Opinion
02-23-00149-CR
06-06-2024
Shannon Della Farris, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CR21-0371
Before Birdwell, Womack, and Wallach, JJ.
MEMORANDUM OPINION
Wade Birdwell, Justice
I. Introduction
The trial court found Appellant Shannon Della Farris guilty of bail jumping and failure to appear (BJFTA)-a third-degree felony for which punishment was enhanced by her two prior and sequential felony convictions-and sentenced her to 40 years' confinement. See Tex. Penal Code Ann. §§ 12.42(d), 38.10(a), (f). Farris filed a motion for new trial alleging ineffective assistance, and her counsel presented the motion to the trial court, which denied it without holding an evidentiary hearing.
In three points, Farris complains that the trial court abused its discretion by denying her new-trial motion without a hearing, by requiring that she reimburse the cost of her appointed appellate counsel despite her indigence, and by refusing her request for a presentence investigation report (PSI). The State agrees with Farris that the record supports removing the reimbursement requirement but disputes her remaining points.
We sustain Farris's second point and remove the reimbursement requirement in the trial court's order appointing counsel, but we overrule her remaining two points and affirm the trial court's judgment.
II. Background
Because Farris's new-trial motion was based on ineffective assistance, our recitation includes everything before the trial court when it decided the motion without an evidentiary hearing.
A. Farris's criminal history before the BJFTA indictment
Farris was no stranger to the criminal justice system by the time of her May 2023 BJFTA trial. In 2000, she began acquiring a variety of mostly misdemeanor convictions. In one-a misdemeanor driving while intoxicated (DWI)-she forfeited her bond when she failed to appear. However, her bond was reinstated, and in August 2000, she pleaded guilty to that DWI and another DWI and was sentenced to a $450 fine and 90 days' confinement, which the trial court suspended in favor of 24 months' community supervision.
A year later, the trial court revoked her community supervision upon her plea of true to grounds that included her urine's testing positive for amphetamines and sentenced her to a $450 fine and 45 days' confinement. A few days later, the State charged her with misdemeanor theft, and a year and a half later, the State charged her with misdemeanor unlawfully carrying a weapon (UCW). She pleaded guilty to both and received 20 days' confinement for UCW and 10 days' confinement for theft.
In October 2002, Farris was arrested for possessing less than a gram of methamphetamine and secured a $12,500 bond. Almost a year later, in August 2003, she pleaded guilty and was sentenced to 2 years' confinement.
The following month, Farris was arrested for possessing drug paraphernalia and a Penalty Group 3 controlled substance (less than 28 grams); she secured a $300 bond for the former and a $1,000 bond for the latter. The record does not reflect the outcome of these arrests.
Farris was arrested in March 2013 for felony-repetition DWI, see id. § 49.09, and pleaded guilty in exchange for 10 years' confinement, probated for 10 years, and a $1,500 fine. The trial court revoked her community supervision in September 2016 and sentenced her to 3 years' confinement.
On July 3, 2019, Farris was arrested for methamphetamine possession (less than a gram), posted bond, and was indicted the next month for that offense in cause number CR19-0767. Between July 2019 and October 2020, Farris had to increase her bond amount several times. The original $5,000 bond was declared insufficient and increased to $10,005 because she failed to appear on September 19, 2019. The $10,005 bond was declared insufficient when she failed to appear on February 6, 2020. After she tested positive for methamphetamine, Farris's bond amount was reset to $20,010. Farris secured the $20,010 bond from ABC Bail Bonds-surety Jim Lane-on October 28, 2020. The bail agreement informed Farris that she would be subject to additional criminal charges and would be personally liable for each bond's face amount if she did not appear in court as instructed.
On December 1, 2020, ABC notified Farris of her December 7 court status hearing and reminded her that her appearance was mandatory and that if she failed to appear, she would forfeit her bond and an arrest warrant would issue. Farris violated her bond by testing positive for methamphetamine, and on December 15, 2020, the trial court declared her previous bond insufficient and increased the amount to $40,015.
B. Farris's April 29, 2021 failure to appear
On March 29, 2021, the trial court notified Farris to appear on April 29, 2021, to "enter into either a final plea agreement or announce ready for trial." On April 20, 2021, ABC notified Farris about the April 29, 2021 docket call. The notice contained the same reminders as ABC's December 2020 notice. Farris nonetheless failed to appear on April 29, 2021.
After Farris failed to appear on April 29, a grand jury indicted her for BJFTA (cause number CR21-0371). The indictment alleged that on or about April 29, 2021, "after being lawfully released from custody on a pending felony charge on condition that she subsequently appear in court," Farris had intentionally and knowingly failed to appear in accordance with her bond agreement's terms. Farris obtained a $10,000 bond in her BJFTA case. Farris was taken into custody at her October 7, 2021 docket call for the drug-possession and BJFTA cases after she tried to smuggle two balloons of urine into her urinalysis test. She obtained a $1,500 bond on the ensuing drug-test falsification charge.
On October 25, 2021, the trial court issued a notice to Paul Belew, Farris's trial counsel at the time, for both the drug-possession and BJFTA cases. Belew and Farris were instructed to appear for docket call on November 4, 2021, and were informed that trial was set for November 8, 2021. Farris failed to appear at docket call and failed to appear at trial.
