Affirmed and Memorandum Opinion filed February 20 , 2014

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00293

- CR

TIMOTHY TIMEN BURNS , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 272nd District Court

Brazos County, Texas Trial Court Cause No. 11

- 00610

- CRF

- 272

M E M O R A N D U M O P I N I O N
Appellant pleaded guilty to a charge of criminal mischief. Punishment was assessed at two years’ imprisonment. In a single issue, appellan t contends that the trial court abused its discretion by denying his oral motion for continuance. Appellant asserts that a continuance should have been granted because the State gave inadequate notice of its intent to introduce evidence of prior bad acts. We
overrule appellant’s sole issue and affirm the judgment of the trial court.2 BACKGROUND Appellant used a shovel to shatter the windshields of two parked vehicles , for no apparent reason

. The vehicles were not occupied at the time of the incident, and appellant did not know the vehicles’ owners. Appellant claimed afterwards that he was “completely out of control” at that time in his life. He had recently
been divorced. He had also lost cust ody of his children , and his business was failing. Appellant admitted that his behavior was “very unacceptable.”

Before his arraignment, appellant filed a written request asking for the State’s intent to introduce evidence of any extraneous offenses or pri or bad acts. Appellant sought at least ten days’ notice in advance of trial. The State provided
email notice six days before the punishment hearing. Appellant orally moved for a contin uance at the punishment hearing, claiming that additional time was neede d to investigate the allegations of prior bad
acts. The State responded that some of the bad acts had already been identified in a presentence investigation report. The State further asserted that notice was given in a timely manner and that notice had not been withheld to prejudice appellant’s
defense. The trial court deferred a ruling on appellant’s oral motion until after the presentation of evidence. The court stated that it would grant a continuance at the end of the hearing only if it determined that additional investigation might be
fruitful.

The State elicited the most damaging testimony from a CPS caseworker and
from appellant’s ex

- wife. The caseworker, Lindsey Bates, testified that her interactions with appellant were hostile and aggressive . Appell ant allegedly yelled
and used other intimidation tactics when Bates was investigating his family. Appellant allegedly made several phone calls to Bates, demanding that she drop her investigation immediately. When Bates persisted, appellant allegedly3

threatened her by saying , “I know what you drive, and I have people following you.” Bates testified that her coworkers detected associates of appellant lingering
in the corn fields surrounding her office. Tensions escalated to such a point that
Bates went i nto hiding for three weeks and the office hired armed guards. Bates
testified that she had never worked on another case where she felt so threatened for
her own safety. Appellant’s ex

- wife, Jessica Bell, detailed a similar history of aggression.
She testified that she was involved in several charges against appellant, including harassment, making a terroristic threat, and violation of a protective order. Bell
described these incidents as follows: They started off kind of small. He would get in trouble , get a slap on the wrist, get back out. They just kind of kept on escalating. The more that he got arrested and the more that he got out of it, they continued to get worse and worse to the point to where he would drive by with loaded guns. He would get ou t and say, “I’m going to kill you.”

Bell testified that appellant would also hit her and harass her friends. She
claimed that the threats became so serious that she and her children had to be placed into protective custody.

Bell also described one incident prior to her divorce when she found a meth pipe in appellant’s workshop. Bell claimed that the authorities were reluctant to help her and declined to search the home for additional contraband. The sheriff ultimately seized the meth pipe , along with some i llegal guns, but according to Bell, appellant was never prosecuted. Appellant produced two character witnesses. His mother, Karen Bryant, testified that appellant had been diagnosed with ADHD, and that he had suffered from depression after his divorce. Bry ant claimed that she was aware of her son’s criminal history, though not the entirety of it. She established that appellant had4

successfully completed his community supervision in the past, and she opined that he was likely to do so again, should he be giv en the privilege . Bryant also testified that appellant ha d grown into a better person since the window

- smashing incident

. According to her, appellant has become more responsible and considerate, and he has less of a temper. Appellant’s other character witness, Cory Burrell , testified that he hired appellant to work for his roofing business in Tennessee . Burrell praised appellant as an employee, but recognized that appellant has a drinking problem. Burrell testified that appel lant was arrested for public intoxication in Tennessee, and for driving while intoxicated in Missouri. Still, Burrell claimed that appellant was a
reliable worker . Burrell has even considered inviting appellant to a business partnership. Appellant also tes tified in his own defense . He said that he had no reason to dispute the State’s claim that he had been arrested seventeen times in the past. Appellant also admitted that he had argued with his wife during their marriage, but
he denied ever being violent. F ollowing their divorce, appellant said that he went “insane” and admitted himself to a hospital three times. Appellant also testified that his drinking can be excessive and can lead to problems. Appellant claimed, however, that he recently decided to give up alcohol. Towards the end of the hearing, the trial court pressed appellant to revisit his motion for continuance and identify a particular allegation that he wanted to investigate. The only item appellant identified was the allegation surrounding the

