Opinion
No. 05-07-00267-CR
Opinion Filed February 20, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 86th Judicial District Court Kaufman County, Texas, K, Trial Court Cause No. 24481-86.
Before Justices O'NEILL, RICHTER, and LANG.
MEMORANDUM OPINION
Appellant Matthew Doyle Branding pleaded guilty to four counts of aggravated sexual assault of a child and three counts of indecency with a child. A jury assessed punishment at thirty years' confinement on each aggravated sexual assault count and twenty years' confinement on each indecency count. In a single issue, appellant argues the trial court erred in refusing to grant a continuance so appellant's attorney could adequately explore the state's rebuttal expert. The State argues the issue is not preserved for review because appellant orally requested a motion for continuance rather than filing a written and sworn motion as required by Texas Code of Criminal Procedure articles 29.03 and 29.08. Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 2006). Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.4. The facts and procedural history of this appeal are well known to the parties; therefore, we do not relate them in detail here. We affirm. During testimony of the defense's first witness, appellant had what appeared to be a seizure. He went to a local hospital for treatment and was discharged later the same day. The trial resumed the following day. Appellant's mother testified that although her son had been diagnosed with a seizure disorder, she often thought he faked them to get his way. She testified she had a feeling he faked his seizure in court. In rebuttal, the State sought to introduce expert testimony of Dr. Burt Chauveux, the doctor who treated appellant's courtroom seizure, who believed appellant did not have a gran-mal seizure during trial. The defense objected and orally requested a continuance to prepare for cross-examination or to obtain its own expert regarding whether appellant had a seizure. The trial court denied the motion. Appellant has not addressed the requirements of articles 29.03 and 29.08, which state a motion for continuance must be in writing and sworn to by a person with knowledge. Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08. We recognize this Court has previously held "when the circumstances surrounding the trial court's denial of an oral motion for continuance amount to a denial of the rudiments of due process," the appellate court may review the issue under its equitable powers. See O'Rarden v. State, 777 S.W.2d 455, 459-60 (Tex.App.-Dallas 1989, pet. ref'd). But see Shavers v. State, 881 S.W.2d 67, 75 (Tex.App.-Dallas 1994, no pet.) (holding oral motion for continuance was not preserved for appellate review because it was neither written nor sworn to). Although O'Rarden has not been specifically overruled, the court of criminal appeals has repeatedly held that oral motions for continuance preserve nothing for review. See, e.g., Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex.Crim.App. 1989). More significantly, since the date of our O'Rarden opinion, the court of criminal appeals has specifically refused to exercise its equitable powers to conclude oral motions are sufficient to preserve error. Dewberry, 4 S.W.3d at 756 n. 22. In light of the court of criminal appeals' opinions, we decline to apply our equitable powers to review whether the trial court abused its discretion by denying an oral motion for continuance. Because appellant's motion for continuance was neither sworn nor in writing, we conclude he has failed to preserve error. We overrule appellant's sole issue and affirm the trial court's judgment.