On December 17, 2021, Jolene DuBoise, the trial court's court coordinator emailed Farris, stating, "See the attached notice of hearing. You must appear before this court on Tuesday, January 4, 2022, at 9:00 a.m." Farris failed to appear. In the meantime, on December 29, 2021, Belew filed a motion to withdraw after he received a social-media message from Farris to do so. He noted that the last address that he had for Farris was the Parker County Detention Center where she had been held on "no bond" and yet had somehow managed to bond out without leaving a forwarding address for him or her bondsman. The trial court granted Belew's motion.
On March 6, 2022, Farris sent an email to DuBoise, among others, with the subject "Motion to dismiss pro se (represent myself outside of court)," in which she sought to dismiss the drug-possession charge, asserting that the methamphetamine had not been hers. She contended that the arresting officer had tampered with the evidence and complained about ineffective assistance of counsel, stating,
I was never properly defended on this case[;] it snow[]balled into the biggest mess ever after being put on bond probation for failure to appear. I was not notified of court as . . . this was during [COVID-19] and everyone was confused. But I was punished for it. I was going through a very difficult time in my life when this happened. Lost the job of a life[]time because of it after months of paperwork and interviews obtaining a high security clearance I've bonded out 6 or 7 times. I'm out of money.... I live in Pennsylvania now and have for almost a year. I'm engaged to be married. I have several job opportunities . . . but they carry a level of[] security clearance that showing these charges would be disastrous. I'm innocent of this charge. I have [a lot] of emails saying that the judge is mad[,] that the [S]tate is mad[,] that the DA is mad[,] and that I WILL NOT GET A FAIR TR[IAL] IN PARKER COUNTY. This is why I don't show for court. Please dismiss them so I may
get back to work.... Please let this nightmare end so I can get my life back. Please.
I am not the person I've been made out to be/I've made myself out to be. I take responsibility for my mishaps[;] I was a wreck when this started but I swear to you I am innocent of this charge and the rest are effects of it. [Emphasis in italics added.]
The next day, Farris emailed DuBoise to ask about "a court date in April for absconder." She stated that she was still in Philadelphia and asked about the email she had sent the day before about dismissal. Farris asked, "[P]lease let me know you received it[,] and what I'm supposed to do. I'm truly at a loss." DuBoise replied, "You need to appear before the court. It is improper to communicate with the court ex parte."
C. Jury trial waiver
In August 2022, in response to Farris's request for appointed counsel in the drug-possession and BJFTA cases, the trial court found that she had the financial resources to employ counsel. In October 2022, the trial court notified Farris that her trial in both the drug-possession and BJFTA cases was set for the following month. The next month, the trial court notified Farris through her new trial counsel, Adrian
The trial court made this finding notwithstanding the community-supervision department's evaluation of Farris's application. The community-supervision department noted that Farris lived with her fiance in Pennsylvania and with one of her two children, that she had been unemployed since March 2021 because she was "unable to get hired anywhere because of her charges," and that Farris had advised that she was receiving public assistance (food stamps and Medicaid), that she did not own a vehicle, and that her bank balance was $0. Farris attached her tax return and a photo of her food stamps card and Medicaid card to the application.
Crane, that her trial in both cases was set for December. Farris was notified through Crane in February 2023 that her trial in the BJFTA case was set for March 7, 2023, and that she had a pretrial hearing on February 28.
At some point, the drug-possession case was separated from the BJFTA case, and it remained pending at the time of the BJFTA trial.
At the February 28, 2023 pretrial hearing, Farris waived her jury trial:
THE COURT: . . . It's my understanding, Mr. Crane, that you had requested for your client that we set this for bench trial and waive a jury trial; am I correct?
MR. CRANE: Yes, sir.
THE COURT: No objection from the State?
[Prosecutor]: No, sir.
THE COURT: Okay. And the Court will accept that waiver, and if you want to -- my court coordinator will send out an e-mail to the State and Mr. Crane and y'all can coordinate that.
MR. CRANE: Very good. I believe we're set for trial this coming Tuesday, then? Are we good to go?
THE COURT: No. That's our jury.
[Prosecutor]: Did she agree -- I'm sorry, I was flipping through my notes.
THE COURT: Ms. Farris, you agree to that, correct?
THE DEFENDANT: Yes, sir.
THE COURT: All right.
[Prosecutor]: Okay.
THE COURT: And when I say that, you agree to waive the jury trial and come to the Court for your trial?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Good deal.
MR. CRANE: He's going to make the decision instead of the jury. [Emphasis added.]
THE DEFENDANT: Okay.
THE COURT: I'm asking. Are you good?
THE DEFENDANT: Okay.
MR. CRANE: Say yes.
THE DEFENDANT: Yes, sir.
MR. CRANE: All right. We're good. She spoke to me, and she confirmed that.
THE COURT: Okay. So you don't need to be here Tuesday. That [was to] be our jury trial.
On April 5, 2023, the trial court notified Farris through Crane that her case was set for a bench trial on May 18, 2023. On May 17, Crane filed an election to waive jury trial, and on May 18, Farris signed an election for punishment designating the trial judge. Before trial on May 18, Farris signed the notice of jury trial waiver after the following colloquy:
[Prosecutor]: But I don't believe it has the defendant's signature. Judge, if we can just take on the record that the defendant is in agreement of waiving her right to a jury trial and proceeding forward to the court.
