## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02 -22- 00205

- CR

___________________________

On Appeal from th e 271st Dis trict Court Wise County, Texas Trial Court No. CR23389

Before Sudderth, C.J.; Wal lach and Walker, JJ.

M emorandum Opinion by Justice Wallach



### R

UBBIN 

### W AYNE 

### S T APP 

### , App ellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Rubbin Wayn e Sta pp was convicted of posses sing more than four but less than 200 grams of a Penalty Group 1 controlled substance

—

me thamp het amine

— an d sentenced to forty

- five years’ confinement. 1 In his sole issue on appeal, Stapp argues that the tri al court erred by denying his second motion for
continuance. Because we conclude that this i ssue was not preserved f or our review,

we a ffirm the trial cour t ’ s judgment.
I. B ACKG ROUND In November 2019, while executing a search warr ant at Stapp ’ s residen ce , police officers found what looked like methamphetamine

. Stapp was arrest ed and was ultimate ly char ged with possess ion of a controlled substance

. Stapp a lleges that while in custo dy, he wa s attacked by another inm ate and th at during the attack, he was kicked in the gr oin

. As a result of this injury, Stapp ’ s left testicle grew to “ the size of a small melon , ” causing him signific ant pain.
I n June 2022, Stap p ’ s trial counsel visited him in custody. Stapp required a
wheelcha ir and was in so much pai n that he could not assist his attorney in pre paring
his defense.

1 The indictment contained an enhan cem ent parag raph allegi ng that Stapp had previously been convic te d of the f elon y offense of manufa ct ur e of a controlled substance (me thamphet amine) and a habitual paragraph alleging that after his manu facture

- of

- a
- controlled

- substance conviction , Stapp had been convic te d of assaulting a family or household member by imp eding b reath or circulation

. During the sent encing h earing, Stapp ple d “ true ” to bo th paragraph s .3 O n June 12, 2022, b ased on Stapp ’ s medical condition , his trial counsel filed a
written an d purpo rtedly verified motion for continu ance seeking to postpone Stapp ’ s trial , which had be en schedul ed to begin on June 14, 2022

. 2 See Tex. Code Crim. Proc.
Ann. arts. 29.03, 29. 08. On June 13, 2022 , the t rial court signed a n order granting th e motion

. Stapp ’ s trial was re set for Ju ly 19, 2022. Im mediately before the start of trial,
S tapp ’ s trial counsel orally re u rged his motion for conti nuance on the g rounds that Stapp ’ s medical condition had not improved and t hat he was not physically able to
stand trial. I n response , the S t ate pr esented the trial court with a l e tter from a urologist stat ing that Stapp ’ s medical issue was not an emergency and tha t he could sit
for trial. St app ’ s trial counsel objected to t he letter ’ s admission on the grounds that it
was he ar say and that its admission wou l d violate Stapp ’ s Sixth Amendment
Confrontation Cla use right. See U.S. Const. amend

. VI

. The tria l court overru led Stapp ’ s object ion s , admi t ted the letter as a court exhi bit, and denied Stapp ’ s oral
motion for a second contin ua nce. Stapp ’ s secon d continuance request hav ing been denied, his case proceeded to
trial. The jury found Stapp guilty of poss essin g more than four but less than

2 We note that the copy of the motion for continuance included in the cler k ’ s record contains a blank verif ication page that is missing the signatures of both Stapp ’ s trial coun sel and the notary

. It also lacks the notary ’ s seal.4 200 grams of a Penalty Group 1 controlled substance

— me thamp het amine

— an d the

t rial court sente nced him to forty

- five ye ars in prison

. This appeal followed.
II. D ISCUSSION In a sing le issu e, Stapp argu es that the trial court erred by denying his second
motion for continuance

. As a sub

- issue, Stapp asserts that the trial court improperly
admi tted t he urologist ’ s letter over Stapp ’ s h earsay and Confrontat ion Clause objectio ns during t h e pretrial hearing on hi s se cond m ot ion for contin uance . Because

we conclude that Stapp has forfeited his complaint reg ardi ng the trial court ’ s denial of
h is second mot ion for continuance, we will limit our discussion to th at issue and will

not address the admission of th e urologist ’ s letter. Se e Tex. R. App. P. 47.1.
T he law i s clear that m otions for continuance must be both wri tten and sworn.
See Tex. Code Crim. Proc. Ann. arts. 29.03, 29. 08. Consequently , the T ex a s Court of
Crimina l Appeals has held that “ if a party makes an unsworn oral motion for a
continuance and t he tri al judge denie s it, the party forf eits the right to com plain about the judge ’ s ruling on appeal.” Blackshear v. State , 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) ( quot ing An derson v. State , 301 S.W.3d 276, 279 (Tex. Crim. App. 2009) )

. I n other words , “ an un sworn oral m otion preserves nothing for appeal. ” Id

. ; s ee also
O wens v. S tate , No. 05

- 19

- 00 371

- C R , 2021 WL 5410518 , at * 2 (Tex. App.

— Dallas
Nov. 1 9, 2021, no pet.) (mem. op ., not designated for p ublicat ion) ( “ [W] e conclude appellant ’ s oral motion for conti nuance pres erved nothing for our review

. ” ) ; Coleman

v. State , No. 02

- 18

- 00471

- CR, 2020 WL 241975 , at * 20 (Tex. App.

