                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-09-027-CR


LOGAN MYLES ROBINSON                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      Through two points of error, appellant Logan Myles Robinson appeals his

conviction and thirteen-year sentence for sexual assault. See Tex. Penal Code

Ann. § 22.011 (Vernon Supp. 2009). We affirm.

                              Background Facts

      In 2005, a Tarrant County grand jury indicted Robinson for sexually

assaulting Angela, his ex-wife. 1 The parties filed various pretrial documents,


      1
       Robinson was married to Angela at the time of the assault, but they
are now divorced.
and then under a plea bargain with the State, Robinson pled guilty, waived

certain constitutional and statutory rights, and entered a judicial confession.

The trial court deferred its adjudication of Robinson’s guilt, placed him on ten

years of community supervision, and delineated several conditions of the

community supervision.

      In 2007, the State petitioned the trial court to proceed to its adjudication

of Robinson’s guilt. The State amended its petition in 2008; the amended

petition alleged that Robinson had violated his community supervision

conditions by committing a new offense, not maintaining suitable employment,

not notifying law enforcement that he changed addresses, failing to pay certain

costs and fees associated with his case, and not attending sex offender

treatment. In the hearing on the State’s amended petition, Robinson pled true

to failing to pay costs and fees and pled not true to the other allegations. The

State called witnesses to testify about the allegations in the petition that

Robinson had not pled true to. The trial court found all of the allegations true,

convicted Robinson of sexual assault, and after hearing evidence related to his




                                        2
punishment,2 assessed thirteen years’ confinement. Robinson filed his notice

of this appeal.

                          Robinson’s Points of Error

      In Robinson’s two points, which he briefs together (and which we will

therefore resolve together), he argues that the trial court erred by limiting his

cross-examination of Angela during the adjudication hearing, by refusing to

grant a continuance to secure Angela’s testimony during the punishment

hearing after he attempted but failed to subpoena her, and by adjudicating him

guilty.   Robinson contends that the trial court should have allowed his

questioning of Angela regarding details of the underlying sexual assault because

he was trying to establish his innocence in accordance with an application for

a writ of habeas corpus that he had filed. 3




      2
        During the punishment hearing, the State presented a presentence
investigation report, and Robinson called his sister and his mother, among other
witnesses.
      3
        None of Robinson’s points of error, his notice of appeal, nor his two
motions for new trial expressly challenge the trial court’s decision to deny his
writ application.

                                       3
The limitation of cross-examination during the adjudication hearing

      Robinson first contends that the trial court erred by limiting his cross-

examination of Angela during the adjudication hearing on the State’s amended

petition. He specifically argues that the court denied his due process rights of

cross-examination and confrontation.

      The State called Angela to testify about the first paragraph of its

amended petition to adjudicate. When Robinson attempted to cross-examine

Angela about details of the sexual assault rather than issues related to the

State’s amended petition, the State objected on relevance grounds and the trial

court indicated that it was not going to allow any questioning regarding the

underlying offense during the adjudication hearing.       The trial court told

Robinson’s counsel, however, that he could go into the merits of the writ

application and call Angela as a witness during the punishment portion of

Robinson’s trial. Robinson’s counsel indicated his acceptance of that solution

and told the court that he had no more questions for Angela at that time.

      The Sixth Amendment gives a defendant the right to be confronted with

the witnesses against him. U.S. Const. amend. VI; Crawford v. Washington,

541 U.S. 36, 42, 124 S. Ct. 1354, 1359 (2004). And that right includes the

qualified right to cross-examine those witnesses. See Davis v. Alaska, 415

U.S. 308, 315–16, 94 S. Ct. 1105, 1110 (1974); Hammer v. State, 296

                                       4
S.W.3d 555, 561 (Tex. Crim. App. 2009); Walker v. State, 300 S.W.3d 836,

844–46 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing Lopez v. State, 18

S.W.3d 220, 222 (Tex. Crim. App. 2000)).

