No. 14-04-01122-CR
Opinion filed April 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 240th District Court, Fort Bend County, Texas, Trial Court Cause No. 37,572. Affirmed.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
RICHARD H. EDELMAN, Justice.
After being convicted by a jury of indecency with a child by exposure, Charles Craig Wolfe ("appellee") filed a motion for new trial alleging ineffective assistance of counsel for failure to object to hearsay testimony. The trial court granted this motion, and the State appeals. We affirm.
Standard of Review
Our disposition of this appeal is largely dictated by the broad discretion vested in trial courts to grant motions for new trial. To be entitled to a new trial (or reversal of a conviction) based on ineffective assistance of counsel, an appellant must show that his defense attorney's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Ex parte Chandler, 182 S.W.3d 350, 353-54 (Tex.Crim.App. 2005). For ineffective assistance in failing to object during trial, an appellant must show that the trial judge would have committed error in overruling the objection. Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004). However, where a defendant timely files and presents a motion for new trial that reflects "reasonable grounds" for holding a new trial, a trial court has discretion to grant the motion in the interest of justice, even though the basis asserted is not among those enumerated in Texas Rule of Appellate Procedure 21.3. See State v. Aguilera, 165 S.W.3d 695, 698 n. 9 (Tex.Crim.App. 2005); State v. Gonzalez, 855 S.W.2d 692, 694 (Tex.Crim.App. 1993). The Court of Criminal Appeals has recognized that, because this discretion is almost the only protection citizens have against illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, its scope extends to any circumstances in which the ends of justice have not been attained by a verdict. Gonzalez, 855 S.W.2d at 694. A trial court's ruling on a motion for new trial is reviewed for abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). A trial court abuses its discretion in granting a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id. In Gonzalez, the motion for new trial was granted in the interest of justice upon a showing only that the defendant's uncle had been unavailable to testify at his sentencing hearing, without any evidence presented about the content of the uncle's testimony or thus its significance to a determination of punishment. Gonzalez, 855 S.W.2d at 693, 695. Moreover, on appeal of the granting of a new trial, the State was not allowed to challenge the sufficiency of the showing made to support that decision, but was instead held to a burden to develop a controverting record affirmatively establishing that granting the motion was an abuse of discretion. Id. at 695-96. In effect, therefore, our case law currently provides no meaningful guidance for objectively determining under what circumstances a trial court lacks discretion to grant a new trial in the interest of justice. It is clear only that a trial court has discretion to grant a motion for new trial in a much broader range of circumstances than those in which it would be required to do so as a matter of law (that is, it would have no discretion to deny the motion). Therefore, in this case, we do not review whether such ineffective assistance of counsel was demonstrated as would have required granting a new trial (or reversing the conviction), but only whether the State has demonstrated that no reasonable view of the record could support a decision to grant a new trial in the interest of justice based on the ineffectiveness of appellee's counsel. Id. at 694. Hearsay Statements
Here, appellee asserted that counsel was ineffective in repeatedly failing to object to the complainant's and other witnesses' hearsay testimony regarding what the complainant had told others about the incident. The State argues that appellee failed to demonstrate that this failure was ineffective assistance because the statements at issue: (1) were not hearsay because they were too general in nature and thus not offered for the truth of the matters asserted; (2) were admissible as prior consistent statements; and (3) did not prejudice the defense even if inadmissible. During the State's case-in-chief, the complainant testified without objection, "I told [my friend] I was on the computer, . . . and I turned my face and I looked and I seen [sic] Mr. Wolfe." The friend similarly testified without objection: "I couldn't believe that [the complainant] was telling me this, . . . that these words were coming out of her mouth. She had looked over and Mr. Wolfe was exposing himself." The State first contends that these statements were not hearsay because they were merely generalized statements that the complainant had told others what happened, offered only to show that the conversations had taken place and not for the truth of the matters asserted. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Therefore, general statements by a witness that a conversation took place without specifying the details of the conversation are not hearsay. See Yancey v. State, 850 S.W.2d 642, 644 (Tex.App.-Corpus Christi 1993, no pet.). However, the statements recited above are not general, but specific testimony regarding out-of-court statements made by the declarants about the particulars of the alleged incident. The State also argues that these statements were admissible as prior consistent statements. A prior statement by a witness is not hearsay if the declarant testifies at trial, is subject to cross-examination about the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. TEX. R. EVID. 801(e)(1)(B). Here, the complainant's statements were made during her direct examination before the defense had any opportunity to cross-examine or otherwise challenge her credibility. Moreover, the State does not cite (and we have not found) any cross-examination seeking to challenge the complainant's truthfulness. Thus, neither the complainant's testimony nor the subsequent testimony of the complainant's friend recited above were offered in rebuttal. Under these circumstances, the State has not demonstrated that the complainant's out-of-court statements were admissible as prior consistent statements and thus outside the trial court's discretion to exclude. Finally, regarding the prejudicial effect of the failure to object to the hearsay statements, the State contends the statements were so general that there was no reasonable probability that, but for their admission, the outcome of the case would have been different. However, throughout the trial, the State emphasized the importance of the fact that the complainant had told others about the alleged offense. Because the only direct evidence of the offense was the complainant's testimony, it was within the trial court's discretion to conclude that trial counsel's failure to object to her hearsay statement, compounded by his failure to object to subsequent bolstering hearsay testimony of her friend, warranted the granting of a new trial in the interest of justice. Accordingly, the State's issue is overruled, and the judgment of the trial court is affirmed.