— Fort Worth Jan.5 16, 2020, no pet.) (mem. op., not design ated for publication) ( “ [I]f a party makes an unsworn, oral mot ion for continuance b efore or du ring trial and the trial court denies
it , th en the party forfeits the right to compla in on appeal about the trial court ’ s ruling. ” ) ; Robinson v. State , 310 S.W.3 d 574, 5 79 (Tex. App.

— Fort Worth 2010, no pet.) (“[T]he deni al of an oral motion for continu ance preserves nothing for our review.”)

. Here, Stapp ’ s so le appellate issue concerns th e trial court ’ s denial of h is second
motion for continuance, which was ra ised orall y at a pretrial he aring. W hile Stapp ’ s

attor ney cha racterized his request for a second continuance as “ reurg[ing] ” his first
continuance motion , which was w ritten and purpor tedly verified, 3 in su b stance, h is
request was a second, oral motion for continuance. See Orquiz v. State , No. 08

- 09

- 00097

- CR , 2010 WL 4983425 , at * 1

– 2 (Tex. App.

— El Paso Dec. 8, 2010, no pet.) (no t de signate d for publicat ion) (holding that appellant ’ s “ or ally re

- urged ” motion for

3 At the pretrial hearing , Stapp ’ s attorney de scribed his first motion for conti nuance as “ verified , ” and n either the trial court nor th e State ’ s attorney disputed its verification. Howe ver, as not ed above, see supra not e 2, the copy of the mo tion included in the clerk ’ s record on appeal contains a blank verification page tha t is missing the signatures of b oth Stapp ’ s trial coun sel and the notary

. Thus, ev en if St ap p ’ s orally “ reurge[ d] ” mot ion could somehow be con st rued as an extension of his ori ginal , written mot ion for purposes of error preservati on, on the record b efore us, any error would noneth eless be unpreserved. See Brumfield v. State , 641 S.W.3d 568, 58 0 (Tex. App.

— Tyler 2022, pe t. ref ’ d) (holdi ng that appellant “ failed to preserve his motion for continuance and its bases for review ” because his “ motion was unsworn ” ) ; Still v. State , No. 05

- 99

- 00190

- CR , 2000 WL 1848611 , at *1 (Tex. App.

— Dallas Dec. 19, 2000, no pet.) (per curiam) ( no t designate d for publicat ion) ( “ [T ] he motion for continuance was not verified. Therefore, nothing was preserved for appellate review. ” ) ; see also Tex. Code Crim. Proc. Ann. a rt. 29.08

.6 conti nuance was a “ new motion for co ntinuance ” despite the fact that it “ ma [de]
reference to his previously filed motion for continuance ” and therefore preserved nothing f or appellate review) ; see also Smith v. State , No. 08

- 11

- 00 167

- CR , 2012 WL 5359234 , at *6

– 7 (Tex. A pp.

— El Paso Oct. 31, 201 2, no pet.) (not designated for publication) (treating defendant’s oral re urging of his written, pre trial
motion for continuance as an “oral motion” that “did not preserve error” bu t consideri ng it for th e l imited purpose of it s be aring on the appellant ’ s diligence ) ; cf. Surgitek, Bristol

- Myers Corp. v. Abel , 997 S.W.2d 598, 601 (Tex. 1999) (“[W]e look to the
substance of a motion to dete rmine the relief sought, not merely to its title.”)

. At t he time Stapp ’ s co unsel “ reurg e[d] ” hi s prior motion for continu anc e, t he trial co u rt had already signed an order granting th at mo tion , a nd a s a result , Stapp ’ s tria l had been

re set fr om June 14, 202 2, to Ju ly 19, 2022

. 4 Thus, w e must construe Stapp ’ s

“ reu rg[ing ] ” of th e motion as a se cond , o ral motion for continuance

. See Orquiz , 2010 WL 4983425 , at * 2

. Indeed, Stap p effectively a cknowledges that his “ re urg [ing] ”
of the continuance motion was , in ess ence, a second , oral motion by describing his

4 S tapp ’ s tri al counsel indicated during the pretrial heari ng that th e t rial court had “ conditionally granted ” his first motion for continuance , and the S t ate ’ s attorney stated that the trial co urt had requ ested “ at the previous hearing on the motio n for continuance ” that the State “ gain information from the doctor ’ s office as to
. . . Stapp ’ s physical ability to be [in court] durin g the trial. ” The appellate record doe s not contain a record of the “ previous hearing ” on Stapp ’ s f irst mo tion for continuance

. We note, however, that t he t rial court ’ s order merely state d that th e motion was “ granted. ”7 appellate i ssue as “ [w]h e ther th e i m proper denial of [Stapp ’ s] second motio n to continue was prejudicial. ” [Emphasis added.]
Because Stapp ’ s seco nd motion fo r continuan ce was neither sworn nor written , he has preserved nothing for our review and has forf eited the rig ht to com plain about
the trial court ’ s ruling on the mo tion

. See Blackshe ar , 385 S.W.3d at 591 ; Owens , 2021 WL 5410518 , at * 2 ; Coleman , 20 20 WL 24 1975, at * 20 ; Robinson , 310 S.W.3d at 578

– 79

. Thus , we overrule Stapp ’ s s ole issue

. III. C ONCLUS ION
Ha ving o verruled Sta p p ’ s sole issue, we affirm the trial court ’ s judgment.

/s/ Mike Wallach Mike Wallach Ju stice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : July 13, 2023