Opinion
NO. 01-15-00181-CR
02-24-2017
PATRICK DUNBAR JESSE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Case No. 1370984
MEMORANDUM OPINION
A jury found appellant, Patrick Dunbar Jesse, guilty of the offense of capital murder. Because the State did not seek the death penalty, the trial court assessed his punishment at confinement for life without parole. The trial court further found that appellant used a deadly weapon, namely, a firearm, in the commission of the offense. In his first through fifth issues, appellant contends that the trial court erred in denying his motion for continuance, denying his motion for new trial, and admitting into evidence the previous trial testimony of an unavailable witness. In his sixth and seventh issues, appellant contends that his trial counsel provided him with ineffective assistance.
See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp. 2016).
See id. § 12.31(a) (Vernon Supp. 2016).
The Court addresses the issues presented in appellant's amended brief, which we may consider as justice requires. See TEX. R. APP. P. 38.7; Randle v. State, 878 S.W.2d 318, 319 (Tex. App.—Houston [1st Dist.] 1994, no pet.).
We affirm.
Background
Donta Lathan, appellant's cousin, testified that on December 10, 2012, appellant telephoned him, saying that he needed a "quick way to get some cash." Lathan explained that after the phone call, he and appellant met with Adante Sterling, Adam Taylor, and Kershun Woolridge to plan how to get the cash. They planned to use counterfeit money to buy narcotics and subsequently sell the narcotics for real money. Taylor telephoned the complainant, Alexander Sanchez, to set up the narcotics exchange at a gas station, but the complainant changed the location to the parking lot of an apartment complex.
Taylor, with Woolridge and Lathan as passengers, drove to the parking lot. Arriving at the parking lot before appellant, Lathan exited his car and got into the front passenger seat of the Ford Mustang in which the complainant was sitting. The complainant then pulled out marijuana packets and Xanax pills from an area "by the brake," using the light of his cell phone to show Lathan "the different grades of weed." Because the exchange was taking longer than expected, Taylor came to the Mustang to check on Lathan, asking "Everything good, everything good?" Lathan replied, "We was, like, Yeah, we good, we good," and Taylor walked away.
Subsequently, when appellant and Sterling arrived in a separate car, Taylor came back and opened the Mustang's passenger door. Then, Sterling, aiming a "pistol" at the complainant, told him to "[c]ome up out there; you know what time it is." The complainant also "came up out of his—the left side of his area with a weapon hisself." Lathan, who was "between two guns" pointed "across [his] body," quickly "pinned" the complainant's wrist "up to the ceiling," while Sterling yelled, "Gun, gun, gun!" Lathan took "control of the weapon," "rolled out [of] the passenger seat," and landed on "the concrete." He then saw appellant on the driver's side of the Mustang, saw a "big flash," and heard "a pop."
Lathan further testified that he, Woolridge, and Taylor left the apartment complex on foot after appellant shot the complainant. Appellant, Sterling, and the complainant remained at the scene. Once Lathan reached an alley behind the apartment complex, he heard several more gunshots. The complainant suffered four gunshot wounds in total. In Lathan's opinion, appellant did not need to shoot the complainant because Lathan had taken the gun away from the complainant before appellant first shot him.
The trial court admitted into evidence the testimony of Stevan Michael Cortes from appellant's earlier mistrial. Cortes was unavailable to testify because he died prior to the instant trial. Cortes testified that appellant told him that he had to shoot the complainant after the narcotics transaction "went down wrong." Cortes noted that he had recorded, on his cellular telephone, a short portion of their conversation, wherein appellant stated, "ain't nothing justified in a murder" and "even if I did shoot in self-defense, . . . still going to jail." Cortes explained that he contacted the Humble Police Department Detective E. Squier to tell him about appellant's admission. And he later gave Squier his cellular telephone to copy appellant's 18-second admission.
Detective Squier testified that after he had a "tech guy" copy the recording, he gave Cortes's cellular telephone back to him.
Continuance
In his first and second issues, appellant argues that the trial court erred in denying his motion for continuance because his "lead attorney," Sonya Anderson, "became extremely ill" and his motion met the statutory requirements. See TEX. CODE CRIM. PROC. ANN. art. 29.03 (Vernon 2016). The State asserts that the record contains no evidence that the trial court actually denied a properly submitted continuance motion, and, regardless, appellant actually received the relief that he requested.
A criminal action "may be continued on the written motion . . . of the defendant, upon sufficient cause shown." Id. After the trial has begun, the motion will be granted if a "fair trial cannot be had." TEX. CODE CRIM. PROC. ANN. art. 29.13 (Vernon 2016). We review a trial court's decision to deny a motion for continuance before or during trial for an abuse of discretion. See Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); James v. State, No. 01-15-00102-CR, 2016 WL 4537079, at *2 (Tex. App.—Houston [1st Dist.] Aug. 30, 2016, no. pet.) (at the beginning of trial); Bautista v. State, 474 S.W.3d 770, 777-78 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (during trial); Manuel v. State, 782 S.W.2d 335, 337 (Tex. App.—Houston [1st Dist.] 1989, pet. ref'd) (post trial). To establish an abuse of discretion, a defendant must show that he was actually prejudiced by the denial of his motion. Gallo, 239 S.W.3d at 764.
