           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-1441-08



                       DAVID LEE ANDERSON II, Appellant

                                            v.

                               THE STATE OF TEXAS

           ON STATE’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE THIRTEENTH COURT OF APPEALS
                         GALVESTON COUNTY

      K EASLER, J., delivered the opinion for a unanimous Court.

                                     OPINION

      Before trial, David Lee Anderson made an unsworn oral motion for a continuance so

that he would have time to mount a defense against the State’s DNA test results. The judge

denied the motion, and Anderson pled guilty and appealed the judge’s denial of the motion.

The Corpus Christi Court of Appeals held that Anderson’s claim was preserved because there

is a “due process exception” to the rule that an unsworn oral motion for a continuance
                                                                           ANDERSON—2

preserves nothing for review.1 We conclude that the court’s preservation analysis was flawed

and that the right at issue—a meaningful opportunity to present a complete defense—is

forfeitable under Marin v. State.2 Therefore, we reverse the court’s judgment because

Anderson failed to preserve his claim for appellate review.

                                        Background

       Anderson was charged with aggravated sexual assault of a child.3 The victim was

Anderson’s five-year-old daughter. Anderson’s trial was originally set for January 9, 2006.

On April 6, 2006, the parties agreed to a continuance so that the Department of Public Safety

(DPS) crime lab could conduct DNA testing of the complainant’s bathing suit. The State

submitted the bathing suit to DPS for testing on August 3, 2006, and on August 8th, the

prosecutor notified Anderson’s attorney that DPS chemists found semen on the swimsuit.

DPS prepared the DNA report on August 17th. The prosecutor received the written report

on the morning of August 21st, the day Anderson’s trial was set to begin. The results did not

exclude Anderson as the donor of the semen. Before jury selection, the prosecutor gave

Anderson’s attorney the report after the lunch break. Anderson’s counsel immediately asked

the judge to strike the report. He argued that the report was not given to him in a timely

fashion and that he was therefore unable “to defend against it.” In response, the prosecutor



       1
           Anderson v. State, 268 S.W.3d 130, 133 (Tex. App.—Corpus Christi 2008).
       2
           851 S.W.2d 275 (Tex. Crim. App. 1993).
       3
           T EX. P ENAL C ODE A NN. § 22.021 (a)(1)(B) (Vernon Supp. 2005).
                                                                              ANDERSON—3

stated that, on August 8th, she told Anderson’s attorney that semen was present on the

swimsuit. She also said that she had given Anderson’s attorney the name and phone number

of the chemist who conducted the testing. Anderson’s attorney stated that he wanted to have

the opportunity to have his own testing conducted.       The trial judge acknowledged that

Anderson’s attorney was not given much time. The prosecutor then stated:

       He could have asked for a continuance if he needed more time. If the evidence
       is going to be stricken, then, I would move for a continuance, then, in order to
       give him more time to prepare for it, then, that’s what he should be given; but
       to strike this evidence or to keep this evidence out is not the proper remedy.
       I mean, if what he needs is more time to prepare for it, then, that’s what should
       be given . . . .

Anderson’s attorney then requested a continuance, though he failed to ask the judge for a few

moments to draft a written motion as required by Articles 29.03 and 29.08 of the Texas Code

of Criminal Procedure. Ultimately, the judge overruled the motion. Anderson’s attorney

objected, citing unfair surprise and an inability to defend against the information made in the

report. The judge overruled defense counsel’s objection.

       The parties proceeded to jury selection. After the jurors were selected and sworn, the

court adjourned for the day. Before opening arguments the following morning, Anderson

changed his plea to guilty. The trial judge accepted the plea, and pursuant to a plea-bargain

agreement with the State, the judge sentenced Anderson to ten years’ imprisonment.

