Opinion
No. 14-07-00038-CR
Opinion filed May 29, 2008. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 1036466.
Panel consists of Justices YATES, GUZMAN, and BROWN.
MEMORANDUM OPINION
Appellant Demetrick Williams challenges his conviction for possession of less than one gram of cocaine. He contends that the judge assigned to hear his motion to recuse the trial judge abused her discretion in failing to grant this motion. In addition, appellant asserts that the trial court erred in excluding evidence relating to an investigation of the Houston Crime Laboratory, and argues that he received ineffective assistance of counsel. We affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 6, 2005, Houston Police Department ("HPD") officers detained appellant after he was observed driving a stolen vehicle. When one of the officers searched appellant, he discovered a crack cocaine pipe in the pocket of appellant's pants. The officers performed a field test on residue in the pipe, and it tested positive for cocaine. Additional crack cocaine pipes were found near the male passenger in the stolen vehicle, and police arrested both men. Appellant was indicted for possession of less than one gram of cocaine. His trial on these charges was reset several times. On September 8, 2006, three days before an agreed jury trial setting in this case, appellant moved for Judge Susan Brown's recusal, asserting that she was biased against him because he is a post-operative transsexual. Judge Brown declined recusal and referred the motion to Judge Olen Underwood, Second Administrative Region. The motion was assigned to Judge Mary Lou Keel, who heard and denied the motion. On September 11, 2006, the trial was reset to September 13, 2006. Appellant appeared with his counsel on September 13, 2006, and the case again was reset by agreement. The jury trial finally began on January 8, 2007. During the trial, defense counsel called witness Annise Parker, City Controller for the City of Houston. Parker testified that she is a member of "the stakeholders' committee that is overseeing the independent investigation of the crime lab." In response to the State's objection, the trial court spoke with defense counsel and Parker regarding the intended subject of Parker's testimony. Parker stated she had no personal knowledge "of anything 'that's going on inside" the crime laboratory or of police officer training, but did have knowledge of the investigation through her position on the stakeholder's committee. The trial court sustained the State's objections to Parker's testimony and excused the witness. In addition, the court excluded a document entitled "Fifth Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room" by Michael R. Bromwich, Independent Investigator. The jury convicted appellant of the charged offense. Appellant pleaded true to two prior offenses, and the jury imposed punishment at eight years confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $8,000. This appeal timely ensued.II. ISSUES PRESENTED
Here, appellant contends that Judge Mary Lou Keel abused her discretion in denying his motion to recuse Judge Susan Brown for bias. In addition, he argues the trial court abused its discretion in excluding testimony and evidence concerning the investigation of the Houston Police Department Crime Laboratory. In his third issue, appellant asserts he was denied the effective assistance of counsel during the punishment phase of trial because his defense attorney elicited testimony regarding plea-bargain negotiations and failed to object to the admission of appellant's disciplinary records from previous incarcerations in the county jail.III. ANALYSIS
A. Motion for Recusal
1. Governing Law The civil procedural rules governing the recusal of judges apply in criminal cases. Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App. 1993) (en banc). This procedure is set forth in Texas Rule of Civil Procedure 18a, which provides:At least ten days before the date set for trial or other hearing . . ., any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case. The grounds may include any disability of the judge to sit in the case. The motion shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit. The motion shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated.TEX. R. CIV. P. 18a(a). We review the denial of a recusal motion for abuse of discretion. TEX. R. CIV. P. 18a(f). 2. No Abuse of Discretion On appeal, the State argues that appellant cannot complain that his recusal motion was improperly denied because the motion was untimely. Although the conduct about which appellant complained occurred on April 26, 2006, he did not move for recusal until September 8, 2006Cthree days before the case was set for trial. Appellant concedes that his recusal motion "would not have been timely filed had the case gone to trial on Sept[ember] 11, 2006, as was originally scheduled," but contends that the motion was timely because the case was subsequently reset and was not called for trial until January 8, 2007. We conclude that the motion was untimely, and appellant cites no contrary authority. First, the plain language of the rule requires parties to file recusal motions 10 days "before the date set for trial or other hearing. . . ." (emphasis added). It is undisputed that appellant moved to recuse the presiding judge three days "before the date set for trial." The fact that the trial was reset after the recusal motion was denied does not change this result. See Arnold v. State, 778 S.W.2d 172, 179-80 (Tex.App.