Opinion
Nos. 05-02-01840-CR, 05-02-01841-CR
Opinion Filed September 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-39735-PT, F00-39736-PT. AFFIRM
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
John Brown, Jr. appeals his convictions for aggravated robbery and aggravated kidnapping. After appellant pleaded guilty, the trial court sentenced appellant to confinement for life in each case. In three points of error, appellant contends (1) the trial court erred by sentencing appellant without a presentence investigation report (PSI); (2) the trial court erred by denying his motion for new trial; and (3) he did not receive the effective assistance of counsel at trial. We overrule appellant's points of error and affirm the trial court's judgment. In his first point of error, appellant contends the trial court erred by sentencing him without a PSI. However, any error in failing to order a PSI is waived if the defendant fails to object to the failure or to bring the failure to the trial court's attention. Wright v. State, 873 S.W.2d 77, 83 (Tex.App.-Dallas 1994, pet. ref'd); Eddie v. State, 100 S.W.3d 437, 445 (Tex.App.-Texarkana 2003, pet. ref'd); Summers v. State, 942 S.W.2d 695, 696 (Tex.App.-Houston [14th Dist.] 1997, no pet.). Here, the record shows that appellant did not appear for or reschedule his PSI interview. Nor did appellant appear for the initial sentencing hearing. After appellant was taken into custody and brought before the trial court, appellant did not object to the lack of a PSI. Because appellant failed to draw the trial court's attention to the lack of a PSI, he waived his right to the use of the PSI and to complain of its non-existence on appeal. See Wright, 873 S.W.2d at 83. We overrule appellant's first point of error. In his second point of error, appellant contends the trial court abused its discretion when it failed to hold a hearing on his motion for new trial. Specifically, appellant maintains that his "positive life changes" and his failing health constitute newly discovered evidence that should have been considered in mitigation of his punishment. A defendant is entitled to a hearing on his motion for new trial if the motion and accompanying affidavit(s) "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). The motion for new trial and accompanying affidavit(s) need not establish a prima facie case for a new trial. Id. Rather, they must reflect that reasonable grounds exist for holding that such relief could be granted. Id. The purpose of the hearing is to give the defendant an opportunity to fully develop the matters raised in his motion. Id. Motions for new trial based upon the discovery of new evidence traditionally lack favor with the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225 (Tex.Crim.App. 1987). A defendant is entitled to a new trial if: (1) the newly discovered evidence was unknown to the defendant at the time of his trial; (2) the defendant's failure to discover the evidence was not due to his want of diligence; (3) the materiality of the evidence is such as would probably bring about a different result in another trial; and (4) the evidence is admissible and not merely cumulative, corroborative, collateral or impeaching. Id. at 226. Here, appellant complains that the trial court failed to consider evidence of his activities after he pleaded guilty. In particular, appellant maintains that Reverend Ernest Johnson's affidavit stating that appellant had come to church and changed his life was sufficient to require the trial court to order a hearing on his motion for new trial. We disagree. The evidence relied on by appellant was not "newly discovered." Rather, it was evidence of appellant's activities during the approximately year and a half he lived in California after fleeing this state. Further, although appellant clearly had personal knowledge of this evidence, appellant did not seek to introduce the evidence at the hearing after appellant was back in custody in this state. Instead, appellant waited until his motion for new trial to raise the issue. Finally, the trial court could have reasonably concluded that the evidence would not bring about a different result in another trial. Under these circumstances, we cannot conclude the trial court abused its discretion by failing to conduct a hearing on appellant's motion for new trial. We overrule appellant's second point of error. In his third point of error, appellant contends we must overturn his conviction because he did not receive the effective assistance of counsel at trial. According to appellant, counsel's failure to file a written motion for continuance prevented appellant from having the "opportunity to effectively cross-examine the State's witnesses and present witnesses on his own behalf." To show ineffective assistance of counsel, a defendant must first show that his attorney's representation was deficient; and, second, he must show that these errors prejudiced his defense by depriving him of a fair and impartial trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). The required showing of prejudice involves showing a reasonable probability that, but for counsel's errors, the result of the trial would be different. Strickland v. Washington, 466 U.S. at 687. Here, the record shows that appellant entered pleas of guilty in both cases and pleas of true to both enhancement paragraphs. The case was then reset for sentencing to allow time for the PSI. Appellant did not appear at the PSI interview, and he did not appear for the sentencing hearing. At that hearing, the trial judge informed counsel that she "intend[ed] to proceed today . . . given the fact that [appellant] has voluntarily absented himself from the proceedings." Article 33.03 of the code of criminal procedure provides that in felony cases, "when the defendant voluntarily absents himself after pleading to the indictment or information . . . the trial may proceed to its conclusion." Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989). Nevertheless, counsel orally requested that the trial be continued and the trial court denied his request. Because appellant voluntarily absented himself from the proceedings, the trial court could proceed without appellant pursuant to article 33.03. After the trial judge announced her intent to do so, we cannot conclude counsel was ineffective for failing to file a written motion for continuance after his oral motion was denied. See Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App. 1991) (counsel is not required to engage in futile motions); see also Perez v. State, 5 S.W.3d 398, 400-01 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (counsel not ineffective for failing to file proper motion for continuance where appellant knew of matters but failed to inform counsel or to take any action). Further, appellant fails to identify what witnesses he would have called on his behalf or the substance of any cross-examination he would have conducted. Thus, we cannot conclude appellant has met his burden to show that but for counsel's failure to file a written motion for continuance, the result of the trial would be different. See Ladd v. State, 3 S.W.3d 547, 570 (Tex.Crim.App. 1999) (failure to prove the prejudice prong of Strickland test precludes any relief). We overrule appellant's third point of error. Accordingly, we affirm the trial court's judgments.