MR. CRANE: I don't mind doing that, Your Honor. We've already done that, as you may recall.
THE COURT: [Prosecutor], is that a different one or the same one?
[Prosecutor]: It does appear to only be the election for punishment.
THE COURT: Ms. DuBoise, would you print out what Mr. Crane filed, and we'll bring it back in and get that signed by the defendant. ....
And we've printed off your waiver of jury trial, Mr. Crane, and -
MR. CRANE: Do you want me to have my client sign off on that?
THE COURT: Yes. If she'll sign off on that.
The election states, in Farris's handwriting, "Approved by the Defendant. May 18, 2023, 9:30 AM," and bears her signature.
D. Guilt-Innocence
After Crane stated that he was going to invoke "the [R]ule," see Tex. R. Evid. 614, the trial court swore in the State's witnesses and swore in Tammy Ratliff and Dave McMurray. The trial court asked Crane whether he wanted his witnesses- Ratliff and McMurray-to return after lunch or for them "to just hang around outside." Crane told them to get a quick bite and return.
Farris pleaded "not guilty." In her opening statement, the prosecutor asserted that there was evidence Farris had notice of her April 29, 2021 court appearance but told Belew, his legal assistant, and the court coordinator that she would not be there and then did not appear. In his opening statement, Crane appealed to the trial court's mercy by stating that Farris would testify that Belew never told her about the consequences of failing to appear or the availability of any alternate arrangements and that Belew never told the court that she had moved to Philadelphia when she lost her job.
The State offered into evidence State's Exhibits 1-11, most of which were admitted without objection. The exhibits included a certified copy of the indictment in CR19-0767 and the bond Farris executed on October 26, 2020, as well as the order setting her bond conditions, the State's December 10, 2020 motion to declare bond insufficient based on Farris's positive drug test, and the trial court's December 15, 2020 order relating to the State's motion. The State also offered the March 29, 2021 notice sent to Belew for the April 29, 2021 docket call and Farris's March 6, 2022 email to DuBoise.
Crane objected to State's Exhibits 9 and 10, the certifications of call in the drug-possession case for Farris's failure to appear on May 10, 2021, and January 4, 2022, arguing that they were not relevant because she had only been indicted for her failure to appear on April 29, 2021. After the prosecutor responded that Farris's post April 29, 2021 failures to appear showed a lack of accident or mistake, the trial court admitted the exhibits. Crane raised another relevance objection to State's Exhibit 11, ABC Bail Bond's records, and requested a running objection for any post-April 29, 2021 evidence. The trial court granted the running objection and admitted State's Exhibit 11.
Crane objected to testimony by Belew, Farris's prior counsel, based on attorney-client privilege, arguing, "[O]bviously, of all the times you would want your lawyer to not answer questions, it's when you're being prosecuted for a sentence of 25 years." The trial court overruled most of Crane's objections to Belew's testimony. However, the trial court sustained his objections when the prosecutor asked, "Did you tell Ms. Farris that she was required to appear in court on April 29, 2021?" and when she asked, "Did you learn whether Ms. Farris had planned on attending court on April 29, 2021?" The trial court sustained Crane's objection to speculation when the prosecutor asked, "Do you believe that it was a mistake on Ms. Farris's part to fail to appear in court on April 29, 2021?" The trial court also sustained Crane's objection to discussion of the context of screenshots of April 19, 2021 texts between Belew and Farris, and the prosecutor withdrew her offer of those texts in State's Exhibit 12.
Belew testified that Farris had hired him to represent her in the drugpossession case and that as a condition of her October 26, 2020 bond, she was required to appear for any court settings. He stated that he had spoken with Farris about the April 29, 2021 setting and had notified her by text about it on April 11. He also testified about his office's procedures for notifying clients generally about setting notices, and over Crane's objection, he testified that he had followed that procedure with Farris, that he "[a]bsolutely" believed that Farris had notice, that she did not attend court on April 29, 2021, and that it was his understanding that Farris was not coming to court that day. He also notified the Wise County Court at Law court coordinator that Farris would not be appearing there that day because she had not appeared in Parker County. Crane opted not to cross-examine Belew.
Belew's office manager Alyssa Clukey testified about their contact procedures and that she notified clients of court settings every time they received a formal setting notice. Clukey testified that she "probably" would have called Farris "a week prior to April 29th" and that Belew would have notified Farris again because they generally reminded clients of court settings a day or two before. Clukey did not recall whether she called Farris to remind her the day before but "for sure would have called her about a week before." On April 28, 2021, Clukey called the district attorney's office "to notify them the client was not coming and to see if [Belew] needed to appear." Clukey stated that she generally worked with clients' bondsmen and that she had worked with Farris's bondsman on multiple occasions in this case and had communicated with him regularly about Farris's attendance.
DuBoise, the court coordinator, testified that in a criminal case, the defendant, the attorney, and the bondsman would receive the scheduling-order notice and that she notified defense counsel by email, letter, or fax about additional settings. DuBoise provided a scheduling order to Farris and her attorney in the drug-possession case. She testified that Farris had failed to attend some of that case's settings and that in March 2021, she had sent to Belew a notice for the April 29, 2021 trial call by fax, e- mail, and mail. She identified State's Exhibit 6 as the notice she sent to Belew for Farris's April 29, 2021 appearance. And she testified that Farris did not appear in court that day.
