Priester v. State, 2015 Tex. App. LEXIS 10165

Early-morning altercation outside Shooters Billiards ended with Gerald Banks shot and later dying; eyewitnesses Ezell and Glinsey placed Appellant Priester at the scene holding a gun shortly before the shot though neither saw the shooting itself.
Surveillance video, palm/fingerprint matches to Appellant found on Posey’s car, and Banks’ blood in the car tied Appellant to the scene; Appellant was arrested in Dallas and charged with murder.
Charles Bertram testified before the grand jury that he saw Appellant with a gun before and after the shooting and signed a photo identification, but at trial professed significant memory loss; the trial court allowed the State to read Bertram’s grand jury testimony into the record.
On the first morning of trial defense counsel made an oral motion for a continuance, citing recent trial obligations and the need to bring witnesses from Chicago; the trial court denied the oral, unsworn request.
During closing, the prosecutor made an isolated remark urging the jury to "forget manslaughter" in context of arguing identity and the sufficiency of evidence for murder; defense made no contemporaneous objection.
Jury convicted Appellant of murder; he waived a punishment hearing and accepted a 35-year sentence. Court of Appeals affirmed.

Issue	Appellant's Argument	State's Argument	Held
Trial court erred by denying oral motion for continuance	Counsel were insufficiently prepared due to another recent trial and needed time/witnesses; denial prejudiced defense	Counsel had had extensive time and resources; motion was oral/unsworn and previous continuances had been given	Forfeited on appeal: defendant failed to file written, sworn motion as required by Tex. Code Crim. Proc.; issue overruled
Admission of Bertram’s grand jury testimony at trial	Grand jury testimony was hearsay and not admissible as prior inconsistent statement or recorded recollection because Bertram retained sufficient present recollection for identification	Bertram largely lacked present full recollection; his grand jury testimony was made near the event and he vouched for its accuracy, fitting Rule 803(5) recorded recollection exception	No abuse of discretion: trial court properly admitted grand jury testimony as recorded recollection under Rule 803(5)
Prosecutor’s closing argument (“forget manslaughter”)	Comment improperly encouraged jury to disregard the court’s manslaughter instruction	Comment was a response to defense identity argument and a comment on the evidence; isolated phrase viewed in context was not an instruction to ignore the charge	Forfeited on appeal: no contemporaneous objection; even if reviewed for fundamental error, the remark was not reversible when read in context

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) (abuse-of-discretion review for continuance denials)
Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) (prejudice required to reverse continuance denial)
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) (unsworn oral continuance motion preserves nothing for appeal)
Blackshear v. State, 385 S.W.3d 589 (Tex. Crim. App. 2012) (rejection of a due-process exception to written-and-sworn continuance rule)
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) (elements required for Rule 803(5) recorded recollection)
Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) (failure to contemporaneously object to jury argument forfeits appellate review)
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (classification of rights for preservation/forfeiture analysis)