Opinion
Nos. 05-02-01798- CR 05-02-01799-CR
Opinion Filed October 29, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-58064-PU and F02-53024-LU.
Before Justices MOSELEY, RICHTER and FRANCIS.
MEMORANDUM OPINION
Jennifer Louise Smith appeals her state jail felony convictions for theft of property and possession of cocaine. See Tex. Pen. Code Ann. § 31.03(a), (e)(4)(D) (Vernon 2003); Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (b) (Vernon 2003). Appellant entered non-negotiated guilty pleas in each case and, following a consolidated hearing, the trial court assessed punishment in each case at two years confinement. In a single point of error, appellant contends the trial court erred in denying her oral motion for continuance, which she asserted prior to the adjudication of guilt and the presentation of the State's punishment evidence. Appellant sought the continuance in order to obtain additional evidence to attack two of the twelve prior convictions the State intended to introduce into evidence. In arguing the court erred in denying her a continuance, appellant recognizes the code of criminal procedure requires continuance motions be in writing and sworn. See Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 1989). Although her oral motion fails to comply with the statutory requirements, appellant maintains it was sufficient to "invoke the [court's] equitable powers" and is thus subject to review. Appellant cites three cases in support of this proposition: O'Rarden v. State, 777 S.W.2d 455 (Tex.App.-Dallas 1989, pet. ref'd), Deaton v. State, 948 S.W.2d 371 (Tex.App.-Beaumont 1997, no pet.), and Petrick v. State, 832 S.W.2d 767 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). In each of those cases, the appellate courts, including this Court, concluded oral motions amounting to a denial of due process were subject to review. See Deaton, 948 S.W.2d at 376-77 (denial of continuance resulted in appellant being unable to call expert witness); Petrick, 832 S.W.2d at 770-71 (denial of continuance resulted in appellant being unable to put on alibi defense); O'Rarden, 777 S.W.2d at 459-60 (denial of continuance resulted in appellant being unable to prepare defense after State disclosed previously suppressed exculpatory evidence). Although those cases have not been specifically overruled, the court of criminal appeals has repeatedly held that oral motions for continuance preserve nothing for review. See, e.g., Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995); Montoya v. State, 810 S.W.2d 160,176 (Tex.Crim.App. 1989). More significantly, since the date of the opinions relied upon by appellant, the court of criminal appeals has specifically refused to exercise its "equitable powers" to conclude oral motions are sufficient to preserve error. See Dewberry, 4 S.W.3d at 756 n. 22. In light of the court of criminal appeals' opinions, we decline to apply the cases relied upon by appellant to the case at hand. Because appellant's motion for continuance was neither sworn nor in writing, we conclude she has failed to preserve error. See id. at 755. We overrule appellant' sole point of error. We affirm the trial court's judgments.