Erik Velazquez Ayala v. State

Opinion issued October 26, 2006 Opinion issued October 26, 2006 In The Court of Appeals For The First District of Texas NO. 01-05-00714-CR ERIK VELAZQUEZ AYALA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 46364 MEMORANDUM OPINION Erik Velazquez Ayala pleaded not guilty to the charge of the murder of Javier Martinez. The jury found Ayala guilty and sentenced him to thirty-five years’ imprisonment. On appeal, Ayala contends (1) the trial court erred in denying his motion to suppress evidence seized after his warrantless arrest, (2) the evidence is legally insufficient to sustain his conviction, and (3) the trial court erred in denying his motion for continuance, thereby denying him effective assistance of counsel. We affirm. Background Ayala’s brother, Morelos Ayala, testified that in February 2004, Ayala and Morelos repaired their parents’ back patio. Afterward, they went to shoot pool. After playing pool, the brothers returned to their parents’ house, and Martinez, the decedent, arrived ten minutes later. At about 8:00 p.m. or 8:30 p.m., Morelos went home to his wife and children. Ayala called Morelos around 11:00 p.m., 1:00 a.m., and 2:00 a.m. to ask whether he would come out drinking. Morelos heard Martinez’s voice in the background the second time, and actually spoke on the phone with him during the third telephone call. Morelos told Ayala and Martinez that he did not wish to go. Morelos testified that it sounded as if the two men were in a bar, and that by the third phone call, the men sounded intoxicated. Around 3:30 a.m. or 4:00 a.m., Ayala knocked on Morelos’s door and asked whether he could park his truck in Morelos’s garage. Ayala wore a black jacket and blue jeans. Morelos removed his truck from the garage and allowed Ayala to park his truck in the garage. Ayala told Morelos that someone had shot “Javier” and thrown him in a ditch somewhere. Morelos observed a red stain on Ayala’s truck seat, and told Ayala to do what he needed to do and leave. Ayala stated that he planned to clean his truck and leave. When Ayala finished cleaning his truck, he told his brother not to tell anyone about the incident. A couple of days later, Ayala asked Ray Camorena, his cousin, to accompany him to several bars in Houston to look for a cellular phone that he had lost. Camorena testified that Ayala had procured a job for Martinez at San Jacinto Stone Company, and that Ayala and Martinez were good friends. Six days after Martinez’s disappearance, Pearland Police Officer John Albin discovered Martinez’s body in a water-filled ditch on the side of the road. Near the body, Albin also discovered a wallet with Martinez’s identification, and a cellular phone that belonged to Ayala according to the serial number and T-Mobile phone records. Crime Scene Investigator Ricky Bort testified that someone had hand-pulled grass and thrown it on top of the body in an attempt to obstruct a view of it. Investigators also found a shoe print next to Martinez’s body. Bort ran no tests on Martinez’s hands to determine whether he had fired a gun. He testified that no attempts were made to remove fingerprints from the wallet and cellular phone recovered at the scene. Four days after discovering Martinez’s body, Detectives Cecil Arnold and Rene Alvarado spoke with several of Ayala’s family members. Detective Alvarado testified that Ayala’s father, Ramiro Ayala, told him Ayala had shot Martinez in self-defense. Ramiro testified at trial, however, that he never discussed what happened to Martinez with Ayala, and that Ayala never told him he had shot Martinez in self-defense. Catalina Ayala, Ayala’s mother, testified that she did not have a conversation with Ayala in February or March 2004 regarding Martinez’s death. Specifically, Catalina testified that she did not tell Morelos that Ayala had told her he had shot Martinez in self-defense. Morelos also testified that Ayala never told him he had shot Martinez in self-defense. Arnold testified, however, that when he spoke with Morelos in front of Ayala’s parents’ house, Morelos seemed anxious and looked repeatedly back towards the house. Morelos told him that he recognized the phone discovered next to Martinez’s body as Ayala’s phone. After obtaining a statement from Morelos, Arnold and Alvarado went to Alamo Stone Company to look for Ayala. Arnold believed Ayala to drive a green Ford F-150 truck, and upon seeing one parked in front of Alamo Stone, Arnold confirmed with police dispatch that the vehicle was registered to Ayala. Alvarado approached Ayala in the lunchroom of Alamo Stone. Alvarado testified that he immediately placed Ayala under arrest. Ayala did not seem nervous and was very cooperative. Arnold and Alvarado asked for consent to search Ayala’s vehicle. Alvarado explained the voluntary consent to search form to Ayala in English and Spanish. Arnold testified that he spoke to Ayala in English, and Ayala appeared to understand what he said. Ayala stood behind Arnold as he searched the vehicle. When Arnold opened the driver’s side door, he observed a new cellular phone and cellular phone box, as well as a blanket covering the seat. Arnold removed the blanket and observed