Affirmed and Memorandum Opinion filed March 7, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00104-CR
                               NO. 14-18-00105-CR

                     LOVELL JUNIOR KELLY, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 182nd District Court
                             Harris County, Texas
                   Trial Court Cause Nos. 1519288 & 1519289

                 MEMORANDUM                        OPINION


      A jury convicted appellant Lovell Junior Kelly of aggravated assault and felon
in possession of a firearm. In each case, the trial court found the enhancement
paragraph to be “true” and sentenced appellant to confinement for seventeen years
in the Institutional Division of the Texas Department of Criminal Justice. The
sentences were ordered to run concurrently. Appellant timely filed a notice of appeal.
       Appellant raises two issues on appeal. First, appellant claims the trial court
erred in denying his motion for continuance. Second, appellant argues the trial court
erred by excluding testimony. For the reasons stated below, we affirm.1

                          DENIAL OF MOTION FOR CONTINUANCE

       The record reflects that trial counsel made an oral motion for continuance
based on an alleged Brady2 violation. The Texas Code of Criminal Procedure
expressly requires a motion for continuance to be written. See Tex. Code Crim. Proc.
§ 29.03 (“A criminal action may be continued on the written motion of the State or
of the defendant, upon sufficient cause shown; which cause shall be fully set forth
in the motion.”). Further, the Code requires a sworn motion for continuance. Id.
§ 29.08 (“All motions for continuance must be sworn to by a person having personal
knowledge of the facts relied on for the continuance.”). In Blackshear, the Texas
Court of Criminal Appeals construed these provisions as requiring a sworn and
written motion for continuance to preserve any complaint that the trial court erred in
denying a motion for continuance. Blackshear v. State, 385 S.W.3d 589, 591 (Tex.
Crim. App. 2012) (citing Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App.
2009) (“[I]f a party makes an unsworn oral motion for a continuance and the trial
judge denies it, the party forfeits the right to complain about the judge’s ruling on
appeal.”)). The court in Blackshear rejected the defendant’s argument that these
requirements are not absolute, “but rather subject to an exception when the denial of
the motion would amount to a deprivation of due process.” The court noted it had
previously and “explicitly refused to recognize a due process exception to the rule


       1
          Appellant’s issues do not necessitate a discussion of the facts of the offense. See Tex. R.
App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable
but that addresses every issue raised and necessary to final disposition of the appeal.”)
       2
           See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

                                                 2
requiring motions for continuances to be written and sworn in order to be preserved
on appeal.” Id. (citing Anderson, 301 S.W.3d at 380).

      Appellant’s motion for continuance was oral and unsworn. Accordingly,
appellant did not preserve any complaint arising out of the denial of that motion. See
Woodman v. State, 491 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2016,
pet. ref’d). Appellant’s first issue is overruled.

                              EXCLUSION OF EVIDENCE

      A trial court’s ruling on the admission or exclusion of evidence is reviewed
for an abuse of discretion. Madry v. State, 200 S.W.3d 766, 769 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d). In determining whether an abuse of discretion
occurred, we consider whether the trial court acted arbitrarily or unreasonably. Id.
So long as the trial court’s ruling is “within the zone of reasonable disagreement,”
we must uphold it. Id.

      Appellant’s second issue contends the trial court erred in excluding the
testimony of two witnesses, Barbara Guerrier and Kendra Kelly. The testimony was
offered pursuant to Tex. R. Evid. 613(a) as extrinsic evidence of prior inconsistent
statements made by the complainant for impeachment purposes. Rule 613 provides,
in pertinent part:

      (1) Foundation Requirement. When examining a witness about the
      witness’s prior inconsistent statement--whether oral or written--a party
      must first tell the witness:
             (A) the contents of the statement;
             (B) the time and place of the statement; and
             (C) the person to whom the witness made the statement.
      ...
      (4) Extrinsic Evidence. Extrinsic evidence of a witness’s prior
      inconsistent statement is not admissible unless the witness is first

                                            3
      examined about the statement and fails to unequivocally admit making
      the statement.

Tex. R. Evid. 613. To be admissible under this rule, a prior statement must be
inconsistent with the one given at trial. Madry, 200 S.W.3d at 769 (citing Lopez v.
State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002)). If a party fails to establish the
required predicate, the trial court should sustain an objection to extrinsic proof of the
prior inconsistent statement. Id. (citing Ferguson v. State, 97 S.W.3d 293, 296 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d)).

