AFFIRMED; Opinion Filed February 6, 2017.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01348-CR
DAREN STEVENSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F14-21775-U
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Evans
Daren Stevenson was charged with possession with intent to deliver methamphetamine in
an amount of four grams or more but less than 200 grams enhanced with two prior felony
convictions. The indictment also alleged the use of a firearm during the commission of the
offense. A jury found appellant guilty of the offense as charged and assessed punishment at 28
years’ imprisonment. In three issues, appellant contends the appeal should be abated for the
opportunity to file an out-of-time motion for new trial because he was denied the effective
assistance of counsel; the trial court erred in denying appellant’s motion for continuance; and
trial counsel was ineffective because he filed a defective motion for continuance. We affirm the
trial court’s judgment.
BACKGROUND
In light of the nature of the issues presented, a detailed recitation of the facts is not
necessary to our disposition of this appeal. The facts relevant to the disposition of this appeal are
as follows:
In April 2014, the narcotics division of the Farmers Branch Police Department received
information from a confidential informant that appellant and his common-law wife, Brittany
Bailey, were selling methamphetamine, cocaine, and prescription drugs from room 118 at the
Garden Inn and Suites located in Dallas, Texas. Surveillance of the room was conducted, and
after the information was confirmed through the execution of a controlled buy by the confidential
informant, a no-knock search warrant was obtained for the room. The warrant also provided for
the arrest of appellant and Bailey. The warrant was executed on April 3, 2014. Shortly before
the warrant was executed, Appellant left the hotel in a blue Cadillac; he was followed, and after
stopping for a red light, was arrested on a separate arrest warrant. Bailey was arrested in the
hotel room during the execution of warrant.
On April 8, 2014, appellant was arraigned on charges of possession with intent to deliver
methamphetamine and unlawful possession of a firearm by a felon. On that same day, attorney
Kobby Warren was appointed to represent appellant. On September 16, 2014, appellant’s trial
attorney, Calvin Johnson, notified the trial court that he had been retained to represent appellant.
On September 23, 2015, a little over a year after Johnson was retained to represent appellant, the
case was called to trial. Before voir dire began, Johnson urged a motion for continuance which
he had filed that morning. The written motion stated that counsel needed more time to prepare
because he had been in trial the week before. It also stated that counsel needed to have a witness
who was currently incarcerated bench warranted to appear on behalf of appellant. During the
hearing on the motion, Johnson told the trial court judge that the witness he wanted to bench
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warrant was Bailey and that Bailey was essential to appellant’s case because “it could provide
reasonable doubt, in terms of who sold and possessed the particular drugs, as well as who
possessed the particular weapon in question, in terms of the drug case.” The judge denied the
motion for continuance, stating:
[A]s of today, Mr. Stevenson has been in Lew Sterrett jail
over 543 days. There has been over 62 passes on this case.
Initially, this was set for a status hearing back on September 10th,
at that time it was set for trial and we are now at September 23rd
and the Court has given sufficient time for any preparation that
needs to have happened on this case.
And so based on that, I am going to deny your request for a
continuance at this time. . . .
On September 25th, a jury found appellant guilty and assessed punishment at 28 years’
imprisonment; appellant was sentenced and judgment was entered. On September 28th, Johnson
filed a motion for new trial alleging that the verdict was contrary to the law and evidence. On
that same date, appellant filed a pro se notice of appeal and requested a court appointed attorney
to represent him on appeal. On September 29th, the court appointed Dianne Jones-McVay to
represent appellant in his appeal. On October 8, Jones-McVay filed a Designation of Record on
Appeal and a request for the reporter’s record. The motion for new trial filed by Johnson was
overruled by operation of law on December 9, 2015. On March 4, 2016, appellant’s current
appellate counsel, Sharita Blacknall, was appointed in substitution of Jones-McVay.
ANALYSIS
A. Assistance of Counsel During the Period for Filing a Motion For New Trial
Appellant contends that he was denied the effective assistance of counsel during the
period for filing a motion for new trial. Although appellant acknowledges that his trial counsel
timely filed a motion for new trial and that appellate counsel was appointed on that same day to
represent him in the appeal, appellant claims that counsel he did not receive reasonably effective
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assistance of counsel because an evidentiary hearing on the motion for new trial was never set
thereby allowing the motion to be overruled by operation of law. Appellant contends that a
hearing on a motion for new trial is the only opportunity counsel had to present the trial court
with specific evidence showing how he was harmed by the trial court’s denial of his motion for
continuance and to develop a record to demonstrate ineffective assistance of counsel during trial.
The State argues that appellant’s claim must fail because there is nothing in the record to rebut
the presumption that appellant was effectively represented during the thirty-day period for filing
a motion for new trial. The State further argues that appellant can show neither deficient
performance nor prejudice by appellate counsel’s failure to obtain a hearing on the motion. We
agree with the State.
