Juan Armando Melgar v. the State of Texas

Affirmed and Memorandum Opinion filed May 14, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00755-CR

JUAN ARMANDO MELGAR, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1253288

MEMORANDUM OPINION

A jury convicted appellant Juan Armando Melgar of aggravated sexual
assault of a child younger than 14 years of age. See Tex. Penal Code Ann.
§ 22.021(a)(1)(B). Just before the punishment phase began, appellant’s counsel
orally requested that the trial be delayed so that appellant could be interviewed by
a sexual-assault expert; no written motion for continuance was filed. The trial
court denied the motion and assessed punishment at imprisonment for 35 years. In
a single issue on appeal, appellant argues the trial court erred by denying his
request for an expert to assist him in the punishment phase. Because appellant’s
sole issue was not preserved, we affirm the judgment as challenged on appeal.

I. ANALYSIS

Appellant claims that due process required that he be allowed access to an
expert during the punishment phase. However, Code of Criminal Procedure article
29.03 states that “[a] criminal action may be continued on the written motion of the
State or defendant, upon sufficient cause shown; which cause shall be fully set
forth in the motion.” Tex. Code Crim. Proc. Ann. art. 29.03 (emphasis added). The
court of criminal appeals has already “explicitly refused to recognize a due process
exception to the rule requiring motions for continuances to be written and sworn in
order to be preserved on appeal.” Blackshear v. State, 385 S.W.3d 589, 591 (Tex.
Crim. App. 2012) (citing Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App.
2009)). “Ultimately, an unsworn oral motion preserves nothing for appeal.”
Blackshear, 385 S.W.3d at 591.

Accordingly, because appellant did not file a sworn and written motion for
continuance, we conclude that this issue was not properly preserved. We overrule
appellant’s sole issue.

III. CONCLUSION

We affirm the judgment of the trial court as challenged on appeal.

/s/ Charles A. Spain
Justice

Panel consists of Justices Jewell, Spain, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).

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