-Austin 1989) (holding a recusal motion filed less than ten days before a trial setting untimely, despite the fact that the trial was continued to a later date), aff'd on other grounds, 853 S.W.2d at 543; Coven v. Heatley, 715 S.W.2d 739, 742 (Tex.App.-Austin 1986, writ ref'd n.r.e.) (using the originally-scheduled hearing date to determine timeliness of a motion to recuse). Were it otherwise, the timeliness of a motion to recuse could only be determined in retrospect. Appellant further suggests that his motion was timely simply because it was heard, but this argument is also unpersuasive. An untimely recusal motion is procedurally deficient. See TEX. R. CIV. P. 18a(a). The deficiency is not cured simply because the judge assigned to determine the merits of the motion conducts a hearing. See Coven, 715 S.W.2d at 740, 742 (pointing out that motion to recuse was heard but holding the motion untimely). We therefore overrule appellant's first issue.
B. Exclusion of Evidence of Houston Crime Laboratory Investigation
1. Governing Law Trial courts are usually in the best position to determine whether certain evidence should be admitted or excluded. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (en banc). We then review the trial court's evidentiary rulings for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990) (en banc). We will not disturb the trial court's ruling if it is "within the zone of reasonable disagreement." Winegarner v. State, 235 S.W.3d 787, 790 (Tex.Crim.App. 2007). Instead, we will uphold the ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). 2. No Abuse of Discretion Appellant argues the trial court should have admitted evidence that there have been investigations into the Crime Laboratory's practices, procedures, and results. According to appellant, this evidence is admissible because "the jury should be able to consider the facts that would have been presented in assessing the credibility of Mona Medalla . . ., who tested the crack pipe and testified at trial, whether she was trained properly, and whether she truly was an 'expert' in her field." But Parker, whose testimony was offered in connection with the investigation, was a lay witness, and a lay witness usually may not testify about matters of which the witness lacks personal knowledge. TEX. R. EVID. 602; Osbourn v. State, 92 S.W.3d 531, 535 (Tex.Crim.App. 2002); Wright v. State, 178 S.W.3d 905, 918-19 (Tex.App.-Houston [14th Dist.] pet. ref'd) (citing Texas Rule of Evidence 701 and concluding that detective's demonstration of manner in which crime allegedly occurred was admissible based on detective's reasonable inferences from facts within his personal knowledge). Here, Parker had no personal knowledge of events occurring inside the Houston Crime Laboratory, and no knowledge of proper training procedures. Appellant presented no evidence that Parker was familiar with the training necessary to prepare a person to analyze an unknown substance or the procedures necessary for the reliable performance of such analysis. Moreover, evidence of prior investigations of the Houston Crime Laboratory are not relevant, because appellant presented no evidence linking the investigation to Medalla's analysis of the evidence in this case on January 8, 2007. The author of the proffered report identified certain "issues" in nearly 23 percent of the controlled substance analyses performed during an unspecified time period, but no evidence was presented indicating that such "issues" were present here. For example, one issue identified in the report was the practice of some analysts to base reports on visual or physical identifications without analytical testing. Medalla, however, testified that she analyzed the residue using a gas chromatograph mass spectrometer. The report's author also indicated that some analysts made assumptions about the quantity of codeine in liquids or identified the quantity of controlled substances in tablet form based on visual inspection; but tablets and liquids are not at issue here. Similarly, there was no evidence that the Crime Laboratory failed to report probative findings, issued an inaccurate report, or produced conflicting test results regarding the pipe residue at issue in this case. In sum, nothing in the report or in Parker's proposed testimony tended to make Medalla's findings more or less likely or her testimony more or less credible. We therefore conclude that the trial court did not abuse its discretion by excluding Parker's testimony and the independent investigator's report.C. Ineffective Assistance of Counsel
