¶2I write separately because I cannot agree with the majority that Appellant somehow forfeited his right to offer evidence of actual innocence or mitigation evidence.
¶3A revocation is a unitary proceeding. As our sister court in Dallas has explained,
¶4 When a person enters a plea of guilty, the proceeding becomes a unitary proceeding. This applies regardless of whether the plea is entered before a judge or a jury. As the court of criminal appeals has noted, once an appellant enters a guilty plea, the court should conduct the trial as a unitary proceeding rather than allowing the defendant to "piecemeal" his plea of guilty and true.1
¶5When a defendant pleads guilty to a criminal offense and is placed on community supervision after the judge defers adjudication, the trial becomes a unitary proceeding.2 The Texas Court of Criminal Appeals has explained,
¶6 The bifurcated-trial procedure that the district court used is not authorized in a trial without a jury. Prior to the 1965 Code of Criminal Procedure all trials before the court or jury regardless of plea were unitary trials; that is, the issues of guilt and punishment were submitted at the same time. A bifurcated trial procedure was authorized in the 1965 revision of the Code of Criminal Procedure. The bifurcation statute provides, "In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed." The bifurcation statute is applicable only to pleas of not guilty before a jury. The statute has no application to a trial before the court on a plea of not guilty. This is not the first case in *581 which courts have failed to notice that the bifurcation statute applies only to pleas of not guilty before a jury.
¶7 [S]ome confusion has existed among the bench and bar since the advent of Article 37.07. Records reaching this court frequently show courts bifurcating bench trials where the plea is guilty. Often the court will hear evidence, declare the defendant guilty, order a pre-sentence investigation and sometimes months later re-convene the "penalty stage" of the guilty plea, allowing the State and defense to offer evidence as to punishment or guilt.3
¶8Contrary to the thoughtful majority's repeated designation of separate phases or portions of the trial, there was only a single, unitary proceeding. Consequently, no one returned to court for a punishment portion or phase or segment or part of the trial. If, as the majority insists, the participants did return for a punishment portion or segment or part, then the trial court committed error by bifurcating a unitary proceeding.
¶9The effect of the trial's becoming a unitary proceeding is that the issues of guilt and punishment cannot be separated.4 The trial court therefore erred by denying Appellant his constitutional Sixth Amendment right to cross-examine the State's witness and by requiring Appellant to wait for the "punishment phase" in a unitary proceeding that had no punishment phase. I can find no law that requires a party to a lawsuit, and certainly a criminal lawsuit, to issue a subpoena to a witness who is present in the courtroom, under oath, and subjected to direct examination by the opposing party in order to cross-examine that witness. The Texas Court of Criminal Appeals has explained repeatedly that
¶10 [f]airness would dictate that a defendant be accorded an opportunity to offer appropriate evidence in mitigation of punishment after the revocation of probation and the adjudication of guilt and before the assessment of punishment if such evidence has not already been elicited during the proceedings, particularly if the defendant requests the opportunity.5
¶11Here, the trial court was well aware that Appellant wanted to fully cross-examine the witness in order to offer evidence of actual innocence or mitigation evidence that lessened his moral culpability. He attempted to offer this evidence in cross-examination of the State's witness. The trial court refused to allow him to develop this evidence on cross-examination and told Appellant that he would have to wait until the "punishment phase." The witness was never released. Indeed, when the trial court asked if the witness could be released before Appellant had the opportunity to complete cross-examination, the prosecutor responded, "I'd ask she stick around, Judge."6
¶12As this court has previously explained,
¶13 We review the trial court's decision to exclude evidence under an abuse of discretion standard. An abuse of discretion occurs when the trial court acts without reference to any guiding principles or rules.
