Larry Franklin v. the State of Texas

Opinion

In the

Court of Appeals Second Appellate District of Texas at Fort Worth

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No. 02-25-00415-CR

No. 02-25-00416-CR

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LARRY FRANKLIN, Appellant V.

THE STATE OF TEXAS

On Appeal from the 211th District Court Denton County, Texas

Trial Court Nos. F23-2514-211, F23-2515-211

Before Kerr, Wallach, and Walker, JJ.

Memorandum Opinion by Justice Kerr

MEMORANDUM OPINION

Appellant Larry Franklin appeals the trial court’s orders revoking his community supervision and imposing the previously suspended ten-year concurrent sentences for the offenses of stalking and repeatedly violating a protective order. In a single issue, Franklin complains that the trial court’s denial of his oral continuance motion deprived him of due process and the right to effective assistance of counsel. We will affirm.

I. Background

In July 2023, the State charged Franklin with stalking and repeatedly violating a protective order concerning his ex-girlfriend. Franklin pleaded guilty to both offenses, and the trial court found him guilty, sentenced him to ten-year concurrent sentences, suspended those sentences, and placed him on community supervision for ten years.

Among the community supervision’s terms, the trial court ordered Franklin to report to the community-supervision department, immediately have an electronic-monitoring GPS device placed on him, remain in Texas unless given written permission to leave, immediately submit a DNA sample, and begin the “Batterer’s Intervention Program” within 30 days of the court’s order. When Franklin failed to do these things upon his release, the State moved to revoke his community supervision in each case and obtained arrest warrants.

He was eventually arrested in California and brought back to Texas. At his first court proceeding, the trial court found Franklin indigent and appointed him counsel.

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But that counsel moved to withdraw, citing Franklin’s desires, communication issues, and a conflict of interest. The trial court next appointed Joseph Zellmer as his counsel. According to a letter Franklin sent to the trial court, Zellmer visited him in jail and “made [him] aware of the detailed facts.”

The State later amended its revocation motions, including alleging that Franklin had contacted his ex-girlfriend, which violated a lifetime protective order and constituted a new criminal offense. Franklin moved to quash certain allegations in the amended revocation motions, including whether he had violated the protective order.

The trial court heard Franklin’s motions to quash—rejecting his request to quash the protective-order-revocation ground but quashing two allegations concerning supervision fees and community service—and then it considered the State’s amended revocation motions. Zellmer asked the trial court to explain Franklin’s Fifth Amendment rights to him, and it did. At first, Franklin stated that he understood the trial court’s explanation. But then Franklin expressed both confusion about what would happen if he waived his Fifth Amendment rights and concern that he would not know the questions that his attorney would ask him.

The trial court asked Zellmer whether it would help to have a five-minute recess. Zellmer stated, “It won’t, Judge.” The trial court then asked whether Zellmer had “already gone over it with him,” and Zellmer replied, “I’ve already gone over the allegations.” Franklin then asked to take the five-minute recess to have Zellmer “read what I have in regards to this new amendment.” He claimed that he had not “been

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able to talk about it.” The trial court attempted to again explain the Fifth Amendment privilege and asked Franklin if he understood.

Zellmer responded, asking to talk in chambers, and the trial court took a recess. 1 Upon returning, the trial court again attempted to explain the Fifth Amendment privilege; again Franklin stated that he had “no idea what questions [his counsel] would ask” him. At that point, Zellmer explained that he had met with Franklin multiple times, prepared questions to go over with Franklin, and tried to discuss them with Franklin. According to Zellmer, Franklin “would not respond to those” questions and had said that he “wished to invoke his Fifth Amendment right.” Zellmer kept preparing for the revocation hearing and revisited Franklin, but at their last meeting, Franklin “severely cursed” at him.

Zellmer confirmed that he was ready to proceed with the hearing, but Franklin did not, disputing Zellmer’s statements to the court. The trial court informed Franklin that his counsel had attempted to speak with him, witnesses were present, he had been advised of his Fifth Amendment rights, and the trial court was ready to proceed. At that point, Franklin orally asked “for a continuance or a reset to have counsel that I’m actually in agreement with in regards to this” and began detailing his conversations with Zellmer. After the trial court advised Franklin that he was disclosing and therefore waiving his privileged communications, Franklin said, “I get

1 It is unclear from the record who participated in any in-chambers conference.

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it, but I’m asking for a continuance because based on what he’s stating, I’m not prepared to answer any questions.” The trial court denied the oral continuance motion.

The State then presented its case. A Denton County probation officer testified that Franklin had signed documents showing that he was aware of his community-supervision conditions. Among other things, she testified that he had failed to comply with a number of conditions, including:

• He did not report to the Community Supervision and Corrections Department immediately after court or monthly thereafter and went to California without permission.

• He failed to pay his fine, court costs, and the amount he owed the Denton County Friends of the Family.

• He failed to complete a drug and alcohol evaluation within 60 days of release.

• He failed to submit a DNA sample.

• He failed to participate in and complete a Batterer’s Intervention Program or a domestic-violence-impact panel.

• He failed to have a GPS monitor placed on his person.

The State also called two other witnesses: (1) the executive program director of legal services at Denton County Friends of the Family and (2) Franklin’s ex-girlfriend, who testified about his violating the no-contact term with her, which also constituted a new criminal offense. His ex-girlfriend first testified to Franklin’s prior violence against her and the reason that she had a lifetime protective order. She then testified about the “thousands” of text messages that he had sent her after his placement on

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community supervision, and the trial court admitted into evidence copies of those text messages. Among the “scary things” Franklin had texted her, he called her “demonic,” was “very threatening,” and said “that he ha[d] to pray every day to not kill” her. The State also introduced other evidence of Franklin’s improper contacts, including a video he had sent her.

