Summary
noting that defendant was indicted for theft by deception and ultimately confessed to securing financial support from her boyfriend, shortly before and during his military deployment overseas, by telling him "utter falsehood" that she was pregnant with his twins, sending him photos of his nonexistent "children," and faking death and burial of one "child"
Summary of this case from Harty v. StateOpinion
NO. 02-14-00441-CR
08-31-2016
ASHLEY THOMAS APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-0232-C MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
In six points, Appellant Ashley Thomas appeals the trial court's judgment convicting her of theft of $1,500 or more but less than $20,000, a state jail felony to which she pleaded guilty and for which a jury assessed two years' confinement and a $10,000 fine as her punishment. See Tex. Penal Code Ann. § 12.35(a) (West Supp. 2016) (stating that an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than 2 years or less than 180 days and that the individual may also be punished by a fine not to exceed $10,000). All of her points involve procedure: in the first five, Thomas complains that the trial court's denial of her motion for continuance was an abuse of discretion that also violated her federal and state constitutional rights with regard to due process and effective assistance of counsel. And in her final point, Thomas argues that the trial court erred by sustaining the State's objection to her questioning of the venire panel, limiting her voir dire. We affirm.
Thomas opted to plead guilty and to have a jury assess her punishment.
Former section 31.03(e)(4)(A) provided that theft is a state jail felony when the value of the property stolen is $1,500 or more but less than $20,000. See Act of May 13, 2009, 81st Leg., R.S., ch. 139, § 1, sec. 31.03(e)(4)(A), 2009 Tex. Gen. Laws 461, 462, amended by Act of May 27, 2015, 84th Leg., R.S., ch. 1251, § 10, sec. 31.03(e)(4)(A), 2015 Tex. Sess. Law Serv. 4208, 4212 (current version available at Tex. Penal Code Ann. § 31.03(e)(4)(A) (West Supp. 2016)). The statute was amended effective September 1, 2015, to increase the amount to $2,500 or more but less than $30,000. See Act of May 27, 2015, 84th Leg., R.S., ch. 1251, § 10, sec. 31.03(e)(4)(A), 2015 Tex. Sess. Law Serv. 4208, 4212.
II. Factual Background
In early 2010, prior to his deployment to Afghanistan, U.S. Army Sergeant Zachary MacCalla became intimately involved with Thomas. After he attempted to end their relationship, Thomas showed him a photograph from an ultrasound and told him that she was pregnant with his twins. This was an utter falsehood. Over the course of several months, both prior to MacCalla's deployment and during his tour of duty in Afghanistan, Thomas further elaborated on her lie by concocting a high-risk pregnancy and later the fictional premature births of their twins—Molly Grace and Gunner Michael—and consequential health complications for both children. Thomas sent photos of the children to MacCalla while he was stationed in Afghanistan, and he sent Thomas one-third of his paycheck each month for the benefit of his "children." MacCalla was not the only person who was taken in by Thomas's lies; so were his family members and friends, and Thomas's own parents as well.
MacCalla chose their names with family history in mind.
Shortly after his deployment, Thomas told him that while Gunner was out of NICU, Molly was still in an incubator and was undergoing some medical procedures.
At one point, MacCalla set up a joint bank account so that he could deposit money in lieu of sending expensive money orders. But he closed the account after Thomas put the account into overdraft several times. He also sent money to Thomas to help with the pregnancy via Western Union money orders, the receipts of which showed payments on July 2, 2010 ($350); August 9, 2010 ($240); and September 15, 2010 ($200). After the fictional children were "born," MacCalla set up $400 allotments—representing approximately a third of his monthly take-home pay—from his paycheck to a specific bank account number provided by Thomas. The allotments began in October 2010 and continued monthly until June 2011, totaling approximately $3,600.
Every epic tale must also include tragedy, and here Thomas did not disappoint, in the form of Molly Grace's untimely death, complete with ashes that Thomas brought with her to the memorial service. To attend the service, which was arranged by MacCalla's family and attended by approximately thirty of MacCalla's friends and family in his hometown of Wapato, Washington, MacCalla was required to obtain a mid-tour early leave, forcing a rearrangement of other soldiers' scheduled leaves. Thomas was able to attend only through the generosity of the MacCalla family, who paid for her travel arrangements. The ashes in the little wooden box that MacCalla looked upon that day were actually the cremated remains of Thomas's mother's deceased dogs.