what he believed to be a bloodstain on the seat. Arnold called the District Attorney and based on that conversation seized Ayala’s truck as evidence. Arnold testified that it was at this point that he arrested Ayala. The investigators then took Ayala to his home. Arnold asked Ayala what he wore the night of Martinez’s murder, and Ayala told him a black leather jacket that Arnold discovered on the floor of Ayala’s bedroom. Arnold noticed a lot of mud on the lower part of the jacket, and what he believed to be a bloodstain on the right sleeve. Arnold and Bort testified that no one conducted tests to determine if the mud discovered on Ayala’s jacket matched the mud at the crime scene. Arnold conceded that it would be possible for Ayala to get mud on his jacket at work because he worked at a stone company. Arnold also discovered a black semiautomatic SIG Sauer handgun, a nine millimeter spent shell casing, two boxes of nine millimeter ammunition, and two bags of hollow point bullets. Arnold testified that when he opened the handgun, which was a .40 caliber, the nine millimeter shell casing fell out of it. Bort testified that ballistics determined that the gun recovered from Ayala’s apartment was not the murder weapon. Arnold also discovered plastic cellular phone packaging bearing the same model number as the cellular phone he had discovered next to Martinez’s body, and several suitcases filled with clothes. Police retained Ayala’s vehicle at the police department until they obtained a search warrant, at which point Bort examined the truck. Bort photographed a bloodstain in the middle of the bench seat and obtained samples from the stain. Bort also obtained samples of blood spatter from the passenger’s side door and from the floor around the gearshift. He also removed the headliner, the visors, and the dome light assembly, all of which contained blood spatter. At trial, Bort testified that he compared the shoe impression he had discovered next to Martinez’s body with both Martinez’s and Ayala’s shoes. Bort testified that he believed that the cast matched the shape and size of the shoes recovered from Ayala’s apartment, but he admitted that he is not an expert in making such comparisons, and the cast was not sent to an expert because it was a poor sample. Christy Smejkel, a criminalist for the Texas Department of Public Safety, determined that Martinez’s DNA matched the blood found on Ayala’s jacket, and on the seat and floor of his vehicle. She determined that one of the bloodstains from the seat, and the stain from the floor of Ayala’s truck, contained the DNA of multiple people, but that in both instances, Martinez’s DNA was present. Dr. Steven Pustillnik, the medical examiner who performed the autopsy on Martinez’s body, testified that the only external injury to Martinez was a bullet hole to the neck. He testified that the bullet entered through the soft tissue on the left side of the neck, striking the vertebral column and the base of the skull, and ending up next to the jaw on the right side of the head. Dr. Pustillnik recovered the bullet, which was a hollow point that had been filled with wax to ensure it would expand when it struck its target. He explained that stippling, or small abrasions on the skin caused by powder and other particles traveling with the bullet and striking the skin, occurs when a gunshot wound is inflicted from two inches to twenty-four inches away, which is considered an intermediate range wound. Marginal abrasions, or abrasions caused by the skin rubbing against the bullet, appear when a gunshot wound is inflicted from twenty-four inches away or more, which is called distant range. Dr. Pustillnik testified that he believed it was unlikely that Martinez shot himself because the gunshot likely came from two feet away or more. Darrell Stein, the State’s firearms expert, testified that Bort gave him a .40 caliber Smith & Wesson SIG arms pistol, a magazine, one spent cartridge case, and some unfired cartridges to analyze. Stein determined that the spent cartridge was not fired from the pistol. The cartridge was .38 caliber, consistent with a nine millimeter Luger, but could also have been fired from a .38 Special or a .357 Magnum. Some of the unfired cartridges discovered in Ayala’s apartment were nine millimeter hollow point Luger bullets. Morelos testified that Martinez, who was in his late forties, had made comments in the past that Ayala’s seventeen-year-old sister was “hot” and “sexy,” and that Martinez would “talk a whole bunch of stuff” when he was drunk. Martinez’s comments would offend everyone, and people would tell him to stop saying those things. Morelos testified that Ayala had procured a job for Martinez at Alamo Stone Company, and that Martinez sometimes carried a semiautomatic gun. Morelos testified that he had seen Ayala with two guns, but not on the night of Martinez’s murder. Motion to Suppress In his first issue, Ayala contends the trial court erred in denying his motion to suppress because the evidence recovered from his truck was the fruit of his illegal arrest. Specifically, Ayala contends the taint of the illegal arrest was not sufficiently attenuated to permit the introduction of