After the State rested, Franklin called his father to testify about his son’s upbringing and character and to explain how he had begun having problems after a close family member’s death. Franklin took the stand but said he was not willing to waive his Fifth Amendment rights without knowing the exact questions he would be asked. After considering the evidence, the trial court found several allegations in the State’s revocation motions to be true, signed judgments revoking Franklin’s community supervision in both cases, and ordered him confined for ten years.

II. Discussion

In a single issue, Franklin complains that the trial court’s denial of his oral continuance motion “deprived him of due process and the right to effective assistance of counsel.” He asserts that he “was unable to effectively communicate with counsel,” to “understand his rights before the hearing,” or to prepare for the hearing. He claims that he was “placed in a catch-22 of having to choose [whether to] testify[] without any advance[] knowledge of his counsel’s questions” or the State’s cross-examination topics. He seeks a new revocation hearing, but we conclude that he is not entitled to this relief.

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A. Standard of review and applicable law Article 29.13 of the Texas Code of Criminal Procedure governs continuance requests during trial:

A continuance or postponement may be granted on the motion of the State or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.

Tex. Code Crim. Proc. art. 29.13. “The granting or denying of a motion for continuance is within the sound discretion of the trial court.” Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006) (citing Heiselbetz v. State, 906 S.W.2d 500, 511–12 (Tex. Crim. App. 1995)).

To show an abuse of discretion, a defendant must demonstrate (1) that the trial court erred, and (2) that his defense was actually and specifically prejudiced. Rivera v. State, 708 S.W.3d 732, 737 (Tex. App.—San Antonio 2024, pet. ref’d) (quoting Kinnett v. State, 623 S.W.3d 876, 906 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (internal quotations omitted)). A defendant must show “with specificity that the trial court’s ruling resulted in actual prejudice to his defense.” Milem v. State, No. 02-24-00201-CR, 2025 WL 1536399, at *2–3 (Tex. App.—Fort Worth May 29, 2025, pet. ref’d) (mem. op., not designated for publication) (citing Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)).

To preserve such a claim, the defendant must timely file a sworn, written motion that sufficiently advises the trial court of the defendant’s request and the

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grounds for it. Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012); Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009); see also Tex. Code Crim. Proc. arts. 29.03, 29.08. In other words, the trial court’s denial of an unsworn oral continuance motion preserves nothing for appellate review. See Blackshear, 385 S.W.3d at 591; Venancio v. State, No. 02-21-00147-CR, 2022 WL 17687436, at *5 (Tex. App.— Fort Worth Dec. 15, 2022, no pet.) (mem. op., not designated for publication); Robinson v. State, 310 S.W.3d 574, 578–79 (Tex. App.—Fort Worth 2010, no pet.). B. Preservation Here, Franklin—on his own—orally requested a “continuance or reset” during the revocation hearing. Because he did not file a sworn, written motion, he forfeited any review of the trial court’s denial of his oral continuance request. See Blackshear, 385 S.W.3d at 591; Anderson, 301 S.W.3d at 279.

Franklin insists that he did preserve error on his denied-continuance complaint because of the embedded complaint that his trial counsel was ineffective. But he cites no authority suggesting that an ineffective-assistance exception exists to the written-and-sworn requirement, see Blackshear, 385 S.W.3d at 591 (holding that no “due[-]process exception” exists), and we are not persuaded that such an exception exists, id. (“Ultimately, an unsworn oral motion preserves nothing for appeal.”). C. Prejudice Even were such an exception available to Franklin, he failed to carry his burden of showing that the trial court abused its discretion by denying his oral continuance

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motion based on his ineffective-assistance claim. To establish ineffective assistance, an appellant must establish two prongs: (1) that his counsel’s representation was deficient2 and (2) that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). So Franklin was required to show prejudice under both the continuance standard, see Janecka, 937 S.W.2d at 468; Milem, 2025 WL 1536399, at *2–3, and the ineffective-assistance standard, see Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Nava, 415 S.W.3d at 307, and he failed to do so.

Franklin did not present any evidence that more information from counsel, more time to prepare, another opportunity to go over potential questions, or even a new attorney would have changed his decision not to testify or the outcome of the hearing. See Casarez v. State, No. 11-24-00302-CR, 2025 WL 2076874, at *3–4 (Tex. App.—Eastland July 24, 2025, no pet.) (mem. op., not designated for publication); see also Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976) (“[A]n accused may not

2 Defense counsel should ordinarily be given an opportunity to explain his actions before being condemned as incompetent, but we need not even reach the deficiency prong in light of our holding on the prejudice prong. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); see Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.”); Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (concluding that a reviewing court need not consider both prongs of the Strickland test and can dispose of an ineffectiveness claim if the defendant fails to demonstrate sufficient prejudice).

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wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he may retain other counsel.”); Dukes v. State, 486 S.W.3d 170, 182 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“[A] claim that trial counsel deprived the defendant of his right to testify must be supported by evidence in the record that the defendant would have testified, and of what the defendant would have said.”). Because Franklin presented no evidence to support what he would have testified about or that had he testified, the outcome would have been different— particularly in light of the State’s evidence of the myriad texts he had sent his ex-girlfriend after he had again been ordered not to contact her—he failed to carry his burden of showing any prejudice from the trial court’s denial of his oral continuance request. See Thompson v. State, No. 02-18-00230-CR, 2019 WL 1065925, at *7 (Tex. App.—Fort Worth Mar. 7, 2019, pet. ref’d) (mem. op., not designated for publication).

III. Conclusion

Having overruled Franklin’s sole issue, we affirm the trial court’s judgments revoking community supervision.

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/s/ Elizabeth Kerr

Elizabeth Kerr

Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: August 13, 2026