On cross-examination, Crane asked DuBoise how an attorney might get his client's appearance waived when the client is out of state or in the hospital. DuBoise replied, "Through their attorney. They would contact either me or send him an e-mail or call." DuBoise did not recall Clukey's having notified the court that Farris was not going to be able to appear. She also did not recall if Belew filed anything to let the court know that Farris was not going to appear. The State rested after confirming with DuBoise that defendants are not often excused from a trial call setting because "[i]t's a requirement in order to prepare for the jury trial."
Crane put on three witnesses-Farris, McMurray, and Ratliff. The record reflects that the trial court swore Farris in but does not show that she was admonished on the record about her Fifth Amendment privilege not to testify. Farris testified that she notified Belew and her bondsman Lane that she was not going to be able to appear on April 29 and that they told her nothing about the consequences. She had asked them to get it reset because she had just started an important job and had been on the job for a week when she received the trial notice. Farris stated, "You know, I have had 23 resets, I think, during COVID[-19], so I thought surely they can push one for me forward being that I was working ...." She had used her pandemic stimulus check to get to Philadelphia to take the job and had no money to return. Farris testified that she had 11 days' notice of the court date and that she had immediately called Belew to tell him that she could not make it. She was in Philadelphia for 3 months and was arrested on a warrant when she returned to Texas.
On cross-examination, Farris stated that she did not obtain permission from the court to leave the state but that she had obtained her bondsman's permission. And she admitted that she had notice from Lane and Belew that she had to appear in person on April 29, 2021, and that she told Belew that she was not going to make it to court that day. Farris agreed that it was her decision not to appear on April 29 even though she knew she was supposed to appear per her bond conditions. She also agreed that she knew from previous experience that it was 30 days' notice of settings.
On redirect, Farris agreed with her counsel that it was not a decision not to show up so much as "a realization of a situation" and that her lawyer was supposed to handle interactions with the court. On recross-examination, Farris admitted that there were multiple occasions that she failed to appear at court settings during her bond in the drug-possession case. She also admitted that she did not ask her communitysupervision officer for permission to leave the state. On redirect, Farris said that her lawyer told her that she missed court and that they had issued a warrant "a couple of days later."
McMurray testified that he had known Farris for 33 years and that they had gone to aviation school together. After he testified that it was not in her character to fail to appear for court and that he had never seen her do anything to indicate she was a lawbreaker, the prosecutor asked him about his knowledge of each of Farris's criminal convictions, failures to appear, and other bad acts, such as having smuggled balloons of urine in her brassiere on October 7, 2021, to pass a drug test. Ratliff testified that she had known Farris for over 40 years and that Farris had faced a lot of financial difficulties.
After the defense rested, the State recalled Belew, who testified as follows:
Q. Mr. Belew, in general in your law practice, when a client provides a reasonable excuse for being unable to appear in court, what's your process?
A. Usually I will contact the coordinator, depending on what county it is. Sometimes I'll go in person or sometimes I'll just e-mail and say this person has COVID, here's a doctor's note, or whatever. But my first rule of thumb is just to contact the coordinator.
Q. And did you contact the court coordinator for the 43rd Judicial District Court regarding Ms. Farris's court setting on April 29, 2021?
A. Yes.
Q. And did you ask -
A. Maybe I misunderstood. Can you repeat it?
Q. Did you ask for a pass or a continuance -
A. Oh, no. I'm sorry, no, I did not. ....
Q.... And that was for the April 29, 2021, setting?
A. That is correct.
The State reserved closing argument, and Crane argued that he had recommended to Farris a bench trial, stating, "This is really kind of a sad situation, and I encouraged my client to have you hear this case because I thought that you would be the one most able to really hear it with an open mind." [Emphasis added.] He blamed Belew for not doing more to secure an extension of time for Farris to appear and argued that Farris should not be punished for having relied on Belew. The State then argued that Farris had known about her court date, that she had a long history of failing to appear, and that she had admitted that it was her decision not to appear. The trial court found her guilty.
E. Punishment
During his punishment-phase opening statement, Crane asked the trial court to consider the twenty-five-year minimum sentence because anything more would be over-punishment for someone who "just made some incorrect assumptions." The State then offered, and the trial court admitted into evidence, without objection, State's Exhibits 13-19, which contained information about Farris's prior convictions, and State's Exhibits 33, 35, and 36-respectively, the State's August 19, 2020 motion to declare bond insufficient, the October 7, 2021 order setting bond conditions requiring urinalysis, and the October 7, 2021 order declaring bond insufficient.
The State's first three witnesses sponsored the .225 grams of methamphetamine that were found in Farris's vehicle on July 3, 2019. Parker County Deputy Jeffrey Edwards testified that he had stopped Farris's vehicle in a high narcotic area and that when he spoke to her, he had smelled alcohol. He saw the drugs in a container in plain view behind her purse. The trial court admitted into evidence without objection eight minutes of Deputy Edwards's body camera video, which confirmed his testimony. The State's final witness was a communitysupervision officer who witnessed Farris's smuggling two balloons of urine to a urinalysis. The trial court then took judicial notice of its files in cause numbers CR19-0767 and CR21-0371 at the State's request.
