No. 05-09-00691-CR
Opinion Filed October 14, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F08-53633-LK.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
Opinion By Justice MURPHY.
Johnny Lee Fletcher appeals his jury conviction for aggravated robbery. The trial court assessed punishment, enhanced by a prior felony conviction, at twenty-five years' imprisonment. In two issues, appellant contends the trial court erred when it (1) failed to afford his appointed counsel the statutorily-required ten days to prepare for trial, and (2) denied his motion for new trial. We affirm the trial court's judgment.
BACKGROUND
The grand jury indicted appellant for the felony offense of aggravated robbery with a deadly weapon, a firearm. See Tex. Penal Code Ann. § 29.03(a)(2) (West 2003). Appellant was represented by appointed counsel from the Office of the Dallas County Public Defender. The limited record does not show when the public defender's office was appointed, but the trial court's docket sheet lists three attorneys from the office: Mike Howard, Scott Kendall, and Kayo Mullins. The record also contains a motion for examining trial filed by Howard on behalf of appellant in April or May 2008. Appellant's case was called for trial on April 27, 2009, and Mullins appeared with appellant. That same day, Mullins filed appellant's election and omnibus pre-trial motions. The trial court advised appellant that two of his attorneys had resigned from the public defender's office and that Mullins had been appointed to represent appellant. Appellant confirmed to the court that he was going to plead not guilty and he wanted a jury trial. Mullins told the trial court he had just met with appellant that day, but when the trial court asked appellant if he was "ready to go to trial this week," appellant replied, "[y]es, sir." The jury was selected the following day, and the State presented its witnesses. At the close of the State's evidence, Mullins moved for a directed verdict, which the trial court denied. At the time, it was clear that appellant's brother, whom the defense had intended to call as a witness, was not going to appear. The following exchange took place: [Prosecutor]: Let me ask you something, are you satisfied with everything that's gone on with your case? I know you want you[r] brother here, but for whatever reason we gave him yesterday and today to be here.
[Appellant]: I am satisfied, sir.
THE COURT: Are you happy about everything? Is everything okay?
[Appellant]: Yes, sir.
THE COURT: No complaints?
[Appellant]: No complaints.
The defense then rested without calling any witnesses. The jury returned a guilty verdict. After appellant pleaded true to one enhancement paragraph, the trial court assessed punishment at twenty-five years' imprisonment. The trial court signed its judgment on April 30, 2009. On May 4, 2009, appellant filed a motion for new trial, arguing a new trial should be granted "for the good and sufficient reason that the verdict is contrary to the law and evidence." Thereafter, appellant filed an amended motion for new trial, in which he argued a new trial was warranted because the State committed a Brady violation and counsel was ineffective. In support of the amended motion, appellant attached two affidavits, one signed by Mullins, and the other signed by an investigator with the public defender's office who worked on appellant's case. No hearing was requested on either motion, and the amended motion was overruled by operation of law. Mullins also filed a motion on behalf of the public defender's office "to withdraw as counsel and request for appointment of new counsel." Mullins cited the reason for withdrawal as the belief "defendant has viable motion for new trial claims, including that his assistant public defender rendered ineffective assistance of counsel at trial." The trial court signed an order the next day allowing the public defender's office to withdraw and appointing new counsel for appellant. DISCUSSION Statutory Right to Ten-Day Preparation Time
In his first issue, appellant argues his trial counsel was not given the mandated ten days to prepare for trial. See Tex. Code Crim. Proc. Ann. art. 1.051(e) (West Supp. 2010). Legal Standard and Applicable Law Article 1.051 of the Texas Code of Criminal Procedure governs an indigent defendant's right to have "an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement. . . ." Id. art. 1.051(c). Appellant relies on subsection (e) of article 1.051, which provides "appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court." Id. art. 1.051(e). This provision is mandatory; if the record shows appointed counsel did not have ten days to prepare for trial, we must reverse the case. Wages v. State, 573 S.W.2d 804, 806 (Tex. Crim. App. [Panel Op.] 1978); Steward v. State, 422 S.W.2d 733, 737 (Tex. Crim. App. 1968). Because appellant did not waive his right