      However, to preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling if they are not apparent from the context

of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v.

State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert.

denied, 526 U.S. 1070 (1999). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 338, 341 (Tex. Crim. App.

2004).

      Preservation of error is a systemic requirement that this court should

review on its own motion. Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim.

App. 2007).      Preservation requirements apply to confrontation clause

complaints. See Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App.

2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004)

(overruling the appellant’s constitutional confrontation clause points because

he did not preserve error related to the confrontation clause at trial); Campos

                                        5
v. State, 186 S.W.3d 93, 98 (Tex. App.—Houston [1st Dist.] 2005, no pet.)

(explaining that the “right of confrontation is vital to an ordered criminal justice

system, but it is nonetheless a trial right, and a defendant waives his right to

confront witnesses if he does not object at trial”); Courson v. State, 160

S.W.3d 125, 129 (Tex. App.—Fort Worth 2005, no pet.).

      Robinson did not assert any constitutional violation—related to the

confrontation    clause,    the   related    right   of   cross-examination,     or

otherwise—when the trial court told him that he would not be permitted to ask

Angela questions about the sexual assault during the adjudication hearing. 4 The

dissenting opinion correctly indicates that the code of criminal procedure does

not require a separate punishment hearing during an adjudication proceeding

and that, functionally, an adjudication proceeding is unitary. See Euler v. State,

218 S.W.3d 88, 92 (Tex. Crim. App. 2007); Griffith v. State, 166 S.W.3d 261,

265 (Tex. Crim. App. 2005); Dissenting Op. at 1–3. But that legal principle is

irrelevant to this case because Robinson did not object to the trial court’s

continuing or segregating his adjudication proceeding and has not raised such

as error on appeal. Rather, Robinson consented to the trial court’s continuance



      4
        Robinson mentioned the rights of confrontation and cross-examination
in his second motion for new trial, but he related those rights to the use of
hearsay statements in the presentence investigation report and not to any
issues occurring in the adjudication hearing.

                                         6
of the punishment hearing from October 2008 to January 2009 because he

requested a presentence investigation report to be prepared before the trial

court ordered the terms of its sentence. 5 And Robinson obviously recognized

the need to ensure his witnesses’ presence at the hearing in January 2009

because he sought subpoenas for two witnesses, including Angela. 6

      The dissenting opinion has not disputed that Robinson was required to

preserve confrontation clause complaints and that he did not do so. Based on

the authority cited above, we hold that Robinson forfeited his assertion that his




      5
        Regardless of whether Robinson’s petition to adjudicate hearing should
have occurred in two phases, it is indisputable that it did occur in two
phases—occurring months apart—because of Robinson’s request that the
probation department prepare a presentence investigation report.
The dissenting opinion’s statement that “no one returned to court for a
punishment portion . . . of the trial” is not supportable under the record in this
case. Dissenting Op. at 3.
      6
        The dissenting opinion’s statement and conclusion that the trial court
denied Robinson due process because it prevented his opportunity to offer
appropriate evidence simply is not borne out by this record. See Dissenting Op.
at 4–8. The trial court expressly agreed to let Robinson call Angela to testify
about the nature of Robinson’s offense during the upcoming punishment portion
of the trial rather than in the initial revocation portion, and Robinson’s counsel
did not object to that solution (by citing the 6th Amendment or the Constitution
generally, using the word “confrontation,” or in any other way); instead he
indicated his acceptance of the solution. Then, although Robinson had nearly
three months to serve a subpoena and guarantee Angela’s presence at the
punishment portion, he did not serve her with the subpoena so she did not
appear.

                                        7
rights were violated during the adjudication hearing, and we overrule that part

of his two points.

