Blackshear v. State
In Blackshear v. State, 385 S.W.3d 589 (Tex. Crim. App. 2012), the defendant's punishment phase ended in a mistrial.
Before the retrial, Blackshear asked for a continuance because he did not have a copy of the reporter's record from the first trial. This is the means used by Blackshear to make that request:
"Your Honor, I have a motion I need to put on the record. Your Honor, it's my understanding that I should ask for a continuance based on the fact that I do not have a copy of the transcript from the prior trial, and it would be ineffective assistance of counsel without having it, unless she can make it at lunchtime, a copy of the transcript to refer to the testimony." Id. at 590.
The trial court denied Blackshear's motion for a continuance. Although the intermediate appellate court held this denial to be reversible error, the Court of Criminal Appeals held that the trial court did not err, relying on the fact that Blackshear filed no sworn motion for continuance as required by the Texas Code of Criminal Procedure. See Tex. Code. Crim. Proc. Ann. arts. 29.03, 29.08 (West 2006).
Blackshear's oral, unsworn motion failed to preserve his complaint for appellate review. Blackshear, 589 S.W.3d at 591.