The time period for filing a motion for new trial is a critical stage of a criminal
proceeding during which a defendant is constitutionally entitled to effective assistance of
counsel. See Cooks v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007). However, where, as
here, appellant is represented by counsel, there is a presumption that counsel was acting
effectively at all times. Id. at 911; Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App.
1998). Even when a defendant can rebut this presumption with evidence that he was deprived of
adequate counsel during this critical stage, this deprivation of counsel is subject to a harmless
error or prejudice analysis. Cooks, 240 S.W.3d at 911. To establish harm, appellant must
present a “facially plausible claim” that he could have developed in a motion for new trial. Id. at
911–12.
In this case, three days after appellant was sentenced, appellant’s trial counsel filed a
motion for new trial alleging that the verdict was contrary to the law and the evidence. See TEX.
R. APP. P. 21.4(a). The next day, appellant filed a pro se notice of appeal and appellate counsel
was appointed to represent him in the appeal. As the State points out in its brief, a defendant is
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not entitled to a hearing on a motion for new trial unless the motion and accompanying affidavits
raise matters which are not determinable from the record and establish reasonable grounds
showing that the defendant could potentially be entitled to relief. See Hobbs v. State, 298
S.W.3d 193, 199 (Tex. Crim. App. 2009). Based upon the allegations contained in the motion
filed by trial counsel in this case, appellant was not entitled to a hearing on his motion for new
trial. Nevertheless, when appellate counsel was appointed, there were still 26 days left in which
an amended motion for new trial could be filed establishing grounds showing that appellant was
entitled to relief. See TEX. R. APP. P. 21.4(b). No such amended motion was filed, nor does
appellant claim that counsel was ineffective for failing to file an amended motion for new trial.
Further, there is nothing in the record to suggest that appellant’s appellate counsel did not discuss
the merits of an amended motion for new trial with the appellant, which the appellant rejected.
See Oldham, 977 S.W.2d at 363 (when a motion for new trial is not filed in a case, the rebuttable
presumption is that it was considered by the appellant and rejected).
To the extent appellant’s issue can be read to include an assertion that appellate counsel
was ineffective for failing to file an amended motion for new trial, appellant was not harmed by
being unable to raise his claim regarding the trial court’s denial of his motion for continuance or
alleged ineffective assistance of counsel claim in his motion for new trial because these are not
“facially plausible claims.” See Cooks, 240 S.W.3d at 911–12. Appellant’s brief sets forth
nothing more than the law pertaining to the necessity of developing a record in a hearing on a
motion for new trial which shows how the defendant was harmed by a trial court’s denial of a
motion for continuance. In order to show reversible error predicated on the denial a pretrial
motion for continuance, a defendant must demonstrate both that the trial court erred in denying
the motion and that the lack of a continuance harmed him. See Gonzales v. State, 304 S.W.3d
838, 843 (Tex. Crim. App. 2010). Appellant’s brief makes no attempt to do either. The brief
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does not say what testimony the missing witness would have provided or why that testimony was
material. Further, as is explained below, we have determined that appellant’s claim that the trial
court abused its discretion in denying the motion for continuance has not been properly
preserved for review. Therefore, appellant has failed to demonstrate that the trial court erred in
denying the motion.
Likewise, his assertion that a motion for new trial hearing is also the “proper time to
develop a record to demonstrate ineffective assistance of counsel during trial” does not establish
any facially plausible claim of ineffectiveness of trial counsel because it fails to set forth any acts
or omissions of trial counsel that constitute deficient performance and or how counsel’s
performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687–88
(1984).
Appellant’s brief contains nothing more than bare allegations. Appellant fails to identify
what evidence he would have sought to develop, or argue how such evidence would have
benefited his appeal. As in Oldham, the Court will presume appellant was effectively
represented by his appellate counsel during the period for filing a motion for new trial. We
overrule appellant’s first issue.
B. Motion for Continuance
In appellant’s second issue he contends that the trial court abused its discretion in
denying the motion for continuance. The continuance sought by appellant is governed by
Articles 29.06 and 29.08 of the Texas Code of Criminal Procedure. Article 29.06 requires a first
motion for continuance on the account of the absence of a witness to state: (1) the name of the
witness and his residence, whether known or unknown; (2) the diligence which has been used to
procure his attendance; (3) the facts which are expected to be proved by the witness; (4) the
witness is not absent by consent of the defendant; (4) the motion is not made for delay; and (5)
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there is no reasonable expectation that attendance of the witness can be secured during the
present term of court. TEX. CODE CRIM. PROC. ANN. art. 29.06 (West 2006). Article 29.08
requires that the motion “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).