¶14 Where the excluded evidence is sought during cross-examination, the Confrontation Clause of the United States Constitution is implicated. Errors of this sort are subject to a harm *582 analysis, and must be reversed unless the court finds, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment.7
¶15But denial of the right to cross-examine witnesses may also be a due process violation when it prevents a defendant from offering evidence of actual innocence or punishment mitigation evidence and brings into question the fundamental fairness of a trial. As the Texas Court of Criminal Appeals has so eloquently explained,
¶16 Due process does not lend itself to simple, concise definitions. In its most basic sense due process is the impediment that is constitutionally imposed on governmental conduct that offends our fundamental rights. Relative to the protection of one's liberty: "[t]he essential guarantee of the due process clauses is that the government may not imprison or otherwise physically restrain a person except in accordance with fair procedures." In other words, due process is in itself essentially the same as fairness. Or, at the very least, due process is the vehicle used to arrive at fairness thereby protecting our fundamental rights. Accordingly, "a fair trial in a fair tribunal is a basic requirement of due process." If legislation alters the essential fairness of a trial then a due process violation is necessarily implicated. In Estelle v. Williams [425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)], it was specifically stated that "[t]he right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment."8
¶17Or, in other words,
¶18 The touchstone of due process is fundamental fairness. Accordingly, no State may deprive any person of the conditional liberty created by probation unless the State employs procedures that are fundamentally fair.9
¶19In its conscientious analysis, the majority concentrates on the propriety of the trial court's bifurcating the proceeding rather than on the trial court's refusal to allow Appellant to offer mitigating evidence or evidence of actual innocence when the State's witness was in court, on the stand, and available for cross-examination. The majority holds that this error is harmless because Appellant failed to use the magic words "confrontation and cross-examination." Appellant was in the middle of cross-examination. He tried to complete his cross-examination. The State objected, and the trial court sustained the objection on the basis that Appellant had to wait until the "punishment phase" to offer his punishment evidence. No one was confused about what Appellant was requesting or why.
¶20The error was less a Sixth Amendment issue than a due process issue. It cannot be said that Appellant did not clearly voice his complaint or that anyone — the trial court, the State, or this court — was and is not fully aware of Appellant's complaint. He tried to offer evidence in mitigation of punishment or evidence of actual innocence, and he was not allowed to do so. He was therefore denied fundamental due process. "The Due Process Clause of the Fourteenth Amendment prohibits criminal rules or procedures that offend traditional notions of fair play and substantial justice."10*583
¶21The proper analysis of this error is under rule 44.2(a) because the error is of constitutional dimension.11 It is of constitutional dimension, in part, because denial of the constitutional right to complete cross-examination of a witness in order to present evidence in mitigation of punishment or evidence of actual innocence is also a denial of due process. It is difficult to understand how denying Appellant the opportunity to present evidence of actual innocence, or even evidence in mitigation of moral culpability, could be harmless error under the facts of this case.
¶22Nor can I agree that Appellant, who had no obligation to subpoena the witness in order to claim his right to cross-examine, can be faulted for failing to file a written, sworn motion for continuance. Although the written, sworn motion is required for a pre-trial continuance request, after trial begins,
¶23 A continuance or postponement may be granted on the motion of the State or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.12
¶24Presumably, the legislature realized that a party who is surprised during trial does not show up in the courtroom with a prepared motion for continuance complete with affidavit on the off chance that something unexpected will occur. Surely the trial court's assuring Appellant that he would be allowed his constitutional right to complete his cross-examination of the State's witness in order to offer punishment mitigation evidence or evidence of actual innocence after the trial court improperly bifurcated a unitary proceeding would be an unexpected occurrence triggering article 29.13 protections. And surely a defendant in a criminal trial has the right to rely on the trial court's promise.
¶25We have not yet reduced our criminal trials to triumphs of form over substance. The grounds for the request for continuance were clear and uncontroverted. Appellant made his request in open court and on the record. The request was taken down by the court reporter and appears in the reporter's record. If Appellant had been requesting a jury instruction, the writing requirement would have been satisfied by dictating it into the record. Yet the majority holds that because the request for continuance appears in the reporter's record instead of being handwritten on a yellow legal pad, it is no motion at all. And the majority also holds that when the court, the State, and the defendant all know the basis of a request for continuance — and that basis is clear and uncontroverted — and both sides argue the motion to the trial court, that nothing has been preserved for review.
¶26The majority relies on Anderson v. State13 for the proposition that the denial of an oral motion for continuance preserves nothing for review and notes that *584 the Texas Court of Criminal Appeals holds that the court of appeals erred by applying a due process exception.14 But the facts of this case distinguish it from Anderson. That case involves a pretrial motion for continuance, not a trial court's deliberate truncation of an appellant's cross-examination of a witness and erroneous and false assurance that the cross-examination would continue in a later, fictitious "punishment phase."
