Under Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure, a motion for a continuance must be WRITTEN and SWORN to by a person having personal knowledge of the facts relied on for the continuance.
David Lee Anderson II, Anderson v. State (Tex.Crim.App. 2009), learned this lesson the hard way. In his trial for aggravated sexual assault of a child, the State sought to introduce the results of DNA testing which were prepared only a few weeks before trial. Complaining of his inability to prepare for the critical evidence, Appellant's defense counsel made an oral motion for a continuance, which was denied by the trial judge.
Upon his conviction, Appellant appealed the ruling of the trial judge, arguing that he was denied a "meaningful opportunity to present a complete defense."
Citing its previous holding in Marin v. State, 851 S.W.2d 275, the Court of Criminal Appeals held that the right to present a meaningful defense is constitutional in nature and, as such, it may be forfeited by procedural default. Accordingly, the Court held that "by making an unsworn pretrial oral motion for a continuance, Anderson failed to preserve his claim that trial judge erred by denying his motion for appellate review."
TAKEAWAY: Always, always, always make your motions for a continuance in writing and sign them! And, in general, follow the rules of the CCP, so as not to allow the appellate courts the ability to punt your case on a procedural issue.
