James Douglas Crowder v. State

• Court: Court of Appeals of Texas
• Decided: May 15, 2008
• Docket: 01-07-00986-CR
• Status: Published

Opinion

Opinion issued May 15, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00986-CR

JAMES DOUGLAS CROWDER, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1059456

MEMORANDUM OPINION

Appellant, James Douglas Crowder, pleaded guilty to the third-degree felony offense of assault-family violence ⁽¹⁾ and was placed on three years' deferred adjudication community supervision. The State later filed a motion to adjudicate guilt, alleging that appellant had violated the terms of his community supervision by intentionally and knowingly causing bodily injury to Helen Golstoff on April 26, 2007. Appellant pleaded "not true" to the allegations. The trial court conducted a hearing on the State's motion at which it found the allegations in the motion to be true, adjudicated appellant's guilt, and sentenced him to five years in prison.

In two points of error, appellant challenges the trial court's judgment by contending that the trial court abused its discretion when it denied his request for a continuance and by asserting that the trial court erred when it assessed appellant's punishment following the adjudication hearing without holding a separate punishment hearing.

We affirm.

Motion for Continuance

In his first point of error, appellant challenges the trial court's denial of his motion for continuance.

The trial court held the adjudication hearing on November 7, 2007. At the beginning of the hearing, appellant orally moved for a continuance. In support of his request, appellant explained that he had unsuccessfully attempted to serve a subpoena on a witness, Bob Hazel, the day before the hearing. Appellant stated that Hazel had witnessed the incident, which was the basis for the State's motion to adjudicate. Appellant requested a continuance "to track [Hazel] down." Appellant contended that Hazel was "very crucial to his defense."

The trial court asked how long the motion to adjudicate had been pending on the docket. The State informed the trial court that the motion to adjudicate was filed on May 2, 2007. The trial court then denied the oral motion for continuance and the hearing proceeded.

We review the trial court's denial of a motion for continuance for abuse of discretion. See Ross v. State, 133 S.W.3d 618, 629 (Tex. Crim. App. 2004). To preserve error, a motion for continuance must be sworn and in writing. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999). Because his motion for a continuance was not written and not sworn, appellant failed to preserve his complaint for our review. See id. at 756.

Moreover, the Code of Criminal Procedure requires a motion for continuance based on the absence of a witness to show that the moving party has exercised diligence to procure the witness's attendance. Tex. Code Crim. Proc. Ann. art. 29.06(2) (Vernon 2006). The requirement includes not only a need to demonstrate diligence in procuring the witness's presence, "but also diligence as reflected in the timeliness with which the motion for continuance was presented." Dewberry, 4 S.W.3d at 756. In Dewberry, the court held that the appellant had failed to meet the diligence requirement when he requested a continuance after the start of trial. Id.; see Kelly v. State, 471 S.W.2d 65, 66 (Tex. Crim. App. 1971) (holding that motion for continuance filed on day of trial failed to show required diligence).

Here, appellant failed to show the required diligence in procuring Hazel's attendance at the adjudication hearing. The oral motion for continuance was made on the day of the hearing. Appellant had over six months from the filing of the motion to adjudicate until the hearing to locate Hazel. It was within the trial court's discretion to have concluded that appellant did not meet the timeliness requirement. Even if we assume that appellant preserved his complaint, we hold that the trial court did not abuse its discretion by denying the motion for continuance.

We overrule appellant's first point of error.

Punishment Evidence

In his second point of error, appellant contends that "[t]he trial court erred in assessing punishment following the adjudication hearing without holding a separate punishment hearing."

When a trial court adjudicates an offense for which the defendant had received deferred adjudication, the court must afford the defendant an opportunity to present punishment evidence. See Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). Although a defendant is entitled to present punishment evidence, such right is a statutory one that can be waived. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001) (citing Issa, 826 S.W.2d at 161). To successfully complain on appeal that he was denied the opportunity to present punishment evidence, a defendant must first make an objection in the trial court or, if there was no opportunity to object, timely file a motion for new trial. See id.

Here, appellant neither objected in the trial nor filed a motion for new trial. Appellant acknowledges that he did not object to his inability to present punishment evidence at the time of sentencing, but contends that the trial court sentenced him immediately after adjudicating guilt, leaving no time for him to object. Even assuming that he was denied the opportunity to object, appellant was, nonetheless, required to file timely a motion for new trial to preserve his punishment complaint on appeal. See id. Because he did not file a motion for new trial, appellant has waived his right to complain on appeal that he was denied the right to present punishment evidence. See id.

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).

1.

See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp. 2007).