BILLY CLYDE STILL, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed December 19, 2000
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-99-00190-CR
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BILLY CLYDE STILL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F98-47828-I
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OPINION PER CURIUM
Before Justices Wright, Roach, and O'Neill
        Billy Clyde Still appeals his conviction for possession of cocaine in an amount of one gram or more but less than four grams. Following appellant's not guilty plea, a jury found him guilty of the charge. At punishment, appellant pleaded true to two enhancement paragraphs. The trial court found the paragraphs true and assessed punishment at twenty-five years imprisonment.
        Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
        Appellant filed a pro se response, presenting three grounds he asserts are arguable points of error. He claims his trial counsel provided ineffective assistance and that the trial court erred by denying his motion for continuance and admitting illegally obtained evidence. For the reasons set forth below, we affirm the trial court's judgment.        
 
Background
 
        On May 11, 1998, two Dallas police officers and an ambulance responded to a call regarding an injured person. The injured person, Todd Taylor, claimed to have been the victim of a carjacking. Taylor said he had been abducted at gunpoint from a motel parking lot, beaten, and thrown out of a car in Oak Cliff. A woman called the police after Taylor began beating on her door looking for help. The paramedics determined Taylor did not need to go the hospital. The officers offered to give Taylor a ride back to his motel room. Taylor accepted.
        When Taylor and the officers reached the motel, Taylor asked the officers to accompany him to his room to check on the welfare of his friends. Before entering the room, Taylor knocked on the door. One of the people inside the room opened the door and Taylor led the officers inside. The officers saw four people in the room, including appellant. One officer observed appellant drop three items on the floor and try to distance himself from the items. The officer picked up the items and determined, based on his experience, the items were a crack pipe and two baggies of crack cocaine.
Motion for Continuance
 
        In his second ground, appellant claims the trial court erred in denying his motion for continuance. Appellant requested the continuance because he could not locate Taylor, whom he claimed was a key witness for his defense.
        The decision to grant or deny a motion for continuance is vested in the sound discretion of the trial court. See Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986). When reviewing the trial court's ruling on a motion for continuance, we examine the circumstances presented to the trial court and determine whether it abused its discretion in denying the motion. See Heiselbetz v. State, 906 S.W.2d 500, 517 (Tex. Crim. App. 1995).
        The Texas Code of Criminal Procedure permits a continuance only upon a sworn written motion. See Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 1979). Recently, the court of criminal appeals confirmed a long line of cases holding, “[a] motion for continuance not in writing and not sworn preserves nothing for review.” Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) cert. denied, 120 S. Ct. 2008 (2000). In this case, the motion for continuance was not verified. Therefore, nothing was preserved for appellate review.
        Furthermore, the only means of preserving error regarding a ruling on a motion for continuance due to an absent witness is a motion for new trial. Taylor v. State, 612 S.W.2d 566, 569 (Tex. Crim. App. [Panel Op.] 1981); Outland v. State, 810 S.W.2d 474, 475 (Tex. App._Fort Worth 1991, pet. ref'd). Appellant did not file a motion for new trial. Therefore, he did not preserve error concerning the denial of his motion for continuance.        
        Because the motion for continuance was not verified, and because appellant did not file a motion for new trial, appellant failed to preserve error regarding the trial court's ruling on his motion for continuance. Accordingly, we conclude appellant does not present an arguable point of error in his second ground.
 
Ineffective Assistance of Counsel
 
        In his first ground, appellant claims trial counsel rendered ineffective assistance because counsel failed to verify the motion for continuance. We use the Strickland standard in evaluating ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Moffat v. State, 930 S.W.2d 823, 826 (Tex. App._Corpus Christi 1996, no pet.). We strongly presume counsel's competence. Tapia v. State, 933 S.W.2d 631, 634 (Tex. App._Dallas 1996, pet. ref'd). When a record does not affirmatively reflect ineffective assistance, we cannot say a trial counsel's performance was defective. Id.
        Assuming, for the sake of argument, counsel's performance fell below an objective standard of reasonableness for not verifying the motion for continuance, appellant fails to show how the results of his proceedings would have been different but for counsel's error. Appellant points to no evidence on the record indicating the trial court would have granted appellant's motion for continuance had it been properly verified. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (counsel not shown to be ineffective for failing to file motion to suppress when defendant did not show trial court would have granted the motion). Moreover, appellant does not demonstrate how the result of his proceedings would have been different had Taylor testified for the defense. Nothing in the record indicates Taylor had knowledge that would have been helpful to appellant, or that he was available to testify. FN:1 Thus, appellant has not shown he was entitled to a motion for continuance or that the results of his proceedings would have been different had the trial court granted the motion. See Akin v. State, 981 S.W.2d 297, 301 (Tex. App._Texarkana 1998, no pet.). Therefore, appellant has not carried his burden to show his counsel's ineffectiveness. Accordingly, we conclude appellant does not present an arguable point of error in his first ground.
Improperly Admitted Evidence
 
        In his third ground, appellant claims the trial court erred by admitting illegally obtained evidence. FN:2 He contends the evidence seized by the police upon entering the motel room was improperly obtained because the police did not obtain a search warrant. FN:3 However, police generally have a right to seize items in plain view when (1) the police have a right to be where they are, and (2) it is immediately apparent to them that they have evidence before them. Martinez v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000).         
        The officers had gone to the motel room at Taylor's request to check on his acquaintances. Taylor invited the officers into the motel room where appellant was present, thus the officers had a right to be in the motel room. When the officers entered the room, one of the officers observed appellant drop three items on the floor and then try to distance himself from the objects. The officer picked up the items and determined, based on his experience, that they were a crack pipe and two small baggies of crack cocaine. We conclude the seized items were in plain view and, therefore, not improperly seized. The trial court did not abuse its discretion in admitting the evidence. Accordingly, appellant does not present an arguable point of error in his third ground.
        We have reviewed the record, counsel's brief, and appellant's pro se response. We conclude the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.
                                                          
                                                          PER CURIAM
                                                          
Do Not Publish
Tex. R. App. P. 47
 
FN:1
1 Appellant claims Taylor would testify appellant was not in possession of the motel room and that a robbery had occurred in the room before the officers' arrival. Appellant does not explain how testimony on these collateral matters would have changed the outcome of his proceedings. We note that appellant's counsel introduced evidence that the motel room was rented by a white male named John McKinnon. Appellant is an African- American male.
FN:2
2 Appellant preserved error on this issue by objecting to the evidence at trial, contending the evidence was obtained as a result of an illegal search.
FN:3
3 Appellant also claims Officer Midyette was outside his jurisdiction when he responded to the complaint that “took place at the Delux Inn Motel in North Dallas.” While on cross-examination, the officer testified he was outside his jurisdiction. However, his testimony, taken in context, shows the officer was merely stating he was outside his normal patrol area. Midyette is a Dallas police officer. Therefore, the Delux Inn in North Dallas, which according to trial testimony, is located at the intersection of Harry Hines and Royal Lane, would be within his jurisdiction. Furthermore, even if the officer had been outside his jurisdiction, he still could have made a warrantless arrest because the offense occurred within the officer's view. Tex. Code Crim. Proc. Ann. art. 14.03(g) (Vernon Supp. 2001).