¶27Our sister court in Texarkana has addressed this issue in a manner which I believe comports with constitutional mandates:
¶28 The purpose of requiring a sworn motion is to give credibility to the basis for the continuance. This would seem unnecessary when a matter is fully before the trial court. In this situation, the trial court would not need sworn pleadings to support the motion, but could consider testimony and support of the motion or the facts already before the court. A mandatory rule that all continuances must be in writing is a harsh requirement on parties in trial at the time the matter arising for which the continuance is sought. To have an opportunity to place the motion in writing and have it sworn to would sometimes require a delay of the trial until that matter could be completed, and the trial could often be expedited by allowing this motion to be oral and recorded by a court reporter.15
¶29Although the Rodriguez court affirmed the action of the trial court, the statutory requirement of a sworn motion for continuance does not supercede the constitutional requirement of a fair trial. This fact has been recognized by our sister court in Dallas and by the Supreme Court of Texas.
¶30In Thrower v. Johnston, 16 the trial counsel had a preferential setting in a different court in a different county. The trial court denied Thrower's unverified request to reset the case and defaulted Thrower when his counsel did not appear at the scheduled time but arrived in court as quickly as he could, given the conflict. In reversing the trial court, the Dallas Court of Appeals pointed out that
the want of verification does no more than raise or reinforce the presumption that the trial court committed no abuse of discretion. Considering the information that was provided to the court below of the conflict in district and county court settings, we hold that appellants rebutted the presumption that the trial court did not abuse its discretion, a burden placed upon them by the foregoing rules.17
¶32In reversing the trial court, the Thrower court relied on the Supreme Court of Texas's decision in Villegas v. Carter.18 In Villegas, the trial court allowed counsel to withdraw two days before trial. Villegas was unable to engage counsel who could be prepared for trial in such short time, especially in light of the fact that the first attorney refused to turn over the file. The Villegas court balanced the valuable right to be represented by counsel in a civil case against the abuse of discretion standard and held that the trial court abused its discretion when it allowed counsel to withdraw *585 two days before trial and then denied Villegas's unsworn and apparently oral motion for continuance.19 The court suggested that in determining whether the trial court abused its discretion in denying the unsworn motion for continuance, we consider the role that the trial court played in creating the basis for the request for continuance.20 TheVillegas court implies that it is fundamentally unfair to require a person to go to trial without a lawyer when the trial court both allowed counsel to withdraw at the eleventh hour and denied the non-compliant request for continuance.21
¶33The law governing motions for change of venue is also instructive:
A defendant's proper motion to change venue entitles him to a change of venue as a matter of law unless the State files controverting affidavits. The reason for this rule is that "in the absence of controverting evidence, there is no issue of fact to be resolved." However, this right is waived by the defendant if he participates in a hearing on the merits of the motion and allows the State to put on evidence in such hearing, consequently rendering the issue one of fact for determination by the trial court.22
¶35In the instant case, there is no issue in controversy. The issue was presented to the trial court when the witness took the stand and when the witness failed to appear. Both the State and Appellant participated in arguing the request to the trial judge. Requiring Appellant to request a recess while he reduced what was already taken down by the court reporter at both hearings to a handwritten, yellow-pad motion when the witness failed to appear, and requiring Appellant to write out an affidavit stating what everyone was aware of and what was completely uncontroverted, frankly, is not rational. When the interests of due process and technical compliance with a rule that should be satisfied by allowing either the State or the defendant to dictate a motion or request into the record in satisfaction of a writing requirement conflict, the due process interest must prevail.
¶36Whether an oral, unsworn motion for continuance is different from a written, sworn motion for continuance, in that one is an equitable motion and the other is a statutory motion, is the subject of conflicting opinions. But courts are in agreement that an improper denial of a motion for continuance may constitute a denial of due process. In a Fifth Circuit case, the court explained, in the context of the impact of the denial of a continuance on the right to counsel,
Initially, the determination of when to allow a continuance is committed to the deliberate discretion of the trial judge. The trial judge must steer clear of the Scylla and Charybdis of extremes. At one extreme, "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to counsel an empty formality." . . . While discretion is the rule of general application grounded in precedent, tradition and common sense, discretion can be abused. Viewing all the circumstances surrounding the trial court's decision, in the unusual case the denial of a continuance may be so arbitrary and so fundamentally unfair as to do violence to *586 the Constitutional principle of due process.23
¶38In the case now before this court, any delay was occasioned by the trial court's action in refusing to allow Appellant to complete cross-examination of the State's witness immediately after direct examination.
¶39I recognize that the issue may become moot if Appellant receives habeas relief, but I cannot agree with the majority's holding, explicit or implicit, that the trial court properly bifurcated the adjudication proceeding and that Appellant was required to subpoena the witness before being allowed to cross-examine her despite the State's having conducted its direct examination of her and the trial court's never releasing her. I therefore respectfully dissent.