In January 2011, MacCalla was in his bunk in his tent in Afghanistan when he was notified that Molly Grace had died during a heart procedure. When he and Thomas spoke about it later by phone, they both cried over the loss.
Gunner did not accompany Thomas because "the doctor wouldn't allow him to fly."
Also true with every epic tale is that the truth will come out in the end, and Thomas's tale was no different. Although she initially agreed that MacCalla could visit with Gunner during his layover in Dallas on his way back to Afghanistan, that visit never came to pass. Then, after MacCalla's mother, who was a school teacher, travelled from Washington to Dallas during her summer vacation in July 2011 to visit her grandson, she reported to her son that something was amiss. MacCalla informed his chain of command about the situation, and after being interrogated by the Army's criminal investigations division, he was eventually put into contact with Denton County Sheriff's Investigator Don Britt.
At trial, MacCalla could not recall the reason Thomas gave for his not being able to see his son.
Because of hearsay concerns at trial, the prosecutor instructed MacCalla not to testify as to the details of this conversation or otherwise specify what his mother related to him that caused the "concern."
In the early stages of the investigation, MacCalla said that he had only "a vague idea of what was going on. [He] wasn't sure if the kids had died or if they had been kidnapped or if they even existed." In his final conversation with Investigator Britt, he learned that the children never existed. MacCalla testified that this revelation made him feel "worse than when I found out my daughter was dead," describing his feelings as "[b]etrayal. Just pure betrayal. I don't think I ever felt that bad in my entire life." After his tour in Afghanistan ended approximately a month later, he was redeployed to Fort Sill, where he served until he was deployed to South Korea approximately a year later.
MacCalla testified as to how this ordeal affected him
I haven't handled it well. I started drinking more. For a long time I didn't - - I am not sure how to describe it. I didn't really care about anything. I developed a drinking problem. I am in treatment for it now. I don't trust women. I can't have a relationship anymore. I have tried several times and it fails because I just can't believe anything they are telling me.He also testified that his trust issues stemming from this experience extended even to his fellow soldiers.
Thomas ultimately admitted to Investigator Britt that she had fabricated the entire story and that she had done it for the money. But while Thomas admitted to the investigator that she was motivated by the $400 that MacCalla sent her each month, she also claimed that she did it to try to hold onto her relationship with MacCalla.
Thomas's recorded interviews with Investigator Britt were published to the jury.
Thomas did not articulate how perpetrating this disturbing hoax could have furthered that goal.
While MacCalla was still stationed at Fort Sill, Thomas contacted him to ask if he would contact the Denton County District Attorney's Office to get the charges dropped, but she never apologized to him.
III. Procedural Background
Thomas was indicted on February 2, 2012. On September 22, 2014, she filed an application for community supervision. Her trial was set to begin with voir dire on Monday, September 29, 2014.
On Friday, September 26, 2014, at 4:36 p.m., Thomas's attorney filed a verified motion for continuance, alleging that "[a]fter talking with the victim's [sic] family[,] [he] ha[d] learned mitigating evidence that needs to be further investigated" and also requested "more time for a psychological evaluation to be done."
Counsel's verification merely stated that he was Thomas's attorney of record and had read the motion for continuance and swore "that all the allegations are true and correct to the best of [his] knowledge and belief."
The trial court heard Thomas's motion on September 29, 2014, before jury selection began. The full extent of counsel's argument in support of the motion was that "we learned some additional evidence from the family that might mitigate my client's punishment and we ask for additional time to get that, as well as additional time for psychological evaluation." The trial court denied the motion.
After the State completed its voir dire, the venire panel took a break while the State objected to some of Thomas's voir dire slides. Specifically, the prosecutor raised objections to proposed questions about second chances, such as whether "someone ha[s] to deserve a second chance," "does the person need to admit their mistake first," and "[w]hat does it take in us to give someone a second chance," on the ground that those questions were impermissible "contracting questions." During the hearing, Thomas agreed to remove other questions to which the State objected.
In response to the State's objections, Thomas modified this question to "what are some reasons not to give someone a second chance," and she removed the question about whether the mistake would need to be admitted first.
"Contracting" is another way to describe getting prospective jurors to make a commitment to resolve, or refrain from resolving, an issue a certain way after learning a particular fact. Hernandez v. State, 390 S.W.3d 310, 314-15 (Tex. Crim. App. 2012), cert. denied, 134 S. Ct. 823 (2013).