evidence discovered following Ayala’s consent to search his vehicle and apartment. The State responds that the evidence at trial shows consent to search was voluntary and any taint of an illegal arrest dissipated. We agree. Facts Four days after the discovery of Martinez’s body, Detectives Alvarado and Arnold went to Ayala’s place of employment, Alamo Stone Company. The detectives located Ayala’s truck in the parking lot, and parked their police car directly behind it, in order to block it from leaving. Alvarado then went to locate Ayala. Alvarado and Arnold both testified that, before searching Ayala’s truck, Alvarado asked Ayala for permission to search his truck and apartment and read the consent form in both English and Spanish. Ayala agreed to allow the detectives to search both areas and signed the consent form. Ayala was not handcuffed at this point in time and the detectives allowed Ayala to stand behind them while they searched his truck. Alvarado and Arnold then traveled with Ayala to search his apartment. Ayala helped the detectives locate certain items and appeared to understand what was going on at all times. Ayala never withdrew consent to search his truck or apartment at any time. The record contains conflicting testimony from the detectives as to when Ayala was placed under arrest. Alvarado testified that immediately after Ayala stepped out of the building, he informed Ayala, in Spanish, that he was under arrest for the investigation of the homicide of Javier Martinez. Alvarado testified that he then read Ayala his Miranda rights[1] and asked him if he would give the detectives consent to search his vehicle and apartment, also in Spanish. Arnold, however, testified that Alvarado’s statement is incorrect, and that Ayala was not under arrest when he came out of the building. Instead, Arnold testified that he himself did not place Ayala under arrest until he obtained Assistant District Attorney Keith Allen’s authorization to do so, which was after they searched Ayala’s truck, with his consent, and found what appeared to be bloodstains. The trial court ultimately found the arrest to be warrantless and illegal since it did not meet any of the exceptions for a warrantless arrest. The trial court, however, found by clear and convincing evidence that the police did not obtain Ayala’s consent to search by exploitation of the illegal arrest, and denied Ayala’s motion to suppress because the taint from the illegality was sufficiently attenuated. The trial court found the consent was voluntary because there was a sufficient attenuation of the taint. Viewing the evidence in a light most favorable to the trial court’s ruling, we conclude that the court implicitly found that Ayala was placed under arrest before he gave his consent to search, as Alvarado testified, rather than after the search, as Arnold testified. Standard of Review We apply a bifurcated standard of review to motions to suppress, giving almost total deference to the trial court’s determination of historical facts, while reviewing de novo the court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We defer to the trial court’s rulings on “mixed questions of law and fact” if the “ultimate resolution of those questions turns on an evaluation of credibility and demeanor.” Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Foster v. State, 101 S.W.3d 490, 495 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Accordingly, the trial court may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. Ross, 32 S.W.3d at 855. If, as in this case, the trial court files no findings of fact, we view the evidence in a light most favorable to the ruling and will uphold the trial court’s ruling on any theory of law supported by the evidence. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). Attenuation of Taint Ayala first contends the State is barred from raising the theory of attenuation of taint for the first time on appeal because the State did not present this theory to the trial court. The record, however, indicates that the trial court addressed this theory at the suppression hearing. We therefore analyze whether any taint from the illegal arrest was sufficiently attenuated. When consent follows an illegal arrest, courts examine whether the consent is tainted by the illegal police conduct. See, e.g., Brick v. State, 738 S.W.2d 676, 677–78 (Tex. Crim. App. 1987) (holding court of appeals erred in declining to consider whether arrest was illegal and whether consent was tainted by potentially illegal police activity). The primary purpose of determining whether consent is tainted is to ensure that evidence that is the fruit of an unreasonable search or seizure by police is not admissible in court. Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963) (when evidence results from illegal actions of police, issue is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”). The Court of Criminal Appeals in Brick held that courts should apply the factors articulated in Brown v. Illinois, 422 U.S. 590, 604–05, 95 S. Ct. 2254, 2262 (1975), including an independent analysis of the voluntariness of the consent. Brick, 738 S.W.2d at 679–81; see Boyle v. State, 820 S.W.2d 122, 131 (Tex. Crim. App. 1989), overruled on other grounds, Gordon v. State, 801 S.W.2d 899, 911 n.13 (Tex. Crim. App. 1990). The court in Brick held: [B]efore it can be determined that evidence derived from a warrantless but consensual search following an illegal arrest is admissible, it must first be found, by clear and convincing evidence, not only that consent was voluntarily rendered, but also that due consideration of [certain] additional factors . . . militates in favor of the conclusion that the taint otherwise inherent in the illegality of the arrest has dissipated. 738 S.W.2d at 681. The burden of showing attenuation and thus admissibility rests with the State. Id. Voluntariness of Consent When relying upon consent to justify the lawfulness of a search, the State has the burden to prove by clear and convincing evidence that the consent was freely and voluntarily given. Bumper v. N. Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1791 (1968); see also Corea v. State, 52 S.W.3d 311, 317 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). The burden requires the State to show that the consent was positive and unequivocal, and without duress or coercion. Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985); Riordan v. State, 905 S.W.2d 765, 770 (Tex. App.—Austin 1995, no pet.). The burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. See Bumper, 391 U.S. at 548–49, 88 S. Ct. at 1791­–92. The validity of consent to search is a question of fact to be determined from all the circumstances. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). Here, Detective Alvarado testified that he read Ayala his Miranda rights and requested consent to search Ayala’s truck in both Spanish and English. Alvarado did not handcuff Ayala or draw any weapons, but instead walked with him to the truck to meet with Detective Arnold. Alvarado then translated the voluntary consent to search form to Ayala in Spanish, explained that they were asking to search both his truck and apartment, and noted that he had the right to refuse to provide consent or could withdraw consent at any time. Ayala signed the consent form and stood behind the detectives as they searched his truck. Although the record is not clear as to exactly what point in time the detectives handcuffed Ayala, it is clear he was not handcuffed before he signed the consent form nor while he observed the detectives search his truck. Ayala fully cooperated at all times, at one point even helping the detectives find certain items at his apartment. Additional Brick Factors The Court of Criminal Appeals in Brick identified six factors to consider in determining whether consent to search is purged of its primary taint: (1) the proximity of the consent to the arrest; (2) whether the seizure brought about police observation of the particular object which they sought consent to search, or, in other words, whether the illegal arrest allowed officers to view the area or contraband that the officers later received consent to search; (3) whether the illegal seizure was flagrant police misconduct; (4) whether the consent was volunteered, rather than requested by the detaining officers; (5) whether the arrestee was made fully aware of the fact that he could decline consent and, thus, prevent an immediate search; and (6) whether the police purpose underlying the illegality was to obtain the consent. 738 S.W.2d at 680–81; Beaver v. State, 106 S.W.3d 243, 250 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Here, the first factor, the proximity of the consent to the arrest, tends to favor suppression of the evidence because the record indicates Ayala’s consent to search his truck and apartment immediately followed his arrest by Detective Alvarado. Temporal proximity, however, is not a strong determining factor, and courts have generally analyzed it in light of the flagrancy of police misconduct and any intervening circumstances occurring between the time the officers began the unlawful detention of the appellant and appellant’s giving of consent. Boyle, 820 S.W.2d at 132. With regard to the second factor, Ayala’s unlawful arrest did not bring about the detectives’ observation of his truck. Rather, the detectives already had identified the truck as belonging to Ayala. Moreover, the detectives did not search the truck pursuant to the arrest, but rather obtained consent first. The arrest therefore did not bring about observation of the truck. This factor favors the State. The third factor is whether the illegal seizure was flagrant police misconduct. Courts typically do not deem police misconduct as “flagrant” unless the police engaged in the conduct for the purpose of obtaining consent, or to cause surprise or fear. Beaver, 106 S.W.3d at 250–51. The record indicates that the detectives thought they had probable cause to question Ayala regarding the investigation after they found Ayala’s cellular phone near Martinez’s body and spoke with Morelos. The detectives’ misconduct thus was likely not for the purpose of obtaining Ayala’s consent to search his truck. Additionally, nothing in the record demonstrates that the misconduct was calculated to cause surprise or fear. There is no evidence in