Blackshear, George Edward
2012 Tex. Crim. App. LEXIS 1673
| Tex. Crim. App. | 2012Background
- Blackshear was charged with possession of a controlled substance, enhanced by two prior state-jail felonies.
- Guilt phase lasted about three hours with five witnesses; jury found him guilty after ~1.5 hours of deliberation.
- Punishment phase yielded no new witnesses; Blackshear stipulated to ten prior convictions; jury deliberated and deadlocked.
- Judge granted a mistrial on punishment; retrial on punishment scheduled for later the same day.
- During the hiatus, defense orally moved for a continuance to obtain the trial transcript; the court denied the motion without a sworn written record.
- Blackshear was retried on punishment, sentenced to eight years; appellate court reversed, finding preservation error based on transcript availability; this Court granted review to assess preservation and due process issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unsworn oral continuance motion preserves error for appeal. | State contends the oral motion preserved the issue. | Blackshear argues lack of written, sworn motion and asserts due process exception. | Not preserved; no due process exception; reversal altered; judgment reinstated. |
Key Cases Cited
- Anderson v. State, 301 S.W.3d 276 (Tex. Crim. App. 2009) (no due process exception to written-and-sworn requirement)
- Armour v. State, 606 S.W.2d 891 (Tex. Crim. App. [Panel Op.] 1980) (transcript necessity; presumption for obtaining transcript)
- White v. State, 823 S.W.2d 296 (Tex. Crim. App. 1992) (due process considerations for indigent transcript)
- Billie v. State, 605 S.W.2d 558 (Tex. Crim. App. 1980) (due process transcript access)
- Munoz v. State, 24 S.W.3d 427 (Tex. App.—Corpus Christi 2000) (written-and-sworn motion standard cited)
- Deaton v. State, 948 S.W.2d 371 (Tex. App.—Beaumont 1997) (continuance requirements discussion)
- Petrick v. State, 832 S.W.2d 767 (Tex. App.—Houston [1st Dist.] 1992) (continuance and preservation of error)
- O'Rarden v. State, 777 S.W.2d 455 (Tex. App.—Dallas 1989) (continuance preservation rule)
- Brown v. State, 630 S.W.2d 876 (Tex. App.—Fort Worth 1982) (continuance preservation)
- Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009) (general preservation framework)