IN THE
TENTH COURT OF APPEALS
No. 10-19-00432-CR
RODRICK EUGENE HARRIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2017-63-C2
MEMORANDUM OPINION
On September 23, 2020, this Court issued a memorandum opinion affirming
appellant Rodrick Eugene Harris’s convictions for one count of aggravated sexual assault
of a child and two counts of indecency with a child by contact. See generally Harris v. State,
No. 10-19-00432-CR, 2020 Tex. App. LEXIS 7730 (Tex. App.—Waco Sept. 23, 2020, no pet.
h.) (mem. op., not designated for publication). On October 7, 2020, Harris filed a motion
for rehearing, and we requested a response to that motion. After reviewing the motion
for rehearing and response thereto, we grant the motion for rehearing. We withdraw our
memorandum opinion and judgment issued on September 23, 2020, and substitute the
following in their place.
In five issues, Harris challenges his convictions for one count of aggravated sexual
assault of a child and two counts of indecency with a child. See TEX. PENAL CODE ANN.
§§ 21.11, 22.021. We affirm as modified.
I. HARRIS’S WRITTEN AND ORAL MOTIONS FOR CONTINUANCE
In his first and second issues, Harris complains that the trial court abused its
discretion by denying his written and oral motions for continuance. We disagree.
A. Applicable Law
The denial of a motion for continuance is within the sound discretion of the trial
court, and we review a trial court’s denial of a motion for continuance for an abuse of
discretion. See Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006); see also
Gutierrez v. State, 446 S.W.3d 36, 38 (Tex. App.—Waco 2014, pet. ref’d). “[G]reat deference
must be shown to trial courts, because of the scheduling problems they face.” United
States v. Cronic, 466 U.S. 648, 662 n.31, 104 S. Ct. 2039, 2048 n.31, 80 L. Ed. 2d 657 (1984);
see Cates v. State, 72 S.W.3d 681, 692 (Tex. App.—Tyler 2001, no pet.). An appellant
claiming the erroneous denial of a motion for continuance must show: (1) the trial court
erred by denying the motion for continuance; and (2) such denial harmed him in some
tangible way. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
Harris v. State Page 2
B. Harris’s Written Motions for Continuance
The Clerk’s Record contains two written motions for continuance filed by Harris—
one seeking additional time to secure testimony from a missing witness—Willy Lopez—
and the second complaining about the purported withholding of evidence. In the first
motion for continuance, Harris sought additional time to procure the testimony of Lopez,
who was allegedly the first law-enforcement officer that responded to the complaint.
Regarding the motion for continuance seeking additional time to procure testimony from
Lopez, Harris concedes that this motion, though written, is not sworn to by a person
having personal knowledge of the fact relied on for the continuance. Motions for
continuance in criminal proceedings must be in writing and set forth sufficient cause for
the continuance. See TEX. CODE CRIM. PROC. ANN. art. 29.03. Moreover, “[a]ll motions for
continuance must be sworn to by a person having personal knowledge of the facts relied
on for the continuance.” Id. art. 29.08. Furthermore, a motion for continuance that is not
sworn preserves nothing for appellate review. See Anderson v. State, 301 S.W.3d 276, 279
(Tex. Crim. App. 2009). Because Harris’s motion for continuance seeking additional time
to procure testimony from Lopez was not sworn, we conclude that Harris did not
preserve error with regard to that motion.
The second, written motion for continuance filed by Harris complained about the
purported withholding of evidence. In this pro se motion, Harris references evidence
from “phone dump’s [sic]” and argues that he should have had this information in his
Harris v. State Page 3
possession sooner.1 However, in this motion, Harris acknowledges that his appointed
private investigator, Edward McElyea, had the information on February 19, 2019, almost
seven months prior to trial. Additionally, Harris concedes that his standby counsel had
the records and provided him with copies of the calls and texts seventeen days before
trial. Standby counsel also provided redacted photographs and videos from the cell
phones fourteen days before trial. The record also indicates that David Parkinson, an
investigator with the McLennan County District Attorney’s Office, went to the jail at least
three times and allowed Harris as much time as he wanted to review the phone dump.