The absence of Angela’s testimony during the punishment hearing

      The punishment hearing in Robinson’s trial was held in January 2009,

almost three months after the trial court found him guilty in October 2008. On

January 23, 2009, Robinson filed an application to subpoena Angela to appear

at the punishment hearing, but the application did not include her location or

any of her contact information. At the beginning of the punishment hearing,

Robinson’s counsel told the court that Angela had not been served with the

subpoena but that his investigator had talked to Angela. Robinson’s counsel

orally requested a continuance to find Angela so that she could provide

testimony that would support his writ application and mitigate his punishment

by showing the “severity of the effect upon the victim.” Robinson contends on

appeal that the trial court erred by denying the continuance. 7



      7
         The State did not subpoena Angela for her testimony at the
adjudication hearing or the punishment hearing. See Tex. Code Crim. Proc.
Ann. art. 24.03(a) (Vernon 2009) (stating that when “a witness has been
served with a subpoena, attached or placed under bail at the instance of either
party in a particular case, such execution of process shall inure to the benefit
of the opposite party in such case in the event such opposite party desires to
use such witness on the trial of the case”). Nothing in the record indicates that
the trial court interfered with Robinson’s attempt to subpoena Angela or that
the trial court would have disallowed Robinson to question Angela about the
underlying sexual assault at the punishment hearing if Robinson had obtained

                                       8
     The code of criminal procedure provides, “A criminal action may be

continued on the written motion of the State or of the defendant, upon

sufficient cause shown.” Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006)

(emphasis added). Accordingly, the denial of an oral motion for continuance

preserves nothing for our review.    Anderson v. State, 301 S.W.3d 276,

278–81 (Tex. Crim. App. 2009) (holding that a court of appeals erred by

applying a due process exception to the motion for continuance preservation

requirement and concluding that the “right to present a defense is subject to

forfeiture”); Williams v. State, 172 S.W.3d 730, 733 n.1 (Tex. App.—Fort

Worth 2005, pet. ref’d); Ricketts v. State, 89 S.W.3d 312, 317 (Tex.

App.—Fort Worth 2002, pet. ref’d) (citing Dewberry v. State, 4 S.W.3d 735,

755 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000)).

     As the dissent argues, article 29.13 of the code of criminal procedure

provides,

     A continuance or postponement may be granted on the motion of
     the State or defendant after the trial has begun, when it is made to
     appear to the satisfaction of the court that by some unexpected
     occurrence since the trial began, which no reasonable diligence
     could have anticipated, the applicant is so taken by surprise that a
     fair trial cannot be had.




her presence at the hearing.

                                      9
Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 2006); see Dissenting Op. at

8. But this provision does not address or remove the requirement that a motion

for continuance must be in writing. The court of criminal appeals and our court

have both applied the in-writing requirement to motions for continuance filed

during a trial. See Dewberry, 4 S.W.3d at 755–56; Matamoros v. State, 901

S.W.2d 470, 478 (Tex. Crim. App. 1995); Woodall v. State, 77 S.W.3d 388,

401 (Tex. App.—Fort Worth 2002, pet. ref’d); see also Tex. Code Crim. Proc.

Ann. art. 29.08 (Vernon 2006) (stating that “[a]ll motions for continuance must

be sworn to”) (emphasis added); Dixon v. State, 64 S.W.3d 469, 473 (Tex.

App.—Amarillo 2001, pet. ref’d) (stating that an “oral motion for continuance

during trial does not preserve error for appellate review, even in the face of an

assertion that the Court’s equitable powers allow consideration of the issue”). 8




      8
        The dissenting opinion extensively quotes a footnote from the
Texarkana Court of Appeals’s Rodriguez v. State opinion because the dissenting
opinion says that the Rodriguez opinion addressed the continuance issue “in a
manner which . . . comports with constitutional mandates.” 903 S.W.2d 405,
412 (Tex. App.—Texarkana 1995, pet. ref’d) (op. on reh’g); see Dissenting Op.
at 10. But after the footnote in Rodriguez that the dissenting opinion has
quoted, the Texarkana court actually held that Rodriguez’s motion for
continuance was nonetheless waived because it was not sworn to. Rodriguez,
903 S.W.2d at 412 (“Until such time as the Court of Criminal Appeals or the
Texas Legislature changes the [sworn and in-writing] requirement, this
procedure must be met.”).

