Opinion
05-20-00192-CR 05-20-00194-CR
06-03-2021
HENRY MUNOZ, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause Nos. 2-19-0773 & 2-19-0774
Before Justices Schenck, Reichek, and Carlyle
MEMORANDUM OPINION
CORY L. CARLYLE, JUSTICE
Henry Munoz pleaded guilty under a plea agreement to indecency with a child and sexual assault of a child. Pursuant to the plea agreement, the trial court assessed punishment at twelve years' imprisonment and a $1, 000.00 fine in each case, with the sentences to run concurrently.
In four issues, Mr. Munoz appeals matters raised by written pre-trial motions. See Tex. R. App. P. 25.2(a)(2). He contends the trial court erred by denying his (1) pre-trial motions to dismiss the indictments due to violation of his speedy trial right and the State's "continuous and purposeful misconduct," (2) request for a determination of whether the State failed to present exculpatory evidence to the grand jury, and (3) request for a pre-trial hearing on his motion to suppress evidence. We affirm the trial court's judgments in this memorandum opinion. See Tex. R. App. P. 47.4.
Background
Mr. Munoz was arrested on January 9, 2019, and charged with continuous sexual abuse of a young child and possession of child pornography. Both charges pertained to his stepdaughter, Molly, who was seventeen at that time. On March 20, 2019, a grand jury indicted him on the continuous sexual abuse of a young child charge. The indictment alleged that on or about August 8, 2009, and before presentment of the indictment, he committed at least two acts of sexual abuse over a period of thirty days or more against Molly, a child under fourteen, by contacting her genitals with his hand. Mr. Munoz pleaded not guilty. He posted bond on April 25, 2019, and was released from custody.
"Molly" is the pseudonym for the complainant used in the record.
On September 9, 2019, Mr. Munoz filed a motion to suppress evidence stemming from a search of his cell phone. He requested that the motion to suppress be heard prior to trial "because of the purely legal nature of the issues raised" and "to avoid the unwarranted prejudice that would occur if any mention of the illegally seized evidence was made before the jury that will try the case." In the motion's conclusion, he also requested that his arrest be suppressed based on the same alleged illegal search.
The trial court set a pre-trial hearing for September 17, 2019, and a jury trial for October 21, 2019. On September 11, 2019, Mr. Munoz filed an unopposed motion for continuance due to his counsel's trial schedule in another case. He asked that his pre-trial hearing and trial "be continued on the docket of this court until the next term of the Court or until a later date in the present term of Court" and that "the Pre-Trial date be scheduled at least three weeks prior to said Jury date." Two days later, the pre-trial hearing was reset to October 8, 2019.
On October 1, 2019, defense counsel received notice of new discovery materials the State had uploaded to the electronic discovery portal. Those materials included the State's redacted notes from a September 5, 2019 interview of Molly and her mother. The interview notes show Molly described sexual abuse by Mr. Munoz from the time she was eight through her high school years. Though she stated in the interview that she had no memories from age eight through age thirteen, she also stated (1) he touched her genitals with his hand during an incident she thinks occurred when she was twelve, and (2) she thinks she was in elementary school the first time he put his finger inside her vagina.
On October 8, 2019, both parties met with the trial judge in his chambers to discuss pre-trial matters. At that meeting, the prosecutor told the trial court he "intended to take new cases to the grand jury and dismiss the pending [continuous sexual abuse of a young child charge]." At the State's request, trial was reset for January 27, 2020. On October 16, 2019, the grand jury returned indictments charging Mr. Munoz with sexual assault of a child and two counts of indecency with a child.
Though the October 8, 2019 meeting in chambers was not recorded, the prosecutor later described on the record what he told the trial court.
At an October 29, 2019 arraignment hearing, Mr. Munoz objected to the indictments against him based on "prosecutorial misconduct." Defense counsel asserted:
Our basis for this allegation is that we were assured in chambers with this Honorable Court by the State that they would, in fact, dismiss the continuing sexual abuse case in this cause. The allegation was based on the fact that the State articulated that they could not prove that particular indictment. . . .
We would object that the State has articulated to the defense that they now want to proceed on the continuing sexual abuse case . . . . We would also object that-we've been also informed that the basis for going forward on the continuing sexual abuse case was based on an interview that the State conducted with the victim and the victim's witness mother. . . . [T]he statements now made subsequent to the indictment are subsequently different than the allegations presented to the grand jury in acts and dates . . . .
