
The record shows K.A.'s recantations occurred during the punishment phase of trial, after the jury had reached its verdicts in the cases at issue. Therefore, we cannot consider K.A.'s recantations in determining the sufficiency of the evidence to support those verdicts. See Barfield, 63 S.W.3d at 450; Munoz, 853 S.W.2d at 560 n. 3. Appellant asserts no other complaint regarding the factual sufficiency of the evidence to support his convictions in trial court cause numbers F07-33425-X, F07-33426-X, and F07-33428-X. Accordingly, we decide against appellant on his second issue. IV. CONCLUSION
Because appellant's motion for continuance was neither sworn nor in writing, we conclude appellant's first issue presents nothing for this Court's review. Further, we conclude the complainant's recantations during the punishment phase of trial cannot be considered in determining the factual sufficiency of the evidence to support the jury's verdicts in trial court cause numbers F07-33425-X, F07-33426-X, and F07-33428-X. Appellant's two issues are decided against him. The trial court's judgments are affirmed.