With regard to Thomas's question about whether it mattered who the victim was, the State again lodged a "contracting" objection, stating that because it was under the heading "probation for theft," Thomas was essentially asking if the potential jurors could give probation "if the victim is X," and that the very nature of the question elicited a contracting answer depending on the identity of the victim. The trial court preliminarily ruled that Thomas could ask the question, stating, "We will see how it goes." The trial court agreed when the prosecutor sought clarification, asking, "[J]ust go with that until I raise my objection?"
Thomas began voir dire by asking about the benefits of giving someone a second chance, whether someone had to deserve a second chance in order to get one, and if too many second chances could be given.
Thomas asked if the potential jurors would hold it against her if she did not testify. She then dovetailed that question with, "Would you need to hear from [Thomas] to consider giving probation?" The State objected to contracting, and the trial court sustained the objection and instructed the venire panel to disregard the question. Thomas went back to asking individual jurors if they would hold it against her if she did not testify. Thomas then asked individual veniremembers whether they had ever told a lie and whether a lie could get out of control.
Regarding punishment, in response to questions by some on the venire panel, Thomas clarified that probation meant "to suspend" while punishment involved an actual range. The following colloquy ensued:
[Thomas]: . . . Okay. So you have to be eligible for probation. What do you think, Mr. Milner, to be eligible for probation?
VENIREPERSON: It depends.
[Thomas]: What do you mean, "it depends?"
VENIREPERSON: The answer to every question is, it depends.
[Thomas]: How about you, Ms. Blake?
VENIREPERSON: Probably not.
[Thomas]: You don't think it is eligible for probation? Ms. Zambora, do you have to be eligible for probation in order to get it?
VENIREPERSON: Yes.
[Thomas]: Under Texas law you don't -- you have no prior convictions to be eligible for probation. You can't have any prior felony convictions in order to be eligible. What is [sic] your thoughts on probation, Ms. Gallagher?
VENIREPERSON: Without knowing details, it is hard to say. I believe it is appropriate in certain cases so somebody can lead a productive life.
[Thomas]: Mr. Holland, how about you?
VENIREPERSON: I think it depends on the nature of the act.
[Thomas]: Okay. Mr. Swallow, how about you?
VENIREPERSON: I think it depends on the range of what happened and what was the intent and how you reach the conclusion in terms of the person.
[Thomas]: Does it matter, Mr. Faught, who the victim is?
VENIREPERSON: I don't think so.
[Thomas]: How about you, Ms. Rourk? Does it matter who the victim is?
VENIREPERSON: My feelings about probation, does it matter who the victim is?
[Thomas]: Yes.
VENIREPERSON: I'd like to say no.
[Thomas]: Not probation, I mean just - not probation, just in a matter of assessing punishment does it matter who the victim is?
VENIREPERSON: I think so. If the victim was a child, then, yeah, I would have -Thomas then proceeded to explain the purposes of probation, questioned the potential jurors about their thoughts on rehabilitation, deterrence, and retribution, and asked them about the benefits of receiving a second chance before circling back to ask whether an individual veniremember would give more sympathy to a law enforcement officer who was a victim in the case. After the State again objected to contracting, Thomas withdrew the question, and voir dire continued. Thomas's trial began the next day, revealing the evidence as set out in the facts above.
[Thomas]: I don't want to get into facts, just whether or not you think it, yes or no. Ms. McKaig?
VENIREPERSON: Does it matter who the victim is for probation?
[Thomas]: For punishment?
[Prosecutor]: I will object to contracting.
THE COURT: Sustained.
[Prosecutor]: Ask the jury be instructed to disregard last statement of counsel.
THE COURT: Jury so instructed. [Emphasis added.]
Before the defense case began, the State raised a motion in limine with regard to Thomas's mother's potential testimony about Thomas's having been the victim of several sexual assaults—the "mitigating evidence" referenced by counsel in the motion for continuance. Thomas's counsel stated,
We recently learned in terms of I think my client telling the mother regarding an assault at the age of eight. We just learned about that, I think the witness just learned about it. I have no intention of going into that at all, so I have no problems in terms of granting the State's motion in limine regarding when the Defendant was eight years old.
