Opinion
07-22-00142-CR
08-24-2023
SHANNON ANNETTE NOLAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish.
On Appeal from the 181st District Court Randall County, Texas, Trial Court No. 30505B Honorable Titiana Frausto, Presiding.
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
Lawrence M. Doss, Justice.
After Appellant Shannon Annette Nolen pleaded guilty to the charge of intoxication assault with a vehicle, a jury assessed punishment at eight years of confinement in prison and a fine of $5,000. Appellant challenges her sentence through four issues. We affirm.
Background
This is a length of sentence case. Appellant's guilt is not in dispute. Appellant's complaint on appeal is replete with argument regarding what evidence should not have been considered and what should have been presented. However, no such discussion would be relevant without an initial statement of the undisputed foundational principles and evidence that undergird this case.
First, the legal foundation: This case involves Appellant committing intoxication assault with her car. In violation of section 49.07 of the Texas Penal Code, Appellant operated a motor vehicle in a public place, and, "by reason of that intoxication cause[d] serious bodily injury to another." Id. Because this crime is a third-degree felony, the statutory range for Appellant's imprisonment is between two and ten years, as well as a potential fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.34(a),(b). The jury rejected Appellant's request for community supervision and assessed an eight-year prison sentence and a $5,000 fine - both within the statutorily-prescribed range of punishment.
Second, the evidentiary foundation: At night, on February 5, 2020, Appellant, while intoxicated, drove her vehicle on Interstate Highway 27 from Tulia, Texas, toward Amarillo. Appellant drove north on the southbound side of the highway, i.e., into the flow of traffic. A state trooper who discovered Appellant was driving on the wrong side of the road activated his lights and siren, turned around, and sped to catch up, but Appellant kept driving; she did not hit her brakes. Appellant continued to drive into oncoming traffic until she collided with two vehicles. Her speedometer indicated Appellant was driving 76 miles-per-hour at the time she crashed. There is no evidence Appellant took evasive measures to avoid a collision.
A law enforcement officer found three receipts from earlier in the evening for a steakhouse in Tulia. The jury heard the receipts reported purchases of a total of 15 "premium whiskeys," eight beers, and one "cash." The receipts do not reflect any food purchases were made. No witness could recall who consumed what alcohol. During cross-examination of Geoffry McCaslin, Appellant's brother who accompanied her to the steakhouse, Appellant elicited testimony suggesting that Appellant was a beer drinker and that he "would order shots and drink them with his beer."
The distance from the steakhouse to the collision site is 37 miles.
Appellant's car crashed into a pickup, which overturned; another truck lost its rear axle and collided with the highway's median barrier. Officers shut down the highway so emergency vehicles, including a helicopter, could assist. Emergency personnel used the jaws of life to remove Appellant and a passenger, her brother Geoffry, from the vehicle. He suffered serious injuries; passengers of the other vehicles testified about how their life was profoundly changed by Appellant's acts.
In August 2020, a Randall County indictment charged Appellant with intoxication assault with a motor vehicle. Appellant entered an open plea of guilty and punishment was tried by jury. The State presented evidence regarding Appellant's intoxication, the collision, and other acts by Appellant. This included evidence that at the time of her decision to drive while intoxicated, Appellant was already under an order of community supervision in Parker County for criminal mischief because she, intoxicated and in the back of a police cruiser, became angry and damaged the vehicle. The State also presented evidence of when Appellant, as a teacher at a nearby high school, had an ongoing personal and sexual relationship with a high school student; alcohol was used throughout. This conduct cost Appellant her job and educator's certificate, but she was not charged criminally.
As a part of her trial strategy to seek a probated sentence, Appellant presented the testimony of a former probation officer, who explained the mechanics of probation. The jury also heard from Appellant, her husband, father, current employer, and a minister who counsels Appellant and her husband.
The jury assessed, and the trial court imposed, the previously noted sentence. The judgment contains a deadly weapon finding consistent with the verdict.
Analysis
Second Issue: Did Appellant's trial counsel render ineffective assistance?
We begin with Appellant's second issue, wherein she contends her trial counsel's performance deprived her of the right to effective representation guaranteed by the Sixth Amendment to the United States Constitution. Specifically, Appellant argues her attorney was ineffective for failing to conduct discovery, investigate her mental health history, challenge the State's expert who proffered testimony about Appellant's level of intoxication, and interview and call other witnesses in Appellant's defense; and that counsel suffered from a conflict of interest. We overrule her issue for the reasons explained below.
Before she can prevail on a claim that she was deprived of a right to effective counsel, Appellant must satisfy both prongs of a bipartite test. Strickland v. Washington, 66 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). First, Appellant must prove that her counsel's conduct was objectively deficient. Pate v. State, No. 07-15-00397-CR, 2017 Tex.App. LEXIS 8447, at *13 (Tex. App.-Amarillo Sept. 6, 2017, pet. ref'd) (citing Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004)). It is not enough to say with the benefit of hindsight that a different strategy might have been more effective or that another attorney would have handled the case a different way; Appellant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687-89. "[A]n act or omission that is unprofessional in one case may be sound or even brilliant in another." Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005). Appellant's trial counsel was not given an opportunity to explain his decisions, so we assess the first prong with a "strong presumption" that counsel's actions are "the result of reasonable strategy." Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023).
