## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00240

- CR

WANDA KAYE WILLIAMS , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 53999

- B

Befo re Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
W anda Kaye Williams pled guilty to family violence assault wit h a prior conviction for family violence assault, a third

- degree felony. See T EX
. P ENAL C ODE A NN
. § 22.01(b)(2)(A) (Supp.)

. Pursuant to the terms of her plea

- bargain agreement , William s was placed on deferred adjudication community supervision for five years

. The State alleged that Williams failed to report to her commu nity sup ervisio n officer a nd provided false information to a peace offer

. As a result, the State filed a motion to adjudicate Williams’s guilt

. After Williams pled true to the State’s allegations, the trial court revoked her community supervis ion, adjudicated her guilt , and
senten ced her to seven years’ imprisonment. On appeal, Williams argues that the trial court erred by denying her request for a continuance . We find this issue unpreserved. Williams also argue s that h er counsel rendered ineffective assistance beca u se he fail e d to file a sworn motion for continuance, which was required to pre serve her first appellate issue. Because the record is silent and does not support Williams’s claim of ineffective assistance, w e overru le it. As a result, we affirm th e trial court’s judgment.
I. Williams Did Not Preserve Her Complaint About the Denial of a Continuance In her first point of error, Williams argues that the trial court erred by denying her request for a continua nce. We find this issue unpreserved. A. F a ctual B ackground The app ellate record shows that the trial court appointed Jeff Hale to represent Williams when she was originally placed on deferred adjudication community supervision

. During3

revocation, the tri al court appointed Michael Lewis to repre sent Wil liams. At the adjudic ati on hearing, Lewis announced that he was ready to proceed on Williams’s behalf

. Even so, Williams said she wanted Hale to represent her “because he [was] th e one th at got [her] the probation.” When the trial court expla ined that it had appointed Lewis an d not Hale for the adjudication, Williams asked, “Sir, is there any way I can get another attorney?” The trial court declined to appoint new counsel for Williams and, after Lewis said , “Judge, I can go forward,” the adju dica t ion p roceedings continued.
B. An alysis When a criminal defendant seeks a continuance, Article 29.03 of the Texas Code of Criminal Procedure requires a “written mo tion ” pr oviding “ sufficient cause ” that must “ be fully set forth in the motion.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 29.03. Al so , “[a]ll motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for th e continuance.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 29.0 8. The Texas Court of Criminal Appeals has inte rpre t ed t h ese statutes to mean that , “ if a party makes an unsworn oral motion for a continuance and the trial judge denies it, the party forfeits the r ight to complain ab out the judge ’ s ruling on appeal. ” Bl ackshear v. State , 385 S.W.3d 589, 591 (Tex. Cri m. A p p. 2 0 12) (quoting Anderson v. S tate , 301 S.W.3d 276, 279 (Tex. Crim. App. 2009)). In other words, “an
unsworn oral motion [for continuance] pres erves nothing for ap peal.” Id

. ; see Anderson v. State , 30 1 S.W.3d 276, 278

– 79 (Tex. Crim. App. 2009)

. T he a p pell a te record shows that Willi ams asked for another court

- appointed counsel at the beginning of the adjudication hearing . To the extent her com ments can be interpr eted as4

requesting a continuance to accomplish that goal , we find that Williams ’s o ral motion p r eserved nothing for our re view. See Blackshear , 385 S.W. 3d at 591. As a result , we should not “address the merits of that issue.” Id. (qu oting Ford v. State , 305 S.W.3d 530, 532 (Tex. Crim. App.
200 9)). We overrule Williams’s fir st point of error.
II. The Silent Record Does Not Support the Ineffective Assistance of Counsel Claim Wil liams ar gues in h er second point of error that her counsel ren dered ineffective

as sistance by failing to file a sworn motion for con tinuance

. A. Standard of Review “As many case s have noted, the right to counsel does not mean the right to errorless counsel.” Lampkin v. State , 470 S.W.3d 876, 896 (Tex. App

. — Tex arkana 2015, p et. ref’d) (citing Robertson v. State , 187 S.W.3d 475, 483 (T ex. Crim . App. 2006)). “In order to preva il on a claim of ineffective a ssistance of counsel, the defendant must satisfy the two

