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).
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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
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