Opinion
No. 05-19-00513-CR
05-19-2020
JARVOUS WAYNE WILLIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F15-00105-P
MEMORANDUM OPINION
Before Justices Whitehill, Osborne, and Carlyle
Opinion by Justice Carlyle
Following appellant Jarvous Wayne Willis's open plea of guilty, the trial court convicted him of theft and assessed punishment at eight years' imprisonment and restitution of $52,090.38. In his sole issue on appeal, Mr. Willis contends the trial court "erred by not continuing Appellant's case, sua sponte, upon discovering Appellant's trial counsel was not prepared for trial." We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.
The 2015 indictment in this case alleged Mr. Willis unlawfully appropriated more than $20,000.00 from an elderly individual and "induce[d] consent by deception." In 2017, Mr. Willis's appointed counsel moved to withdraw and the trial court appointed Sherrod Edwards as counsel. After several continuances, trial was set for April 22, 2019.
At an April 5, 2019 pretrial hearing, Mr. Edwards told the trial court Mr. Willis "has requested that I ask for a continuance at this time" because of an "optical surgery that is scheduled." The trial court requested documentation regarding the surgery and Mr. Willis responded that the date had not yet been set. The prosecution stated it opposed the requested continuance because Mr. Willis had been granted a previous continuance for eye surgery and the State had already made travel arrangements for three out-of-state trial witnesses, including the elderly complainant. The trial court denied that continuance.
Five days later, at an April 10 pretrial hearing, Mr. Willis told the trial court he would like to substitute counsel and was "in communication" with several other attorneys about retaining them. The trial court told him "whoever you will hire will need to be ready for trial April 22nd" and no continuance based on new counsel would be granted.
During a pretrial proceeding on April 22, Mr. Willis told the trial court he had "hired" a new attorney but had not yet filed a motion to substitute counsel because "we're waiting to get the payment done." Attorney Lisa Fox interjected and told the trial court she had explained to Mr. Willis that she would represent him only if the trial court granted a continuance and otherwise "would not be in any position to proceed." The trial court again reminded Mr. Willis that any counsel he hired would have to be ready that day and repeated its prior statement that "we will be going to trial today." Then, Mr. Sherrod stated,
Based on [Mr. Willis's] remarks today, it appears that in his mind, he thought he had retained counsel. As a byproduct of that, Mr. Willis has not availed himself to current counsel regarding the defense in this case.The prosecution responded that the case had "been set for trial numerous times" and "[w]e believe that this is just a tactic to delay." The trial court confirmed with Mr. Willis that he wanted a bench trial, not a jury trial, and he agreed that was his desire. The court said, "We will proceed and we will be having a TBC, a Trial Before the Court."
We've had numerous communications throughout the time that I've been on the case. However, as it relates to actually preparing for a defense for trial, he has not made himself available. And, as a result, we believe that Defense is at a severe disadvantage going forward at trial.
The next morning, Mr. Willis, represented by Mr. Sherrod, entered an open plea of guilty and signed a judicial confession. After the State presented evidence, the trial court convicted and sentenced Mr. Willis as described above.
The code of criminal procedure provides for a continuance in a criminal action only upon the filing of a sworn, written motion setting forth sufficient cause. TEX. CODE CRIM. PROC. arts. 29.03, 29.08. "A motion for continuance not in writing and not sworn preserves nothing for review." Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); accord Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012). "[N]o 'due process exception' exists to the written-and-sworn requirement." Blackshear, 385 S.W.3d at 591.
On appeal, Mr. Willis contends (1) "[a] trial court Judge's self determination for issuing a continuance due to counsel not being prepared for trial, is a challenge to the denial of a motion for a continuance"; (2) his counsel "essentially requested the continuance because he stated he was not prepared for trial"; and (3) the trial court "had a duty to stop the hearing sua sponte because she was aware that Appellant's Counsel was not prepared."
Mr. Willis cites no authority establishing a court's "duty to stop the hearing sua sponte" in these circumstances and we have found none. The purported motion for continuance in question was oral and unsworn. And, in any event, Mr. Willis was not forced to trial with an unprepared lawyer, he entered a guilty plea. Mr. Willis's issue presents nothing for appellate review. See id.; Dewberry, 4 S.W.3d at 755.
We overrule Mr. Willis's sole issue and affirm the trial court's judgment.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
190513F.U05
JUDGMENT
On Appeal from the 203rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F15-00105-P.
Opinion delivered by Justice Carlyle. Justices Whitehill and Osborne participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19th day of May, 2020.