the record of threats or coercion by the detectives. On the contrary, Ayala was not handcuffed when he was arrested or while the detectives searched his truck. Furthermore, Alvarado read Ayala’s Miranda rights to him in Spanish, as well as translated the consent form into Spanish. The detectives also testified that they were able to speak to Ayala in English, and that Ayala seemed to be cooperative and understood what was going on at all times. The record does not show that the detectives’ conduct was purposefully flagrant; thus, this factor weighs in favor of the State. The fourth factor favors Ayala because the police requested that he consent to allow them to search his truck and apartment—he did not volunteer it. Ayala was made fully aware of the fact that he could decline consent and prevent an immediate search, which weighs in favor of the State under the fifth Brick factor. The record reflects that Alvarado asked Ayala in both languages if he would consent to the search and sign the form. The detective also informed Ayala that he had the right to refuse to give consent to search his property. Ayala appeared to understand the request, and he seemed cooperative at all times. Finally, the sixth factor examines whether the police purpose underlying the illegality was to obtain consent. The record reveals that the detectives thought they had probable cause to question Ayala regarding the investigation into Martinez’s death. Regarding the arrest, however, the trial court noted that “instead of a police purpose underlying [the] illegality . . . [the officers] had a difference of opinion, more or less.” Alvarado thought Ayala was under arrest before they requested his consent to search, whereas Arnold thought Ayala was not under arrest until after they searched his truck. The record does not indicate whether there was any improper police purpose underlying the illegality. This factor does not clearly favor either Ayala or the State. Viewing the record and all reasonable inferences in the light most favorable to the trial court’s ruling, we find the consent to search was sufficiently purged of its primary taint. Accordingly, we conclude that Ayala’s consent to search was voluntary and that any taint of the illegal arrest was sufficiently attenuated.[2] Legal Sufficiency In his third issue, Ayala contends the evidence is legally insufficient to support his murder conviction because the circumstantial evidence fails to demonstrate that Ayala fired the shot that killed Martinez. Standard of Review When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421–22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. In circumstantial evidence cases such as this, it is unnecessary for every fact to point directly and independently to appellant’s guilt; it is enough if the combined and cumulative force of all the incriminating circumstances warrants the conclusion. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983). Analysis A person commits the offense of murder if he “intentionally or knowingly causes the death of an individual” or he “intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” Tex. Pen. Code Ann. § 19.02(b)(1)–(2) (Vernon 2003). Ayala contends this case is similar to Clayton v. State, in which the Corpus Christi Court of Appeals found evidence legally insufficient to sustain a murder conviction where the evidence failed to demonstrate that the appellant fired the bullet that killed the victim. 169 S.W.3d 254, 258 (Tex. App.—Corpus Christi 2005, pet. granted). This case is distinguishable from Clayton, however, because in Clayton, there was no evidence of motive or of appellant’s presence at the scene before the commission of the crime. In Clayton, the victim was discovered shot multiple times, lying in a field next to a wrecked car full of blood. Id. at 256. Appellant’s transfer fingerprints, where appellant had touched the victim’s blood and then touched the car, were discovered on the steering wheel and on the gearshift. Id. The State provided no motive, and appellant testified that he had arrived after the incident, attempted to drive the victim in the wrecked car to get help, and was frightened away by an oncoming truck, which crashed in a ditch near the scene. Id. at 256–57. Here, Morelos testified that, on the evening of the incident, he saw Martinez and Ayala together at his parents’ house, and subsequently received phone calls from Ayala’s phone, from both Ayala and Martinez, asking him to come drinking with them. More importantly, Morelos testified that Ayala showed up at his house early the next morning asking to use Morelos’s garage to clean his truck because someone had shot Martinez and left him in a ditch. Morelos also testified that, in the past, Martinez, a middle-aged man, had made inappropriate comments about Ayala’s teenage sister while he was drunk that had made Ayala angry. Thus, the State in this case presented evidence both that Ayala was with Martinez prior to the incident, and that he had a potential motive for murdering him. In addition, the State presented evidence that police officers discovered Martinez’s blood in Ayala’s truck and on the jacket Ayala claimed to have worn the evening