       Anderson’s counsel filed a motion for a new trial and a motion in arrest of judgment,

both of which were overruled by operation of law. The judge certified Anderson’s right to

appeal his “pretrial rulings and issues from [the] motion for a new trial.”
                                                                           ANDERSON—4

                                      Court of Appeals

       In his sole point of error, Anderson argued in the Corpus Christi Court of Appeals that

the trial judge erred in denying his request for a continuance so that he could obtain

independent DNA testing.4 The court stated that, as a “general rule,” an unsworn, oral

motion for continuance preserves nothing for review.5 But the court recognized a “due

process exception,” whereby an appellant may appeal the denial of an oral motion for

continuance if it amounted to a denial of due process.6 The court of appeals found that

Anderson, unable to obtain his own DNA testing, was deprived of the opportunity to present

a complete defense.7 Observing that a defendant is entitled to a meaningful opportunity to

present a complete defense, the court held that the trial judge abused his discretion.8 As a

result, the court reversed the trial court’s judgment and remanded the case for a new trial.9

       The State petitioned for review, and we granted review to decide whether the court

of appeals erred in concluding that Anderson was excused from preserving for appellate

review his claim that the trial judge erred to deny his motion for a continuance when the



       4
           Anderson, 268 S.W.3d at 132.
       5
           See T EX. C ODE C RIM. P ROC. A NN. arts. 29.03, 29.08 (Vernon Supp. 2006).
       6
        Anderson, 268 S.W.3d at 133 (citing O’Rarden v. State, 777 S.W.2d 455, 459-60
(Tex. App.—Dallas 1989, pet. ref’d).
       7
           Id. at 134.
       8
           Id. at 134-35.
       9
           Id.
                                                                            ANDERSON—5

motion was not sworn to or written.

                                          Analysis

        As both parties have observed, the Legislature has set out the requirements for a

motion for a continuance in Articles 29.03 and 29.08 of the Texas Code of Criminal

Procedure. Article 29.03 states: “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.” And Article 29.08 provides: “All motions for continuance must be

sworn to by a person having personal knowledge of the facts relied on for the continuance.”

       We have construed these statutes to require a sworn written motion to preserve

appellate review from a trial judge’s denial of a motion for a continuance.10 Thus, if 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.11 The court of appeals in

       10
          Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); Matamoros v.
State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Montoya v. State, 810 S.W.2d 160,
176 (Tex. Crim. App. 1989); Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App.
1984); Porter v. State, 623 S.W.2d 374, 381 (Tex. Crim. App. 1981); Minx v. State, 615
S.W.2d 748, 749 (Tex. Crim. App. 1981); Allen v. State, 505 S.W.2d 923, 924 (Tex.
Crim. App. 1974); Stubbs v. State, 457 S.W.2d 563, 564 (Tex. Crim. App. 1970);
Crenshaw v. State, 389 S.W.2d 676, 677-78 (Tex. Crim. App. 1965).
       11
           Cf., Martinez v. State, 91 S.W.3d 331, 335 (Tex. Crim. App. 2002) (stating,
under Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 “the party
complaining on appeal . . . about a trial court’s admission, exclusion, or suppression of
evidence must, at the earliest opportunity, have done everything possible to bring to the
judge’s attention the evidence rule or statute in question and its precise and proper
application to the evidence in question.”); Rushing v. State, 85 S.W.3d 283, 285-86 (Tex.
Crim. App. 2002) (observing that Article 4.18, which sets out the procedure to challenge
a district court’s jurisdiction over a juvenile criminal case, “places limitations” on a trial
                                                                            ANDERSON—6

this case recognized this procedural rule but disregarded it by invoking a “due process

exception” to the preservation requirement.

       We conclude that the court of appeals’s erred in its analysis.         When rules of

procedural default come into play, courts must identify the type of rule involved and then

determine whether it is subject to forfeiture.12 The framework established in our decision in

Marin v. State controls the resolution of this issue. In Marin, we identified three distinct

types of rules involved in our adversarial judicial system: (1) absolute requirements and

prohibitions; (2) rights of litigants that must be implemented by the system unless expressly

waived; and (3) rights of litigants that are to be implemented upon request.13 An absolute

requirement, also known as “systemic requirement,” is a rule or law that a trial court must

follow even if the parties wish otherwise.14 Waivable rights “are not extinguished by inaction

alone.” 15 A defendant must expressly relinquish them.16 All other complaints, whether

constitutional, statutory, or otherwise, are subject to forfeiture, and fall into the third




and appellate court’s “ability to review certain types of claims.”).
       12
          Marin, 851 S.W.2d at 279 (“Determining which category a right occupies will
usually settle the question of procedural default in the context of a particular case.”).
       13
            Id.
       14
         Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004); Marin, 851
S.W.2d at 280.
       15
            Marin, 851 S.W.2d at 278.
       16
            Id. at 279.
                                                                            ANDERSON—7