Crane called Farris, who testified about her work history and explained her addiction history as it related to sexual-abuse trauma she had experienced as a child. She explained her drug-and-alcohol problem as, "I had bouts of it on and off through my life. I would do really good for years, and then I would do bad for a couple of years, then good and bad." When asked if she could do it over, she testified that she would not have gone to Philadelphia and would have found a way to get to court even if she had to walk. She stated, "I didn't know the consequences."
Farris also told the trial court,
I raised two boys by myself. I had a great career. I've taught Sunday school, taught 7th and 8th grade from 2003 when I got out of prison for the first one. Joined the church and served in the ministry for 10 years teaching kids and stuff. I love it. I still want to do that. That's me.
And I'm hard-working, I'm loving, I'm caring. I've never hurt anybody or anything, I don't think, in my life except myself. And I just pray you'll take those things into consideration.
The trial court sentenced Farris to 40 years' confinement.
F. Appointment of appellate counsel
After sentencing, the trial court informed Farris that she might be eligible for appointed appellate counsel and asked her if she was indigent, stating,
So if the Court finds you to be indigent in this matter -- and you've been in custody quite a long time, about 211 days. Do you think that you are -- do you have any money, Ms. Farris, that you could employ an attorney with, or do you have any family members that wish to employ an attorney on your behalf?
Farris advised the trial court that she did not. The trial court then told her to fill out an application for appointed counsel. Farris did so, and her affidavit of indigence and application for court-appointed appellate counsel once more indicated that she was receiving public assistance and had no financial resources. The trial court granted her application after questioning her about her resources-no home that she owned or rented and a fiance in Pennsylvania. However, when the court coordinator entered the order of appointment of appellate counsel, she check-marked both "appointment with reimbursement" and "appointment without reimbursement."
G. New trial hearing
On June 20, 2023, Farris's appellate counsel filed a motion for new trial verified by Farris and to which she attached her unsworn declaration and that of her boyfriend. At a brief hearing on June 28, 2023, after the trial court stated, "[Appellate counsel] has applied for a motion for new trial in the bail-jumping case that has been disposed of, and the Court is denying that request," Farris's appellate counsel stated,
I would like it noted that the verified motion for new trial was filed within 30 days, and we have now presented it within the allotted time period, which is within 10 days, after that filing. It's a verified motion with testimony from a potential witness who was not called, and a verified affidavit from Ms. -- unsworn, verified affidavit from Ms. Farris alleging ineffective assistance of counsel by her attorney at the time, Mr. Crane.
The trial court again stated that the motion was denied.
III. Motion for New Trial
In her first point, Farris complains that the trial court erred by denying her motion for new trial without a hearing.
A. Timeliness
The State argues that there was no abuse of discretion because Farris's motion was not timely.
Under Rule of Appellate Procedure 21.4(a), Farris had to "file a motion for new trial before, but no later than 30 days after, the date when the trial court impose[d] or suspend[ed] sentence in open court." Tex.R.App.P. 21.4(a). The trial court imposed Farris's sentence in open court on May 18, 2023, making her motion for new trial due June 17, 2023. Id.
However, June 17, 2023, was a Saturday. Under Rule of Appellate Procedure 4.1(a), when calculating time, "[t]he last day of the period is included, but if that day is a Saturday, Sunday, or legal holiday, the period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday." Tex.R.App.P. 4.1(a). A legal holiday under the Texas Government Code includes a national holiday under Section 662.003 (a) or a state holiday under Section 662.003(b)(1)-(6). Mendez v- State, 914 S.W.2d 579, 580 (Tex. Crim. App. 1996). Under Section 662.003(b)(4), "the 19th day of June, 'Emancipation Day in Texas,'" is a state holiday. Tex. Gov't Code Ann. § 662.003(b)(4). Accordingly, Farris's motion for new trial was due June 20, 2023, which is when Farris filed it. Because Farris's motion was timely, the trial court should have heard it if the motion showed reasonable grounds to believe that some error had occurred. See Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (requiring that the new-trial motion be timely filed with "supporting affidavits that demonstrate reasonable grounds for believing that some error has occurred").
Also known as Juneteenth, June 19 is a state holiday "in honor of the emancipation of the slaves in Texas in 1865." Tex. Gov't Code Ann. § 662.003(b)(4). "Juneteenth commemorates the ending of slavery . . . in the United States with the final announcement in Galveston, Texas, on June 19, 1865." Desirae Hutchison, Rebekah F. Thomas, Thurgood Marshall Bar Association Commemorates Juneteenth, 61-AUG Orange Cnty. Law. 42, 42 (2019).
B. Reasonable grounds
A new-trial hearing's purposes are to determine whether the case should be retried or to complete the record for presenting issues on appeal. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). Such a hearing is not an absolute right. Id. But a trial court abuses its discretion by failing to hold a hearing if the motion and accompanying affidavit (1) raise matters that are not determinable from the record and (2) establish reasonable grounds showing that the defendant could potentially be entitled to relief, i.e., for an ineffective-assistance claim, by meeting both of Strickland's requirements. Id. at 199-200. The motion must be supported by an affidavit specifically setting out the claim's factual basis, and if it is conclusory, is unsupported by facts, or fails to provide requisite notice of the basis for the relief claimed, no hearing is required. Id. at 199.