                                       10
      Therefore, we hold that Robinson’s oral motion for continuance preserved

nothing for our review, and we overrule that portion of his two points. 9

The trial court’s decision to adjudicate Robinson guilty

      Finally, in the title of one of Robinson’s points of error, he argues that the

trial court “abused its discretion in adjudicating [him] guilty.” However, he does

not specify why the trial court abused its discretion beyond his assertions about

his constitutional rights and his oral continuance request, which we have

already resolved.    Furthermore, Robinson has not directly challenged the

sufficiency of the evidence to prove the allegations contained in the State’s

amended petition. Although he cites law in a portion of his brief related to a

trial court’s ability to revoke community supervision for failure to pay fees when

the defendant is unable to pay, he did not present inability to pay as a defense

at trial. Because Robinson’s general contention that the trial court abused its

discretion by adjudicating him guilty is inadequately briefed, we overrule that




      9
         Robinson has not cited any authority holding that he was entitled to
rely on Angela’s presence at the punishment hearing—even though she did not
receive a subpoena for that hearing—merely because she testified at the
adjudication hearing. Also, Robinson’s attempt and failure to serve a timely
subpoena shows that he did not believe that Angela would appear at the
punishment hearing merely because she had appeared at the adjudication
hearing. While the trial court indicated during the adjudication hearing that
Robinson could call Angela during the obviously distinct punishment hearing,
it did not guarantee her presence at that hearing.

                                        11
portion of his two points.   See Tex. R. App. P. 38.1(i); Tong v. State, 25

S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001);

Harkins v. State, 268 S.W.3d 740, 742 n.2 (Tex. App.—Fort Worth 2008, pet.

ref’d).

                                 Conclusion

      Having overruled both of Robinson’s points, we affirm the trial court’s

judgment.




                                          TERRIE LIVINGSTON
                                          JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: April 1, 2010




                                     12
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-027-CR


LOGAN MYLES ROBINSON                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                   ------------

                          DISSENTING OPINION

                                   ------------

      I write separately because I cannot agree with the majority that Appellant

somehow forfeited his right to offer evidence of actual innocence or mitigation

evidence.

      A revocation is a unitary proceeding. As our sister court in Dallas has

explained,

      When a person enters a plea of guilty, the proceeding becomes a
      unitary proceeding. This applies regardless of whether the plea is
      entered before a judge or a jury. As the court of criminal appeals
      has noted, once an appellant enters a guilty plea, the court should
      conduct the trial as a unitary proceeding rather than allowing the
      defendant to “piecemeal” his plea of guilty and true. 1

When a defendant pleads guilty to a criminal offense and is placed on

community supervision after the judge defers adjudication, the trial becomes a

unitary proceeding.2 The Texas Court of Criminal Appeals has explained,

      The bifurcated-trial procedure that the district court used is not
      authorized in a trial without a jury. Prior to the 1965 Code of
      Criminal Procedure all trials before the court or jury regardless of
      plea were unitary trials; that is, the issues of guilt and punishment
      were submitted at the same time. A bifurcated trial procedure was
      authorized in the 1965 revision of the Code of Criminal Procedure.
      The bifurcation statute provides, “In all criminal cases, other than
      misdemeanor cases of which the justice court or municipal court
      has jurisdiction, which are tried before a jury on a plea of not guilty,
      the judge shall, before argument begins, first submit to the jury the
      issue of guilt or innocence of the defendant of the offense or
      offenses charged, without authorizing the jury to pass upon the
      punishment to be imposed.” The bifurcation statute is applicable
      only to pleas of not guilty before a jury. The statute has no
      application to a trial before the court on a plea of not guilty. This
      is not the first case in which courts have failed to notice that the
      bifurcation statute applies only to pleas of not guilty before a jury.