Defense counsel also asserted he had agreed to the State's requested continuance only because the State told the trial court the continuous sexual abuse of a young child indictment "would be dismissed." He stated he otherwise would have opposed that continuance. Defense counsel argued:
So, in effect, the State got a continuance on that indictment by showing the Court that the case would be dismissed, and we did not go to trial when the defense was prepared to go to trial, nor did we have the pretrial when the defense was ready for pretrial in the continuing sex abuse, and those processes and procedures have passed, and now we're
before this Honorable Court with my client having to suffer additional bonds and additional costs that he cannot afford, that would subject him to be incarcerated, and we're alleging that this conduct is a direct result of the State's misconduct, Your Honor.
The prosecutor stated:
I've . . . been clear with [defense counsel] that I believed this case was a continuous. There's probable cause for a continuous. And that, at some point, the victim may provide the details that would support taking a continuous to a jury.
And that's what she did on Friday, October 25th. I met with her. She made additional outcry, including that the defendant anally penetrated her with a sex toy. And she also provided details that he touched her genitals when she was 13, more than 30 days apart. And that-she had previously told me-that nothing like that had happened before 13. She disclosed abuse at age eight, him showing her pornography at age 12, but she had not provided me-she was not providing me the facts when I was meeting with her to prepare for trial to support a continuous, which is why I conveyed that to the Court at the last setting. But new information has come about, as I just shared with the Court on Friday, October 25th. . . . .
Regarding the continuance, counsel is indicating that somehow I misrepresented or used this to get a continuance. The defense had filed a continuance [on September 11] and I had agreed to it. So they wanted a continuance, and based on the information I had at the time, I needed a continuance, and that information changed.
The trial court asked the parties whether there was a record of the October 8, 2019 discussion regarding the State's requested continuance. The parties stated there was not. The trial court stated, "I don't recall the details of the discussion other than that I-I thought it was an agreeable continuance."
The record does not show a ruling on the objections Mr. Munoz asserted at the October 29, 2019 hearing. Near the end of that hearing, the trial court stated to defense counsel, "I'm not clear what you're asking the court to do." Defense counsel responded, "Well, I'm just making my record, Your Honor."
On November 11, 2019, Mr. Munoz filed a "Motion to Determine Whether Exculpatory Evidence Was Presented to Grand Jury." The motion stated, "This Court should determine what exculpatory evidence was in the state's possession at the time it indicted Henry Munoz, and whether this evidence was presented to the grand jury. This determination could be made in camera." The motion asserted that any failure by the State to present exculpatory evidence in its possession to the grand jury violated Mr. Munoz's "rights to due process and due course of law."
On December 12, 2019, Mr. Munoz filed (1) a motion for speedy trial, (2) a motion to set aside the indictments in all five cases against him "for failure to afford constitutional right to speedy trial," and (3) a motion to "dismiss and set aside" all five indictments "for prosecutorial misconduct before the grand jury and Brady/Giglio/Morton violations." In a memo in support of those motions, he contended, "[T]he prosecution violated discovery obligations under Brady v. Maryland and Texas law, knowingly put on false testimony, and violated its duty of candor to the Court. The cumulative effect of the wrongdoing in this case elevates the misconduct to a level of constitutional violation and prosecutorial overreach depriving Defendant of any meaningful right to a fair trial."
At a December 19, 2019 hearing on those motions, defense counsel asserted "we have had some issues where we believe that mitigating and exculpatory and impeachment evidence has not been provided to us even though the State has an ongoing duty to provide this information." The trial court stated, "[W]e're going to follow the specific requirements of [Texas Code of Criminal Procedure article] 39.14. Nothing more, nothing less." The trial court also stated:
And, let me be clear to the State, what you have, you need to give to them. I don't want to have this situation, well, I just found something over the weekend as I was preparing for trial and now I'm going to give it to them. It puts them in a position to having to ask for a continuance or feeling like they've been prejudiced by it. What you've got, let's don't wait, give it to them. I know it says, reasonable time. Let's don't even get into that realm where we even have to have an argument.
As to Mr. Munoz's contention regarding the State's lack of "candor," the prosecutor stated:
At all times, for all indictments, probable cause existed. [Molly's] statements about no memory and I think I was 12, I think I was in elementary school is the reason why I was reconsidering proceeding on a continuous. But I told [defense counsel] when we first had this discussion, I said, unless she shares additional detail, I was candid with him that I believed it was a continuous because she says from the get-go, eight to 17 is when the abuse occurred, and she never waivers from that.
