                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00355-CR
                              NO. 02-09-00325-CR


JEREMIAH RAY TAYLOR                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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

                         MEMORANDUM OPINION1
                                      ----------

      In two issues, Appellant Jeremiah Ray Taylor argues that the trial court

erred by granting the State’s oral motion for continuance in cause number

1117775D and that his adjudication in cause number 1084530D should be

reversed because the only evidence introduced to support that adjudication was

the trial testimony from the cause in which the trial court erroneously granted the

State’s oral motion for continuance. We will affirm.

      1
       See Tex. R. App. P. 47.4.
      In November 2007, Taylor pleaded guilty to burglary of a habitation in

cause number 1084530D, and the trial court placed him on five years’ deferred

adjudication community supervision.     The State filed a petition to proceed to

adjudication in July 2008, alleging that Taylor had violated several terms and

conditions of his community supervision. Appellant later pleaded ―true but‖ to the

allegation that he had used marijuana on two separate occasions, but the trial

court reinstated his community supervision.

      In September 2008, a grand jury indicted Taylor for aggravated assault

with a deadly weapon in cause number 1117775D. When the trial court called

the case for trial in May 2009, the State made an oral motion for a continuance,

contending that it needed additional time to secure the presence of several

necessary witnesses (the complainant and the officers who investigated the

case). A few minutes before the State moved to continue the trial, Taylor filed

―Defendant’s Controversion of State’s Motion for Continuance,‖ in which he

argued that the State’s motion for continuance should be denied because the

State did not use diligence in obtaining the appearance of the missing witnesses.

The trial court granted the State’s oral motion for continuance, and the case went

to trial in September 2009. A jury convicted Taylor of aggravated assault with a

deadly weapon, and the trial court sentenced him to eight years’ confinement.

      In September 2009, the State filed its second petition to proceed to

adjudication in cause number 1084530D.        The State alleged that Taylor had

violated his community supervision because he committed the new offense of

aggravated assault with a deadly weapon (paragraph 1) and knowingly

possessed a firearm on or about June 1, 2008 (paragraph 3). At a hearing on



                                    2
the petition in October 2009, after his trial and conviction in cause number

1117775D, the State requested that the trial court take judicial notice of all the

testimony and evidence that was presented at the trial in cause number

1117775D. The trial court took judicial notice as the State requested, found true

the State’s first and third paragraphs alleged in the second petition to proceed to

adjudication, found Taylor guilty of burglary of a habitation, and sentenced him to

eight years’ confinement.2

      In his first issue, Taylor argues that the trial court abused its discretion by

granting the State’s oral motion for continuance in cause number 1117775D

because the motion was unwritten; unverified; and, consequently, failed to

comply with the legal requisites for a motion for continuance.

      It is well settled that a criminal action may be continued on the written

motion of the State or of the defendant, so long as sufficient cause is shown.

See Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). However, the court of

criminal appeals has explained that a trial court also possesses discretion to

grant an oral motion for continuance on equitable grounds. See Hernandez v.

State, 492 S.W.2d 466, 467 (Tex. Crim. App. 1973); Darty v. State, 149 Tex.

Crim. 256, 193 S.W.2d 195, 195 (1946); Williams v. State, 172 S.W.3d 730, 733

(Tex. App.—Fort Worth 2005, pet. ref’d). A motion for continuance based on

equitable grounds, rather than on statutory grounds, is entirely within the sound

discretion of the trial court and will only call for reversal if it is shown that the

court clearly abused its discretion. Williams, 172 S.W.3d at 733; Williams v.


      2
      The trial court ordered the sentence to run concurrently with the eight-year
sentence imposed in cause number 1117775D.


                                     3
State, No. 03-07-00398-CR, 2008 WL 820919, at *2 (Tex. App.—Austin Mar. 28,

2008, pet. ref’d) (mem. op., not designated for publication). Thus, the trial court’s

ruling on a motion for continuance, equitable or otherwise, is within the discretion

of the trial court and will not be reversed on appeal unless it is shown that the

court abused its discretion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex.

Crim. App. 1996), cert. denied, 522 U.S. 825 (1997). An appellant must show

that he was actually prejudiced by the trial court’s decision to grant the

continuance. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002);

Williams, 172 S.W.3d at 733.

      Taylor complains about the State’s failure to comply with the requirements

for a motion for continuance based on statutory grounds, see Tex. Code Crim.