            [S]ome confusion has existed among the bench and bar
            since the advent of Article 37.07. Records reaching
            this court frequently show courts bifurcating bench
            trials where the plea is guilty. Often the court will hear
            evidence, declare the defendant guilty, order a


      1
       Washington v. State, 893 S.W.2d 107, 108–09 (Tex. App.—Dallas
1995, no pet.) (citations omitted).
      2
       Id.; see also Ricondo v. State, 634 S.W.2d 837, 842 (Tex. Crim. App.
1981).

                                         2
              pre-sentence investigation and sometimes months later
              re-convene the “penalty stage” of the guilty plea,
              allowing the State and defense to offer evidence as to
              punishment or guilt. 3

      Contrary to the thoughtful majority’s repeated designation of separate

phases or portions of the trial, there was only a single, unitary proceeding.

Consequently, no one returned to court for a punishment portion or phase or

segment or part of the trial. If, as the majority insists, the participants did

return for a punishment portion or segment or part, then the trial court

committed error by bifurcating a unitary proceeding.

      The effect of the trial’s becoming a unitary proceeding is that the issues

of guilt and punishment cannot be separated. 4 The trial court therefore erred

by denying Appellant his constitutional Sixth Amendment right to cross-examine

the State’s witness and by requiring Appellant to wait for the “punishment

phase” in a unitary proceeding that had no punishment phase. I can find no law

that requires a party to a lawsuit, and certainly a criminal lawsuit, to issue a

subpoena to a witness who is present in the courtroom, under oath, and

subjected to direct examination by the opposing party in order to cross-examine




      3
         Barfield v. State, 63 S.W.3d 446, 449–50 (Tex. Crim. App. 2001)
(citations and selected quotations omitted).
      4
           See Washington, 893 S.W.2d at 108–09.

                                        3
that witness. The Texas Court of Criminal Appeals has explained repeatedly

that

       [f]airness would dictate that a defendant be accorded an
       opportunity to offer appropriate evidence in mitigation of
       punishment after the revocation of probation and the adjudication
       of guilt and before the assessment of punishment if such evidence
       has not already been elicited during the proceedings, particularly if
       the defendant requests the opportunity. 5

       Here, the trial court was well aware that Appellant wanted to fully cross-

examine the witness in order to offer evidence of actual innocence or mitigation

evidence that lessened his moral culpability.       He attempted to offer this

evidence in cross-examination of the State’s witness. The trial court refused

to allow him to develop this evidence on cross-examination and told Appellant

that he would have to wait until the “punishment phase.” The witness was

never released. Indeed, when the trial court asked if the witness could be

released before Appellant had the opportunity to complete cross-examination,

the prosecutor responded, “I’d ask she stick around, Judge.” 6

       As this court has previously explained,

            We review the trial court’s decision to exclude evidence
       under an abuse of discretion standard. An abuse of discretion



       5
        Duhart v. State, 668 S.W.2d 384, 387 (Tex. Crim. App. 1984)
(quotations omitted).
       6
            II R.R. at 61.

                                        4
      occurs when the trial court acts without reference to any guiding
      principles or rules.

            Where      the   excluded    evidence     is   sought    during
      cross-examination, the Confrontation Clause of the United States
      Constitution is implicated. Errors of this sort are subject to a harm
      analysis, and must be reversed unless the court finds, beyond a
      reasonable doubt, that the error did not contribute to the conviction
      or punishment. 7

      But denial of the right to cross-examine witnesses may also be a due

process violation when it prevents a defendant from offering evidence of actual

innocence or punishment mitigation evidence and brings into question the

fundamental fairness of a trial. As the Texas Court of Criminal Appeals has so

eloquently explained,

             Due process does not lend itself to simple, concise
      definitions. In its most basic sense due process is the impediment
      that is constitutionally imposed on governmental conduct that
      offends our fundamental rights. Relative to the protection of one’s
      liberty: “[t]he essential guarantee of the due process clauses is
      that the government may not imprison or otherwise physically
      restrain a person except in accordance with fair procedures.” In
      other words, due process is in itself essentially the same as
      fairness. Or, at the very least, due process is the vehicle used to
      arrive at fairness thereby protecting our fundamental rights.
      Accordingly, “a fair trial in a fair tribunal is a basic requirement of
      due process.” If legislation alters the essential fairness of a trial
      then a due process violation is necessarily implicated. In Estelle v.