Regarding Mr. Munoz's request to determine what evidence was presented to the grand jury, the trial court stated to defense counsel:
[The grand jury] made an indictment and we're going forward on those. The State has the burden of proof, and they have the burden of providing you with everything they have that might be exculpatory or that's conflicting from what they originally presented, but I can't undo what the grand jury did or go back and get into their process. That's a secret process, as you know, and we're not part of it.
The trial court signed December 20, 2019 orders denying (1) the December 12, 2019 motions to dismiss or set aside the indictments and (2) the November 11, 2019 motion to determine whether exculpatory evidence was presented to the grand jury.
Though the appellate record originally contained no order regarding Mr. Munoz's motion to set aside the indictments for failure to afford a speedy trial, the parties agreed the trial court denied that motion and likely signed a December 20, 2019 order doing so. After the district clerk informed this Court that no written order could be found, this Court ordered the trial court to determine what constituted an accurate copy of the missing order and include it in a supplemental clerk's record. The trial court signed a December 31, 2020 order stating the motion in question "was denied, as reflected in the record." That order was filed in a supplemental clerk's record.
At a pre-trial hearing on January 16, 2020, the trial court addressed Mr. Munoz's request to have his motion to suppress heard before trial. The trial court stated it "always carr[ies] motions to suppress with the trial," unless a denial would be dispositive in that Mr. Munoz would then plead guilty. Defense counsel stated a denial would not be dispositive in this instance. The trial court then denied the request for a pre-trial hearing on that motion. The trial court stated, "I'll carry that with the trial, and we'll proceed along, send the jury out at the appropriate time. You approach the Bench and tell me when you think it is."
On January 27, 2020, Mr. Munoz filed a "Second Motion to Dismiss" and, alternatively, a motion for continuance. He contended the State had failed to "disclose evidence in a timely manner" during its continuing investigation. He also complained that the State had obtained and executed a search warrant only a week earlier and had not timely shared information regarding that new search. He argued that defense counsel "cannot effectively prepare for trial" because the defense (1) "has been put in a situation where they are being ambushed with the late disclosure of evidence and information," (2) "has been forced to halt trial preparations for the defense based on what the State had turned over," and (3) "is being forced to attempt to investigate new information and tailor its defense around the late disclosure." He asserted, "The lack of timely disclosure of exculpatory, mitigating and impeachment evidence described herein constitutes prosecutorial misconduct." Further, he restated his previously asserted lack-of-speedy-trial and improper-continuance complaints and contended, "The cumulative effect of the wrongdoing in this case elevates the misconduct to a level of constitutional violation depriving Mr. Munoz any meaningful right to a fair trial. Such misconduct warrants dismissal of the charges."
At a hearing that same day, the trial court stated it had not found that the State had "violated any of my instructions or any of my orders." The trial court noted that one remedy it could employ in such event was to exclude evidence the State turned over late. As to the recent search warrant, the trial court stated, "Well, counsel has said they didn't find any information as a result of the search warrant. The Court would have to decide, if they had found information, if it would be admissible because it was turned over too late." Additionally, the following exchange occurred:
THE COURT: So how are you prejudiced by having the fact that there was nothing found?
[DEFENSE COUNSEL]: We didn't have an opportunity to prepare our defense where we could plausibly use the fact that there was no evidence found against the defendant, where the defendant (sic) thought that some evidence would be found against defendant, and that's something maybe that we needed to investigate, and we've been
harmed by the late disclosure where we did not have the time and opportunity to do so.
At conclusion of that hearing, the trial court (1) denied Mr. Munoz's second motion to dismiss and (2) reset trial for February 10, 2020. The trial court stated, "[T]he State, of course, has to continue to supplement any exculpatory information that you come across. But if there's any other investigation, you can count on that evidence not being admitted in trial."
On February 10, 2020, Mr. Munoz pleaded guilty and the trial court sentenced him under the plea agreement as described above. The trial court also certified Mr. Munoz's right to appeal matters "raised by written motion filed and ruled on before trial, and not withdrawn or waived."