category.17

       The court of appeals in this case instituted a “due process” exception to a rule of

procedural default. The broad and vague concept of due process, as invoked by the court of

appeals, is amorphous. And no such exception exists under our case law. Indeed, our prior

decisions make clear that numerous constitutional rights, including those that implicate a

defendant’s due process rights, may be forfeited for purposes of appellate review unless

properly preserved.18

       When viewed in the context of the facts and circumstances of this case, the right at

issue here—as asserted by Anderson’s trial attorney—is Anderson’s right to a meaningful

opportunity to present a complete defense. This right defines the scope of review and is

determinative in deciding whether Anderson forfeited his complaint about the trial judge’s

denial of his motion for a continuance by failing to comply with the requirements of Articles

29.03 and 29.08. In these circumstances, there is nothing to prohibit Articles 29.03 and 29.08

as operating as a rule of procedural default. So the question is whether the right to present

a complete defense trumps the application of this procedural default.

       17
            See Mendez, 138 S.W.3d at 342.
       18
           See e.g., Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003); Delrio
v. State, 840 S.W.2d 443, 445 (Tex. Crim. App. 1992); Gauldin v. State, 683 S.W.2d 411,
413 (Tex. Crim. App. 1984), overruled on other grounds, Guzman v. State, 959 S.W.2d
631, 634 (Tex. Cr. App. 1998); Mendoza v. State, 552 S.W.2d 444, 450 (Tex. Crim. App.
1977); Gibson v. State, 516 S.W.2d 406, 409 (Tex. Crim. App. 1974); Ex parte Bagley,
509 S.W.2d 332, 333-34 (Tex. Crim. App. 1974); Salas v. State, 486 S.W.2d 956, 957
(Tex. Crim. App. 1972); Valdez v. State, 472 S.W.2d 754, 756 (Tex. Crim. App. 1971).
                                                                            ANDERSON—8

       The court did not determine whether the constitutional right to present a defense is

subject to forfeiture according to Marin’s framework and the parties have not briefed this

issue. While we could vacate the court’s decision and remand this case for proceedings

consistent with this opinion,19 precedent clearly establishes that the right to present a

complete defense falls within Marin’s third category and is therefore subject to forfeiture.

A defendant’s constitutional right to a meaningful opportunity to present a complete defense

is rooted in the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s

Compulsory Process and Confrontation Clauses.20 Confrontation and compulsory process

rights are subject to procedural default.21 And, in Broxton v. State, we held that Broxton

forfeited his claim that he was denied the right to present a defense and the right to due

process and due course of law under the United States and Texas Constitutions because he

failed to lodge a proper objection at trial.22 As a result, we conclude that Anderson forfeited

his appellate challenge to the trial judge’s denial of his unsworn oral continuance motion by

failing to comply with procedural requirements of Articles 29.03 and 29.08.


       19
        See E.g., Saaverda v. State, No. PD-0198-08, slip op. at 13-14 (Tex. Crim. App.
2009); Montanez v. State, 195 S.W.3d 101, 111 (Tex. Crim. App. 2006).
       20
            Crane v. Kentucky, 476 U.S. 683, 690 (1986).
       21
         Taylor v. Illinois, 484 U.S. 400, 410 (U.S. 1988) (“the decision whether to
employ [the right to compulsory process] in a particular case rests solely with the
defendant.”); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding that
appellant forfeited appellate review of his Confrontation Clause claim by his failure to
properly object at trial).
       22
            909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
                                                                        ANDERSON—9

                                       Conclusion

       We hold that the court of appeals erred in concluding that there is a “due process”

exception to the preservation requirements governing continuance motions in Articles 29.03

and 29.08. Applying Marin’s framework, the right to present a defense is subject to

forfeiture. Therefore, by making an unsworn pretrial oral motion for a continuance,

Anderson failed to preserve his claim that the trial judge erred by denying his motion for

appellate review. We therefore reverse the court of appeals’s judgment and reinstate the

judgment of the trial court.




DATE DELIVERED: November 18, 2009
PUBLISH