to the ten-day period, he may raise a failure to comply with article 1.051(e) for the first time on appeal. See Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002); see also Garcia v. State, 149 S.W.3d 135, 144 (Tex. Crim. App. 2004) (failure of judge to implement rights of litigants, which must be implemented unless expressly waived, is error that may be urged for the first time on appeal) (citing Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)). Importantly, a violation of article 1.051(e) must be apparent from the record. See Wages, 573 S.W.2d at 806 (overruling complaint of 10-day violation because record did not reflect date of trial counsel's appointment); Steward, 422 S.W.2d at 737 (same). Analysis Although it is undisputed that the public defender's office was appointed to represent appellant, the record does not show when the appointment was made or when Howard and Kendall resigned. Of note, the record also does not show when Mullins began representing appellant or when his trial preparation began. On the morning of trial, when Mullins appeared with appellant, appellant told the judge he wanted a jury trial and confirmed he was ready to go to trial that week. While Mullins stated he had just met with appellant that day, Mullins never told the trial court he was not ready to defend appellant. Rather, he only asked for additional time to find appellant some pants. Appellant argues the evidence of an article 1.051(e) violation is evident by dissecting Mullins's affidavit, which was attached to the amended motion for new trial. In the affidavit, Mullins states he was "transferred to the Criminal Section of the Dallas County Public Defender's Office . . . on or about the afternoon of April 15, 2009." He continues, "[o]n my arrival, I received several boxes of files." "[S]everal days later," when assigned a cubicle, he received "information" about the cases assigned to him. Relying on these statements, appellant maintains Mullins's actual preparation time was "far less" than ten days and Mullins was clearly unprepared for trial. He argues that because Mullins lacked the time to prepare, he did not discover or present any of the potential alibi witnesses who could have testified for appellant. As an initial matter, appellant never offered as evidence the affidavits attached to his amended motion. Generally, in criminal cases, statements contained in post-trial motions, such as a motion for new trial, are not self-proving. Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009); Lamb v. State, 680 S.W.2d 11, 13 (Tex. Crim. App. 1984), cert. denied, 470 U.S. 1009 (1985). An affidavit attached to a motion for new trial is not evidence. Stephenson v. State, 494 S.W.2d 900, 909 (Tex. Crim. App. 1973). It is a prerequisite to obtaining a hearing; the purpose of the affidavit is to authorize the introduction of supporting evidence and to limit the parameters of the hearing that is sought. McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (purpose to limit parameters of hearing); Stephenson, 494 S.W.2d at 909-10 (purpose to authorize introduction of evidence). To constitute evidence, the affidavit must be introduced into evidence at a hearing on the motion. Rouse, 300 S.W.3d at 762; Jackson v. State, 139 S.W.3d 7, 20 (Tex. App.-Fort Worth 2004, pet. ref'd); see also Tex. R. App. P. 21.7 (during hearing on motion for new trial, court may receive evidence by affidavit or otherwise). This rule applies even when constitutional issues are implicated. See Rouse, 300 S.W.3d at 762 (citing Lamb, 680 S.W.2d at 17 (Onion, P.J., concurring in part and dissenting in part)). The State contends the affidavits are not properly before this Court because no hearing was held on appellant's request for a new trial and the affidavits attached to the motion were not otherwise admitted as evidence. Appellant responds that there is no requirement the "facts supporting a ten-day preparation violation must be admitted into evidence." Rather, citing Marin, he emphasizes that the Texas Court of Criminal Appeals "repeatedly relies" on the clerk's record and not evidence admitted at a proceeding" when analyzing article 1.051(e) claims. See Marin, 851 S.W.2d at 277 (reviewing statements presented in motions to withdraw and substitute counsel for article 1.051(e) violation)). Here, even if we consider the affidavits for purposes of an article 1.051(e) violation, we conclude the affidavits do not establish appellant's claim that the trial court deprived his court-appointed counsel the requisite ten-day minimum period for trial preparation. The only known date offered by Mullins in his affidavit is April 15, 2009, the date Mullins was transferred to the criminal section of the public defender's office, which was more than ten days before trial. Mullins received his files on his arrival. He provided no date in his affidavit as to when he was appointed