For the second prong, Appellant must prove counsel's deficient performance prejudiced her defense. Pate, 2017 Tex.App. LEXIS 8447, at *13. She must establish "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (citation omitted). Because this appeal only involves error allegedly committed at the punishment phase of trial, Appellant must demonstrate "a reasonable probability that, but for counsel's errors, the sentencing jury would have reached a more favorable verdict." Pham v. State, 639 S.W.3d 708, 713 (Tex. Crim. App. 2022) (citing Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012)).
In this case, Appellant argues at length about her trial attorney's decisions she contends were deficient. Counsel has not had an opportunity to explain his trial decisions, and Appellant has not overcome the presumption that counsel's decisions were the result of reasonable strategy. Based on the current record, we cannot fault counsel for not pursuing the paths Appellant complains of. See Hart, 667 S.W.3d at 784.
Moreover, we note that Appellant presents nothing more than a conclusory statement she would have received a more lenient sentence had additional mitigating evidence been introduced. As the U.S. Supreme Court wrote in Strickland:
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.Strickland, 466 U.S. at 693. The only practical difference between Appellant's argument and that which is insufficient under the Strickland standard is use of the phrase "reasonably probable" in place of "conceivable." This semantic difference is without merit. See Ex parte West, No. WR-78,439-02, 2016 Tex.Crim.App. Unpub. LEXIS 462, at *16 (Tex. Crim. App. June 8, 2016); Ex parte Cash, 178 S.W.3d 816, 818-19 (Tex. Crim. App. 2005) (rejecting ineffective assistance claim because defendant failed to demonstrate beyond conjecture and speculation that the sentencing jury would have reached a more favorable verdict).
Appellant's second issue is overruled.
First Issue: Was the trial court obligated to hold a hearing to receive evidence of Appellant's ineffective assistance claim?
We next consider Appellant's first issue, in which she complains that the trial court erred by failing to conduct a hearing of her motion for new trial. As with her second issue, Appellant's argument is that deficient performance by her attorney deprived her of the right to effective counsel. Here, she argues the trial court was required to provide an opportunity to develop and present this evidence in a hearing on the motion for new trial.
Appellant also filed a motion to abate and remand the case to the trial court for a hearing of her motion for new trial. We have carried Appellant's motion with the case, and it is hereby denied.
We overrule Appellant's issue. In 2009, the Court of Criminal Appeals held that before a trial court becomes obligated to set for hearing a motion for new trial pertaining to alleged ineffective assistance of counsel, the motion and supporting materials must establish that appellant could prevail under both Strickland prongs:
Before he will be entitled to a hearing on his motion for new trial alleging ineffective assistance of counsel, a defendant must allege sufficient facts from which a trial court could reasonably conclude both that counsel failed to act as a reasonably competent attorney and that, but for counsel's failure, there is a reasonable likelihood that the outcome of his trial would have been different.Smith v. State, 286 S.W.3d 333, 340-41 (Tex. Crim. App. 2009). Our review of the record reveals the motion and attached affidavits identify numerous witnesses and exhibits that Appellant posits should have been presented at trial. However, there is a dearth of factual support for the second prong, i.e., that Appellant would have received a lesser punishment but for counsel's allegedly deficient performance. It is not enough to simply make the naked assertion that the punishment would have been less. Id. at 342. We hold the trial court did not abuse its discretion in failing to hold a hearing on Appellant's motion for new trial.
See also Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (holding that trial court was not required to hold a hearing on appellant's motion for new trial regarding ineffective assistance of counsel when affidavit supporting motion failed to explain or demonstrate how counsel's deficient conduct harmed the appellant.).
We overrule Appellant's first issue.
At Appellant's request the clerk filed a third supplemental clerk's record. In response, the State filed its Motion to Strike Documents in Third Supplemental Clerk's Record. We have carried the State's motion with the case, and it is hereby denied.
Issue Three: Whether it was error to admit evidence of Appellant's former personal and sexual relationship with one of her high school students.
In her third issue, Appellant argues the trial court reversibly erred by failing to exclude evidence of her previous personal and sexual relationship with one of her high school students. Appellant lodged an objection under Rule 403 of the Texas Rules of Evidence, which permits a trial court to exclude relevant evidence "if its probative value is substantially outweighed by a danger of" a number of matters, including unfair prejudice and confusing the issues. TEX. R. EVID. 403. The trial court overruled the objection.
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id.
The State presented testimony that in 2009, Appellant, while a high school teacher, engaged in a relationship with a high school senior who attended her school; that relationship included having sexual intercourse on approximately ten occasions.Appellant also supplied the 18-year-old student with alcoholic beverages and consumed alcohol with the student. Appellant was never charged with a crime for these acts, but she did surrender her educator's certificate.
