JUAN VINCENTE LIRA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 28, 2000
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-99-01921-CR
No. 05-99-01922-CR
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JUAN VINCENTE LIRA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F99-29216-PWT, F99-29215-PWT
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OPINION
Before Justices Wright, Roach, and O'Neill
Opinion By Justice Wright
        Juan Vincente Lira appeals his convictions for aggravated sexual assault. After the jury found appellant guilty, it assessed punishment at confinement for life and a $10,000 fine in each cause. In four points of error, appellant contends generally that the trial court (1) erred by denying his motion for continuance; (2) erred by denying his motion to recuse; and (3) abused its discretion by admitting certain evidence. We overrule appellant's points of error and affirm the trial court's judgments.
 
Factual and Procedural Background
        After an investigation by Child Protective Services, appellant was charged with the aggravated sexual assaults of his two daughters, S.L. and B.L. Both girls were under the age of fourteen and both testified to several occasions of sexual abuse. They did not tell anyone about the sexual abuse because they were afraid appellant would kill them. One of the case workers assigned to the case testified that it was “definitely the worst case” she had seen in her seven years as a case worker. After hearing the evidence and argument of counsel, the jury convicted appellant and assessed the maximum sentence in both cases. This appeal followed.
 
Motion for Continuance
        In his first point of error, appellant contends the trial court erred by overruling his motion for continuance. Under this point, he argues that he was harmed because he was unable to present testimony by his common-law wife, Shauna Quinn. After reviewing the record, we disagree.
        Initially, we note that appellant's pro se, handwritten motion for continuance is not sworn. To present an issue for review from the trial court's overruling of a motion for continuance, the motion must have been made in writing and sworn to by a person having personal knowledge of the facts relied on for the continuance. See Tex. Code Crim. Proc. Ann. Art. 29.08 (Vernon 1989); Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 2005 (2000); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App.1995); Shavers v. State, 881 S.W.2d 67, 75 (Tex. App._Dallas 1994, no pet.). An unsworn motion for continuance is insufficient to preserve error for our review. See Shavers, 881 S.W.2d at 75.
        Moreover, under the circumstances presented in this case we cannot conclude the trial court abused its discretion by denying appellant's motion. In his written motion, appellant alleged he needed more time to adequately prepare his defense. At the hearing on his motion, he also argued he had not had the opportunity to speak with the witnesses he had subpoenaed. The record shows that from March 1999 until September 1999, appellant was represented by appointed counsel. In early September, that relationship had “deteriorated,” and the trial court appointed new counsel. At that point, there had been an announcement and two plea settings. The trial was then set for a plea four more times. The trial court eventually set the case for a jury trial on October 25, 1999. The trial court allowed a four-month continuance between the last plea setting and the trial date. On the day of trial, counsel was ready to proceed; however, appellant indicated to the trial court that he no longer desired counsel to represent him. After being warned of the dangers and disadvantages of self-representation, appellant chose to represent himself with counsel as standby to assist him. At the time he chose to do so, he was aware that the trial court was not going to delay the trial. Nevertheless, appellant chose to proceed.
        With respect to the witnesses, all of the witnesses requested by appellant testified except Quinn, who had been bench warranted. At the close of the State's case, appellant reasserted his motion for continuance. Although appellant argued he needed Quinn's testimony, he was unable to explain how her testimony would help him. The trial court noted that it was unlikely Quinn would testify because she had been convicted of similar charges and her case was on appeal. FN:1 Appellant had an opportunity to review Quinn's testimony from her trial and the trial court offered appellant the opportunity to offer her prior testimony as evidence; however, he declined to do so. Likewise, on appeal, appellant makes only a general allegation that Quinn's testimony would be “sharply conflicting with the testimony provided by the State;” however, he does not specify how her testimony would conflict with the State's evidence. Under these circumstances, we cannot conclude that the trial court abused its discretion by denying appellant's motion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (trial court did not abuse its discretion by denying motion for continuance where appellant claimed he did not have adequate time to prepare for trial but failed to establish actual prejudice).
 
Recusal
        In two related points, appellant complains about the trial court's treatment of his motion to recuse. Specifically, in his second point of error, appellant argues the trial court erred by failing to refer his motion to the administrative judge for a hearing. In his third point of error, appellant complains of the trial judge's failure to recuse herself.
        Motions for recusal or disqualification of a trial judge are governed by rule 18a of the rules of civil procedure. See Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App.1993) (holding rule 18a applies to criminal cases). Rule 18a provides that such motions must be filed at least ten days before the trial or hearing, and that the motion must be verified. See Tex. R. Civ. P. 18a(a). When, as here, a motion to recuse does not comply with the requirements of rule 18a, the trial court is under no obligation to recuse or refer the motion to another judge. See Bruno v. State, 916 S.W.2d 4, 7-8 (Tex. App._Houston [1st Dist.] 1996, pet. ref'd). Further, failure to meet the requirements of rule 18a waives error, if any. See Arnold, 853 S.W.2d at 544 (motion not timely); Bruno, 916 S.W.2d at 8 (motion unverified). Here, appellant's motion was presented the day of trial and it was not verified. Because the motion is both untimely and unverified, the trial judge was not required either to recuse herself or to refer the recusal motion to the presiding judge of the administrative region for assignment to another judge for hearing and disposition. See Bruno, 916 S.W.2d at 8. Moreover, appellant has waived error, if any, by failing to meet the requirements of rule 18a. See id. We overrule points of error two and three.
 
Extraneous Offense Evidence
        In his fourth point of error, appellant argues the trial court erred by admitting evidence of his drug use because it was not relevant and its probative value was outweighed by the danger of unfair prejudice. In particular, appellant complains of S.L.'s testimony that he took money from the children to buy drugs, he used drugs, and he kept drugs in the home.
        Appellant fails to acknowledge, however, that S.L. also testified, without objection, that appellant would “put white stuff [in needles] and stick it in all of -- all of us kids, and it would make us go to sleep for a long time.” Moreover, B.L. testified, without objection, that the house where she lived with appellant “had broken windows. And, um, like had a dresser, just like one dresser with like drugs in it.” She also testified, without objection, that when she had to put appellant's penis in her mouth “it tasted like cocaine” and that she had seen cocaine in the house, it looked “like white powder.”
        To preserve error for review, a party must object each time the complained-of evidence is offered. When, as here, substantially similar evidence is subsequently admitted without objection, an appellate complaint is forfeited. See Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1994). By failing to object to S.L.'s and B.L.'s subsequent testimony regarding appellant's drug use and possession, appellant has failed to preserve his complaint for our review. See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (general rule is that error regarding improperly admitted evidence is waived if that same evidence is brought in later by the defendant or by the State without objection); Williams v. State, 995 S.W.2d 754, 760 (Tex. App._San Antonio 1999, no pet) (appellant waived objection to extraneous offense evidence because same evidence was admitted without objection); Madden v. State, 911 S.W.2d 236, 242 ) (Tex. App._Waco 1995, pet. ref'd) (same). We overrule appellant's fourth point of error.
        Accordingly, we affirm the trial court's judgments.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
 
 
FN:1
1 This Court recently affirmed Quinn's conviction for the sexual assault of S.H., appellant's stepdaughter. See Quinn v. State, No. 05-99-01422- CR (Tex. App._Dallas November 2, 2000, n.p.h.) (not designated for publication). In the same trial, the jury acquitted Quinn of the aggravated sexual assault of S.L. On appeal, Quinn argued the evidence was insufficient to support her conviction for the aggravated sexual assault of S.H. due to duress. Quinn admitted to assaulting S.H. but claimed she did so only because appellant forced her to do so.