Opinion
Nos. 04-04-00292-CR, 04-04-00293-CR, 04-04-00294-CR, 04-04-00295-CR, 04-04-00296-CR
Delivered and Filed: July 6, 2005. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Kendall County, Texas, Trial Court Nos. 4148, 4149, 4150, 4151, and 4152, Honorable Stephen B. Ables, Judge Presiding. Abated and Remanded.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
In trial court numbers 4148, 4149, and 4150, John Robert Norman, Jr., was charged with sexual assault. In trial court numbers 4151 and 4152, Norman was charged with indecency with a child. Norman waived a jury trial and entered a plea of guilty in all five cases. An evidentiary sentencing hearing was then held before the bench. After hearing the evidence, the trial court sentenced Norman to five twenty-year sentences. In all five cases, Norman filed a motion for new trial. His motion was denied without a hearing. On appeal, Norman argues that the trial court abused its discretion in failing to hold a hearing on his motion for new trial. Before the sentencing hearing, Norman filed a motion to exclude extraneous matters, arguing that despite his requesting notice of extraneous unadjudicated offenses under article 37.07, section 3(g), of the Texas Code of Criminal Procedure, the State had failed to provide notice. Before the sentencing hearing, the trial court heard and granted Norman's motion. However, during Norman's case-in-chief, defense counsel moved to admit in evidence letters from individuals. These letters vouched for Norman's good character and attempted to persuade the trial court to place Norman on community supervision. Many of these letters suggest that Norman's behavior was a single mistake, not a pattern of behavior. On defense counsel's request, the trial court admitted the letters in evidence. Additionally, when Mark Steege testified, defense counsel asked Steege, "Is there anything you have heard today — you have been sitting here [during] the entire proceedings thus far. You have heard from the complainant. You have heard the tape. Is there anything you have heard today that would cause you to change your opinion on this matter?" Steege replied, "No, there is nothing." Later, defense counsel asked Steege whether, considering everything he knew about Norman, there was a likelihood that Norman would commit the offense again. Steege replied, "I think that the likelihood of reoffense is very small." In response to this evidence, the State argued that defense counsel had "opened the door" to the extraneous unadjudicated offenses. The trial court agreed. The State then questioned Steege about his knowledge of the extraneous unadjudicated offenses:
Q: [Defense counsel] asked you if there was anything you heard that would cause you to change your opinion. When was the first time you heard that there was an allegation that this had happened approximately 60 times and has also happened prior to the victim turning 15?
A: I think yesterday.
Q: Okay, and that doesn't change your opinion?
A: No.The State then recalled the victim, who testified that the sexual abuse did not occur only five times. According to the victim, there were probably twenty-five to thirty different incidents. In his motion for new trial, Norman argued that the trial court had erred in allowing the State to introduce evidence of extraneous unadjudicated offenses and that if the trial court had not erred, then his counsel was ineffective for opening the door to such evidence. Attached to his motion for new trial is an affidavit by lead defense counsel, Kurtis S. Rudkin. In his affidavit, Rudkin affirms the following:
Once I was advised that the State intended to use the alleged extraneous offenses, I sought to prohibit the State from introducing such evidence. [I] realized the potential prejudicial impact that admission of 60 uncharged extraneous offenses could have on the Defendant's sentence. [I] did not offer, invite in, or open the door to the admission of the 60 extraneous offenses. It was not [my] strategy to waive any alleged error with respect to the State's proffer of the extraneous offenses.The trial court denied Norman's motion for new trial without a hearing. In his first issue, Norman argues that the trial court erred in denying his motion for new trial without a hearing. A defendant is entitled to a hearing on his motion for new trial if the motion and accompanying affidavit raise matters not determinable from the record, upon which the accused could be entitled to relief. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003); Martinez v. State, 74 S.W.3d 19, 21 (Tex.Crim.App. 2002). To be sufficient to entitle the defendant to a hearing, the motion for new trial and accompanying affidavit "need not establish a prima facie case" for a new trial. Wallace, 106 S.W.3d at 108 (quoting Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994)). Rather, the affidavit "must merely reflect that reasonable grounds exist for holding that such relief could be granted." Wallace, 106 S.W.3d at 108 (quoting Martinez, 74 S.W.3d at 22). The purpose of the hearing is to give the defendant an opportunity to fully develop the matters raised in his motion. Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 21. If the trial court denies a hearing on the motion for new trial and the defendant appeals from that denial, the appellate court must review the trial court's decision for abuse of discretion. Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 22. And, "[w]hen an accused presents a motion for new trial raising matters not determinable from the record, which could entitle him to relief, the trial judge abuses his discretion in failing to hold a hearing." Martinez, 74 S.W.3d at 21 (quoting King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000)). Here, Norman raises an ineffective assistance of counsel issue on appeal, arguing that his counsel was ineffective for opening the door to the extraneous unadjudicated offenses. Without a fully developed record from a motion for new trial proceeding, Norman is unable to show that his counsel's ineffectiveness is firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); see also Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) (noting that under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional). As such, Rudkin's affidavit is sufficient to raise a particular matter not determinable from the record and reflect that reasonable grounds exist for holding that relief could be granted. Martinez, 74 S.W.3d at 21-22; Alvarado v. State, No. 04-03-00289-CR, 2004 WL 1102764, at *8 (Tex.App.-San Antonio 2004, no pet. h.). Accordingly, we hold that the trial court abused its discretion in failing to conduct a hearing on Norman's motion for new trial.
In addition to this issue, Norman argues on appeal that the trial court erred in including restitution in its judgments, in including illegal sentences in two of its judgments, and in allowing the State to introduce evidence of extraneous unadjudicated offenses. Additionally, Norman argues that he was denied effective assistance of counsel.
During his opening statement, defense counsel stated that Mark Steege, a clinical social worker with a speciality in sexual abuse and sexual dysfunction, conducted an evaluation of Norman. Defense counsel argued, "That evaluation of him will show that Mr. Norman, now a 49 year old man, this is a one time anomaly in his life." (emphasis added).
Norman attaches a separate affidavit by co-counsel, J. Gary Trichter, in which Trichter affirms that any statements he made during opening statement or during questioning of the witnesses that opened the door to the admission of the extraneous offenses were not trial strategy. Likewise, he affirms that if his move to admit the letters in evidence opened the door, it was not his trial strategy to do so. And, his failure to object or seek a continuance was not trial strategy. However, it is clear from the record that Rudkin was the lead attorney at the hearing. Rudkin, not Trichter, gave an opening statement, made objections, examined witnesses, and moved for the introduction of the letters in evidence.