Under Strickland v. Washington, to establish ineffective assistance, an appellant must prove by a preponderance of the evidence that her counsel's representation was deficient and that the deficiency prejudiced the defense. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Strickland's prejudice prong requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial-that is, a trial with a reliable result. Id., 104 S.Ct. at 2064. In other words, an appellant must show a reasonable probability that the proceeding would have turned out differently without the deficient performance. Id. at 694, 104 S.Ct. at 2068.
In Hobbs, for example, the Court of Criminal Appeals held that the appellant's motion set forth reasonable ineffective-assistance grounds on matters that were not determinable from the record when he asserted in his motion that he was illiterate, that his counsel did not explain the jury waiver before asking him to sign it, and that he asked his counsel not to file the waiver once he learned of its effects. 298 S.W.3d at 201-02 ("Appellant is entitled to put his side of the 'jury waiver' story on the record. So is defense counsel. Only then can the trial judge make a credibility and factual determination.").
When a defendant's motion for new trial asserting ineffective assistance of counsel fails to explain how counsel's allegedly unprofessional errors prejudiced her, she has failed to show that but for counsel's deficiency, the result would have been different, and she is therefore not entitled to a hearing on her motion for new trial. Smith v. State, 286 S.W.3d 333, 345 (Tex. Crim. App. 2009).
Further, trial courts are in a better position than appellate courts to evaluate witness credibility and to resolve evidentiary conflicts. Caballero v. State, Nos. 01-19-00878-CR, 01-19-00879-CR, 2023 WL 2718466, at *10 (Tex. App.-Houston [1st Dist.] Mar. 31, 2023, pet. ref'd) (citing Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999)). Accordingly, we defer to the trial court's decision to believe or disbelieve all or any part of a witness's testimony, and this deference applies when the testimony is by affidavit. Id. If there are two permissible views of the evidence, the trial court's choice between them cannot be held to be clearly erroneous. Id. A trial court abuses its discretion by denying a motion for new trial only when no reasonable view of the record could support its ruling. Id.
Farris filed a verified motion for new trial in which she alleged that her trial counsel had provided ineffective assistance. In her appellate brief, she focuses on the following instances:
(1) Crane's deciding that she would have a bench trial and telling her to tell the judge that was what they wanted without explaining why a bench trial was the best move.
(2) Crane's failing to call her boyfriend Teddy Salerno as a fact witness to the events and circumstances surrounding the bail jumping and failure to appear and failing to present any of the mitigating evidence provided to Crane by Salerno as "described in his declaration."
(3) Crane's failing to apprise her during their court appearances of developments in the case, the State's evidence, or any potential defenses.
(4) Crane's calling her as a witness to testify on her own behalf without notice or discussing with her the risks inherent in such testimony and without admonishing her that she had a right not to testify.
(5) Crane's calling Ratliff and McMurray, two persons in the gallery "who were merely randomly there to support [her]," to testify without any preparation and then, during McMurray's testimony, revealing her criminal history.
To her motion, Farris attached her unsworn declaration and Salerno's unsworn declaration. Farris's declaration paralleled the allegations set out above. Salerno's declaration likewise paralleled the allegations set out above but also added, "I began dating Shannon Della Farris on or about May 23, 2021. Thus, I am a fact witness to virtually all of the events and circumstances regarding [her] alleged bail jumping and failure to appear offense which purportedly occurred on or about April 29, 2021." He further added,
[I]n the time period prior to the trial setting, at [counsel's] request I emailed some defense-oriented documents to him. Months later immediately prior to trial, [counsel] again requested that I email[] those same documents, as he stated he had not ever checked his email for those documents. [Counsel] used none of the records at trial that I had sent to him.
As set out below, neither the verified motion nor the unsworn declarations demonstrate how counsel's alleged unprofessional errors would have changed the outcome of Farris's trial.
1. Bench trial
Although Farris complained that her trial counsel decided that she would have a bench trial without explaining why it was a better decision for her circumstances, she ignored the two pretrial conversations on the record between her, Crane, and the trial court. Farris does not attempt to explain in her motion or unsworn declaration why she affirmatively consented to a jury waiver on the record on February 28, 2023. She likewise does not explain why, before trial on May 18, 2023, she signed the jury waiver. See Tex. Code Crim. Proc. Ann. art. 1.13(a) (stating that the defendant-not her counsel-in an other-than-capital-felony case "shall have the right, upon entering a plea, to waive the right of trial by jury . . . in person . . . in writing in open court with the consent and approval of the court, and the attorney representing the state"). Further, during his guilt-innocence closing, Farris's counsel explained to the trial court, "I encouraged my client to have you hear this case because I thought that you would be the one most able to really hear it with an open mind." Farris does not address this explanation in her motion.
The trial court could have chosen to disbelieve the assertions in Farris's declaration that Crane had failed to explain to her why a bench trial was her case's best strategic move or that Crane had made the decision for her. See id. (specifying that the right to waive a jury trial belongs to the defendant); see also Caballero, 2023 WL 2718466, at *10 (specifying that the trial court makes credibility assessments). Accordingly, the trial court did not abuse its discretion by not hearing the motion on this ground. See Hobbs, 298 S.W.3d at 199.
