Unreported / Non-Citable
Background
David Andrew Martinez was indicted for theft of between $30,000 and $150,000 in United States currency. He pleaded guilty, and the trial court deferred a finding of guilt and placed him on community supervision. The State later moved to adjudicate, alleging that Martinez had violated several conditions of supervision.
At the adjudication hearing, Martinez announced through appointed counsel that he was not ready and wanted a postponement so he could retain another attorney. Martinez testified that he was dissatisfied with appointed counsel, had received the State’s motion about four months earlier, and had not heard from counsel until the day before the hearing. The trial court denied the request, after noting that Martinez had been served months earlier and that counsel had been appointed about a month earlier. Martinez pleaded true to the alleged violations, and the court adjudicated him guilty of second-degree felony theft and sentenced him to 18 years’ confinement.
The Court’s Holding
The Seventh Court of Appeals held that Martinez failed to preserve his challenge to the denial of a continuance. Under Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure, a criminal continuance must be requested through a written motion that is sworn to by a person with personal knowledge of the supporting facts.
Martinez’s request was oral, and no one swore to the supporting facts. Because it satisfied neither statutory requirement, the court concluded that his complaint—including his Sixth Amendment argument—was forfeited and could not be reviewed on appeal. The court overruled his sole issue and affirmed the trial court’s judgment.
Key Takeaways
- A criminal defendant seeking a continuance in Texas must submit a written and sworn motion to preserve a challenge to its denial.
- An oral, unsworn request does not preserve error, even when the appellate complaint is framed in constitutional terms.
- Because Martinez failed to comply with the statutory requirements, the appellate court did not reach the merits of his counsel-of-choice or abuse-of-discretion arguments.
Why It Matters
The decision underscores that the required form of a continuance motion can determine whether an appellate court may consider the substance of the request. Defense counsel must comply with both the writing and verification requirements, particularly when a continuance is sought to obtain different counsel.
It also confirms that labeling a continuance dispute as a Sixth Amendment violation does not excuse noncompliance with Texas preservation requirements.