      7
       McDaniel v. State, 3 S.W.3d 176, 179–80 (Tex. App.—Fort Worth
1999, pet. ref’d) (citations omitted).

                                        5
      Williams, it was specifically stated that “[t]he right to a fair trial is
      a fundamental liberty secured by the Fourteenth Amendment.” 8

Or, in other words,

             The touchstone of due process is fundamental fairness.
      Accordingly, no State may deprive any person of the conditional
      liberty created by probation unless the State employs procedures
      that are fundamentally fair. 9

      In its conscientious analysis, the majority concentrates on the propriety

of the trial court’s bifurcating the proceeding rather than on the trial court’s

refusal to allow Appellant to offer mitigating evidence or evidence of actual

innocence when the State’s witness was in court, on the stand, and available

for cross-examination. The majority holds that this error is harmless because

Appellant failed to use the magic words “confrontation and cross-examination.”

Appellant was in the middle of cross-examination. He tried to complete his

cross-examination.     The State objected, and the trial court sustained the

objection on the basis that Appellant had to wait until the “punishment phase”

to offer his punishment evidence. No one was confused about what Appellant

was requesting or why.


      8
         Long v. State, 742 S.W.2d 302, 320–21 (Tex. Crim. App. 1987)
(citations omitted), cert. denied, 485 U.S. 993 (1988), overruled on other
grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
      9
       Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007) (citations
omitted).


                                         6
      The error was less a Sixth Amendment issue than a due process issue.

It cannot be said that Appellant did not clearly voice his complaint or that

anyone—the trial court, the State, or this court—was and is not fully aware of

Appellant’s complaint. He tried to offer evidence in mitigation of punishment

or evidence of actual innocence, and he was not allowed to do so. He was

therefore denied fundamental due process. “The Due Process Clause of the

Fourteenth Amendment prohibits criminal rules or procedures that offend

traditional notions of fair play and substantial justice.” 10

      The proper analysis of this error is under rule 44.2(a) because the error

is of constitutional dimension. 11 It is of constitutional dimension, in part,

because denial of the constitutional right to complete cross-examination of a

witness in order to present evidence in mitigation of punishment or evidence of

actual innocence is also a denial of due process. It is difficult to understand

how denying Appellant the opportunity to present evidence of actual innocence,




      10
         Ladd v. State, 3 S.W.3d 547, 575 (Tex. Crim. App. 1999) (citing
Medina v. California, 505 U.S. 437, 445–46, 112 S. Ct. 2572, 2577 (1992)),
cert. denied, 529 U.S. 1070 (2000); see also Webb v. State, 161 Tex. Crim.
442, 278 S.W.2d 158, 160 (1955) (stating that the term due process “includes
and means that an accused shall, in a criminal case, be accorded that
fundamental fairness necessary to the due administration of justice”).
      11
            See Tex. R. App. P. 44.2(a).

                                         7
or even evidence in mitigation of moral culpability, could be harmless error

under the facts of this case.

      Nor can I agree that Appellant, who had no obligation to subpoena the

witness in order to claim his right to cross-examine, can be faulted for failing

to file a written, sworn motion for continuance. Although the written, sworn

motion is required for a pre-trial continuance request, after trial begins,

             A continuance or postponement may be granted on the
      motion of the State or defendant after the trial has begun, when it
      is made to appear to the satisfaction of the court that by some
      unexpected occurrence since the trial began, which no reasonable
      diligence could have anticipated, the applicant is so taken by
      surprise that a fair trial cannot be had. 12

      Presumably, the legislature realized that a party who is surprised during

trial does not show up in the courtroom with a prepared motion for continuance

complete with affidavit on the off chance that something unexpected will

occur. Surely the trial court’s assuring Appellant that he would be allowed his

constitutional right to complete his cross-examination of the State’s witness in

order to offer punishment mitigation evidence or evidence of actual innocence

after the trial court improperly bifurcated a unitary proceeding would be an

unexpected occurrence triggering article 29.13 protections.         And surely a

defendant in a criminal trial has the right to rely on the trial court’s promise.