2. Mitigating evidence
Counsel's failure to call witnesses is irrelevant absent a showing that the purported witnesses were available and that their testimony would have benefitted the appellant. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Gomez v. State, 552 S.W.3d 422, 435 (Tex. App.-Fort Worth 2018, no pet.). Although Farris argued in her new-trial motion that her counsel failed to call Salerno as a fact witness and failed to present any of the mitigating evidence he had provided to Crane as "described in his declaration," she failed to explain of what this evidence consisted, that Salerno was available to testify, and how his testimony would have benefitted her.
Further, Salerno stated in his unsworn declaration that he had begun dating Farris "on or about" May 23, 2021, and failed to explain how he had witnessed her bail-jumping offense on or about April 29, 2021-almost an entire month before they began dating. And although Salerno referenced "defense-oriented documents" in his declaration, he did not explain of what these documents consisted or how they would have assisted Farris's case. He also did not state that he had been available and willing to testify as a fact witness. Accordingly, the trial court did not abuse its discretion by not hearing the motion on this ground.
3. Communication
In her unsworn declaration, Farris complained that Crane had represented her from November 2022 to May 2023 and that, during this time, he never visited her in jail or wrote to her and that he failed to apprise her of developments in her case, the State's evidence, or any potential defenses. However, she does not explain how any of these alleged professional errors could have changed her trial's outcome. That is, Farris failed to appear-of which she was as cognizant as the State-and the record reflects that she had no reasonable defenses to the charge. And Farris did not explain in her verified motion or unsworn declaration how communications between her and her counsel would have resulted in a different trial outcome. Because her allegations were conclusory, the trial court could have reasonably determined that she was not prejudiced by the alleged errors and thus did not abuse its discretion by not hearing the motion on these grounds. See Price v. State, No. 03-14-00567-CR, 2016 WL 3577510, at *4 (Tex. App.-Austin June 23, 2016, pet. ref'd) (mem. op., not designated for publication) ("We nevertheless conclude that Price was not entitled to a hearing on his motion, because Price failed to allege sufficient facts from which the trial court could reasonably have concluded that there is a reasonable likelihood that the outcome of the trial would have been different but for counsel's ineffective assistance.").
That is, the record reflects that Farris left the state to take a job-contrary to the terms of her release while awaiting trial-and opted not to return despite being aware that she had committed to attending all court appearances. Cf. Tex. Penal Code Ann. § 38.10(c) ("It is a defense to prosecution under this section that the actor had a reasonable excuse for his failure to appear in accordance with the terms of his release."); Davis v. State, No. 07-20-00047-CR, 2020 WL 5415397, at *2 (Tex. App.- Amarillo Sept. 8, 2020, no pet.) (mem. op., not designated for publication) ("A reasonable excuse is one that an ordinary and prudent person would rely on under the same or similar circumstances to justify his failure to make a court appearance."); Fininen v. State, No. 06-16-00039-CR, 2016 WL 6277430, at *4 (Tex. App.-Texarkana Oct. 27, 2016, no pet.) (mem. op., not designated for publication) (holding rejection of defense was supported by sufficient evidence when nothing showed that appellant was en route to the trial court for his 9 a.m. appearance when he was admitted to the hospital at 10:47 a.m. and, although he was well enough to drive himself to the hospital and to pick up children after his discharge, there was no evidence showing that he had called the trial court, court clerk, or his counsel to inform them that he was in the hospital).
4. Failure to admonish
In her unsworn declaration, Farris complained that Crane had called her as a witness to testify on her own behalf without notice and without discussing with her the risks inherent in such testimony and without admonishing her of her right not to testify. Because the State proved during its case in chief that she was lawfully released from custody on a surety bond based on the condition that she appear in court on that charge and that she had knowingly failed to appear, Farris's testimony was the principal method by which she could attempt to present sufficient evidence that she had a "reasonable excuse" for failing to appear. See Tex. Penal Code Ann. § 38.10(c); Charette v. State, No. 05-10-00305-CR, 2012 WL 206491, at *5 (Tex. App.-Dallas Jan. 25, 2012, no pet.) (not designated for publication) (noting that the only evidence supporting the reasonable-excuse defense was the appellant's testimony, of which the trial court as factfinder could choose to believe some, all, or none). Accordingly, although the record does not reflect an express admonishment on the record by either her counsel or the trial court about her right not to testify, Farris failed to explain in her motion or declaration how counsel's alleged unprofessional error did anything that would have changed the trial's outcome. Because the trial court could have reasonably concluded that Farris was not prejudiced by these alleged errors, it did not abuse its discretion by not hearing the motion on these grounds.
5. Other witnesses
Although Farris complains that her counsel called Ratliff and McMurray as witnesses without any preparation, Farris's motion and declaration fail to explain how she was prejudiced by these alleged errors. The record reflects that Ratliff and McMurray were sworn in before trial and that Crane gave them instructions on when to return to testify, belying Farris's assertion that they were "merely randomly there to support [her]." And although, during McMurray's testimony, Farris's criminal history was brought out, the trial court-as the factfinder during guilt-innocence and punishment-would have learned of this information even if McMurray had not testified. Crane used Ratliff's testimony about Farris's financial hardships to bolster her "reasonable excuse" testimony about the out-of-state job. And neither McMurray nor Ratliff submitted an affidavit or declaration to support Farris's claims that they were called ad hoc and without notice. Accordingly, the trial court did not abuse its discretion by not hearing the motion on these grounds.
