Roy Chester Brown, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: February 17, 2011
• Docket: 06-10-00073-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________

No. 06-10-00073-CR ______________________________

ROY CHESTER BROWN, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th Judicial District Court Hopkins County, Texas Trial Court No. 0921248

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION

Roy Chester Brown, Jr., was convicted of burglary of a habitation and was sentenced to

thirty years’ incarceration. On appeal, he argues that his conviction should be reversed and

remanded since he “was not present during his trial on the merits due to injuries he had received.”

We will affirm the trial court’s judgment.

Even though the issue is not clearly stated as such, we interpret Brown’s argument to allege

that the trial court erred in failing to grant a continuance.1 The evidence shows that Brown was

present for the commencement of the trial when the jury was selected, but failed to appear for the

trial one week later. The trial court overruled an oral motion for continuance, and the case was

tried to the jury.

When a defendant voluntarily absents himself or herself after pleading to the indictment or

after the jury has been selected, the trial may proceed to its conclusion. TEX. CODE CRIM. PROC.

ANN. art. 33.03 (Vernon 2006). After a warrant was issued for Brown’s arrest, he was present for

the sentencing hearing.

Brown’s only argument is that he was unable to attend the trial due to injuries. He equates

that situation to a defense in a bail jumping trial and urges that he had a reasonable excuse for

failing to appear. It is a defense to the charge of bail jumping that the defendant had a reasonable

excuse for his or her failure to appear. TEX. PENAL CODE ANN. 38.10(c) (Vernon 2003). Since

this is not a bail jumping case, that statutory defense is not available. Further, there is no evidence 1 The State has failed to file a brief, even though we granted the State’s motion for an extension.

2 of Brown’s injuries. Finally, a motion for continuance must be written showing sufficient cause;

the trial court’s denial of an unsworn, unwritten motion for continuance presents nothing for

appellate review. Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999).

We affirm the judgment of the trial court.

Jack Carter Justice

Date Submitted: February 16, 2011 Date Decided: February 17, 2011

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