Parkinson explained that the information from the phone dump contained pornography
and was on a thumb drive, both of which are considered contraband in jail and, thus,
could not be given to Harris personally. Regarding the information contained in the
thumb drive, Parkinson recalled that Harris was never specific as to what he was looking
for; rather, Harris merely scrolled through the information. Parkinson further testified
that he told Harris that there were no time constraints and that he would stay as long as
necessary. Harris admitted that he was dumbfounded and that he did not know what he
was looking for on the phone.
At the hearing on this motion for continuance, the trial court noted that standby
counsel had been given the phone dump in February and asked what could be given to
1 The record reflects that Harris represented himself most of the trial with the assistance of standby
counsel.
Harris v. State Page 4
Harris. At this hearing, Harris made generalized statements about trying to “piece the
beginning puzzles together.” Harris then informed the trial court that he needed
information from a cell phone in the possession of his ex-girlfriend, but conceded that he
had not yet subpoenaed this information.
In any event, the record demonstrates that Harris was given ample access to the
phone dump and that he was provided printouts, videos, and photographs. Based on
our review, we cannot say that the record shows with sufficient specificity that Harris
was harmed in some tangible way by the trial court’s denial of his motion for continuance
based on the phone dump. See Gonzales, 304 S.W.3d at 843; Heiselbetz, 906 S.W.2d at 511-
12 (noting that, to show that the trial court abused its discretion by refusing to grant a
motion for continuance, the movant must have established “specific prejudice to his cause
arising from the trial court’s failure to continue the trial”); see also Johnson v. State, No. 10-
11-00256-CR, 2012 Tex. App. LEXIS 4400, at *9 (Tex. App.—Waco May 30, 2012, pet. ref’d)
(mem. op., not designated for publication) (“Ordinarily, a defendant develops the
evidence showing how he was harmed by the trial court’s denial of a requested
continuance during a hearing on a motion for new trial.” (citing Gonzales, 304 S.W.3d at
842-43)).2
2 In his motion for new trial, Harris confined his argument to the following: that he “is entitled to
a new trial because the judgment is contrary to the law and the evidence.” There was no hearing on the
motion for new trial, and the motion was ultimately overruled by operation of law. See TEX. R. APP. P.
21.8(a), (c).
Harris v. State Page 5
C. Harris’s Oral Motion for Continuance
In addition to the foregoing, Harris complains about the trial court’s denial of his
oral motion for continuance. In this oral motion, Harris sought additional time to find a
cell phone in the possession of his ex-girlfriend that allegedly contained fifty text
messages from the complainant about the allegations in this case.
As stated above, the Code of Criminal Procedure provides that “a criminal action
may be continued on the written [and sworn] motion of the State or of the defendant,
upon sufficient cause shown . . . .” TEX. CODE CRIM. PROC ANN. arts. 29.03, 29.08. The
Court of Criminal Appeals has interpreted this to mean that “‘if a party makes an
unsworn oral motion for continuance and the trial judge denies it, the party forfeits the
right to complain about the judge’s ruling on appeal.’” Blackshear v. State, 385 S.W.3d 589,
591 (Tex. Crim. App. 2012) (quoting Anderson, 301 S.W.3d at 279). “Ultimately, an
unsworn oral motion [for continuance] preserves nothing for appeal.” Blackshear, 385
S.W.3d at 591.
Accordingly, because Harris’s motion for continuance complaining about the cell
phone in the possession of his ex-girlfriend was neither written nor sworn, he has not
preserved this complaint for appellate review. See TEX. CODE CRIM. PROC. ANN. arts.
29.03, 29.08; see also Blackshear, 385 S.W.3d at 591; Anderson, 301 S.W.3d at 279. And
because we have rejected Harris’s complaints as to both his written and oral motions for
continuance, we overrule Harris’s first and second issues.
Harris v. State Page 6
II. THE JURY CHARGE
In his third issue, Harris asserts that the jury charge failed to provide a meaningful
limiting instruction regarding the use of extraneous-offense evidence. In other words,
Harris argues that the instruction given in the jury charge was too broad and should have
been restricted in scope.3
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly
preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved
at trial by a proper objection, as was the case here, a reversal will be granted only if the
error presents egregious harm. Id.