      12
            Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 2006).

                                        8
      We have not yet reduced our criminal trials to triumphs of form over

substance.      The grounds for the request for continuance were clear and

uncontroverted. Appellant made his request in open court and on the record.

The request was taken down by the court reporter and appears in the reporter’s

record.      If Appellant had been requesting a jury instruction, the writing

requirement would have been satisfied by dictating it into the record. Yet the

majority holds that because the request for continuance appears in the

reporter’s record instead of being handwritten on a yellow legal pad, it is no

motion at all. And the majority also holds that when the court, the State, and

the defendant all know the basis of a request for continuance—and that basis

is clear and uncontroverted—and both sides argue the motion to the trial court,

that nothing has been preserved for review.

      The majority relies on Anderson v. State 13 for the proposition that the

denial of an oral motion for continuance preserves nothing for review and notes

that the Texas Court of Criminal Appeals holds that the court of appeals erred

by applying a due process exception. 14 But the facts of this case distinguish

it from Anderson. That case involves a pretrial motion for continuance, not a

trial court’s deliberate truncation of an appellant’s cross-examination of a


      13
            301 S.W.3d 276 (Tex. Crim. App. 2009).
      14
            See majority op. at 9.

                                       9
witness and erroneous and false assurance that the cross-examination would

continue in a later, fictitious “punishment phase.”

      Our sister court in Texarkana has addressed this issue in a manner which

I believe comports with constitutional mandates:

              The purpose of requiring a sworn motion is to give credibility
      to the basis for the continuance. This would seem unnecessary
      when a matter is fully before the trial court. In this situation, the
      trial court would not need sworn pleadings to support the motion,
      but could consider testimony and support of the motion or the facts
      already before the court. A mandatory rule that all continuances
      must be in writing is a harsh requirement on parties in trial at the
      time the matter arising for which the continuance is sought. To
      have an opportunity to place the motion in writing and have it
      sworn to would sometimes require a delay of the trial until that
      matter could be completed, and the trial could often be expedited
      by allowing this motion to be oral and recorded by a court
      reporter.15

      Although the Rodriguez court affirmed the action of the trial court, the

statutory requirement of a sworn motion for continuance does not supercede

the constitutional requirement of a fair trial. This fact has been recognized by

our sister court in Dallas and by the Supreme Court of Texas.




      15
        Rodriguez v. State, 903 S.W.2d 405, 412 n.5 (Tex. App.—Texarkana
1995, pet. ref’d).


                                       10
      In Thrower v. Johnston,16 the trial counsel had a preferential setting in

a different court in a different county.     The trial court denied Thrower’s

unverified request to reset the case and defaulted Thrower when his counsel

did not appear at the scheduled time but arrived in court as quickly as he could,

given the conflict. In reversing the trial court, the Dallas Court of Appeals

pointed out that

      the want of verification does no more than raise or reinforce the
      presumption that the trial court committed no abuse of discretion.
      Considering the information that was provided to the court below
      of the conflict in district and county court settings, we hold that
      appellants rebutted the presumption that the trial court did not
      abuse its discretion, a burden placed upon them by the foregoing
      rules.17

      In reversing the trial court, the Thrower court relied on the Supreme Court

of Texas’s decision in Villegas v. Carter.18 In Villegas, the trial court allowed

counsel to withdraw two days before trial. Villegas was unable to engage

counsel who could be prepared for trial in such short time, especially in light of

the fact that the first attorney refused to turn over the file. The Villegas court

balanced the valuable right to be represented by counsel in a civil case against

the abuse of discretion standard and held that the trial court abused its

      16
            775 S.W.2d 718, 721 (Tex. App.—Dallas 1989, no pet.).
      17
            Id.
      18
            Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986).

