            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-02-00324-CR


                                      Darrell Lynn Edison, Appellant

                                                       v.

                                       The State of Texas, Appellee


      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
           NO. 9024079, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                                MEMORANDUM OPINION


                 Appellant Darrell Lynn Edison appeals his conviction for retaliation against a public servant.

See Tex. Pen. Code Ann. ' 36.06(a)(1)(A) (West 2003).1 The jury assessed appellant=s punishment,

enhanced by a prior felony conviction, at imprisonment for six years. Appellant asserts that the trial court

erred in failing to grant a continuance, in failing to suppress his retaliatory statement, and in failing to allow

the jury to determine the lawfulness of his arrest. We will affirm the judgment.




        1
            (a) A person commits an offense if he intentionally or knowingly harms or threatens to
                harm another by an unlawful act:

                (1) in retaliation for or on account of the service or status of another as
                    a:

                     (A) public servant, . . . .

Tex. Pen. Code Ann. ' 36.06(a)(1)(A) (West 2003).
                 Appellant was charged with Aintentionally and knowingly threaten[ing] to harm, in person,

another, to-wit: Constable Lucy Neyens, by an unlawful act, to-wit: stating that he will shoot said constable

with a gun, in retaliation for and on account of the service of the said Constable Lucy Neyens a public

servant.@ Deputy Constable Lucy Neyens was a public servant. See Tex. Pen. Code Ann. ' 1.07(4)

(West 2003). Officer Neyens, accompanied by three other officers, arrested appellant by authority of a

capias issued on grounds that appellant was in contempt of court for his failure to make child support

payments as ordered by a district court judge. After his arrest, and while being transported to jail, appellant

threatened Officer Neyens. Neyens testified, A[h]e said, >I have got something for you. You had better stay

on guard 24/7. I am going to shoot you b _ _ _ h. It is open season on cops, mother f _ _ _ _ r. Public

servant records are on Public Data. I will get your f _ _ _ _ _ g ass. Fifty millimeter can get you from 500

yards. You gonna put your hands up when I pull my gun? You wait. I am about to show you what I am

talking about. You just f _ _ _ _ d yourself b _ _ _ h.=@

                 In his first point of error, appellant complains that Athe trial court erred in failing to grant a

continuance or a recess sufficient to obtain exculpatory or impeachment evidence.@ Appellant recognizes

that he has a problem because his motion that the trial court denied was an unsworn oral motion.2

Nevertheless, appellant argues that he is entitled to Areview on >equitable= rather than statutory grounds.@


        2
          A criminal action may be continued on the written motion of the defendant for sufficient
cause fully set forth in the motion. See Tex. Code Crim. Proc. Ann. art. 29.03 (West 1989). All
motions for continuance must be sworn to by a person having personal knowledge of the facts relied
upon for the continuance. See id. art. 29.08. A defendant=s motion for a continuance on the account
of an absent witness must comply with the requirements of the Code of Criminal Procedure. See id.
art. 29.06. An oral motion for continuance presents nothing for review. See Dewberry v. State, 4
S.W.3d 735, 755 (Tex. Crim. App. 1999); O=Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App.
1981); see also Dixon v. State, 64 S.W.3d 469, 472 (Tex. App.CAmarillo 2001, no pet.).

                                                        2
He cites Darty v. State, 193 S.W.2d 195, 195 (Tex. Crim. App. 1946); Munoz v. State, 24 S.W.3d

427, 431 (Tex. App.CCorpus Christi 2000, pet. ref=d); White v. State, 982 S.W.2d 642, 647 (Tex.

App.CTexarkana 1998, pet. ref=d); Deaton v. State, 948 S.W.2d 371, 374 (Tex. App.CBeaumont 1997,

no pet.).

                 However, in view of the record, appellant has another serious problem; he failed to file and

present a motion for new trial, which is necessary to preserve for appellate review the matter about which

he complains. The only means of preserving error in the overruling of a motion for continuance due to the

absence of a witness is by a motion for new trial. Taylor v. State, 612 S.W.2d 566, 569 (Tex. Crim. App.