me th pipe . More specifically, appellant asserted that he wanted to investigate his

ex

- wife’s claim that the sheriff’s department was unwilling to respond to her plea for help. By the close of evidence, the trial court was unpersuaded by appellant’s
motion. T he trial court found that appellant had “a raging beast in [him], a violent5

angry beast that [he] can’t control.” The trial court sentenced appellant to the maximum punishment prescribed by law . The court promised , however, that it
would consider a motion for new trial if appellant found any evidence “to impeach something that happened here today.” A ppellant n ever filed a motion for new trial.

ANALYSIS The requirements of a motion for continuance are set forth in articles 29.03
and 29.08 of the Texas Code of Criminal Procedure. Article 29.03 states: “A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion.” And Article 29.08 provides: “All moti ons for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance.” A trial court has the discretion to grant an oral motion for
continuanc e on equitable grounds, but the denial of such oral motions prese rves nothing for appellate review. See Anderson v. State , 301 S.W.3d 276, 279 (Tex. Crim. App. 2009) (“Thus, if a party makes an unsworn oral motion for a continuance and the trial judge denies it, the party forfeits the right to complain about the judge’s ruling on appeal.”); Williams v. State , 172 S.W.3d 730, 733 (Tex. App.

— Fort Worth 2005, pet. ref’d) (discussing the trial court’s wide discretion to grant oral motions). In this case, appellant’s motion was neither written nor sworn

. A ppellant accordingl y failed to preserve error on his only ground for relief. See Anderson , 301 S.W.3d at 279. Even if we were to assume that error had been preserved, appellant has not
established that the trial court abused its discretion by declining to grant the motion
f or continuance

. The rules specify that a defendant is entitled to only “reasonable
notice ” of the State’s intent to introduce evidence of prior bad acts. See Tex. R.6

Evid. 404(b); see also Tex. Code Crim. Proc. art. 37.07, § 3(a). The Tenth Court of Appeal s, from which this case is transferred, has determined that ten days’ notice is presumptively reasonable. See Chimney v. State , 6 S.W.3d 681, 694 (Tex. App.

— Waco 1999, pet. ref’d); see also Tex. R. App. P. 41.3 (the transferee court must
decide a transferr ed case in accordance with the precedent of the transferor court). The Tenth Court of Appeals has also determined that six days’ notice can be
reasonable based on the facts and circumstances of the individual case. See Scott v.
State , 57 S.W.3d 476, 480 (T ex. App.

— Waco 2001, pet. ref’d) (considering such factors as when notice was first requested and the ability of counsel to cross

examine witnesses about the specifics of the extraneous acts).
Here, a ppellant has not alleged official misconduct on the part of the State.
He does not dispute that the State provided notice as soon as the information
became available. The record further demonstrates that appellant was able to present a capable defense during the punishment hearing. Appellant produced two
witnesses who testified that he had a stable job and had reformed his character. Appellant also cross

- examined the State’s witnesses on many of the extraneous acts that were alleged. Even if we accepted appellant’s position that he could not effectively prepare a defense because he lacked adequate time for investigation, we could not

reverse the conviction without a showing of prejudice. See Leach v. State , 548 S.W.2d 383, 384

– 85 (Tex. Crim. App. 1977) (“This Court is not authorized to reverse a conviction for failure to grant a continuance unless the record shows that the evidence sought to be secured by the delay was material to the case and that appellant was prejudiced by the inability to produce it.”). The proper way to
demonstra te prejudice is to present a motion for new trial with “an affidavit or
other evidence

. . . showing the nature and materiality of the missing evidence.”7

Id. ; see also Harrison v. State , 187 S.W.3d 429, 433 (Tex. Crim. App. 2005) (noting that a motion for new trial represents a second opportunity, before appeal, for the defendant to demonstrate that the missing evidence is material to the case)

. Appellant filed no motion for new trial in this case . He made no attempt to present the trial court with any evid ence justifying his request for additional investigation. And in his brief, he has not asserted any concrete example of how he was harmed. Appellant has failed to establish that he was prejudiced by the trial court’s actions.

CONCLUSION The judgment of th e trial court is affirmed

.

/s/ Tracy Christopher Justice

Panel consists of Justices Boyce, Christopher, and Brown. Do Not Publish

— Tex. R. App. P. 47.2( b).