AFFIRMED; Opinion Filed February 6, 2017.




                                               In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                        No. 05-15-01348-CR

                                DAREN STEVENSON, Appellant
                                            V.
                                THE STATE OF TEXAS, Appellee

                          On Appeal from the 291st Judicial District Court
                                       Dallas County, Texas
                               Trial Court Cause No. F14-21775-U

                               MEMORANDUM OPINION
                               Before Justices Lang, Myers, and Evans
                                      Opinion by Justice Evans


       Daren Stevenson was charged with possession with intent to deliver methamphetamine in

an amount of four grams or more but less than 200 grams enhanced with two prior felony

convictions. The indictment also alleged the use of a firearm during the commission of the

offense. A jury found appellant guilty of the offense as charged and assessed punishment at 28

years’ imprisonment.       In three issues, appellant contends the appeal should be abated for the

opportunity to file an out-of-time motion for new trial because he was denied the effective

assistance of counsel; the trial court erred in denying appellant’s motion for continuance; and

trial counsel was ineffective because he filed a defective motion for continuance. We affirm the

trial court’s judgment.
                                         BACKGROUND

       In light of the nature of the issues presented, a detailed recitation of the facts is not

necessary to our disposition of this appeal. The facts relevant to the disposition of this appeal are

as follows:

       In April 2014, the narcotics division of the Farmers Branch Police Department received

information from a confidential informant that appellant and his common-law wife, Brittany

Bailey, were selling methamphetamine, cocaine, and prescription drugs from room 118 at the

Garden Inn and Suites located in Dallas, Texas. Surveillance of the room was conducted, and

after the information was confirmed through the execution of a controlled buy by the confidential

informant, a no-knock search warrant was obtained for the room. The warrant also provided for

the arrest of appellant and Bailey. The warrant was executed on April 3, 2014. Shortly before

the warrant was executed, Appellant left the hotel in a blue Cadillac; he was followed, and after

stopping for a red light, was arrested on a separate arrest warrant. Bailey was arrested in the

hotel room during the execution of warrant.

       On April 8, 2014, appellant was arraigned on charges of possession with intent to deliver

methamphetamine and unlawful possession of a firearm by a felon. On that same day, attorney

Kobby Warren was appointed to represent appellant. On September 16, 2014, appellant’s trial

attorney, Calvin Johnson, notified the trial court that he had been retained to represent appellant.

On September 23, 2015, a little over a year after Johnson was retained to represent appellant, the

case was called to trial. Before voir dire began, Johnson urged a motion for continuance which

he had filed that morning. The written motion stated that counsel needed more time to prepare

because he had been in trial the week before. It also stated that counsel needed to have a witness

who was currently incarcerated bench warranted to appear on behalf of appellant. During the

hearing on the motion, Johnson told the trial court judge that the witness he wanted to bench

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warrant was Bailey and that Bailey was essential to appellant’s case because “it could provide

reasonable doubt, in terms of who sold and possessed the particular drugs, as well as who

possessed the particular weapon in question, in terms of the drug case.” The judge denied the

motion for continuance, stating:

                        [A]s of today, Mr. Stevenson has been in Lew Sterrett jail
               over 543 days. There has been over 62 passes on this case.
               Initially, this was set for a status hearing back on September 10th,
               at that time it was set for trial and we are now at September 23rd
               and the Court has given sufficient time for any preparation that
               needs to have happened on this case.

                      And so based on that, I am going to deny your request for a
               continuance at this time. . . .

       On September 25th, a jury found appellant guilty and assessed punishment at 28 years’

imprisonment; appellant was sentenced and judgment was entered. On September 28th, Johnson

filed a motion for new trial alleging that the verdict was contrary to the law and evidence. On

that same date, appellant filed a pro se notice of appeal and requested a court appointed attorney

to represent him on appeal. On September 29th, the court appointed Dianne Jones-McVay to

represent appellant in his appeal. On October 8, Jones-McVay filed a Designation of Record on

Appeal and a request for the reporter’s record. The motion for new trial filed by Johnson was

overruled by operation of law on December 9, 2015. On March 4, 2016, appellant’s current

appellate counsel, Sharita Blacknall, was appointed in substitution of Jones-McVay.

                                          ANALYSIS

A.     Assistance of Counsel During the Period for Filing a Motion For New Trial

       Appellant contends that he was denied the effective assistance of counsel during the

period for filing a motion for new trial. Although appellant acknowledges that his trial counsel

timely filed a motion for new trial and that appellate counsel was appointed on that same day to

represent him in the appeal, appellant claims that counsel he did not receive reasonably effective

                                               –3–
assistance of counsel because an evidentiary hearing on the motion for new trial was never set

thereby allowing the motion to be overruled by operation of law. Appellant contends that a

hearing on a motion for new trial is the only opportunity counsel had to present the trial court

with specific evidence showing how he was harmed by the trial court’s denial of his motion for

continuance and to develop a record to demonstrate ineffective assistance of counsel during trial.