Analysis
Denial of motions to dismiss indictments
We review a trial court's ruling on a motion to dismiss a charging instrument for an abuse of discretion. E.g., State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998). While a trial court may dismiss a charging instrument to remedy a constitutional violation, the dismissal of an indictment is "a drastic measure only to be used in the most extraordinary circumstances." State v. Mungia, 119 S.W.3d 814, 817 (Tex. Crim. App. 2003) (quoting State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995)). "[W]here there is no constitutional violation, or where the appellee's rights were violated but dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dismissing the charging instrument without the consent of the State." Terrazas, 962 S.W.2d at 42. "Prosecutorial misconduct rises to a due-process violation when it is so significant that it deprives a defendant of a fair trial." Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim. App. 2012) (citing Greer v. Miller, 483 U.S. 756, 765 (1987)).
Right to speedy trial
The right to a speedy trial is guaranteed to criminal defendants in Texas by the United States Constitution, Texas Constitution, and Texas Code of Criminal Procedure. U.S. Const. amend. VI; Tex. Const. art. I, §10; Tex. Code Crim. Proc. art. 1.05. This right protects a defendant against unjustified and prejudicial pre-trial delay. Doggett v. United States, 505 U.S. 647, 651-52, 658 (1992); see also State v. Page, No. 05-18-01391-CR, 2020 WL 1899453, at *1 (Tex. App.-Dallas Apr. 17, 2020, no pet.) (mem. op., not designated for publication).
In analyzing a speedy trial complaint, we apply a balancing test in which we consider four factors: the length of delay, the reasons for delay, to what extent the defendant asserted his right to a speedy trial, and any prejudice suffered by the defendant. Barker v. Wingo, 407 U.S. 514, 530-32 (1972); see Hopper v. State, 520 S.W.3d 915, 923-24 (Tex. Crim. App. 2017). But before we engage in an analysis of each Barker factor, the accused must first make a showing that the interval between accusation-i.e., either his arrest or the date on which he was charged-and trial has crossed the threshold dividing ordinary delay from presumptively prejudicial delay. Doggett, 505 U.S. at 652 n.1; Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014).
The length of delay that will necessitate a Barker analysis is dependent upon the peculiar circumstances of the case. Page, 2020 WL 1899453, at *3 (citing Barker, 407 U.S. at 530-31; Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002)). "The time frame in which a speedy trial analysis is triggered is . . . analyzed on an 'ad hoc,' case-by-case basis; there is no constitutional basis for holding that an accused's speedy trial right can be 'quantified into a specified number of days or months.'" Id. at *5 (quoting Haas v. State, 498 S.W.2d 206, 211 (Tex. Crim. App. 1973)). Though a delay of eight months to a year is generally considered the minimum amount of time to trigger a speedy trial analysis, "[t]he length of delay, for purposes of evaluating when a Barker analysis is triggered, must be factored on a case-by-case basis without the imposition of rigid time limitations." Id. (specifically rejecting position that eight-month delay is presumptively prejudicial as matter of law). We review de novo a trial court's determination of whether there was sufficient presumptive prejudice to proceed to a Barker analysis. E.g., Gonzales, 435 S.W.3d at 808-09.
We begin with Mr. Munoz's second issue, in which he asserts the trial court "erred in denying [his] motion to dismiss the indictment with prejudice in violation of his speedy trial rights." He argues in part, "Here, the delay was more than eight months. The Court should proceed with the Barker analysis."
The record shows that approximately eleven months after his January 9, 2019 arrest, Mr. Munoz moved for both a speedy trial and a dismissal. Though the record thus shows a delay of more than eight months, "[t]he length of delay, for purposes of evaluating when a Barker analysis is triggered, must be factored on a case-by-case basis without the imposition of rigid time limitations." Page, 2020 WL 1899453, at *5.
As described above, Mr. Munoz posted bond a few months after his arrest and was released from custody. On September 11, 2019, he filed an unopposed motion asking that his pre-trial hearing and trial "be continued on the docket of this court until the next term of the Court or until a later date in the present term of Court" and that "the Pre-Trial date be scheduled at least three weeks prior to said Jury date."This open-ended request to continue trial until perhaps "the next term of the Court," filed while Mr. Munoz remained out on bond, demonstrates he was not seeking to proceed to trial quickly at that time. Three months later, after additional charges were filed against him and he faced additional bond costs and the possibility of jail time pending trial, he filed his speedy trial complaints. On this record, we conclude the trial court did not err by determining the delay in question was not presumptively prejudicial. See id. Thus, no further Barker analysis is required. See id.