6. Conclusion
Because the record does not reflect that Farris established reasonable grounds showing that she could possibly be entitled to relief by meeting both of Strickland's ineffective-assistance requirements, the trial court did not abuse its discretion by failing to hold an evidentiary hearing on her motion for new trial. See Hobbs, 298 S.W.3d at 199-200. Therefore, we overrule Farris's first point.
IV. Indigence
In her second point, Farris asks us to modify the trial court's "Order Determining Appointment of Counsel" to delete the finding that she had the ability to contribute to her appointed appellate counsel's cost of legal services.
In determining whether a defendant is indigent, the court or its designee may consider the defendant's income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and available spousal income. Tex. Code Crim. Proc. Ann. art. 26.04(m). The court or its designee may not consider whether the defendant has posted or can post bail, except to the extent that it reflects the defendant's financial circumstances as measured by the above considerations. Id. A defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).
There is no factual basis in the record to support a determination that Farris could pay appellate attorney's fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) ("Code of Criminal Procedure Article 26.05(g) requires a present determination of financial resources and does not allow speculation about possible future resources."). To the contrary, Farris's application for court-appointed appellate counsel and affidavit of indigence indicated that she was receiving public assistance. See Grant v. State, No. 09-94-181-CR, 1995 WL 248010, at *1 (Tex. App.-Beaumont Apr. 26, 1995, no pet.) (not designated for publication) (noting that appellant "lived on public assistance, owned no property and had no money" and "thus made a prima facie showing of indigence which the State failed to undermine"); see also In re C.D.S., 172 S.W.3d 179, 185 (Tex. App.-Fort Worth 2005, no pet.) ("Receipt of public assistance benefits is prima facie proof of indigency.").
The court coordinator nonetheless check-marked both "appointment with reimbursement" and "appointment without reimbursement" when she entered the appointment of appellate counsel. See Mayberry v. State, No. 02-22-00278-CR, 2023 WL 6300723, at *5 (Tex. App.-Fort Worth Sept. 28, 2023, pet. ref'd) (mem. op., not designated for publication) (noting that because court coordinator signed order appointing counsel, there was no determination by the trial court-as required by Article 26.05(g)-that the defendant had the financial resources to pay all or part of the cost of her legal services).
We sustain Farris's second point and correct the form order as requested by both parties to reflect "appointment without reimbursement" only. See id.; see also Stanford v. State, No. 02-23-00102-CR, 2023 WL 5282671, at *2 (Tex. App.-Fort Worth Aug. 17, 2023, no pet.) (mem. op., not designated for publication) ("[N]othing in the record supports the trial court's ability-to-pay findings in the appointed-counsel orders or that [the defendant] could contribute to the cost of the legal services and related expenses.").
V. Presentence Investigation Report
In her third point, Farris complains that the trial court should have ordered a PSI and that its failure to do so was an abuse of discretion.
After the trial court found Farris guilty, her counsel initially refused to stipulate to her prior convictions and requested a PSI as a better way to handle her sentencing. The following conversation then occurred between the trial court, the prosecutor, and Crane:
THE COURT: There would -- let me ask a question. Is the Court required to do a PSI before we would move forward with punishment?
[Prosecutor]: I do not believe so. And Ms. Farris is not probation eligible anyways.
MR. CRANE: Correct. But she's exposed to 99 years to life, so I think a presentence investigation would aid the Court.
[Prosecutor]: I mean, I would have to look it up, Judge, but I think if she's not probation eligible, I don't think the Court's required to do one.
THE COURT: I don't know. I'm asking that question. I don't know. I see somebody in the courtroom that I bet would know or could find out. So let's do this, let's take a 5-, 10-minute recess and I'll see y'all back here when y'all get back.
[Prosecutor]: Okay.
MR. CRANE: Thank you.
THE COURT: Thank y'all. Again, if it's something that's required, obviously, we'll do that.
MR. CRANE: Want to do it right.
(Recess taken)
THE COURT: And proceeding with CR21-0371, State versus Shannon Della Farris. Let the record reflect -- you can be seated -presence of counsel for the State, counsel for the defendant, defendant is present in the courtroom.
And there was a discussion about a presentence investigation report, and I think that issue may be moot at this time because Ms. Farris is going to stipulate to the priors.
MR. CRANE: Yes, sir. [Emphasis added.]
In arguing her third point, Farris ignores that-after requesting the PSI-her counsel then agreed with the trial court that the PSI request had become moot because Farris had decided to stipulate to her prior convictions. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) ("[T]he law of invited error estops a party from making an appellate error of an action it induced."); see also Griffith v. State, 166 S.W.3d 261, 263 (Tex. Crim. App. 2005) (holding that a defendant in a felony case may waive her right to PSI preparation). We overrule Farris's third point.
VI. Conclusion
Having sustained Farris's second point, we correct the order appointing counsel to reflect "appointment without reimbursement" only. Having overruled the remainder of Farris's points, we affirm the appointment order as modified and affirm trial court's judgment.