Jeremy Jermaine Jones v. State ( 2018 )

NO. 12-17-00041-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JEREMY JERMAINE JONES, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Jeremy Jermaine Jones appeals his conviction for manufacture/delivery of a controlled
substance, enhanced. In a single issue, Appellant challenges the denial of his motion for
continuance. We affirm.
BACKGROUND
On April 2, 2016, Appellant was the front seat passenger in a vehicle located at the Pit
Grill in Anderson County. Sergeant Matthew Kerr of the Palestine Police Department had been
dispatched to the Pit Grill parking lot after police received an anonymous call from a person who
suspected a drug dealer to be selling illegal drugs in the parking lot. Upon arriving at the parking
lot, Kerr observed the suspect walking away from the vehicle in which Appellant was a
passenger. After speaking with the suspect, Kerr approached Appellant. Appellant admitted that
he was the front seat passenger in the vehicle and allowed Kerr to search his person. Kerr did
not find any contraband on Appellant’s person. Nor did the vehicle’s owner consent to a search
of the vehicle.
Kerr dispatched his dog, Blue, to conduct an open-air search of the vehicle. Blue alerted
on both the driver’s side door and the passenger side door seam. Kerr and Corporal Ricky
Baker, also with the Palestine Police Department, then searched the vehicle. The officers
recovered a white bag on the passenger floorboard. The bag contained a pair of socks, mail
addressed to Appellant, a glass pipe commonly used for smoking methamphetamine, a substance
the officers believed to be methamphetamine, and a digital scale. During the course of the
search, the officers also found small bags commonly used to package narcotics for distribution.
According to a field test conducted by Kerr, the substance found in the white bag inside the
vehicle tested positive for methamphetamine. The Texas Department of Public Safety Crime Lab
later confirmed the substance to be methamphetamine. Appellant was arrested following the
search.
Appellant subsequently requested a court-appointed attorney, and the court granted the
request. In August 2016, Appellant was charged by indictment with manufacture or delivery of a
controlled substance in an amount of one gram or more but less than four grams. The case was
set to begin trial in January 2017.
On Monday, January 9, 2017, the case was called for jury selection. At an in-chambers
discussion, Appellant’s appointed attorney informed the court that Appellant refused to
communicate with him and had attempted to hire new counsel the previous Friday. Although
Appellant claimed to have only seen his trial counsel once, counsel stated that he visited the jail
several times and Appellant refused to cooperate. Appellant’s purported new attorney also
appeared before the trial court and explained that his firm had not yet been retained, although
Appellant’s family had provided funds for representation. The record indicates that the trial
court construed the in-chambers discussion as an oral motion for continuance to allow
Appellant’s new attorney time to review the case before trial. The trial court overruled the oral
motion for continuance.
Appellant subsequently pleaded “not guilty” to manufacture/delivery of a controlled
substance. After hearing all of the evidence, however, the jury found Appellant “guilty.”
Following a hearing on punishment and Appellant’s pleading “true” to an enhancement
allegation, the jury assessed punishment at imprisonment for forty years. This appeal followed.
MOTION FOR CONTINUANCE
In his sole issue, Appellant argues the trial court abused its discretion when it denied his
motion for continuance. He contends that the denial prevented him from proceeding to trial with
his attorney of choice.
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The Texas Legislature set forth the requirements for a motion for continuance in Articles
29.03 and 29.08 of the Texas Code of Criminal Procedure. Anderson v. State, 301 S.W.3d 276,
278–79 (Tex. Crim. App. 2009). Article 29.03 states that “[a] criminal action may be continued
on the written motion of the State or of the defendant, upon sufficient cause shown; which cause
shall be fully set forth in the motion.” TEX. CODE CRIM. PROC. ANN. art. 29.03 (West
2006); Anderson, 301 S.W.3d at 279. Article 29.08 provides that “[a]ll motions for continuance
must be sworn to by a person having personal knowledge of the facts relied on for the
continuance.” TEX. CODE CRIM. PROC. ANN. art. 29.08 (West 2006); Anderson, 301 S.W.3d at
279.
The court of criminal appeals has construed these statutes to require a sworn written
motion to preserve appellate review from a trial court’s denial of a motion for continuance.
See Anderson, 301 S.W.3d at 279. Thus, if a party makes an unsworn oral motion for a
continuance and the trial court denies it, the party forfeits the right to complain about the trial
court’s ruling on appeal. See id. (the appellant’s right to meaningful opportunity to present
complete defense was forfeited by failure to comply with procedural requirements of Articles
29.03 and 29.08); Dudley v. State, No. 12-11-00046-CR, 2012 WL 690069, at *2 (Tex. App.—
Tyler Feb. 29, 2012, no pet.) (mem. op., not designated for publication).
In the case at hand, there is no record of a motion for continuance in compliance with
Articles 29.03 and 29.08. As a result, we conclude that Appellant forfeited his appellate
challenge to the trial court’s denial of his unsworn oral request for continuance. See Dudley,
2012 WL 690069, at *2.
However, even if Appellant had preserved this issue, 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). To establish reversible error on the denial of a pretrial motion
for continuance, Appellant must show that the trial court erred in denying his motion
for continuance and that, as a result, he suffered actual harm. Gonzalez v. State, 304 S.W.3d
838, 843 (Tex. Crim. App. 2010).
On appeal, Appellant argues only that the denial of his motion for continuance prevented
him from being represented by his counsel of choice and that the new counsel may have called
witnesses that his appointed trial counsel did not. However, Appellant has not identified for this
court who the potential witnesses might be, what evidence they would have presented, or how
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that evidence or testimony would have affected the outcome of his trial. See Renteria, 206
S.W.3d at 702; see also Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995) (bare
assertion that counsel did not have adequate time to interview the State’s potential witnesses
does not alone establish prejudice); Prince v. State, No. 01–13–00269–CR, 2015 WL 5025902,
at *5 (Tex. App.–Houston [1st Dist.] Aug. 25, 2015, no pet) (mem. op., not designated for
publication) (appellant did not demonstrate harm when he argued he needed a continuance to
further review recorded telephone conversations for impeachment purposes, but did not identify
nature of the impeachment evidence). The law requires more than speculation to justify an
appellate reversal of a case for a trial court’s failure to grant a continuance. Renteria, 206
S.W.3d at 702. Accordingly, Appellant has not established with considerable specificity any
harm resulting from the trial court’s denial of his motion for continuance. See Humaran v.
State, 478 S.W.3d 887, 902 (Tex. App.–Houston [14th Dist.] 2015, pet ref’d); see also Gonzalez,
304 S.W.3d at 842. Thus, even had Appellant preserved his complaint for our review, his failure
to carry the burden of showing actual harm obviates any need to determine whether the trial
court erred in denying the motion for continuance. See Gonzalez, 304 S.W.3d at 843; see
also Renteria, 206 S.W.3d at 702; Humaran, 478 S.W.3d at 902; Johnson v. State, No. 12-16-
00218-CR, 2017 WL 3225071, at *5 (Tex. App.—Tyler July 31, 2017, pet. ref’d) (mem. op., not
designated for publication); TEX. R. APP. P. 47.2. Under these circumstances, Appellant’s sole
issue is overruled.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 7, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 7, 2018
NO. 12-17-00041-CR
JEREMY JERMAINE JONES,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 87CR-16-32899)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.