Marcell Lakeist Williams v. State

• Court: Court of Appeals of Texas
• Decided: October 19, 2020
• Docket: 05-19-01022-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed October 19, 2020

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01022-CR

MARCELL LAKEIST WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F-1642251-U

MEMORANDUM OPINION

Before Justices Whitehill, Pedersen, III, and Reichek Opinion by Justice Whitehill

Appellant Marcell Lakeist Williams pled guilty to burglary of a habitation and

pled true to one enhancement paragraph. A jury found him guilty and assessed

punishment at seventy years in prison. On appeal, appellant raises one issue

complaining that the trial court erred by denying the oral continuance motion his

lawyer made on the first day of trial and renewed the next day. We overrule the

issue and affirm because error was not preserved. I. ANALYSIS

Appellant’s brief cites a sworn continuance motion he filed about four months

before trial began, but that motion didn’t preserve the error he asserts on appeal.

First, the record contains no express ruling on appellant’s sworn motion, and,

to the extent a ruling can be implied from the record, it appears the trial court granted

the motion. Specifically, appellant’s January 19, 2018 motion recited that (i) the

case was set for trial on January 29, 2018, and (ii) appellant’s lawyer needed a

continuance of unspecified duration to prepare for trial based on discovery she had

recently received and concerns about appellant’s mental health. The case wasn’t

tried until mid-May 2018.

Moreover, appellant’s appellate complaint wasn’t raised in his written motion.

Rather, on appeal he argues that the trial court erroneously denied an oral

continuance motion that his lawyer made off the record on the first day of trial during

a break in voir dire and then repeated on the record on the second day of trial.

Appellant’s lawyer explained that, during lunch on the first day of trial, she and the

State learned that a drop of blood found at the crime scene had been swabbed but

never tested. The trial judge denied appellant’s oral motion, noting that the blood’s

presence was indicated in the probable cause affidavit. Appellant’s appellate

argument repeats his oral continuance motion’s substance. Because his appellate

argument doesn’t comport with his written, sworn continuance motion, it wasn’t

preserved by that motion. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.

–2– 2012) (“The point of error on appeal must comport with the objection made at

trial.”).

Finally, under settled law, appellant’s unsworn oral continuance motion itself

did not preserve error. See Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim.

App. 2012) (“[A]n unsworn oral [continuance] motion preserves nothing for

appeal.”); see also TEX. CODE CRIM. PROC. art. 29.08 (all continuance motions must

be sworn).

II. CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

/Bill Whitehill/ BILL WHITEHILL JUSTICE

Do Not Publish Tex. R. App. P. 47.2(b) 191022F.U05

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

MARCELL LAKEIST WILLIAMS, On Appeal from the 291st Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-1642251-U. No. 05-19-01022-CR V. Opinion delivered by Justice Whitehill. Justices Pedersen, III and THE STATE OF TEXAS, Appellee Reichek participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered October 19, 2020.

–4–