Date: 10-12-2016

Case Style:

Case Number: 05-16-00040-CR

Judge: David Evans

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

Amy Sue Melo Murphy
John R. Rolater

Defendant's Attorney:

Niles Illich

Description: Forrest Lee Pyle appeals his conviction, following adjudication of his guilt, for
aggravated robbery. In a single issue, appellant contends the trial court committed reversible
error by failing to grant his motion for continuance. We affirm the trial court’s judgment.
Appellant waived a jury and pleaded guilty to aggravated robbery with a deadly weapon,
a firearm. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). The trial court deferred
adjudicating guilt, placed appellant on seven years’ community supervision, and assessed a
$2,500 fine. Between February 2010 and December 2014, the State filed petitions for final
adjudication of guilt, but the trial court continued appellant on deferred community supervision.
In April, 2015, the State filed its third petition for final adjudication, and filed an amended
petition for final adjudication in September 2015, alleging appellant violated fifteen conditions
of community supervision.
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On December 9, 2015, the trial court held a hearing on the amended petition for final
adjudication. At the beginning of the hearing, appellant said he did not feel he had enough time
to consult with his attorney. Counsel stated he had discuss the amended petition to adjudicate
with appellant twice “at the county jail,” and that appellant wanted to plead true to the “finances”
and not true to the other allegations. Appellant complained that he wanted counsel to obtain
documents that showed he completed some programs. Counsel stated he did not attempt to
obtain the documents because appellant had said he had not completed the programs. The trial
court told appellant that because appellant had had eight months since the petition to adjudicate
was filed, three months since the amended petition was filed, and was on his third attorney, his
request for continuance was denied. After hearing testimony, the trial court found true
allegations eleven through fifteen and found not true allegations one through ten. The trial court
adjudicated appellant guilty of aggravated robbery with a deadly weapon and assessed
punishment at twenty-five years’ imprisonment.
Appellant contends the trial court committed reversible error when it failed to grant the
continuance he had requested. Appellant asserts he should have been granted at least one
additional day to prepare for the hearing because he was confused, he did not understand the
proceedings, and he was harmed by the trial court’s errors. The State responds that appellant has
not preserved this issue for appellate review and, alternatively, the trial court did not abuse its
discretion in denying appellant’s request for more time.
The code of criminal procedure provides for a continuance in a criminal action only upon
the filing of a written motion setting forth sufficient cause. TEX. CODE CRIM. PROC. ANN. art.
29.03 (West 2006). The motion must be sworn to “by a person having personal knowledge of
the facts relied on for the continuance.” Id. art. 29.08. A motion for continuance that is not in
writing and not sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755
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(Tex. Crim. App. 1999); see also Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App.
2012). Appellant’s motion for continuance was not sworn or in writing. Accordingly,
appellant failed to preserve this issue for appellate review. We overrule appellant’s sole
issue.

Outcome:

We affirm the trial court’s judgment adjudicating guilt.

Plaintiff's Experts:

Defendant's Experts:

Comments: Texas Department Of Criminal Justice Information System