No. 05-09-00164-CR
Opinion Filed April 5, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-01445-T.
Before Justices O'NEILL, LANG, and MYERS.
Opinion By Justice MYERS.
Cleveland Reshard King appeals his conviction for aggravated assault with a deadly weapon. His sole issue is that the trial court erred by denying his oral motion for continuance. We affirm the trial court's judgment.
Background
On December 21, 2007, appellant waived his right to a jury trial and pleaded guilty to the offense of aggravated assault with a deadly weapon. Pursuant to the terms of the plea agreement, the trial court deferred further proceedings without entering an adjudication of guilt, placed appellant on community supervision for seven years, and assessed a $2,500 fine. The State later moved to proceed with an adjudication of guilt, alleging appellant violated three terms and conditions of his community supervision. On January 23, 2009, appellant pleaded not true to the alleged violations. Following a hearing that was held on the State's motion, during which it announced that it was abandoning two of the alleged violations, the trial court found the remaining violation to be true, adjudged appellant guilty of the offense, and assessed punishment at twenty years in prison. On the day of the hearing, after the State announced that it was ready to proceed, appointed defense counsel told the court: The defendant would like to make a motion for continuance so the defendant and his family can hire — retain counsel. This is something that I only learned about this morning when I arrived.
I was told that they had already hired attorney Scottie Allen. On further investigation Mr. Allen's office indicates that they have not actually received retainer. They have talked to the family. And [the defendant] would further point out to the Court this is the third setting of this revocation hearing.
The first setting was on 12-4, December 4th, 2008[.] Your Honor was not going to be available. So we reset it two days in advance because of your absence. The second setting on January 9th [the] State asked for [a] continuance so some of her witnesses could attend a funeral for another officer. This is the first motion for continuance from the defense.
The court replied: "Let the record reflect that [defense counsel] was appointed on June 19th, 2008; that [the defendant] has been in jail since that time more than six months and he has failed to retain counsel. Your motion is denied." Discussion
In his only issue, appellant argues the trial court erred by denying his motion for continuance "so that he could retain counsel." 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). In addition, article 29.08 provides that "[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 concluded that 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). Appellant does not dispute that his motion for continuance was not in writing and was not sworn to as required by the rules of criminal procedure. See Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08. He suggests, however, that his oral motion for continuance was sufficient because it implicated the Sixth Amendment right to counsel. The court of criminal appeals has concluded that "[w]hen rules of procedural default come into play, courts must identify the type of rule involved and then determine whether it is subject to forfeiture." Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009). In the context of the denial of a motion for continuance, when the right at issue is forfeitable, the defendant must comply with the procedural requirements of articles 29.03 and 29.08 in order to preserve error for appellate review. See id. at 280. The right of a defendant for whom counsel has been appointed to retain a different attorney of his choosing is one that may be forfeited if not asserted. See McGee v. State, 124 S.W.3d 253, 257 (Tex. App.-Fort Worth 2003, pet. ref'd) ("While the right to counsel is a `waivable only' right, the right to specific counsel is not."); see also Biggers v. State, No. 01-08-00299-CR, 2009 WL 5174268, at *4 (Tex. App.-Houston [1st Dist.] Dec. 31, 2009, no pet.) (formal objection or motion for continuance was required to preserve for review defendant's complaint that trial court denied him the right to retain counsel of his choice). Therefore, since appellant's motion for continuance was neither sworn nor in writing, we conclude he failed to preserve error. See Anderson, 301 S.W.3d at 280-81; 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 overrule appellant's issue. We affirm the trial court's judgment.