## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00093

- CR

DEMARIUS DEJUAN TAYLOR , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 20F0475

- 202

Before Morriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION

A Bowie County jury convicted Demarius Dejuan Taylor of murder , 1 sentenced him to life in prison , and fined him $10,000.00

. On appeal, Tayl or claims that the trial court erred in denying
his motion for a continuance that was filed around two weeks before the trial was scheduled to begin

. Because we find that the trial court did not abuse its discretion in denying Taylor’s
motion for continua nce , we affirm the trial court’s judgment.
I. Background
On the afternoon of March 31, 2020, Taylor’s sister , Bosnia , was in a fist fight with another young woman
. A s the fight was winding down, a ma n punched Bosnia in the face.
Bosnia reported this to Tay lor. L ater that night , two vehi cles with a bout ten people went to the home of the murder victim, Notoryous Crabtree. Another fight broke out among perhaps twenty or more people. Near the end of th e second fight, Bosnia s aw Taylor shoot a pistol in the
d irectio n of the crowd. Crabtree ’ s uncle saw Taylor shoot Crabtree

. It was generally agreed among the parties that a young man named Edmon da e Fields 2 was in the vehicle that transported Taylor to the sc ene of the second fight and ultimate killing.
A few d ays aft er the shoo ting, Tay l o r was arrested and charged with the murder of
Crabtree. The trial court set the case for trial on May 25, 2021.

1 See T E X

. P E NAL C ODE A NN

. § 19.02(b).

2 We use the spellin g of Fields’s name from the motion for continuan ce.3

II. The Trial Court Denied Taylor ’ s Motion for Continuance On May 12, 2021 , Taylor filed a motion for conti nuance, whi ch claimed that two days prior, for the first tim e , Taylor told his attorney about another person , Fields, who Taylor
claimed was the shooter

. A hearing on the motion was held on May 17 , 2021. 3 At the hearing , Taylor presented testimony from hi s mothe r , A shley G ulle y , who testified

t o the foll o w ing:

• She received a phone call from Fields

— in A ugust or S eptember 2020

— and he said he was “sorry ” ; 4

• That phone call lasted twenty

- three seconds;

• Fields and her son “both have little facial hairs grow i ng righ t h ere ” and wore their hair in dre ad s ; and

• S he received Facebook messages from Fields around that time. According to Gulley, Fields wrote her on Facebook and asked for contact information for Taylor’s attorney. As proof that the communications t o ok plac e, t wo s creen shots of Gul ley’s phon e show i n g Facebook messages were produced as exhibits at the hearing. A third screen shot
that showed Fields’ s profile page was also introduced as an exhibit

. Gulley verified that Fields ’ s

name on Facebook was Stanka V ell i

. Y et, t he profile photo of Vell i was v ery blurred. It
appear ed to show a “ b lack mal e [ ’s ] ” face , but the image wa s barely sufficient to suggest that
much.

3 There is a discrepancy in the reporter’s record. The titl e p age of the volume transcribing the motion for continuance hearing says it reflects a pro ceed i ng on May 10

— two days before the motion was fil ed. The reporter’s mas t er index volume, though, shows the hearing on a continuance was held on May 17. This compo rt s with a comment from the trial court during th e hearing, that the cas e was “currently set f or ju ry selection next Tuesday, May the 25th.”

4 Gulley testified th a t Fields told her, “ Ms. Ashley , I’m sorry” and “I’m just sorry, Ms. Ashley; I’m just sorry.”4

The two messages sho w ed a text conversation between Fields and Gulley that start ed on Augus t 1 3 , 2 020, at 1:35 p.m. First, F i elds sa id t ha t he would call Gulley later for the address to Taylor’s attorney’s office. The next entry show ed a missed call from Fields to Gulley on August 20 at 3:16 p.m. , and then a note from Gul l ey sa ying that she ca lle d hi m back and for him
to call her w h en he w a s ready

. About an hour and a half later , Fields wrote back and ask ed for the attorney’s phone number. Gulley repl ied with the name and phone number of Taylor’s trial attorney . Fields a sk ed who was te stifyi n g on Taylor’s behalf

. Gulley respon ded , “No on e.” Shortly after the messages and other exhibits were offered and admitted, Taylor’s attorney told the trial court that he had not been contacted by Fields. In her testimony , Gulle y said that Fiel ds liv e d with his mother in Ashdown, Arkans as. 5
Gul le y had known F ields since he was a boy; Fields was Taylor’s age. Taylor’s counsel posed the following to Gulley : “Now, you know that I have hired here in the l ast few days a private
inv e stigator, a man named Ro nnie Sharp to try and find [Fields], c orrec t ? ” Gu lley agreed. Counsel next asked, “I’ve shared with you today that he did today go to see the mama in Ashdown, Arkansas, who indicated that she do es not know where he is and cannot f ind him,

correc t?” G ull ey again agreed. There wa s also testi mony th at Fi elds was on parole in Arkansas.
On cross

- examination , the State pointed out that the offense report stated that F ields was
in the vehic le with Taylor