As to the older one when she was 13, the mom was involved in the court system, I mean, she was investigated -- or the investigation was done, people were prosecuted. Mom has first-hand knowledge of all that information. And so I do think she has personal knowledge of the facts surrounding that alleged sexual assault, so I do -- I would object to the motion in limine regarding the 13 because the mom is the one that told me about it. I had no idea until the client's mother told me. And again, they fully participated in the criminal justice system on that charge.
During the limine hearing, Melisa Hunter, Thomas's mother, testified that she had recently learned that Thomas had possibly been sexually assaulted when she was a child, a revelation that Hunter claimed had been made approximately a week prior to trial. According to Hunter, she and Thomas had been trying to work on their communication skills in the aftermath of the sham Thomas had perpetrated upon MacCalla, during which time Thomas revealed that she had been sexually assaulted by a member of the armed services when she was approximately eight years old. Hunter said that based on the facts that Thomas told her, she tended to believe that the assault had actually happened, but she acknowledged that Thomas had lied to her in the past, that she had a very difficult time believing most of what Thomas told her, and that Thomas was on trial "basically for lying."
Hunter also testified that when Thomas was twelve or thirteen years old, she and a playmate came home one day with torn clothing, marks and bruises on their bodies, and patches of loose hair on them and reported that they had been sexually assaulted. Hunter testified that she called the police, and the individuals involved were prosecuted. Thomas's attorney represented that Hunter did not inform him about these occurrences until the eve of trial. In response to the prosecutor's objections, Thomas's attorney pointed out,
I will note that part of our motion for continuance that was on Monday included doing that -- some of that investigation to try to figure out more information on who these individuals were in Tarrant County when they were prosecuted for the assault or sexual assault or indecency with [Thomas]. But I think there is plenty of credible evidence that that occurred that the jury should hear it.The trial court ruled that Hunter could not testify about the alleged sexual assault when Thomas was eight years old but that Hunter could testify to what she observed as a result of the assault or sexual assault that occurred when Thomas was twelve years old.
During Hunter's testimony before the jury, she stated that she met Thomas's defense counsel on the Friday before trial began and that before that day, she did not have much of an idea of what was going on in the case. Hunter said that Thomas, who was in her late twenties, was a great mother and very dedicated to her two "real" children—a nine-year-old girl and a six-year-old boy, both of whom had special needs. She also testified that from the time Thomas was four years old and until she was ten or eleven years old, she and Hunter moved approximately every six months because Thomas's father had threatened to kidnap Thomas. According to Hunter, she removed Thomas from the area following an incident involving Hunter's ex-roommate's father's holding a gun to her head and threatening to blow her head off in front of Thomas. Because Thomas appeared to be greatly affected by the incident, Hunter testified that she sought counseling for her daughter and that Thomas engaged in play therapy for approximately three years.
Thomas's son is autistic and functions on the level of a three-year-old child. He also suffers from encephalopathy, a seizure disorder, severe migraines, frequent bouts of pneumonia, and asthma, among other health problems. Thomas's daughter also has disabilities. Hunter testified that if Thomas were incarcerated, the children could lose their Medicaid, which paid for the children's various therapies, their dental and vision care, and "everything." According to Hunter, Thomas also had a learning disability—"mirror dyslexia"—as a child.
When Thomas was around ten years old, they settled in a trailer park where, when Thomas was around thirteen years old, she and one of her friends came home, hysterically crying; their clothing had been ripped, and Thomas was covered with fingernail marks and some bruising, including on her breast. Hunter accompanied Thomas to the police department, and Thomas identified the alleged perpetrators from photographs. Hunter also testified that after the attack, Thomas was withdrawn, fearful, and angry. According to Hunter, Thomas was so bullied by multiple teenagers in the neighborhood that Hunter moved Thomas out of state to live with Hunter's father.
Hunter said that Thomas started lying when she was around eight years old, starting with little lies, like blaming an imaginary friend, and then progressing to bigger lies. Hunter testified that lying became an issue in their relationship after the assault, when Thomas was around twelve or thirteen years old. At that point, Thomas would lie about her friends, about where she was, where she was going, and who she was hanging out with.
Her mother testified that when Thomas was seventeen years old, she ran away from home, but even though she knew her daughter's whereabouts, Hunter allowed approximately three months to pass before she retrieved her. Shortly after returning home, Thomas became pregnant with her daughter, who (like her mother) has dyslexia, in addition to severe ADHD, and dysgraphia. Thomas was approximately twenty-one years old when she became pregnant with her son and experienced one complication after another, including gestational diabetes and an emergency C-section.