      The record reflects that during the State’s case in chief the complainant,
Jahaile Kelly, testified appellant had a gun in his right hand and pointed it at him.
After the State rested, the defense called Barbara Guerrier to testify. Guerrier was
asked if she attended the funeral of Linda Kelly, her sister and Jahaile’s aunt, in July
of 2016. Guerrier testified that both she and Jahaile attended that funeral. The
following exchange then occurred:

      [Defense Counsel]: Did you hear Jahaile Kelly personally make any
      statements about this case at that funeral?
      A. Yes, I did.
      [The State]: Objection. This is hearsay, your Honor.
              THE COURT: Approach the Bench, Counsel. Let’s talk about
      this.

In the discussion at the bench, defense counsel stated, “It is a prior inconsistent
statement.” The State then complained, essentially, that the proper predicate had not
been laid. Jahaile was then called back to the stand by defense counsel as an adverse
witness. Defense counsel attempted to lay the proper predicate for an inconsistent
statement:

      Q. Okay. Mr. Kelly, I just have a couple questions to ask you in
      following up. You attended the funeral of your aunt, Linda Kelly?

                                           4
      A. Yes.
      Q. And you’d mentioned earlier that was in late July of 2016?
      A. It was around that time, I believe.
      Q. I’m sorry?
      A. I don’t know exactly what day the funeral was.
      Q. Okay. And do you recall making statements during that funeral to
      several people about this case?
      A. No.
      Q. Do you recall making any statements that while you did have a
      verbal altercation with Mr. Lovell Kelly that there was no gun
      involved? Did you make any such statements?
      A. I never said anything like that. As a matter of fact, people at the
      funeral already knew about this case because he already told them.
      Q. So, you’re -- what you’re telling the ladies and gentlemen of the jury
      is at that funeral you made no statement to the effect that there was no
      gun?
      A. I never made a statement to anybody.

      If the impeaching party fails to establish the proper predicate, the trial court
should sustain an objection to extrinsic proof of the prior inconsistent statement.
Madry v. State, 200 S.W.3d 766, 769 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d); Ferguson v. State, 97 S.W.3d 293, 296 (Tex. App.–Houston [14th Dist.]
2003, pet. ref’d). “The purpose of the foundation requirements for Rule 613(a) is to
put the witness on notice as to which statements may be used to impeach [his]
credibility.” See Flowers v. State, 438 S.W.3d 96, 104 (Tex. App.—Texarkana 2014,
pet. ref’d). An explicit reference may not be required if the record is clear the witness
being impeached was aware of the person to whom the statement was made. See
Flowers, 438 S.W.3d at 104.

      Jahaile was not informed to whom the statement was made and the record
does not reflect that he was aware of the person(s) to whom he allegedly made the

                                           5
statement. Thus, appellant’s reliance upon Baldree v. State, 248 S.W.3d 224, 232
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d), is misplaced. In that case, the
witness sought to be impeached with a prior inconsistent statement was told “the
person to whom [the statement] was made (Mrs. Baldree).” Id. Clearly, Baldree is
distinguishable from this case where the person to whom the statement was made
was not identified by name.

      We do not suggest that the only means of identification is by name. In Broden
v. State, 923 S.W.2d 183, 189 (Tex. App.—Amarillo 1996, no pet.), the court
concluded the proper predicate was laid (under former Tex. R. Crim. Evid. 612(a))
because the defendant was told the statement was made “to one of the arresting
officers who testified.” Here, Jahaile was told the contents of the statement (there
was no gun) and the time and place (Linda Kelly’s funeral) but was not given any
information that would identify the person to whom the statement was made. See
Huffman v. State, 479 S.W.2d 62, 66 (Tex. Crim. App. 1972), overruling on other
grounds recognized by Ex parte Castellano, 863 S.W.2d 476, 479 (Tex. Crim. App.
1993) (holding exclusion of impeachment testimony was not error where witness
was asked if he had made the statement to anyone without further identification).
Without any means to identify the person to whom the statement was made, the State
could not call that person to the witness stand to refute the alleged inconsistency.

      Because the proper predicate was not laid, the trial court did not err by
refusing to admit the evidence. See Madry, 200 S.W.3d at 769; see also Lewis v.
State, No. 14-99-00538-CR, 2000 WL 729421, at *1 (Tex. App.—Houston [14th
Dist.] June 8, 2000, pet. ref’d) (not designated for publication). Appellant’s second
issue is overruled.




                                          6
                                  CONCLUSION

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment in each case.




                                             /s/   Margaret “Meg” Poissant
                                                   Justice

Panel consists of Justices Christopher, Hassan and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                         7