The State argues that appellant’s claim must fail because there is nothing in the record to rebut

the presumption that appellant was effectively represented during the thirty-day period for filing

a motion for new trial. The State further argues that appellant can show neither deficient

performance nor prejudice by appellate counsel’s failure to obtain a hearing on the motion. We

agree with the State.

       The time period for filing a motion for new trial is a critical stage of a criminal

proceeding during which a defendant is constitutionally entitled to effective assistance of

counsel. See Cooks v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007). However, where, as

here, appellant is represented by counsel, there is a presumption that counsel was acting

effectively at all times. Id. at 911; Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App.

1998). Even when a defendant can rebut this presumption with evidence that he was deprived of

adequate counsel during this critical stage, this deprivation of counsel is subject to a harmless

error or prejudice analysis. Cooks, 240 S.W.3d at 911. To establish harm, appellant must

present a “facially plausible claim” that he could have developed in a motion for new trial. Id. at

911–12.

       In this case, three days after appellant was sentenced, appellant’s trial counsel filed a

motion for new trial alleging that the verdict was contrary to the law and the evidence. See TEX.

R. APP. P. 21.4(a). The next day, appellant filed a pro se notice of appeal and appellate counsel

was appointed to represent him in the appeal. As the State points out in its brief, a defendant is

                                               –4–
not entitled to a hearing on a motion for new trial unless the motion and accompanying affidavits

raise matters which are not determinable from the record and establish reasonable grounds

showing that the defendant could potentially be entitled to relief. See Hobbs v. State, 298

S.W.3d 193, 199 (Tex. Crim. App. 2009). Based upon the allegations contained in the motion

filed by trial counsel in this case, appellant was not entitled to a hearing on his motion for new

trial. Nevertheless, when appellate counsel was appointed, there were still 26 days left in which

an amended motion for new trial could be filed establishing grounds showing that appellant was

entitled to relief. See TEX. R. APP. P. 21.4(b). No such amended motion was filed, nor does

appellant claim that counsel was ineffective for failing to file an amended motion for new trial.

Further, there is nothing in the record to suggest that appellant’s appellate counsel did not discuss

the merits of an amended motion for new trial with the appellant, which the appellant rejected.

See Oldham, 977 S.W.2d at 363 (when a motion for new trial is not filed in a case, the rebuttable

presumption is that it was considered by the appellant and rejected).

       To the extent appellant’s issue can be read to include an assertion that appellate counsel

was ineffective for failing to file an amended motion for new trial, appellant was not harmed by

being unable to raise his claim regarding the trial court’s denial of his motion for continuance or

alleged ineffective assistance of counsel claim in his motion for new trial because these are not

“facially plausible claims.” See Cooks, 240 S.W.3d at 911–12.           Appellant’s brief sets forth

nothing more than the law pertaining to the necessity of developing a record in a hearing on a

motion for new trial which shows how the defendant was harmed by a trial court’s denial of a

motion for continuance. In order to show reversible error predicated on the denial a pretrial

motion for continuance, a defendant must demonstrate both that the trial court erred in denying

the motion and that the lack of a continuance harmed him. See Gonzales v. State, 304 S.W.3d

838, 843 (Tex. Crim. App. 2010). Appellant’s brief makes no attempt to do either. The brief

                                                –5–
does not say what testimony the missing witness would have provided or why that testimony was

material. Further, as is explained below, we have determined that appellant’s claim that the trial

court abused its discretion in denying the motion for continuance has not been properly

preserved for review. Therefore, appellant has failed to demonstrate that the trial court erred in

denying the motion.

          Likewise, his assertion that a motion for new trial hearing is also the “proper time to

develop a record to demonstrate ineffective assistance of counsel during trial” does not establish

any facially plausible claim of ineffectiveness of trial counsel because it fails to set forth any acts

or omissions of trial counsel that constitute deficient performance and or how counsel’s

performance prejudiced his defense.        See Strickland v. Washington, 466 U.S. 668, 687–88

(1984).

          Appellant’s brief contains nothing more than bare allegations. Appellant fails to identify

what evidence he would have sought to develop, or argue how such evidence would have

benefited his appeal.      As in Oldham, the Court will presume appellant was effectively

represented by his appellate counsel during the period for filing a motion for new trial. We

overrule appellant’s first issue.

B.        Motion for Continuance

          In appellant’s second issue he contends that the trial court abused its discretion in

denying the motion for continuance. The continuance sought by appellant is governed by

Articles 29.06 and 29.08 of the Texas Code of Criminal Procedure. Article 29.06 requires a first

motion for continuance on the account of the absence of a witness to state: (1) the name of the

witness and his residence, whether known or unknown; (2) the diligence which has been used to

procure his attendance; (3) the facts which are expected to be proved by the witness; (4) the

witness is not absent by consent of the defendant; (4) the motion is not made for delay; and (5)

                                                 –6–
there is no reasonable expectation that attendance of the witness can be secured during the

present term of court. TEX. CODE CRIM. PROC. ANN. art. 29.06 (West 2006). Article 29.08

requires that the motion “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 (West 2006).