Texas Rule of Evidence 105(a) provides that “[w]hen evidence which is admissible
as to one party or for one purpose but not admissible as to another party or for another
3 The trial court gave a Rule 404(b) instruction in the charge, which provided as follows:
You are instructed that if there is any testimony before you in this case regarding the
Defendant having committed any offenses, if any, other than the offenses alleged against
him in the indictment in this case, you cannot consider said testimony for any purpose,
unless you find and believe beyond a reasonable doubt that the Defendant committed such
other offenses, if any, were committed, and even then you may only consider the same in
determining proof of motive, opportunity, intent, preparation, plan or knowledge, if any,
in connection with the offenses, if any, alleged against him in the indictment in this case,
and for no other purpose.
Harris v. State Page 7
purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope
and instruct the jury accordingly.” TEX. R. EVID. 105(a). When extraneous-offense
evidence is admitted, the trial court should, upon request, instruct the jury that the
evidence is limited to whatever specific purpose the proponent advocated. See TEX. R.
EVID. 404(b); Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996); see also Thibodeaux
v. State, Nos. 10-13-00466-CR, 10-13-00467-CR, & 10-14-00005-CR, 2015 Tex. App. LEXIS
7933, at *6 (Tex. App.—Waco July 30, 2015, no pet.) (mem. op., not designated for
publication). Moreover, when no limiting instruction is given, the jury considers the
evidence for all purposes, and no instruction is needed in the charge. See Hammock v.
State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001); see also Thibodeaux, 2015 Tex. App. LEXIS
7933, at **6-7. Therefore, it is the scope of the limiting instruction given, or not given, at
the time the evidence is introduced that defines for what the jury can consider the
evidence. See Hammock, 46 S.W.3d at 895; see also Thibodeaux, 2015 Tex. App. LEXIS 7933,
at *7.
In the instant case, the State sought to introduce evidence about Harris’s gang
affiliation; an alleged plot to kill the child victim, H.B.; Harris’s criminal history; and
Harris’s disciplinary record in the Texas Department of Criminal Justice. When the State
sought to introduce this evidence through H.B., Detective Chris Eaton of the Waco Police
Department, inmate witness Jason McCoy, and Harris himself, Harris did not request a
limiting instruction. Therefore, because Harris did not request a limiting instruction at
Harris v. State Page 8
the time the complained-of evidence was introduced, the evidence could be considered
for all purposes by the jury, and no instruction was needed in the charge. See Hammock,
46 S.W.3d at 895; see also Thibodeaux, 2015 Tex. App. LEXIS 7933, at *8. Accordingly, we
conclude that the trial court did not err in failing to give a more restrictive jury-charge
instruction. See Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (noting that
the trial court does not have a sua sponte duty to instruct the jury on all potential
defensive or evidentiary issues and is not bound to give instructions that the party did
not request); Hammock, 46 S.W.3d at 895; see also Beaty v. State, No. 05-17-00287-CR, 2018
Tex. App. LEXIS 6600, at **28-29 (Tex. App.—Dallas Aug. 21, 2018, no pet.) (concluding
that the trial court did not err by failing to give a more restrictive Rule 404(b) instruction
in the charge when the limiting instruction given in the charge was the same limiting
instruction given to the jury when the evidence was admitted); Thibodeaux, 2015 Tex. App.
LEXIS 7933, at *8. And given this conclusion, we need not conduct a harm analysis under
Almanza. See Hutch, 922 S.W.2d at 170; see also Middleton, 125 S.W.3d at 453-54; Almanza,
686 S.W.2d at 171. We overrule Harris’s third issue.
III. THE IMPOSITION OF CONSECUTIVE SENTENCES
In his fourth issue, Harris argues that the trial court’s decision to order his
sentences to run consecutively without providing a reason for doing so constituted cruel
and unusual punishment in violation of the Eighth Amendment of the United States
Constitution.
Harris v. State Page 9
A complaint that punishment is cruel and unusual must be preserved for review.