to represent appellant, and appellant admits "the date Mullins was assigned to [appellant's] case is uncertain." Absent a date of assignment, the record is insufficient to support appellate relief under article 1.051(e). See Wages, 573 S.W.2d at 806 (no right to appellate relief if record fails to reflect date of counsel's appointment); Steward, 422 S.W.2d at 737 (same). The only record before us shows Mullins received the file more than ten days before trial, appellant stated he was ready to proceed, and Mullins never sought or suggested the need for additional time to prepare. We therefore conclude appellant has shown no violation of article 1.051(e). See Wages, 573 S.W.2d at 806; Steward, 422 S.W.2d at 737; cf. Rojas v. State, 943 S.W.2d 507, 510 (Tex. App.-Dallas 1997, no pet.) ("Absent a showing to the contrary in the record, we will presume the regularity of the trial court proceedings."). Accordingly, we overrule appellant's first issue. Denial of Motion for New Trial
In his second issue, appellant contends the trial court erred in denying his request for a new trial because of a Brady violation, see Brady v. Maryland, 373 U.S. 83 (1963), and ineffective assistance of counsel at trial. Legal Standard and Applicable Law We review a trial court's ruling on a motion for new trial under an abuse of discretion standard. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). In conducting our review, we do not substitute our judgment for that of the trial court. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). Rather, we decide whether the trial court's decision was arbitrary or unreasonable. Id. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). Under Brady and the due process clause of the Fourteenth Amendment to the United States Constitution, a prosecutor has an affirmative duty to disclose evidence material and favorable to the defense. Michaelwicz v. State, 186 S.W.3d 601, 613 (Tex. App.-Austin 2006, pet. ref'd) (citing Brady, 373 U.S. at 87-88). To be entitled to a new trial because of a Brady violation, appellant must show (1) the State failed to disclose evidence in its possession; (2) the withheld evidence is favorable to him; and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Webb, 232 S.W.3d at 114; Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). To be entitled to a new trial based on ineffective assistance of counsel, appellant must show (1) trial counsel's performance was deficient, meaning it fell below an objective standard of reasonableness, and (2) the deficiency prejudiced the defendant, that is, but for the deficiency, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411 (2010). Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Williams, 301 S.W.3d at 687; Thompson, 9 S.W.3d at 813. The record must be sufficiently developed to overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and counsel's actions were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Any allegation of ineffectiveness must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 814. Because the reasonableness of counsel's choices often involves facts that do not appear in the record, an application for a writ of habeas corpus is normally the preferred vehicle for raising ineffective assistance of counsel claims. Thompson, 9 S.W.3d at 813-14 n. 6. This is especially so when the complained-of deficiency involves an error of omission rather than commission. Id. at 814. Analysis Appellant's first ground for a new trial was the State's alleged failure to disclose statements made by a potential alibi witness during a police interview. Appellant also claims his trial counsel was ineffective because he failed to discover and present alibi witnesses and was unprepared for trial. Appellant relies entirely on the affidavits attached to his amended motion for new trial to support his arguments. As described above, an affidavit attached to a motion for new trial is not self-proving; rather, the affidavit must be admitted as evidence. Stephenson, 494 S.W.2d at 909. Here, appellant failed to request a hearing, and the affidavits were not otherwise offered to the trial court as evidence. Because appellant's affidavits were never admitted as evidence, we may not consider the affidavits on appeal. Rouse, 300 S.W.3d at 762; Stephenson, 494 S.W.2d at 909-10; Jackson v. State, 139 S.W.3d at 21. Without the affidavits, appellant has failed to point to any competent proof supporting his claims that the State committed a Brady violation or trial counsel was ineffective and none appears in the record before us. We therefore must conclude appellant failed to meet his burden of proving a Brady violation or ineffective assistance of counsel. Accordingly, we conclude the trial court did not abuse its discretion in denying appellant's motion for new trial. We overrule appellant's second issue. We affirm the trial court's judgment.