Henry Dylan Davidson v. State

• Court: Court of Appeals of Texas
• Decided: April 16, 2021
• Docket: 05-20-00181-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed April 16, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00181-CR

HENRY DYLAN DAVIDSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1770957-V

MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Smith Opinion by Justice Smith A jury convicted appellant Henry Dylan Davidson of aggravated sexual

assault and sentenced him to life in prison. In a single issue, he argues the trial court

abused its discretion by denying his oral motion for continuance requesting extra

time to obtain an expert. He also asks the Court to correct a clerical error in the

judgment regarding the deadly weapon finding. As modified, we affirm the trial

court’s judgment. Denial of Oral Motion for Continuance

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

denying his oral motion for continuance requesting extra time to obtain an expert

who could testify regarding his post traumatic brain injuries.1 The State responds he

failed to preserve his issue for review. We agree with the State.

Appellant has a long history of mental illness and has suffered several past

brain injuries. Appellant alleged one such incident, a rollover automobile accident

in 2006, caused a brain bleed resulting in lasting brain damage.

Prior to voir dire, defense counsel presented an oral motion for continuance

indicating appellant needed a neurologist “so that I can properly and adequately

defend my client in this matter.” The State argued the case had been set for trial for

some time, and defense counsel had known about the head injury since 2015 when

she began representing appellant. The State further argued it received no notice of

a continuance, and there was no written notice on file. The trial court denied the

continuance.

The Texas Code of Criminal Procedure provides that “[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.” TEX. CODE CRIM.

1 Because appellant has not challenged the sufficiency of the evidence regarding the aggravated sexual assault conviction, we need not include the background facts to resolve the issue on appeal. See TEX. R. APP. P. 47.1. –2– PROC. ANN. art. 29.03; see Anderson v. State, 301 S.W.3d 276, 278–79 (Tex. Crim.

App. 2009), declined to follow on other grounds, Grado v. State, 445 S.W.3d 736,

741 (Tex. Crim. App. 2014). Article 29.08 further provides that “[a]ll motions for

continuance must be sworn to by a person having personal knowledge of the facts

relied on for the continuance.” TEX. CODE CRIM. PROC. ANN. art. 29.08; see

Anderson, 301 S.W.3d at 279.

In Anderson, the Texas Court of Criminal Appeals explained, “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.” 301 S.W.3d at

279; see also Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012)

(refusing to recognize a “due process exception” requirement that motion for

continuance be written and sworn). Ultimately, an unsworn, oral motion preserves

nothing for review. Blackshear, 385 S.W.3d at 591; see also Nix v. State, No. 05-

12-00095-CR, 2014 WL 3828207, at *7 (Tex. App.—Dallas Aug. 5, 2014, pet. ref’d)

(mem. op., not designated for publication).

Here, appellant made an unsworn oral motion for continuance, which the trial

court denied. Because appellant did not file a sworn motion as required by the code

of criminal procedure, he has forfeited his right to complain about the trial court’s

ruling. Appellant’s first issue is overruled.

–3– Modification of Judgment

In his second issue, appellant requests the Court modify the judgment to

indicate the deadly weapon used was a knife, not a firearm. The State agrees

modification is appropriate.

We have the power to modify the trial court’s judgment when we have the

necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–

30 (Tex. App.—Dallas 1991, pet. ref’d).

The judgment states, “Findings on Deadly Weapon: YES, NOT A

FIREARM.” While the statement is technically correct because appellant used a

deadly weapon that was not a firearm, we modify the deadly weapon finding to

“YES, A KNIFE” to accurately identify the deadly weapon appellant used during

the aggravated sexual assault.

Under the special findings or orders section, the judgment inaccurately states

that “DEFENDANT USED OR EXHIBITED A KNIFE, NAMELY A FIREARM.”

We modify the special findings or orders section of the judgment to reflect that

“DEFENDANT USED OR EXHIBITED A DEADLY WEAPON, NAMELY A

KNIFE.” We sustain appellant’s second issue.

–4– CONCLUSION

As modified, we affirm the trial court’s judgment.

/Craig Smith/ CRAIG SMITH JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 200181F.U05

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

HENRY DYLAN DAVIDSON, On Appeal from the 292nd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-1770957-V. No. 05-20-00181-CR V. Opinion delivered by Justice Smith. Justices Molberg and Goldstein THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

“Findings on Deadly Weapon: YES, NOT A FIREARM” is DELETED and REPLACED with “Findings on Deadly Weapon: YES, A KNIFE.”

“DEFENDANT USED OR EXHIBITED A KNIFE, NAMELY A FIREARM” under the special findings or orders section is DELETED and REPLACED with “DEFENDANT USED OR EXHIBITED A DEADLY WEAPON, NAMELY A KNIFE.”

As REFORMED, the judgment of the trial court is AFFIRMED.

Judgment entered April 16, 2021

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