See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (en banc). Constitutional
rights, including the right to be free from cruel and unusual punishment, may be waived
by failure to object. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. Crim. App. 2003). To
avoid procedural default on appeal on a punishment issue, a defendant must complain
of the sentence by objection during trial or, if there was no opportunity to object, in a
motion for new trial. See TEX. R. APP. P. 33.1(a)(1); see also Hardeman v. State, 1 S.W.3d 689,
690 (Tex. Crim. App. 1999); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). The
requirement that an objection be raised in the trial court assumes that the defendant had
the opportunity to raise it there. See Hardeman, 1 S.W.3d at 690.
In the instant case, Harris was asked if there was any legal reason why he should
not be sentenced in accordance with the jury’s verdict. Harris responded, “All the legal
reasons that will be stated in my appeal.” The trial court noted that Harris did not specify
a legal reason barring sentencing and proceeded to consider the State’s request to
cumulate Harris’s sentences based on his crimes, past and present, his gang affiliations,
and future dangerousness. Harris did not object to the cumulation of his sentences in
open court, nor did he file a motion for new trial raising the argument alleged in this
issue. Accordingly, we conclude that Harris has failed to preserve error in this issue by
failing to object at his earliest opportunity. See TEX. R. APP. P. 33.1(a)(1); Castaneda, 135
Harris v. State Page 10
S.W.3d at 723; Hardeman, 1 S.W.3d at 690; Curry, 910 S.W.2d at 497; Issa, 826 S.W.2d at 161.
We overrule Harris’s fourth issue.
IV. THE TIME-PAYMENT FEE
In his fifth issue, Harris contends that the court cost imposed for a time-payment
fee under section 133.103(b) and (d) of the Local Government Code is unconstitutional.
See TEX. LOCAL GOV’T CODE ANN. § 133.103(b), (d). As such, Harris requests that we
modify the judgments by deleting $22.50 of the court costs assessed.
In the instant case, there were three judgments—one corresponding with Harris’s
conviction for aggravated sexual assault of a child and two corresponding with Harris’s
convictions for two counts of indecency with a child by contact. The cost bill was
generated the same day as the judgments on September 12, 2019. However, each of the
judgments state “SEE BELOW” with regard to court costs imposed and also include the
following language corresponding with the heading, “Restitution Payable to”: “(See
special finding or order of restitution finding or order of restitution which is incorporated
herein by this reference.).” Nevertheless, included in the bill of costs is the time-payment
fee in the amount of $25.
Regarding the constitutionality of section 133.103(b) and (d) of the Local
Government Code, this Court has previously held that these provisions are facially
unconstitutional because the collected funds are sent into the general-revenue fund and
are not sufficiently related to the criminal-justice system or a legitimate criminal-justice
Harris v. State Page 11
purpose. See Simmons v. State, 590 S.W.3d 702, 710-13 (Tex. App.—Waco 2019, pet. filed)
(holding that section 133.103(b) and (d) of the Local Government Code are facially
unconstitutional because the collected funds are sent into the general-revenue fund and
are not sufficiently related to the criminal-justice system or a legitimate criminal-justice
purpose (citations omitted)). As such, we sustain Harris’s fifth issue.
V. CONCLUSION
Because we have sustained Harris’s fifth issue and concluded that ninety percent
of the time-payment fee, as prescribed in section 133.103(b) and (d) of the Local
Government Code, is facially unconstitutional, we modify the trial court’s judgments to
change the time-payment fee from $25 to $2.50. See TEX. CODE CRIM. PROC. ANN. art.
102.073 (providing that, in a single criminal action in which a defendant is convicted of
two or more offenses or of multiple counts of the same offense, the court may assess court
costs or fees only once against the defendant); Hurlburt v. State, 506 S.W.3d 199, 203 (Tex.
App.—Waco 2016, no pet.) (“Thus, we presume that the Legislature, in using the phrase,
‘in a single criminal action’ in article 102.073(a), meant the phrase to be interpreted as
‘allegations and evidence of more than one offense . . . [which] are presented in a single
trial or plea proceeding,’ as stated in Pharr.”). We affirm the trial court’s judgments as
modified.
JOHN E. NEILL
Justice
Harris v. State Page 12
Before Chief Justice Gray
Justice Davis, and
Justice Neill
Affirmed as modified
Opinion delivered and filed December 30, 2020
Do not publish
[CRPM]
Harris v. State Page 13