                                       11
discretion when it allowed counsel to withdraw two days before trial and then

denied Villegas’s unsworn and apparently oral motion for continuance.19 The

court suggested that in determining whether the trial court abused its discretion

in denying the unsworn motion for continuance, we consider the role that the

trial court played in creating the basis for the request for continuance.20 The

Villegas court implies that it is fundamentally unfair to require a person to go

to trial without a lawyer when the trial court both allowed counsel to withdraw

at the eleventh hour and denied the non-compliant request for continuance.21

      The law governing motions for change of venue is also instructive:

      A defendant’s proper motion to change venue entitles him to a
      change of venue as a matter of law unless the State files
      controverting affidavits. The reason for this rule is that “in the
      absence of controverting evidence, there is no issue of fact to be
      resolved.” However, this right is waived by the defendant if he
      participates in a hearing on the merits of the motion and allows the
      State to put on evidence in such hearing, consequently rendering
      the issue one of fact for determination by the trial court.22




      19
            Id. at 625–26.
      20
            See id. at 625–27.
      21
            See id.
      22
          Cooks v. State, 844 S.W.2d 697, 730 (Tex. Crim. App. 1992)
(citations omitted), cert. denied, 509 U.S. 927 (1993).


                                       12
      In the instant case, there is no issue in controversy. The issue was

presented to the trial court when the witness took the stand and when the

witness failed to appear. Both the State and Appellant participated in arguing

the request to the trial judge. Requiring Appellant to request a recess while he

reduced what was already taken down by the court reporter at both hearings

to a handwritten, yellow-pad motion when the witness failed to appear, and

requiring Appellant to write out an affidavit stating what everyone was aware

of and what was completely uncontroverted, frankly, is not rational. When the

interests of due process and technical compliance with a rule that should be

satisfied by allowing either the State or the defendant to dictate a motion or

request into the record in satisfaction of a writing requirement conflict, the due

process interest must prevail.

      Whether an oral, unsworn motion for continuance is different from a

written, sworn motion for continuance, in that one is an equitable motion and

the other is a statutory motion, is the subject of conflicting opinions.      But

courts are in agreement that an improper denial of a motion for continuance

may constitute a denial of due process.       In a Fifth Circuit case, the court

explained, in the context of the impact of the denial of a continuance on the

right to counsel,




                                       13
      Initially, the determination of when to allow a continuance is
      committed to the deliberate discretion of the trial judge. The trial
      judge must steer clear of the Scylla and Charybdis of extremes. At
      one extreme, “a myopic insistence upon expeditiousness in the face
      of a justifiable request for delay can render the right to counsel an
      empty formality.” . . . While discretion is the rule of general
      application grounded in precedent, tradition and common sense,
      discretion can be abused. Viewing all the circumstances
      surrounding the trial court’s decision, in the unusual case the denial
      of a continuance may be so arbitrary and so fundamentally unfair
      as to do violence to the Constitutional principle of due process.23

      In the case now before this court, any delay was occasioned by the trial

court’s action in refusing to allow Appellant to complete cross-examination of

the State’s witness immediately after direct examination.

      I recognize that the issue may become moot if Appellant receives habeas

relief, but I cannot agree with the majority’s holding, explicit or implicit, that the

trial court properly bifurcated the adjudication proceeding and that Appellant

was required to subpoena the witness before being allowed to cross-examine

her despite the State’s having conducted its direct examination of her and the

trial court’s never releasing her. I therefore respectfully dissent.




                                              LEE ANN DAUPHINOT
                                              JUSTICE


      23
            Gandy v. Alabama, 569 F.2d 1318, 1322–23 (5th Cir. 1978).

                                         14
PUBLISH

DELIVERED: April 1, 2010




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