1. Standard of Review We review a claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington. 466 U.S. 668, 104 S. Ct. 2052 (1984). Under Strickland, an appellant must prove by a preponderance of the evidence that counsel's representation fell below the objective standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Id. at 687, 104 S. Ct. at 2064. This test applies to claims arising under the Texas Constitution as well as those arising under the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986) (en banc). Confronted with a silent record, we must begin our review with the strong presumption that defense counsel's actions were motivated by sound trial strategy. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). We sustain allegations of ineffective assistance only if firmly founded in a record that affirmatively demonstrates the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (en banc), abrogated on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App. 1998) (en banc). The record on direct appeal is usually inadequate to overcome the presumption and show that counsel's conduct fell below an objectively reasonable standard of performance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). But if the attorney's conduct was so outrageous that no competent attorney would have engaged in it, then defense counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the attorney's subjective reasons for the act or omission. Goodspeed, 187 S.W.3d at 392. 2. Opening the Door to Admission of Evidence of Plea-Bargain Negotiations Appellant first argues that his trial counsel was ineffective because she opened the door to the admission of evidence of plea-bargain negotiations. But the record reveals that testimony regarding these negotiations was not elicited by appellant's trial counsel, but instead was volunteered by appellant himself. For example, after his attorney established that appellant had remained incarcerated since his arrest in August 2005, the following exchange occurred:Defense Counsel: Why did you plead not guilty?
Appellant: Because, as the DA said, I am not sitting here because I didn't want to go to TDC.
Defense Counsel: Why —
Appellant: I didn't sign those — my priors because I didn't want to go to TDC. I signed it because I'd already done the time that they were offering me and I wanted to go home. They offered me numerous offers during this trial, 10 months —
State: Objection, Judge. Objection.
Appellant: — I could have went home —
State: Objection, Judge. Objection. Judge, plea negotiation is not admissible.
Court: Sustained.
Appellant: I'm not guilty.
Defense Counsel: You've got to respond to a question. You can't just talk.Thus, not only did appellant volunteer this information regarding plea negotiations, but the trial court sustained the objection to its admission. Moreover, even if appellant's trial counsel had engaged in conduct that resulted in the admission of later plea-negotiation testimony from the State's rebuttal witnesses, appellant has not shown by a preponderance of the evidence that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. 3. Admission of County Jail Disciplinary Records Finally, appellant asserts that his trial counsel was ineffective because she failed to object to the admission of any part of appellant's Harris County Jail disciplinary records. But ineffectiveness of counsel is determined based on the "totality of the representation" rather than by isolated acts or omissions of trial counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990) (en banc). And when counsel's reasons for alleged inaction do not appear in the record, we will not conclude the attorney's representation was deficient unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). Rather, the presumption that trial counsel's performance was reasonably based in sound trial strategy, coupled with the absence of any supporting evidence in the record of unreasonableness, compels us to consider ways in which trial counsel's actions were within the bounds of professional norms. Mata v. State, 226 S.W.3d 425, 431 (Tex.Crim.App. 2007). Here, defense counsel's failure to object to the admission of appellant's disciplinary records from the county jail is not outrageous, but instead falls within the wide range of professionally competent assistance. Appellant's disciplinary records include allegations that, while incarcerated, he was beaten by a corrections officer because of his appearance and his sexual orientation. The records also contain a handwritten statement of another inmate who allegedly witnessed the unprovoked attack and who supported appellant's version of events. This material is consistent with defense counsel's repeated attempts to portray appellant as a victim, and arguably supports defense counsel's plea for leniency. Because we cannot say that appellant has overcome the presumption that his attorney's actions were motivated by sound trial strategy, we overrule appellant's third issue.