of the murder. The same jacket was muddy, as were the shoes Ayala claims to have worn that evening. Police officers discovered Ayala’s cellular phone next to Martinez’s body, which was lying in a ditch and covered with pulled grass. Police discovered hollow point bullets and ammunition in Ayala’s apartment consistent with the bullet removed from Martinez’s body. Viewed in a light most favorable to the verdict, we conclude that this evidence is legally sufficient to sustain Ayala’s conviction. Motion for Continuance In his second issue, Ayala contends the trial court abused its discretion by denying his motion for continuance because it denied him effective assistance of counsel. Specifically, Ayala contends that although he was allowed to test the victim’s DNA found on his shoes, he was not given sufficient time to test other DNA evidence that the State discovered on his shoes, which he contends could potentially have been exculpatory. The State responds that Ayala has failed to preserve error on this issue. We agree. Article 29.03 of the Texas Code of Criminal Procedure requires that a motion for continuance be 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. 29.03 (Vernon 1989). Moreover, the Texas Court of Criminal Appeals has held that “[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). Here, Ayala presented two unsworn motions for continuance, and has therefore failed to preserve error with respect to the motions on appeal. Id.[3] Even if we construe this issue as a complaint that Ayala was denied effective assistance of counsel because his attorney failed to file a sworn motion for continuance, we do not believe that Ayala has satisfied the second prong of Strickland. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984). To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). A defendant has the burden to establish both of these prongs by a preponderance of the evidence, and a failure to make either showing defeats his ineffectiveness claim. Andrews, 159 S.W.3d at 101; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). We presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we will find counsel’s performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. We cannot speculate beyond the record provided, so any allegation of ineffectiveness must be firmly founded in the record, and the record affirmatively must demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A trial court’s decision to grant or deny a motion for continuance is discretionary. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). To find an abuse of discretion in refusing to grant a motion for continuance, there must be a showing that the defendant was prejudiced by his counsel’s inadequate preparation time. Id. Here, Ayala contends that he was prejudiced because although he was allowed to test the victim’s DNA found on his shoes, he was not given sufficient time to test other DNA evidence that the State discovered on his shoes, which he contends could potentially have been exculpatory. If a third party actually committed the murder in this case and somehow left DNA on Ayala’s own shoes during the crime, then Ayala should know of his identity and could have had him subpoenaed for trial. See Perez v. State, 5 S.W.3d 398, 400–01 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding appellant did not satisfy Strickland test when appellant demonstrated a complete lack of diligence by failing to timely disclose factual information to trial counsel). Ayala has also failed to demonstrate how the existence of the third party’s DNA on his shoes could overcome the evidence against him. Ayala thus has not shown that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Andrews, 159 S.W.3d at 101. Accordingly, we hold that Ayala was not denied effective assistance of counsel. Conclusion We conclude that (1) the trial court did not err in denying Ayala’s motion to suppress evidence seized after his warrantless arrest, (2) the evidence is legally sufficient to sustain Ayala’s conviction, (3) Ayala failed to preserve error regarding the trial court’s denial of his motion for continuance, and (4) Ayala was not denied effective assistance of counsel. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. Tex. R. App. P. 47.2(b). [1] Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966); see also Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005). [2] Because we conclude that Ayala’s consent renders the search of his vehicle and apartment valid, we need not address the issue of whether his arrest was authorized under the Code of Criminal Procedure, or whether the officers had jurisdiction to make the arrest. [3] We note that this court and others have held that a motion for continuance that does not comply with the Code of Criminal Procedure may nonetheless be reviewed for abuse of discretion if denial of the motion for continuance amounts to a denial of the rudiments of due process. See, e.g., Williams v. State, 196 S.W.3d 365, 367 (Tex. App.—Houston [1st Dist.] 2006, no pet.); O’Rarden v. State, 777 S.W.2d 455, 459–60 (Tex. App.—Dallas 1989, pet. ref’d). Ayala does not argue, however, that such a review is warranted in this case.