The children do not share the same father.
Hunter agreed that Thomas had lied to her repeatedly over the years and that she had a very difficult time believing what Thomas told her because she was "a habitual liar." She said that she did not know if there ever was a Molly Grace and that she had serious doubts as to whether Thomas had been pregnant.
After the jury assessed Thomas's punishment, the trial court entered judgment. Thomas filed a motion for new trial, but the only grounds that she presented were that the verdict was "contrary to the law and evidence in the case" and that she was entitled to a new trial "in the interests of justice."
IV. Discussion
We review the denial of a motion for continuance and most jury selection matters for an abuse of discretion. See Tex. Code Crim. Proc. Ann. art. 29.03 (West 2006) (setting out continuance requirements); Hernandez, 390 S.W.3d at 315 ("We review a trial court's ruling regarding the limitation of voir dire questioning for an abuse of discretion." (citing Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002)); Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) ("The trial court's ruling on a motion for continuance is reviewed for abuse of its discretion."), cert. denied, 522 U.S. 825 (1997).
A. Continuance
Thomas argues in her fifth point that the trial court abused its discretion by denying a continuance that she urged "in order to investigate and obtain mitigation evidence."
Code of criminal procedure article 29.03 provides that a criminal action may be continued on written motion "upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (emphasis added). With regard to the denial of a motion for continuance, the court of criminal appeals has stated the following:
A sister court has stated that, in reviewing the circumstances of each case to determine whether to grant a continuance, the trial court should weigh:
(1) the length of the delay requested, (2) whether other continuances were requested and whether they were denied or granted, (3) the length of time in which the accused's counsel had to prepare for trial, (4) whether another competent attorney was prepared to try the case, (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court, (6) whether the delay is for legitimate or contrived reasons, (7) whether the case was complex or simple, (8) whether a denial of the motion resulted in some identifiable harm to the defendant, [and] (9) the quality of legal representation actually provided.Williams v. State, 356 S.W.3d 508, 522 n.16 (Tex. App.—Texarkana 2011, pet. ref'd) (quoting Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982)). However, as we recently pointed out in an unpublished opinion, cases in which this nine-part test has been applied involve the denial of a continuance when the defendant then had to proceed without counsel of his or her choice because of the denial. Stivers v. State, No. 02-14-00060-CR, 2016 WL 1600862, at *7 (Tex. App.—Fort Worth Apr. 21, 2016, pet. filed) (mem. op., not designated for publication). Here, in contrast, Thomas proceeded to trial with counsel of her choice. Additionally, here, counsel merely asked for "more time"; the trial court granted the State's June 6, 2013 unopposed motion for continuance asking to reschedule the jury trial from Monday, June 24, 2013, because MacCalla's tour of duty in South Korea was not set to end until November or December 2013; because of the State's continuance, Thomas's counsel had more than a year of additional time to prepare; some of the State's witnesses were from out-of-town; the evidence presented in the limine hearing could have reinforced a conclusion by the trial court that the delay was for contrived reasons; the case was a relatively simple matter in that Thomas had already confessed and pleaded guilty to lying to obtain MacCalla's money; and, in light of this record, the denial did not result in any identifiable harm to Thomas, did not result in ineffective assistance of counsel, and did not result in any due process deprivation.
As Professors Dix and Dawson point out in their treatise, [42 Texas Practice: Criminal Practice and Procedure § 28.56 (2d ed. 2001)]:
Denial of [a pretrial motion for delay or continuance] will be found an abuse of discretion on appeal only if the record shows with considerable specificity how the defendant was harmed by the absence of more preparation time than he actually had. This showing can ordinarily be made only at a hearing on a motion for new trial, because almost always only at that time will
the defendant be able to produce evidence as to what additional information, evidence or witnesses the defense would have had available if the motion for delay had been granted.
Establishing harm, however, while necessary, is not a sufficient prerequisite to obtaining appellate relief. A defendant must preliminarily demonstrate that the trial court erred to deny the pretrial continuance in the first place. Professors Dix and Dawson continue:
In addition to this necessary showing of harm, an appellant must apparently also show that the trial judge's ruling on the motion was error. This most likely requires a showing that the case made for delay was so convincing that no reasonable trial judge could conclude that scheduling and other considerations as well as fairness to the State outweighed the defendant's interest in delay of the trial. Appellate courts have not addressed this, however, because convicted defendants have never [been] able to make the necessary specific showing of harm.
