Robert Louis McNeal v. State ( 2020 )

Affirmed and Memorandum Opinion filed August 13, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00440-CR
ROBERT LOUIS MCNEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 17-CR-2938
MEMORANDUM OPINION
In this appeal from a conviction for aggravated sexual assault of a child, we
consider two interrelated issues concerning the trial court’s denial of a motion for
continuance. For the reasons explained below, we overrule both issues and affirm
the trial court’s judgment.
BACKGROUND
On the morning of voir dire, a controversy arose as to whether the parties had
discovered all of the complainant’s medical records. The defense believed that the
complainant had visited a doctor several times after the alleged assault, and that
records of those visits had not been turned over. The prosecution doubted the
existence of some of the records, but made an effort to track them down. The
prosecution explained that it had contacted a hospital and was advised that the
complainant may have visited a doctor in another network once in November of
2016, once in March of 2017, and twice in June of 2017.
Because the assault allegedly occurred more than two years earlier, in
September of 2014, the trial court doubted that any records from these dates would
have been material. The trial court remarked that the parties were already in
possession of the records from the complainant’s medical visit in October of 2016,
which was the first after her delayed outcry. The trial court also seemed to believe
that any subsequent medical visits, assuming they occurred, were just general
wellness checks.
The prosecution said that it filed a subpoena for the remaining records, which
it intended to serve that same day. The trial court instructed that the subpoena be
sent immediately, and that the records be returned by the following morning, under
penalty of contempt.
At that point, the defense orally moved for a continuance, explaining that it
would need time to look over the records. The trial court denied that motion.
ANALYSIS
In his first of two issues, appellant argues that the trial court abused its
discretion by denying his motion for continuance. This issue fails on procedural
2
grounds: appellant’s motion was oral, when our rules require that a motion for
continuance must be written and sworn. See Tex. Code Crim. Proc. arts. 29.03,
29.08. Because his oral motion did not comply with the applicable rules, appellant
did not preserve this issue for appellate review. See Blackshear v. State, 385 S.W.3d
589, 591 (Tex. Crim. App. 2012) (holding that an unsworn oral motion for
continuance preserves nothing for appeal, citing Anderson v. State, 301 S.W.3d 276
(Tex. Crim. App. 2009)).
In his second issue, which is related to the first, appellant argues that we
should overrule cases like Blackshear and Anderson, where the Texas Court of
Criminal Appeals applied the rule of procedural default to an oral motion for
continuance. This issue also fails because we are just an intermediate court of
appeals and have no authority to overrule binding precedent from a higher court. See
Tex. Const. art. V, § 5(a) (providing that the Texas Court of Criminal Appeals has
final appellate jurisdiction in all criminal cases); Cervantes-Guervara v. State, 532
S.W.3d 827, 832 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“We are bound
to follow the decisions of the Texas Court of Criminal Appeals, and when, as here,
that court has deliberately and unequivocally interpreted the law in a criminal matter,
we must adhere to its interpretation.”).
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jewell, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
3