The record does not show a ruling on that motion for continuance. Mr. Munoz contended in the trial court, and asserts on appeal, that the trial court "ruled that there would be no continuances of the trial date under in any circumstances." The trial court maintained it did not deny the continuance. The trial judge stated during the December 19, 2019 hearing that "from what I remember," he told defense counsel that "on that particular day I was not going to grant the continuance but I was going to consider it at a later time." Further, the trial judge stated at the January 27, 2020 hearing that "that continuance was never formally ruled upon."
Prosecutorial misconduct
Under the Michael Morton Act, the State has a continuous duty to disclose to the defense all "exculpatory, impeaching, and mitigating" evidence that tends to negate guilt or reduce punishment. Tex. Code Crim. Proc. art. 39.14(h); Watkins v. State, 619 S.W.3d 265, 276-77 (Tex. Crim. App. 2021). Disclosure must occur "as soon as practicable." Watkins, 619 S.W.3d at 278 (quoting Tex. Code Crim. Proc. art. 39.14(a)); see also Tex. Code Crim. Proc. art. 39.14(k) ("If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court."). When favorable evidence is not concealed but rather is untimely disclosed, the defendant bears the burden to show the delay resulted in prejudice. See Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). A defendant is prejudiced if the result of the proceeding would have been different had the evidence been disclosed earlier. See id. at 866-67.
The Michael Morton Act went into effect on January 1, 2014, and applies only to offenses that were "committed on or after the effective date." See Act of May 16, 2013, 83d Leg., R.S., ch. 49 (S.B. 1611). The State's duty to disclose as to earlier offenses is governed by prior-existing protections, which have been described as less broad. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring disclosure of favorable, material evidence); Watkins, 619 S.W.3d at 277. In this case, the distinction is not material.
In his first issue, Mr. Munoz asserts the trial court abused its discretion by "denying [his] motions to dismiss the indictment with prejudice given the State's continuous and purposeful misconduct which violated [his] constitutional rights." According to Mr. Munoz, the prosecutor (1) "failed to timely disclose exculpatory evidence in his possession on multiple occasions," (2) "failed to supervise the investigation and turn over evidence in the government's possession," (3) "fraudulently obtained a motion for continuance by announcing that it was going to dismiss an indictment against Appellant at a pretrial hearing," (4) "made repeated misrepresentations that all discovery had been turned over," (5) "secured new grand jury indictments against Appellant knowing that prior indictments had been obtained based on unreliable information," (6) "violated the court's discovery orders," (7) "failed to conduct a complete investigation into the case," and (8) "continuously violated Appellant's speedy trial rights all to such a flagrant degree that the integrity of the prosecution was destroyed." Further, Mr. Munoz contends,
[T]he facts of this case show deliberate and especially egregious constitutional and rule-based violations combined with a pattern of prosecutorial misconduct that so infected the prosecution as to warrant dismissal with prejudice because the integrity of the proceedings had been destroyed. The State made it impossible for Appellant to defend himself in accordance with the requirements of the Sixth Amendment's right to the assistance of counsel and in accordance with the Due Process Clause and thus undermined the fundamental fairness of the proceedings. The alleged individual acts of prosecutorial misconduct, when viewed collectively, denied Appellant fair proceedings.
The record shows the prosecution provided explanations for the alleged lateness in producing evidence and the trial court did not find the State's disclosure of evidence untimely. Further, the trial court (1) stated it would exclude late evidence at trial and (2) continued trial to February 10, 2020, to allow the defense additional time to prepare. On this record, we conclude Mr. Munoz has not met his burden to show that any delay resulted in prejudice. See id.
Regarding the "fraudulently obtained" continuance, the prosecutor explained on the record that he was uncertain as to whether he would proceed on the continuous sexual abuse of a young child charge and ultimately made up his mind to do so after receiving evidence he felt strengthened the State's case. The record does not conclusively show a "deliberate" attempt to mislead the defense or obtain a "fraudulent" continuance.
Mr. Munoz also asserts in his appellate brief, "The State's fraudulently obtained continuance allowed it to circumvent a double jeopardy claim when after obtaining the indictment for continuous sexual abuse of a child, it obtained a subsequent indictment for offenses that were subsumed in the continuous abuse of a child charge by the explicit dates listed in the charging instrument." Mr. Munoz provides no authority or further explanation regarding that contention. Thus, that contention presents nothing for this Court's review. See Tex. R. App. P. 38.1(i). Moreover, the State explained to the trial court at the December 19, 2019 hearing that the subsequently indicted offenses were based on acts separate from those on which the continuous sexual abuse of a young child charge was based, and were not "lesser includeds."
