Opinion
NO. 01-16-00548-CR
05-23-2017
KELVIN CLANDUS JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas
Trial Court Case No. 1482451
MEMORANDUM OPINION
A jury convicted appellant, Kelvin Clandus Johnson, of the third-degree felony offense of theft in an amount greater than $20,000 and less than $100,000. After finding two enhancement paragraphs true, the trial court assessed his punishment at seventy-five years' confinement. In his sole issue on appeal, appellant contends that the trial court erroneously denied his motion for continuance. Because we conclude that appellant failed to file a sworn written motion for continuance, as required to preserve this complaint for appeal, we affirm.
See TEX. PENAL CODE ANN. § 31.03(e)(5) (West Supp. 2016); see also Act of June 20, 2015, 84th Leg., R.S., ch. 1251, § 5, 2015 Tex. Sess. Law Serv. 4208, 4210 (West) (changing amount of theft in this provision from greater than $20,000 and less than $100,000 to greater than $30,000 and less than $150,000). Appellant was indicted under the old provision for thefts totaling approximately $57,300.
Background
The charges against appellant stem from a scheme in which he met with multiple attorneys, fraudulently claiming serious injuries on an offshore oil rig and expressing a desire to file suit. Appellant presented fraudulent settlement letters and told the attorney of an upcoming surgery, claiming he needed a loan to prevent eviction and pay for food or transportation. Once the attorneys advanced him money, he disappeared.
Following appellant's indictment, the trial court appointed two different attorneys to represent him. Appellant complained that the first attorney was not handling the case in the way he wanted, so the trial court appointed a second attorney. Several months before appellant's trial setting, the trial court convened a hearing to address complaints appellant had made regarding his second attorney, including his complaint that she was not allowing him proper access to documents that would be used in his trial. Appellant's counsel stated on the record that she had provided to appellant all of the documents that she was allowed by law to provide and that she had read to him and discussed the other evidence and information from the State's investigation. The trial court admonished appellant that, in light of the fact that he had already been appointed two attorneys, he needed either to proceed with his second attorney or to proceed pro se. Appellant stated that he wished to proceed with his attorney.
The second attorney appeared on appellant's behalf on the Thursday that the case was set for trial. Prior to jury selection, appellant's attorney moved to quash the indictment, asserting that it was too vague. The trial court denied appellant's motion to quash, and appellant announced that he wanted to fire his second attorney. The trial court admonished appellant regarding the potential consequences and responsibilities involved in pro se representation, and the trial court specifically informed appellant that the trial would be starting the following Monday and that he would not be entitled to special consideration because of his lack of legal knowledge or experience. Appellant elected to represent himself, and jury selection took place with appellant proceeding pro se. The State then allowed appellant access to its box of evidence with all of the exhibits marked and, with the help of the bailiffs, allowed him to review it "for as long as [the bailiffs] can keep him up here today."
When the trial reconvened at the beginning of the following week, appellant orally requested a continuance, arguing that he had not been able to fully review the State's case against him and did not have the information he needed to defend himself. The State asserted that, in addition to allowing appellant to review its files on the previous Thursday, it had allowed him to review the District Attorney's Office's report regarding his trial, which referred "to every single exhibit that's going to be used in the trial and explains their significance and relevance." The trial court denied appellant's oral request for a continuance on the record, but appellant never filed a written motion for continuance.
The trial commenced, and appellant presented his defense based in part on the materials contained in the State's file and report. The jury convicted appellant of theft, and the trial court assessed his punishment at seventy-five years' confinement. This appeal followed.
Denial of Continuance
In his sole issue on appeal, appellant argues that the trial court's denial of his motion for continuance was prejudicial.
We review a trial court's ruling on a motion for continuance for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). An appellant must show he was actually prejudiced by the denial of his motion. Id. We will conclude that there was an abuse of discretion "only if the record shows with considerable specificity how the defendant was harmed by the absence of more preparation time than he actually had." Gonzales v. State, 304 S.W.3d 838, 842-43 (Tex. Crim. App. 2010) (quoting George E. Dix & Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure § 28.56 (2d ed. 2001)).
"A criminal action may be continued on the written motion of a party for sufficient cause shown." Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005); see TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006). The motion must be sworn to by someone who has personal knowledge of the facts relied on for the continuance. Harrison, 187 S.W.3d at 434 (citing TEX. CODE CRIM. PROC. ANN. art. 29.08 (West 2006)). Thus, a sworn, written motion is required to preserve appellate review of a denial of a motion for continuance. Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.08.
Here, appellant's motion for continuance was an unsworn, oral request that was denied by the trial court. Thus, appellant has failed to preserve this complaint for review on appeal. See Anderson, 301 S.W.3d at 279. Moreover, appellant cannot show that the trial court erred in denying the motion or that he suffered harm by the denial. See Gonzales, 304 S.W.3d at 842-43 (record must show with considerable specificity how appellant was harmed by absence of more preparation time than he actually had). Appellant requested a continuance on the ground that he had not been able to adequately prepare his defense because he had had limited access to the documents and evidence that the State introduced against him. However, the record demonstrates that both his attorney and appellant himself—upon his election to proceed pro se following admonishment by the trial court that he would not be given any special consideration due to his lack of experience or legal knowledge—had access to the pertinent evidence and reports. Appellant in fact used documents from the State's file in presenting his defense at trial. And the trial court did not abuse its discretion in refusing to allow appellant to manipulate his right to counsel in order to delay or obstruct the trial process. See Johnson v. State, 257 S.W.3d 778, 781 (Tex. App.—Texarkana 2008, pet. ref'd) (holding that appellant's manipulation of his right to counsel in order to delay or obstruct trial process does not create unfair trial or harm to appellant).
We deny appellant's sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Bland, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).