On December 11, 2014, three days after the trial court had granted appellant's motion to substitute Shannon Baldwin in as appellant's trial counsel, Anderson filed a written motion to continue the case until after December 31, 2014, but before the end of February 28, 2015. Although the record does not reveal whether the trial court granted or denied the motion, the trial did not commence until February 3, 2015.
Even were we to assume that appellant preserved error, we conclude that he suffered no harm because he received the relief that he requested. See TEX. R. APP. P. 33.1; see also Gallo, 239 S.W.3d at 764-65; Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) ("It is well settled that when [a defendant] has been given all the relief he requested at trial, there is nothing [for him] to complain of on appeal").
To preserve a complaint for appellate review, the record must show that the trial court ruled on the motion, either expressly or implicitly. TEX. R. APP. P. 33.1(a)(2)(A); Salazar v. State, 95 S.W.3d 501, 505 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd); see also McKinney v. State, 59 S.W.3d 304, 313 (Tex. App.—Fort Worth 2001, pet. ref'd) (motion for continuance implicitly overruled).
We overrule appellant's first and second issues.
New Trial
In his third and fourth issues appellant argues that the trial court erred in denying his new-trial motion because he was (1) "tricked" into agreeing to substitute Baldwin in as his trial counsel and denied "a reasonable opportunity to select and be represented by chosen counsel," Anderson, and (2) not allowed to be present "at the hearing for the motion for substitution." He further argues that the trial court erred in "not setting" his new-trial motion "for an evidentiary hearing" because "[it] raised issues that could not be determined by the trial record." See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). In his affidavit attached to his motion, appellant asserts that he agreed to the substitution of Baldwin because the trial court "was going to make [him] go to trial with a court appointed lawyer" if he did not agree to the substitution. Appellant also attached to his motion the affidavit of Anderson.
We review a trial court's denial of a new-trial motion for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We view the evidence in the light most favorable to the trial court's rulings and uphold them if they are within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court; rather we decide whether the trial court's decisions were arbitrary or unreasonable. Webb, 232 S.W.3d at 112; Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).
It is well-established that a defendant, within ten days after filing a motion for new trial, must present the motion for new trial to the trial court. See TEX. R. APP. P. 21.6; Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). "The purpose of the presentment rule is 'to put the trial court on actual notice that a defendant desires the trial court to take some action on the motion for new trial such as a ruling or a hearing on it.'" Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (quoting Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998)). The Texas Court of Criminal Appeals has acknowledged that "there are many ways to show presentment of a motion for new trial to the trial court," but "merely filing a motion is insufficient." Id. at 24. Nonetheless, "'[p]resentment' must be apparent from the record, and it may be shown by such proof as the judge's signature or notation on the motion or proposed order, or an entry on the docket sheet showing presentment or setting a hearing date." Gardner, 306 S.W.3d at 305 (quoting Stokes, 277 S.W.3d at 22).
Here, it is undisputed that the trial court did not rule on appellant's new-trial motion. The trial judge's signature does not appear on either appellant's motion or the proposed order accompanying it. Additionally, there are no entries on the court's docket sheet showing presentment or the setting of a hearing date. In the absence of a proper showing by appellant that he presented his new-trial motion to the trial court, we hold that the trial court did not err in not conducting a hearing on appellant's new-trial motion. See Perez v. State, 429 S.W.3d 639, 644 n.19 & 20 (Tex. Crim. App. 2014) (trial court not put on notice defendant wanted hearing when defendant did not set hearing or attempt to obtain ruling, but only filed motion for new trial accompanied by affidavits).
Moreover, in regard to the affidavits that appellant attached to his new-trial motion, we note that an affidavit attached to a motion is merely "a pleading that authorizes the introduction of supporting evidence" and does not constitute evidence itself. Briggs v. State, No. 01-01-00248-CR, 2002 WL 287530, at *2 (Tex. App.—Houston [1st Dist.] Feb. 28, 2002, no pet.) (not designated for publication); see also Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex. Crim. App. 1973). To constitute evidence, an affidavit must be introduced as evidence at a hearing on a new-trial motion. Briggs, 2002 WL 287530, at *2. Because there was not a hearing held on appellant's motion, the attached affidavits never became "evidence." Id.
Accordingly, we further hold that the trial court did not err in allowing appellant's new-trial motion to be overruled by operation of law.
We overrule appellant's third and fourth issues.
Confrontation
In his fifth issue, appellant argues that the trial court, in violation of his right to confront a witness against him, erred in admitting into evidence the previous trial testimony of Cortes because appellant's prior cross-examination of Cortes did not include newly discovered evidence. See U.S. CONST. amends. VI; Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004). He asserts that "allowing impeachment of [Cortes] through admission of documents was simply not sufficient" and the trial court "should have recognized that new evidence" of Cortes's "lack of veracity so undermined his credibility that none of his testimony should have been allowed."