- pronged test set forth in Strickland

. . . .” Id. (citing Strickl and v. Washing ton , 466 U.S. 668 , 687

– 88 (1984) ; Ex parte Imou du , 284 S. W.3d 866, 869 (Tex. Crim. App. 2 009 ) (o rig. proceeding)). The fir st prong requires a showing “ that counsel’s r epresentation fell below an objective standard of

reason ablen ess.” Strickl and v. Washing ton , 466 U.S. 668 , 68 8 (1984)

. “ The second Stri ckl and
pro ng, sometimes referred to as ‘the p reju dice prong,’ requires a sho wing that, but for counsel ’ s unprofessional error, there is a reasonable p robabi lity that the result of the proceeding would have been different.” Lampkin , 470 S. W.3d at 897 ( citi ng S trickl and , 466 U.S. at 694)

. “A fa ilure to make a showing under either prong defeats a claim for ineffective assistance.” Id. (citing R ylande r v. State , 101 S.W.3d 107, 110

– 11 (Tex. Crim. App. 2003)).5

The requirement of the first St rickland prong can be d iffic ult to meet since there is “a

stron g p resumption that counsel’s co nduct falls within the wide range of reasonable professional assi stance .” Strickland , 466 U.S. at 689. As a result, the Texas Court of Criminal Appeals has said that “ [t ] rial co unse l ‘sho uld ordinarily be a fforded an opport unity to explain his actions before b eing’” found ineffective. Menefield v. State , 363 S.W.3d 591, 593 (Tex. Crim. App.
2012 ) (quoting Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005 ) )

. When an ap pell ate re cord is silent on why trial c ounsel failed to take certain actions, the

a ppellant has “fail ed to rebut the presumption that trial c ounsel’s decision was in some way

— be it conceivable or not

— reasonable.” Mata v. State , 226 S.W.3d 425, 431 (Tex. C rim. App. 2007); see Thompson v. State , 9 S.W. 3d 808, 8 14 (Tex. Crim. App. 199 9). This is because allegations of ineffectiveness “must be f irmly founded in the record. ” Bone v. State , 77 S.W.3d 828, 83 3 n.13 (Tex. Crim. App. 2002) (quoting Thompson , 9 S. W .3d at 81 3 ). When a party raises an
i neffect ive as sistance of counsel clai m for t he first time on direct appeal, “ the defendant must

s how that ‘ under prevailing pro fessional norms, ’ Strickland , 466 U.S. at 688, 104 S.Ct. 2052, no competent attorney would do what trial c oun sel did or no compet ent att orney would fail to do what trial counsel faile d to do , Andrews v. State , 159 S.W.3d 98, 1 0 2 (Tex. Cri m. App. 2005). ” Auld v. State , 652 S.W.3d 95, 112 (Tex. App.

— Texarkana 2022, no pet.).
B. Analysis
Here , the record is silent on why Lewis did not file a sworn , written motion for continuance. Even so, we can fathom valid reasons for not doing s o.6

The trial court had a lread y appointed Lewis a s Williams’s court

- appointed att orney for the adjudication proc ee dings. Once that was done, “ the trial co urt had no legal obligation to appoint a differ ent attorn ey .” Tutt v. State , 339 S.W.3d 166, 174 (T ex. App.

— Texarkana 2011,
p et. r ef’d). Lewis could have decided against filing a c ontinuance since Williams was n ot entitled to the appointed counsel of her choosi ng. See id. at 173 ( “A trial c ourt is not obligated to search for an attorney who meets with the approval of the accus ed .” (quoting Webb v. Sta te , 533
S. W.2d 780, 784 n. 3 (T ex. Crim. App. 1976) ) )

. Also, L ewis could have chosen not to file a motion for co ntinuance because he was ready to procee d after di scussing the case w ith Williams, who had a lready aff

ixed her signatur e to plea paperwork showing her desire to plead true to the State’s allegations.
O n this silent record , we find that Williams has no t rebutted the presumption that it was

r easonable for Lewis t o forego a sworn , written motion f or continuance. As a result, we conclude that Williams cannot meet the first Strickland prong , and we overrule her last point of

error. III. Conclusion We af firm the trial court’s judgment.

Charles va n Cleef Justice Date Submitted: Apri l 24, 2 02 4 Date Dec ided: April 25 , 2024 Do Not Publish