. Gulley conceded that Fields n ever told her t hat he wa s the shooter

. When asked whe r e she wa s getting her information that Fields was the shooter, Gulley

5 As h down , Arkansas , is approximately 19.5 miles no rth of Texarkana , which straddles t he s t ate l ine between Texas and Arkansas.5

responded , “From other people

. . . . I guess people he done talked to.” Yet, t he only person Gulley identified was Fields’ s forme r girlfriend, a woman nam ed Mya Draper.
L ater , un der q ue stioni ng from Taylor’s counsel, Gulley said that Draper had sent Gulley
a messag e that “ [ Edmon da e ] Fields rather shoot someone tha n fight someone.” Pressed on the matter, Gulley twice more stated t h a t Fi elds never told h e r he was the shooter ; she just b el ieved
“th at he [knew] something .” After hearing Gulley ’ s testimony, t he trial court denied the motion for continuance

. III. T h e T rial Court Proper ly Denied the Motion for Continuance Because i t Was Ins u fficient
“The trial cou rt’s ruling on a motion for continuance is reviewed for abuse of its
discretion. ” Janecka v. State , 937 S.W.2d 456 , 468 (Tex. Crim. App

. 1996) (per curiam)

. “ To
establ is h an abuse o f discretion, the re must be a showing that the d e fendant was actually
pre judiced by the denial of his motion. ” Id. ; s ee also T EX

. C ODE C RIM

. P ROC

. A NN

. art. 29.06. Because Taylor’s motion was prompted by what he asserted was an abse nt witnes s, h e
was requ ired to make cert ain particular showings to the t rial cour t.
When the de fendant ’ s motion for continuance is based on an absent witness, it is necessary to show (1) that the defendant has exercised diligence t o procure the witness ’ s attendanc e, ( 2) that th e witness is not absent by the procurement or co n sent of the defense, (3) that the motion is not made for delay, and (4) the facts expected to be proved by th e witness. It must appear to the trial court that t he facts are material. Mere con cl us ions and g eneral averments are not sufficient for the cour t to determine their m ate riality, and the motion for continuance must show on its face the materiality of th e absent testimony.6

H arrison v. State , 187 S.W.3d 42 9 , 434 (Tex. Crim. App. 2005) ( fo ot no tes omitte d ) (citations
omi tted )

. Between his motion and t he evidence adduced a t t he hearing, Taylor’s motion fell
short of those requirements on several fronts.
A. Diligence N ot S hown
Acc ord ing to his motion, Taylor’s att o rney learned that Fields was a p otential witne ss on May 10, 2021 , in a conversation with T a ylor. Counsel elicit ed affirmative answers from Taylor’s mother that counsel had retained a private invest igator who went to the hom e of
Fields’ s mother , and the m o ther did not know Fields’ s w he re abouts. Taylo r also elicit ed

tes timony that Fields was on parole in Arkansas.
E ven so, we cannot say that this sh owe d diligence in tryi ng to locate Fields. There was no testimony from the investigator . No evidence was offered as to how many times or on what
occasi ons the investigator tried to locate Fie lds . T h ere was also no evide nce estab l ishing that
Field s was i n f

act on parol e . Nor was there any evidence that the investigator contacted Fields’ s supervising officer. See Booth v. State , 499 S.W.2d 129, 133 (Tex . Crim. App. 1973 ) (diligence
not shown where m o tion for continuance onl y stat e d that the witness was “ ‘ be lieved to

. . . live
in San Antonio, or Austin or Houston ,’ but the same does not show the dili g ence, if any, which
had been used to secure his attendance ” ).
B. Absence Not Attribute d to Defendant
The movant must also dem onstrate “that t h e witness is n ot absent by th e procurement or consent of the defense.” Harrison , 187 S.W.3d at 434. Taylor was silent on this factor in his
motion and at the hea ring.7

C
. No Showing of Evidence t hat Fields W ould P r ovide
In Harrison , “ no evidence was presented” as to wh ether th e purported witness “was willing to testify or whether he had any relevant testimony to off er. ” Id. T h e same is true here. Taylor b rought forth only conjecture and surmise that Fields migh t have some informatio n a bout
th e events leading to and surroundi ng the murder. Gulley said that she thought Fields was the
shooter. But when a sk e d d ire ctly abou t her personal knowledge , Gulley said four times that no one had told her that Fields had con f essed either to othe r pe rsons or to her

. Rather , she said th at she believed Fields knew something about the shooting

. It was not disputed that Fi eld s w as

a mong s everal people at the scene.
Additional ly, the motion was not sworn to by a person with per s onal knowledge , as requi red by statute

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 29.08 ; Ikner v. State , 468 S.W.2d 809,
810 (Tex. Crim. App. 19 71 )

. For these reasons, we find that the tr ial cou rt did not abuse its discretion in denying
T aylor’s motion for con t inuance

. IV. Conclusion
As a result, w e affirm the trial court’s judgment.

Scott E. Stevens J u stice
Date Submitted: April 11, 2022 Date Deci ded: June 3 , 2022
Do No t Publis h