                                  NO. 07-07-0419-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                   AUGUST 27, 2008

                         ______________________________


                     RICHARD HARLAN CHAPMAN, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

            FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                  NO. 4078; HONORABLE STEVE EMMERT, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Pursuant to a guilty plea, Appellant, Richard Harlan Chapman, was convicted by the

trial court of possession of marihuana in an amount of 2,000 pounds or less but more than

50 pounds. Punishment was assessed at sixteen years confinement and a $10,000 fine.

Appellant presents two points of error contending the trial court abused its discretion in

sentencing him to sixteen years confinement (1) in that his trial counsel’s request for a
continuance was denied and (2) in effectively denying trial counsel the opportunity to make

a closing statement before sentencing. We affirm.


                                      Background


       Appellant was convicted in 1974 for possession of a controlled substance with intent

to deliver and served time in a federal prison. According to his testimony, in 2000, he

began using methamphetamine because he was depressed. He eventually became

indebted to dealers and was physically threatened into trafficking drugs for them. In July

2003, he was stopped in Wheeler County, Texas, and charged with possession of

marihuana. Two months later, he was stopped in Columbia County, Georgia, for trafficking

drugs and was convicted and sentenced to fifteen years confinement. In 2007, Appellant

was released on parole in Georgia, subject to the underlying charge which was still pending

in Wheeler County.


                                  Guilty Plea Hearing


       At a hearing conducted on September 13, 2007, both sides announced ready and

Appellant entered a guilty plea to the possession charge. Defense counsel later requested

leave to withdraw his statement of “ready” and made an oral motion for continuance to

make an offer of proof. Counsel explained that he had contacted Appellant’s parole officer

to testify about Appellant’s progress for the nine months he had been on parole. The

parole officer reluctantly provided an affidavit (which is included in the presentence




                                            2
investigation report), but refused to update the affidavit with other favorable information

requested by defense counsel.


       The State argued that defense counsel was aware of the September 13, 2007

hearing date and that he had received the parole officer’s affidavit as early as August 17,

2007, allowing ample opportunity to have the parole officer available for the hearing.

Additionally, the State argued the affidavit was sufficient and that the case had already

been continued several times.


       The trial court denied the oral motion for continuance. The court also commented

that Appellant, who chose to testify, could testify to any additional facts not included in the

parole officer’s affidavit.


       Appellant, the only witness at the hearing, testified that during his nine months on

parole, he made scheduled visits with his parole officer and was current on his fines. He

successfully completed a drug abuse awareness program and was working steadily at day

work. During the nine months on parole, he had been randomly tested for drugs five times,

with only one testing positive.


       At the conclusion of Appellant’s testimony, the following colloquy occurred:


       [Defense counsel]: We have nothing further, Your Honor. We would argue
       – well, there is a presentence investigation, Your Honor.
       The Court: Okay. Ms. Lee, do you have a PSI? Okay. Would you bring it
       forward.
       [Defense Counsel]: Your Honor, if I may interrupt the Court’s reading, the
       copy the Court is looking at, it almost looks like there’s a bunch of redaction
       in it, but in fact, it’s an overliner.

                                              3
       The Court then pronounced Appellant’s sentence and asked Appellant if he

understood the pronouncement, to which he responded, “[y]es, Your Honor.” The State

requested that restitution be added to the judgment and the proceedings were closed.


                                        Discussion


I. Point of Error One – Oral Motion for Continuance.


       Appellant maintains the trial court abused its discretion in denying his motion for

continuance. We disagree. A motion for continuance that is not written nor sworn as

required by articles 29.03 and 29.08 of the Texas Code of Criminal Procedure does not

preserve the complaint for review.        See Dewberry v. State, 4. S.W.3d 735, 755

(Tex.Crim.App. 1999). Moreover, as the State points out, the reason for the continuance

(to supplement the affidavit provided by Appellant’s parole officer) was satisfied by

Appellant’s unchallenged testimony about his progress while on parole. Point of error one

is overruled.


II. Point of Error Two – Denial of an Opportunity to Make a Closing Statement.


       Appellant contends the trial court abused its discretion in effectively denying defense

counsel an opportunity to make a closing statement before he was sentenced. We

disagree.


       A trial court abuses its discretion if it denies defense counsel the right to make a

closing argument.     Ruedas v. State, 586 S.W.2d 520, 524 (Tex.Crim.App. 1979).



                                              4
However, it is necessary to preserve that right by notifying the trial court of the desire to

present closing argument, the trial court must refuse that opportunity, and a timely

objection to the court’s ruling must be presented. Tex. R. App. P. 33.1(a); Foster v. State,

80 S.W.3d 639, 640-41 (Tex.App.–Houston [1st Dist.] 2002, no pet.).


       During Appellant’s plea hearing, defense counsel stated, “[w]e have nothing further,

Your Honor. We would argue – well, there is a presentence investigation [report] . . . .”

Counsel did not make a request to present any further argument nor did he object to the

trial court proceeding to sentencing.


       Appellant relies on Dang v. State, 154 S.W.3d 616 (Tex.Crim.App. 2005), in support

of his argument that defense counsel was denied a statutory right to present closing

argument. See also Tex. Code Crim. Proc. Ann. art. 36.07 and 36.08 (Vernon 2007).

Dang involved a complicated capital murder jury trial where the trial court limited closing

arguments to twenty minutes per side despite defense counsel’s request for an additional

three minutes, to which an objection was lodged. 154 S.W.3d at 617. In considering

certain factors, the Court determined that the court of appeals should have concluded the

trial court abused its discretion in denying the additional three minutes for closing

argument. Id. at 622.


       Appellant’s plea hearing was brief and uncomplicated. Defense counsel did not

request a further opportunity to argue after bringing the PSI to the trial court’s attention.

No objections were presented either before or after pronouncement of sentence. We

conclude Dang is inapposite. Point of error two is overruled.


                                             5
                                      Conclusion


      Consequently, the trial court’s judgment is affirmed.


                                               Patrick A. Pirtle
                                                   Justice



Do not publish.




                                           6