         Appellant’s motion fails to meet the requirements of both articles 29.06 and 29.08. 1

While the “Verification” page signed by appellant’s counsel contained a place for a notary’s

signature and seal, only the notary’s seal appears on the document, the notary’s signature line

was left blank. Thus, the motion for continuance was not properly sworn. A defendant making

an unsworn motion for a continuance fails to preserve his claim for appellate review. See

Anderson v. State, 301 S.W.3d 276 (Tex. Crim. App. 2009); Am. Commc’ns Telecomm., Inc. v.

Commerce N. Bank, 660 S.W.2d 570, 571 (Tex. App.—San Antonio 1983, no writ) (affidavit of

inability to pay costs was defective because notary public who administered the oath to the

affiant neglected to sign the affidavit); see also Glover v. State, No. 14-03-00763-CR, 2004 WL

1192822 at *4 (Tex. App.—Houston [14th Dist.] June 1, 2004, pet. struck) (mem. op., not

designated for publication) (appellant’s motions for continuance were not properly sworn to

when verifications signed by appellant’s counsel were not notarized); Hardwick v. Hardwick,

No. 02-15-00325-CV, 2016 WL 5442772 (Tex. App.—Ft. Worth September 29, 2016, no pet.)

(mem. op.) (motion for continuance was not verified or supported by affidavit when space for the

notary on “Verification” page was left blank).

         Further, a motion for continuance based on the absence of a witness must state “the

diligence which has been used to procure [a witness’s] attendance”. This has been interpreted to

mean not only diligence in procuring the presence of the witness, but also diligence as reflected

    1
       In appellant’s third issue on appeal claiming that trial counsel rendered ineffective assistance of counsel by
filing a defective motion for continuance, Appellant concedes that the motion fails to meet the requirements of
articles 29.06 and 29.08.


                                                        –7–
in the timeliness with which the motion for continuance was presented. Dewberry v. State, 4

S.W.3d 735, 756 (Tex. Crim. App. 1999). A motion for continuance based on the absence of

witnesses which is filed on the day the trial is set to commence does not show the diligence

required to support the motion. Id. (citing Varela v. State, 561 S.W.2d 186, 190 (Tex. Crim.

App. 1978) and Kelly v. State, 471 S.W.2d 65, 66 (Tex. Crim. App. 1971)); see also Gipson v.

State, Nos. 05-01-00770-CR, 0-01-00771-CR, 05-01-00772-CR, 05-01-00773-CR, 2003 WL

21053918 (Tex. App.—Dallas May 12, 2003, no pet.) (mem. op., not designated for publication).

         Appellant argues that the trial court’s denial of his motion for continuance rendered trial

counsel ineffective thereby violating appellant’s due process rights under the Fourteenth

Amendment of the United States Constitution. This argument was rejected by the Court of

Criminal Appeals in Anderson when the Court concluded that the right to present a defense is

subject to forfeiture. Anderson, 301 S.W.3d at 280.

         We conclude that appellant’s failure to comply with the procedural requirements of

Articles 29.06 and 29.08 preserved nothing for our review. We overrule appellant’s second

issue.

C.       Ineffective Assistance of Counsel

         In appellant’s third issue, he contends that trial counsel was ineffective because he filed a

defective motion for continuance. The State argues that appellant cannot show how the defective

motion prejudiced his defense because the denial of the motion for continuance was not based on

the deficiencies in the motion. We agree with the State.

         To prove a claim of ineffective assistance of counsel, appellant must show that (1) his

trial counsel’s performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Strickland, 466 U.S. at 687–88; Lopez v. State, 343 S.W.3d 137, 142

                                                 –8–
(Tex. Crim. App. 2011). Appellant has the burden to establish both prongs by a preponderance

of the evidence.    Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).            “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to consider

the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also

Strickland, 466 U.S. at 697.

       The record indicates that the trial court held a hearing on appellant’s motion and allowed

appellant to argue the merits of his motion. No objection was made by the State to the trial

court’s consideration of the motion or the arguments made by counsel. After hearing counsel’s

argument, the trial court denied the motion, stating:

                        [A]s of today, Mr. Stevenson has been in Lew Sterrett jail
               over 543 days. There has been over 62 passes on this case.
               Initially, this was set for a status hearing back on September 10th,
               at that time it was set for trial and we are now at September 23rd
               and the Court has given sufficient time for any preparation that
               needs to have happened on this case.

                      And so based on that, I am going to deny your request for a
               continuance at this time. . . .

       Based on these comments, we conclude that the trial court considered appellant’s motion

and denied it on the merits. Nothing in the record indicates that appellant’s motion was denied

because it failed to meet the requirements of the statute governing motions for continuance. We

overrule appellant’s third issue.




                                                –9–
                                       CONCLUSION

       We affirm the trial court’s judgment.




                                                  /David W. Evans/
                                                  DAVID EVANS
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47
151348F.U05




                                               –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DAREN STEVENSON, Appellant                          On Appeal from the 291st Judicial District
                                                    Court, Dallas County, Texas
No. 05-15-01348-CR        V.                        Trial Court Cause No. F14-21775-U.
                                                    Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                        Lang and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 6th day of February, 2017.




                                             –11–
