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.
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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.

Do Not Publish

TEX. R. APP. P. 47

151348F.U05

/David W. Evans/

DAVID EVANS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

DAREN STEVENSON, Appellant

No. 05-15-01348-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. F14-21775-U.

Opinion delivered by Justice Evans, Justices 

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.