Proc. Ann. arts. 29.03, 29.08 (Vernon 2006), but the trial court also possessed

the discretion to grant the motion for continuance based on equitable grounds,

which it apparently did. The State indicated that the motion for continuance was

the first that it had asked for in this case and that it needed a continuance to

secure the presence of several witnesses necessary for trial—the complainant

and the investigating officers. When the trial court granted the continuance, it

stated, ―This will be the only continuance that I will grant for the State in this

case. If this case is called again, I expect the State to be ready . . . .‖

      Taylor argues that he was harmed by the granting of the State’s motion for

continuance because ―instead of proceeding to trial with no alleged victim

present, he proceeded to trial facing his alleged victim who provided the only

direct evidence of the assault.‖ Taylor did not contend in his written ―Defendant’s

Controversion of State’s Motion for Continuance‖ or at the hearing in which the



                                       4
State moved for a continuance that he would be prejudiced in any way by the

granting of the motion for continuance. Now on appeal, Taylor only complains

that the granting of the continuance afforded the State an additional opportunity

to secure several witnesses, not that he was unable to effectively cross-examine

any witnesses, that he was unable to adduce crucial testimony from any

witnesses, that there was some form of unfair surprise that prejudiced him, or

that he was otherwise denied due process. See Dotson v. State, 146 S.W.3d

285, 297 (Tex. App.—Fort Worth 2004, pet. ref’d) (identifying several types of

specific prejudice); Deaton v. State, 948 S.W.2d 371, 374–75 (Tex. App.—

Beaumont 1997, no writ). Taylor has thus failed to articulate and demonstrate

that he suffered any actual prejudice from the granting of the continuance. See

Williams, 172 S.W.3d at 733; Williams, 2008 WL 820919, at *2. This case is

similar to those cases in which the State seeks a delay to secure a witness or to

secure records necessary for prosecution. See, e.g., Ashabranner v. State, 557

S.W.2d 774, 778 (Tex. Crim. App. 1977), overruled on other grounds by Sneed v.

State, 670 S.W.2d 262, 265–66 (Tex. Crim. App. 1984); Worton v. State, 492

S.W.2d 519, 521–22 (Tex. Crim. App. 1973).

      We hold that the trial court did not abuse its discretion by granting the

State’s oral motion for continuance. Accordingly, we overrule Taylor’s first issue.

      In his second issue, Taylor argues that his adjudication in cause number

1084530D should be reversed because the only evidence introduced to support

the adjudication was the trial testimony from cause number 1117775D, in which

the trial court granted the State’s oral motion for continuance. We held above

that the trial court did not abuse its discretion by granting the State’s oral motion



                                     5
for continuance; therefore, Taylor’s second issue, which is expressly contingent

on his first issue, is unpersuasive.

      Further, the State sought a continuance because it needed to secure the

testimony of the complainant and the investigating officers; it did not seek a

continuance to secure the testimony of any other witnesses. At trial in cause

number 1117775D, Shuntae Cole and Charles Dickson, two witnesses whose

testimony the State did not seek to secure by the motion for continuance,

testified that Taylor had possessed a gun.        Therefore, independent of the

complainant’s testimony that Taylor had assaulted her with a gun, the testimony

of Cole and Dickson supported the State’s alternative allegation in its second

amended petition to adjudicate that Taylor had violated his community

supervision by knowingly possessing a firearm on or about June 1, 2008. We

overrule Taylor’s second issue.

      Having overruled Taylor’s two issues, we affirm the trial court’s judgments.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

LIVINGSTON, C.J. filed a concurring opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 18, 2010




                                       6
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-09-00325-CR
                               NO. 02-09-00355-CR


JEREMIAH RAY TAYLOR                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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

               CONCURRING MEMORANDUM OPINION1
                                      ----------

      I respectfully concur only because I believe a trial court has the authority to

grant an oral motion for continuance at its discretion. But, based on cases from

the court of criminal appeals and this court, either party, the State or a defendant,

must still file a written, verified motion for continuance to raise the denial of a

motion for continuance as an abuse of discretion. See Dewberry v. State, 4

S.W.3d 735, 755–56 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000);

      1
       See Tex. R. App. P. 47.4.
Robinson v. State, 310 S.W.3d 574, 578–79 (Tex. App.—Fort Worth 2010, no

pet.). I write only to clarify this. In all other respects, I join the majority opinion.




                                                       TERRIE LIVINGSTON
                                                       CHIEF JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 18, 2010




                                            2