Per the language of section 21.12(a) of the Texas Penal Code in effect at the time, Appellant's sexual conduct was a second degree felony: "(a) An employee of a public or private primary or secondary school commits an offense if the employee engages in: (1) sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works and who is not the employee's spouse." Id.
This conduct was also a crime. TEX. ALCO. BEV. CODE ANN. § 106.06(a).
Appellant urges this evidence had little or no probative value due to the dissimilarity between the criminal offenses and the passage of time. She argues the State improperly used the evidence to persuade the jury "she should be taught a lesson in the case at bar." We disagree with Appellant that the State's presentation of the evidence was improper or that the trial court erred in its admission.
Passed by the Texas Legislature to overrule contrary decisions of courts on this question, Article 37.07 of the Texas Code of Criminal Procedure provides that during the punishment phase of trial, the State and defendant may offer:
Evidence . . . as to any matter the court deems relevant to sentencing, including but not limited to . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (ellipses added). The term "relevant" when used here "is simply that which will assist the fact finder in deciding the appropriate sentence in a particular case." Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008).
We have held Article 37.07 permits the State to present evidence of prior criminal conduct to assist the fact finder in deciding the length of a defendant's punishment. Abeyta v. State, No. 07-18-00014-CR, 2018 Tex.App. LEXIS 10603, at *4-5 (Tex. App.- Amarillo Dec. 19, 2018, pet. ref'd) (mem. op., not designated for publication). Evidence of prior acts is relevant when, as here, the defendant is requesting that her prison sentence be suspended in preference for community supervision. "[W]hen a defendant applies for community supervision (as the appellant did), the trial court may reasonably deem any character trait that pertains to the defendant's suitability for community supervision to be a relevant matter for the sentencer to consider." Sims, 273 S.W.3d at 295. See also Pantoja v. State, 496 S.W.3d 186, 190 (Tex. App.-Fort Worth 2016, pet. ref'd); Ellison v. State, 201 S.W.3d 714, 722 (Tex. Crim. App. 2006) (discussing historical development of sentencing law to encompass evidence pertaining to "suitability for community supervision").
At trial, Appellant found herself on the horns of a dilemma. She had committed an offense requiring confinement for two to ten years unless she could obtain a probated sentence. And because the terms of her existing community supervision order prohibited acts in violation of the law, she faced a pending motion to revoke her probation in Parker County. Appellant made the decision to ask the Randall County jury to assess probation, presumably with the intent to seek to modify and/or extend probation in Parker County in the future. However, doing so required Appellant to show that community supervision would not be futile. The State's evidence regarding Appellant's improper sexual relationship was probative because it provides an example for why community supervision is not appropriate. Appellant continues to fail or refuse to comply with her legal obligations even when there is a potential to face time in jail. See Darby v. State, No. 06-15-00042-CR, 2015 Tex.App. LEXIS 11211, at *15-19 (Tex. App.-Texarkana, Oct. 30, 2015, no pet.) (mem. op., not designated for publication).
Moreover, having reviewed the entire record of the three-day trial, we are confident that the trial court's admission of evidence of Appellant's sexual relationship with a student fell into the zone of reasonable disagreement, and that Appellant did not show substantial or injurious influence on the jury's punishment determination in light of the other admitted evidence. Tienda v. State, No. 07-10-0257-CR, 2011 Tex.App. LEXIS 4216, at *4-6 (Tex. App.-Amarillo June 1, 2011, no pet.) (mem. op., not designated for publication) (citing TEX. R. APP. P. 44.2(b) and Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) ("We have determined that substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.")).
Appellant's third issue is overruled.
Fourth Issue: Exclusion of testimony regarding "battered woman syndrome."
In her final issue, Appellant claims the trial court abused its discretion by excluding Appellant's "testimony on her prior diagnosis of battered woman syndrome." To support her argument, Appellant directs us to her testimony contained on three pages of the Reporter's Record. There, Appellant agreed with her counsel's question that she was diagnosed with "battered wife syndrome." Appellant responded "no" when counsel asked if her determination was based on self-diagnosis. The State then objected on the ground there can be no diagnosis of the syndrome because it is not recognized by the Diagnostic and Statistical Manual of Mental Disorders. The trial court sustained the objection and instructed counsel not to refer to diagnosing the syndrome. Her counsel's questioning then moved to another subject.
We know nothing else about the condition or its relevance to Appellant's sentencing because Appellant made no bill of exception or offer of proof. "To complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception." TEX. R. APP. P. 33.2. Rule of Evidence 103(a)(2) similarly provides that if a party intends to claim error in excluding evidence, the party should "inform[] the court of its substance by an offer of proof, unless the substance was apparent from the context." See also Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (en banc) (dismissing appellant's complaint regarding evidence of suffering from post-traumatic stress disorder when he failed to preserve error in trial court). We do not find the trial court abused its discretion in excluding evidence regarding "battered woman syndrome."
Appellant's fourth issue is overruled.
Conclusion
Having overruled all of Appellant's issues on appeal, we affirm the judgment of the trial court.