As to the remaining allegations, we concluded above that Mr. Munoz's speedy-trial right was not violated and we conclude below that the trial court did not abuse its discretion by refusing his requested disclosure regarding the grand jury proceedings. Thus, to the extent Mr. Munoz contends the alleged violations described above "collectively" warranted dismissal, we disagree.
Refusal to allow disclosure of grand jury proceedings
A trial court's decision regarding disclosure of grand jury proceedings is reviewed under an abuse of discretion standard. In re Grand Jury Proceedings 198.GJ.20, 129 S.W.3d 140, 143 (Tex. App.-San Antonio 2003, pet. denied). Though the law clearly spells out an obligation to keep grand jury proceedings secret, a trial court may order disclosure of grand jury information if the defendant shows "a particularized need." Tex. Code Crim. Proc. art. 20A.202-.205.
In his third issue, Mr. Munoz contends the trial court erred by refusing to grant him "an evidentiary hearing to determine what evidence was presented to the grand jury." According to Mr. Munoz, his counsel "questioned the State's declaration that after interviewing the witness, he did not believe he could prove the case at the time, yet he had successfully obtained five indictments based on the same." Mr. Munoz contends he "had a need to determine if the State was concealing crucial, substantive, and impeaching evidence from the grand jury, but for that conduct, would have resulted in a no bill."
Mr. Munoz's argument is based on Texas Code of Criminal Procedure article 20.02(d), which was repealed while this appeal was pending. See Acts 2019, 86th Leg., ch. 469 (H.B. 4173), § 3.01(2), eff. Jan. 1, 2021. The current statute governing a defendant's petition to disclose grand jury information is article 20A.205. See Tex. Code Crim. Proc. art. 20A.205. Article 20.02 was substantially similar to current article 20A.205 and, like the current statute, provided that the trial court may order disclosure of grand jury information if the defendant shows "a particularized need." Thus, any question as to which version governs here is immaterial.
We disagree with Mr. Munoz's position. The prosecution stated multiple times in the trial court that probable cause existed "[a]t all times, for all indictments." Moreover, "generally, the State has no duty to present exculpatory evidence to a grand jury." Matney v. State, 99 S.W.3d 626, 629 (Tex. App.-Houston [1st Dist.] 2002, no pet.). On this record, we conclude the trial court did not abuse its discretion by determining Mr. Munoz showed no particularized need to obtain the requested grand jury information. In re State, 516 S.W.3d 526, 528 (Tex. App.-San Antonio 2016, orig. proceeding); In re Grand Jury Proceedings, 129 S.W.3d at 144.
Denial of pre-trial hearing on motion to suppress
Article 28.01 of the Texas Code of Criminal Procedure provides that the trial court "may set any criminal case for a pre-trial hearing before it is set for trial upon the merits." Tex. Code Crim. Proc. art. 28.01, § 1. Article 28.01 "is not a mandatory statute, but is one directed to the court's discretion." Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988). "The court may elect to determine the merits of a motion to suppress evidence only during the trial upon the merits when proper objection is then lodged rather than at a pretrial hearing." Id.; accord Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012); York v. State, 342 S.W.3d 528, 550- 51 (Tex. Crim. App. 2011). "Even if a pretrial motion to suppress is called to the attention of the trial court, no error is presented if the trial court, in its discretion, declines to hear the same." Calloway, 743 S.W.2d at 649. "While the court is not required to hear any pretrial motion to suppress evidence the accused retains his right to raise any appropriate objection at trial." Id.
In his fourth issue, Mr. Munoz asserts the trial court erred by denying his request for a pre-trial hearing on his motion to suppress. According to Mr. Munoz, he "was denied the opportunity to make an informed decision about the State's offer and his chances at trial." Additionally, he contends he was "denied effective assistance of counsel and due process" because "the fact that Appellant's motion to suppress was premised on the probable cause for the arrest, it was impossible to argue the motion during trial. Appellant would be prejudiced if the jury heard any of the evidence where a lack of probable cause for the arrest was the issue."
The record shows defense counsel told the trial court a denial of the motion to suppress would not be dispositive. After denying the pre-trial hearing request, the trial court explained that Mr. Munoz retained the right to raise appropriate objections at trial to keep the evidence in question from the jury. Thus, the trial court did not abuse its discretion by denying his request for a pre-trial hearing on his motion to suppress. See id.
We affirm the trial court's judgments.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.