The State argues that the admission of Cortes's prior testimony in the instant case did not violate appellant's right to confront Cortes because Cortes was unavailable, as deceased, and appellant cross-examined him during a previous trial. See Crawford, 541 U.S. at 59, 124 S. Ct. at 1369. And it asserts that the trial court did not err in allowing appellant to impeach Cortes's testimony "with documentary evidence."
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of agreement where reasonable people might disagree. Id. at 83.
The Confrontation Clause of the Sixth Amendment guarantees an accused the right "to be confronted with the witnesses against him" by having an opportunity to cross-examine the witnesses. U.S. CONST. amends. VI, XIV; see also Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). It bars the admission of testimonial statements of a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford, 541 U.S. at 59, 124 S. Ct. at 1369; Martinez v. State, 327 S.W.3d 727, 738 (Tex. Crim. App. 2010); see also Henley, 493 S.W.3d 77, 95.
Here, Cortes was unavailable because he was deceased, and appellant had a prior opportunity to cross-examine him at his first trial. Under the plain language of Crawford, Cortes's former testimony was constitutionally admissible during appellant's instant trial. See Martinez, 327 S.W.3d at 738. Appellant does not dispute the initial application of Crawford, but asserts that new evidence, combined with prior impeachment evidence, so undermined Cortes's credibility that the trial court erred in not excluding all of Cortes's testimony as an exception to Crawford's exception.
After the State read Cortes's previous testimony to the jury, the trial court allowed appellant to introduce educational records to establish that "Cortes ha[d] not graduated from any degree program at [the] University of Phoenix," as he had previously testified. In his previous testimony, Cortes had admitted to providing law enforcement officers with only "my middle name, my last name[,] and my social security number" because "I had a warrant . . . [for] [v]iolation of probation." And Detective Squier testified that Cortes had told him that his name was "Michael Cortez," instead of "Stevan Michael Cortes," and had given him an incorrect date of birth. Further, although Cortes had previously testified to having served in the United States military, the trial court excluded this evidence, at appellant's request, in the instant case because appellant did not have all of Cortes's military records in admissible form. When appellant's counsel later attempted to impeach Cortes with the military evidence he did have, the trial court sustained the State's objection to the evidence because, without Cortes's military testimony, the records constituted extrinsic evidence of untruthfulness.
Appellant complains that the evidence he used to impeach Cortes "demonstrated that he misled the police not only about his name, his date of birth, and other critical information, but also even about non-critical information, such as whether he completed college and what he did in his military service." Appellant asserts that "[a]fter the fact impeachment was insufficient to protect" his rights. And, citing Crawford, he argues that because his right to "confront the witnesses' testimony was not properly protected, he should be given a new trial."
Appellant misconstrues what the Confrontation Clause and Crawford require. In Crawford, although the Supreme Court noted that the goal of the Confrontation Clause is reliability of evidence, "[i]t commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford, 541 U.S. at 61, 124 S. Ct. at 1370. The exception to this rule, when testimonial evidence is at issue, is "unavailability and a prior opportunity for cross-examination." Id. at 68, 124 S. Ct. at 1374. Crawford provides no exception to this exception for testimonial evidence. See id. Because Cortes's previous testimony falls under Crawford's well-established exception, its admission in the instant trial did not violate the Confrontation Clause.
Accordingly, we hold that the trial court did not err in admitting Cortes's previous testimony into evidence.
We overrule appellant's fifth issue.
Ineffective Assistance of Counsel
In his sixth and seventh issues, appellant argues that his trial counsel rendered ineffective assistance because they failed "to secure the phone of Mr. Cortes and . . . fully impeach [his] testimony." He specifically asserts that his trial counsel failed to "secure and subpoena" Cortes's cellular telephone "to investigate and determine whether" appellant's statement, recorded by Cortes, "was part of a larger original"; "impeach [Cortes] with the [military service] information [she] did have in [her] possession"; and "object to the mere fact that investigators failed to secure" Cortes's cellular telephone.
To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). "An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). However, if "no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
Here, as to Strickland's first prong, because appellant did not present his new-trial motion to the trial court and obtain a hearing, there is no evidence in the record as to whether his trial counsel made an attempt to obtain Cortes's cellular telephone or whether it even still existed. And Cortes testified that the 18-second recording of appellant's admission constituted "everything that was on the recording." In regard to Cortes's military service, the trial court, as discussed above, did not admit evidence of it in the instant trial. And, in regard to appellant's assertion that his trial counsel did not "object to the mere fact that investigators failed to secure" Cortes's cellular telephone, she did object to the authenticity of the recording of appellant's admission and cross-examine Detective Squier about it.
We presume that trial counsel made all significant decisions in the exercise of reasonable professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Accordingly, we hold that appellant has not demonstrated that his trial counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Lopez, 343 S.W.3d at 141-44.
We overrule appellant's sixth and seventh issues.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).