Gonzales v. State, 304 S.W.3d 838, 842-43 (Tex. Crim. App. 2010) (footnotes omitted); see also Jimenez v. State, 717 S.W.2d 1, 2 (Tex. Crim. App. 1986) (stating that with regard to an abuse of discretion involving the denial of a continuance, "harm is evaluated by examining the record of the proceedings to determine if appellant was ably represented by counsel throughout the trial"); Greenwood v. State, 948 S.W.2d 542, 548 (Tex. App.—Fort Worth 1997, no pet.) (holding that the record did not indicate that the trial court abused its discretion by denying appellant's motion for continuance when counsel did not make a bill of exception or file a motion for new trial to explain how, if at all, appellant was prejudiced by counsel's inadequate preparation time).
We now explicitly hold that, in order to show reversible error predicated on the denial of a pretrial motion for continuance, a defendant must demonstrate both that the trial court erred in denying the motion and that the lack of a continuance harmed him.
Although Thomas sought additional time for a psychological evaluation in her motion for continuance, the record reflects that her counsel filed a notice of representation on February 17, 2012, fifteen days after Thomas was indicted, and trial did not begin until September 29, 2014. "That counsel merely desired more time to prepare does not alone establish an abuse of discretion." Janecka, 937 S.W.2d at 468. Thomas does not allege any unfair surprise or an inability to effectively cross-examine any of the State's witnesses, see id., and she admits in her appellate brief that the necessity of the psychological evaluation "is perhaps more speculative than the actual sexual assault evidence, since it is unknown what that examination might have revealed." She nonetheless argues that the continuance should have been granted because the psychological evaluation was needed in light of the newly discovered evidence of her sexual victimization at an early age. Left unexplained, however, is why Thomas, as the alleged victim, could not have brought this information to her attorney's attention at any other point earlier in the two years of his representation of her prior to trial.
Further, Thomas admitted—in a videotaped interview that was published to the jury—that she perpetuated her lies to MacCalla and his family in order to bilk MacCalla out of $400 per month. Although she asserts that a connection between sexual assault at a young age and her mother's testimony at the limine hearing about when Thomas started lying might have served to mitigate her punishment, she ignores that she admitted to telling her lies with a financial purpose in mind, not just a falsehood for the sake of telling a falsehood.
Because we cannot say, based on the record as set out above, that the trial court abused its discretion either by denying Thomas's eleventh-hour motion for continuance—particularly when Thomas's mother was still allowed to testify in detail about the traumas and obstacles Thomas faced as a child, including the alleged assault that happened when Thomas was twelve or thirteen years old—or that the lack of the continuance could have conceivably harmed Thomas in any possible way in light of the evidence presented at trial showing the egregious nature of the lies she told to MacCalla and his family, we overrule Thomas's fifth point. See id. In light of our disposition of Thomas's fifth point, we do not reach her first, second, third, or fourth points. See Tex. R. App. P. 47.1.
Like point five, points one through four are isolated to the trial court's denial of the motion for continuance and do not address any of the rest of the trial. Although we do not reach the merits of these points, we note that Thomas's state and federal constitutional challenges were never raised in her motion for continuance, in counsel's argument when he presented the motion to the trial court, or in her motion for new trial, and "[a]n appellate court will not conclude the trial court abused its discretion on the basis of a theory not presented to it." Nwosoucha v. State, 325 S.W.3d 816, 826 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). Further, in the absence of an abuse of discretion, there generally can be no violation of due process. Id. at 828. And while ineffective assistance of counsel may be raised without the necessity of a motion for new trial, see Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App.), cert. denied, 135 S. Ct. 57 (2014), such a claim must "be firmly founded in the record." Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (observing that under most 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 decision-making as to overcome the strong presumption that his conduct was reasonable and professional), cert. denied, 543 U.S. 1059 (2005). The record here reflects that if anyone in this case was ineffective with regard to evidence, it was Thomas, not her attorney, in waiting until the last moment to reveal this information to him. Finally, we also observe that Thomas combined her first through fifth points "for the purposes of argument and the citation of authorities in the interests of judicial economy, brevity, and clarity." But see Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App. 1991) (stating that "when briefing constitutional questions, [counsel] should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground" and failure to make sufficient distinction between state and federal constitutional grounds may result in the ground being overruled as multifarious).
