NO. 07-02-0061-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 21, 2003

______________________________

TONY ROMO, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-436,194; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS, J., and BOYD, S.J. ^{(footnote: 1)}

MEMORANDUM OPINION ^{(footnote: 2)}

Pursuant to a guilty plea, appellant Tony Romo, Jr. was convicted of burglary of a habitation with intent to commit robbery and the jury assessed punishment at 80 years confinement.  By three issues, he contends the trial court erred in allowing (1) the admission of his confession in violation of his Sixth Amendment right to counsel present at every significant stage of a criminal proceeding after counsel has been appointed; (2) the admission of his confession in violation of his right to counsel under the Texas Constitution at every significant stage of a criminal proceeding after counsel has been appointed; and (3) the prosecution to present evidence through witnesses not disclosed in conformance with the pretrial orders concerning discovery issued by the trial court.  Based upon the rationale expressed herein, we affirm.

As to appellant’s first two issues, we find this Court’s previous opinion in Romo v. State, No. 07-02-0151-CR, 2003 WL 23126 (Tex.App.–Amarillo 2003, no pet. h.) to be controlling and cite the parties to it.  Issues one and two are overruled.

We next address appellant’s third issue.  The failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise.  Lindley v. State, 635 S.W.2d 541, 544 (Tex.Cr.App. 1982).  Here, appellant orally moved for a continuance at trial.  However, a motion for continuance not in writing and not sworn  preserves nothing for review.  Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Cr.App. 1999), cert. denied , 529 U.S. 1131, 120 S.Ct. 2008,146 L.Ed.2d 958 (2000).  Hence, we conclude appellant preserved nothing for appellate review.  Appellant’s third issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

   Justice

Do not publish.

FOOTNOTES

1:

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.   Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2002)

2:

Tex. R. App. P. 47.1.