1981); Lathan v. State, 20 S.W.3d 63, 65 (Tex. App.CTexarkana 2000, no pet.); Hackleman v. State,

919 S.W.2d 440, 452 (Tex. App.CAustin 1996, pet. ref=d, untimely filed). It is not necessary to pass upon

the court=s overruling of a motion for continuance unless a motion for new trial is presented alleging facts to

support the error claimed. See Varela v. State, 561 S.W.2d 186, 191 (Tex. Crim. App. 1978); see also

Spencer v. State, 503 S.W.2d 246, 247 (Tex. Crim. App. 1974); Fields v. State, 495 S.W.2d 926, 927

(Tex. Crim. App. 1973). The motion for new trial should allege that the witness would actually testify to the

facts alleged in the motion for new trial. See Varela, 561 S.W.2d at 191. The affidavit of the witness must

be attached to the motion for new trial. Id. A motion for new trial and attached affidavit are not self

proving. Taylor, 612 S.W.2d at 570. The motion and affidavit or the testimony of the witness must be

offered in evidence on the hearing of the motion for new trial. Id. Because the error claimed by appellant

was not properly preserved for appellate review, we overrule appellant=s first point of error.




                                                      3
                 In his second point of error, appellant urges that Athe trial court erred in failing to suppress

appellant=s statements because they came after an illegal arrest.@ When appellant threatened Officer

Neyens, Neyens made a contemporaneous memorandum of the words appellant used. When this written

memorandum was offered in evidence, defense counsel affirmatively stated, ANo Objection.@ After the

memorandum was admitted in evidence, without objection, Officer Neyens read the memorandum to the

jury. Although appellant filed a motion to suppress his threatening statement, he did not obtain the court=s

ruling on the motion until after both the State and the defense had rested. Because there was not a timely

objection to the admission of appellant=s statement, appellant waived the error he now asserts on appeal.

See Tex. R. App. P. 33.1. Nothing is presented for review. Appellant=s second point of error is overruled.




                 In his third point of error, appellant insists that the trial court erred in failing to allow the jury

to determine whether his arrest was lawful. He argues that pursuant to the provisions of the code of criminal

procedure, he was entitled to have the issue submitted to the jury. See Tex. Code Crim. Proc. Ann. art.

38.23 (West Supp. 2003).3 Because appellant failed to object to the admission of his retaliatory statement


        3
            Art. 38.23. Evidence not to be used

            (a) No evidence obtained by an officer or other person in violation of any
                provisions of the Constitution or laws of the State of Texas, or of the
                Constitution or laws of the United States of America, shall be admitted in
                evidence against the accused on the trial of any criminal case.

                In any case where the legal evidence raises an issue hereunder, the jury shall
                be instructed that if it believes, or has a reasonable doubt, that the evidence
                was obtained in violation of the provisions of this Article, then and in such
                event, the jury shall disregard any such evidence so obtained.


                                                         4
on grounds that he was unlawfully arrested, the question of his arrest became moot; no factual issues were

presented for resolution by the jury. Moreover, appellant's retaliatory statement made after his arrest

constituted a separate offense to the offense for which he was arrested. Even if appellant were unlawfully

arrested, the resulting taint was sufficiently attenuated by the new and separate offense of retaliation; the

retaliatory statement was admissible. See Matienza v. State, 699 S.W.2d 626, 628 (Tex. App.CDallas

1985, pet. ref=d) (unlawful stop of defendant purged by intervening offense when defendant fired gun at

officer); see also Holmes v. State, 962 S.W.2d 663, 668-69 (Tex. App.CWaco 1998, pet. ref=d,untimely

filed); State v. Mitchell, 848 S.W.2d 894, 896 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d); Reed

v. State, 809 S.W.2d 940, 946 (Tex. App.CDallas 1991, no pet.). Appellant=s third point of error is

overruled.

                The judgment is affirmed.




                                                  __________________________________________

                                                  Carl E. F. Dally, Justice

Before Chief Justice Law, Justices Kidd and Dally*

Affirmed


           (b) It is an exception to the provisions of Subsection (a) of this Article that the
               evidence was obtained by a law enforcement officer acting in objective good
               faith reliance upon a warrant issued by a neutral magistrate based on probable
               cause.

Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 2003).

                                                     5
Filed: April 24, 2003

Do Not Publish


*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.
    Gov=t Code Ann. ' 74.003(b) (West 1998).




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