B. Voir Dire
In her final point, Thomas argues that the trial court erred by sustaining the State's objection to her "proper line of questioning," which includes the question to Venireperson McKaig to which the State raised its "contracting" objection as set out above in our recitation of the procedural background of this case. A trial court retains discretion to restrict voir dire questions that are confusing or misleading, that are vague and broad, or that constitute improper commitment questions. Hernandez, 390 S.W.3d at 315; see also Sells, 121 S.W.3d at 756 ("[A] trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition."). "[C]ounsel may not conduct fishing expeditions during voir dire." Barajas, 93 S.W.3d at 41. A trial court abuses its discretion only when a proper question about a proper area of inquiry is prohibited. Id. at 38.
"In order to preserve error as to the improper limitation of voir dire, an appellant 'must show that he was prevented from asking particular questions that were proper.'" Hailey v. State, 413 S.W.3d 457, 490 (Tex. App.—Fort Worth 2012, pet. ref'd) (quoting Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003)). Therefore, we only consider the portion of the record that drew the objection that the trial court sustained.
In Barajas, during voir dire, the trial judge denied defense counsel's request to ask whether the venire members could be impartial in an indecency case involving a victim who was eight to ten years old or, in the alternative, a victim who was nine years old. 93 S.W.3d at 37-38. The court of criminal appeals held that the question was "too vague to constitute a proper question." Id. at 37.
As set out above, the gist of the question to Venireperson McKaig that drew the objection that Thomas complains about on appeal was whether who the victim was mattered to the potential jurors' feelings about probation.
Venireperson McKaig repeated the question aloud as, "Does it matter who the victim is for probation?" and Thomas added, "For punishment?" before the prosecutor objected. Because Venireperson McKaig did not respond, it is unclear whether Thomas's insertion would have made a difference in her response. We note that before Thomas reached her question to Venireperson McKaig, she began this segment of voir dire by talking about eligibility for probation and had already asked Venirepersons Faught and Rourk if it mattered who the victim was for purposes of probation.
Parties in a criminal trial may not ask whether venire members can consider probation under the particular facts of the case beyond the offense as charged in the indictment. Standefer v. State, 59 S.W.3d 177, 180-81 (Tex. Crim. App. 2001). Here, the indictment charged Thomas with, pursuant to a scheme or continuing course of conduct, having unlawfully appropriated MacCalla's money without his effective consent, by deception. Other than his name, "Zachary MacCalla," nothing in the indictment mentioned anything about him. Therefore, while vague, the question, particularly as rephrased by Venireperson McKaig, was improper in form because it tended to allude to qualities beyond the victim's name as listed in the indictment that might affect whether the venireperson would consider probation. See id.; see also Woods v. State, 152 S.W.3d 105, 110-11 (Tex. Crim. App. 2004) (observing that the court held in Barajas that the question as to whether potential jurors could consider probation in a case involving a victim who was eight to ten years old constituted a global fishing expedition), cert. denied, 544 U.S. 1050 (2005). Because "we leave to the trial court's discretion the propriety of a particular question," Sells, 121 S.W.3d at 755, based on the vagueness of the question, its "global" nature, and the fact that its phrasing led it in the direction of an impermissible commitment question, we cannot say that an abuse of discretion occurred here. See id. at 756; Barajas, 93 S.W.3d at 37; Standefer, 59 S.W.3d at 180-81. We overrule Thomas's final point.
In Standefer, the court of criminal appeals demonstrated the importance of how a question is phrased to help distinguish an improper commitment question from a proper question:
For example, the question, "[I]f the victim is a nun, could [the prospective juror] be fair and impartial?" does not ask the prospective juror to resolve or refrain from resolving any issue. A juror could be "fair" and still take into account the victim's status as a nun where that status is logically relevant to the issues at trial or fail to do so if the juror perceived that the victim's status as a nun should not be controlling. If, however, the defendant had asked, "Could you consider probation in a case where the victim is a nun?" then he would indeed have asked a commitment question. In that situation, the juror is asked to say whether he would refrain from resolving an issue in the case (probation) based upon a fact in the case (the victim is a nun).59 S.W.3d at 180. Under this example, Thomas could have asked, "If the victim is a serviceman, could you be fair and impartial?" but not "Could you consider probation in a case where the victim is a serviceman?" See id.
V. Conclusion
Having overruled Thomas's dispositive points, we affirm the trial court's judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: GARDNER, MEIER, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: August 31, 2016