Appellant’s motion fails to meet the requirements of both articles 29.06 and 29.08. 1
While the “Verification” page signed by appellant’s counsel contained a place for a notary’s
signature and seal, only the notary’s seal appears on the document, the notary’s signature line
was left blank. Thus, the motion for continuance was not properly sworn. A defendant making
an unsworn motion for a continuance fails to preserve his claim for appellate review. See
Anderson v. State, 301 S.W.3d 276 (Tex. Crim. App. 2009); Am. Commc’ns Telecomm., Inc. v.
Commerce N. Bank, 660 S.W.2d 570, 571 (Tex. App.—San Antonio 1983, no writ) (affidavit of
inability to pay costs was defective because notary public who administered the oath to the
affiant neglected to sign the affidavit); see also Glover v. State, No. 14-03-00763-CR, 2004 WL
1192822 at *4 (Tex. App.—Houston [14th Dist.] June 1, 2004, pet. struck) (mem. op., not
designated for publication) (appellant’s motions for continuance were not properly sworn to
when verifications signed by appellant’s counsel were not notarized); Hardwick v. Hardwick,
No. 02-15-00325-CV, 2016 WL 5442772 (Tex. App.—Ft. Worth September 29, 2016, no pet.)
(mem. op.) (motion for continuance was not verified or supported by affidavit when space for the
notary on “Verification” page was left blank).
Further, a motion for continuance based on the absence of a witness must state “the
diligence which has been used to procure [a witness’s] attendance”. This has been interpreted to
mean not only diligence in procuring the presence of the witness, but also diligence as reflected
1
In appellant’s third issue on appeal claiming that trial counsel rendered ineffective assistance of counsel by
filing a defective motion for continuance, Appellant concedes that the motion fails to meet the requirements of
articles 29.06 and 29.08.
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in the timeliness with which the motion for continuance was presented. Dewberry v. State, 4
S.W.3d 735, 756 (Tex. Crim. App. 1999). A motion for continuance based on the absence of
witnesses which is filed on the day the trial is set to commence does not show the diligence
required to support the motion. Id. (citing Varela v. State, 561 S.W.2d 186, 190 (Tex. Crim.
App. 1978) and Kelly v. State, 471 S.W.2d 65, 66 (Tex. Crim. App. 1971)); see also Gipson v.
State, Nos. 05-01-00770-CR, 0-01-00771-CR, 05-01-00772-CR, 05-01-00773-CR, 2003 WL
21053918 (Tex. App.—Dallas May 12, 2003, no pet.) (mem. op., not designated for publication).
Appellant argues that the trial court’s denial of his motion for continuance rendered trial
counsel ineffective thereby violating appellant’s due process rights under the Fourteenth
Amendment of the United States Constitution. This argument was rejected by the Court of
Criminal Appeals in Anderson when the Court concluded that the right to present a defense is
subject to forfeiture. Anderson, 301 S.W.3d at 280.
We conclude that appellant’s failure to comply with the procedural requirements of
Articles 29.06 and 29.08 preserved nothing for our review. We overrule appellant’s second
issue.
C. Ineffective Assistance of Counsel
In appellant’s third issue, he contends that trial counsel was ineffective because he filed a
defective motion for continuance. The State argues that appellant cannot show how the defective
motion prejudiced his defense because the denial of the motion for continuance was not based on
the deficiencies in the motion. We agree with the State.
To prove a claim of ineffective assistance of counsel, appellant must show that (1) his
trial counsel’s performance fell below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 687–88; Lopez v. State, 343 S.W.3d 137, 142
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(Tex. Crim. App. 2011). Appellant has the burden to establish both prongs by a preponderance
of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An
appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to consider
the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also
Strickland, 466 U.S. at 697.
The record indicates that the trial court held a hearing on appellant’s motion and allowed
appellant to argue the merits of his motion. No objection was made by the State to the trial
court’s consideration of the motion or the arguments made by counsel. After hearing counsel’s
argument, the trial court denied the motion, stating:
[A]s of today, Mr. Stevenson has been in Lew Sterrett jail
over 543 days. There has been over 62 passes on this case.
Initially, this was set for a status hearing back on September 10th,
at that time it was set for trial and we are now at September 23rd
and the Court has given sufficient time for any preparation that
needs to have happened on this case.
And so based on that, I am going to deny your request for a
continuance at this time. . . .
Based on these comments, we conclude that the trial court considered appellant’s motion
and denied it on the merits. Nothing in the record indicates that appellant’s motion was denied
because it failed to meet the requirements of the statute governing motions for continuance. We
overrule appellant’s third issue.
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CONCLUSION
We affirm the trial court’s judgment.
/David W. Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
151348F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAREN STEVENSON, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-15-01348-CR V. Trial Court Cause No. F14-21775-U.
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Lang and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 6th day of February, 2017.
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