Curry v. State

• Decision Date: 31 August 1993
• Docket Number: No. 2-91-340-CR,2-91-340-CR
• Citation: 861 S.W.2d 479
• Parties: Donald Eugene CURRY, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 479

861 S.W.2d 479

Donald Eugene CURRY, Appellant, v. The STATE of Texas, State.

No. 2-91-340-CR.

Court of Appeals of Texas Fort Worth.

Aug. 31, 1993.

Renie McClellan, Cedar Hill, for appellant.

Bruce Isaacks, Crim. Dist. Atty., and Kathleen A. Walsh, Paige Miller, Sharone McGahee, Assts., Denton, for appellee.

Before FARRIS, WEAVER and FARRAR, JJ.

OPINION

FARRIS, Justice.

Donald Eugene Curry was convicted of the aggravated sexual assault of his stepdaughter, W.K., and sentenced by a jury to life imprisonment. TEX. PENAL CODE ANN. § 22.021 (Vernon 1989). On appeal he raises nineteen points of error: thirteen complaints of ineffective assistance of counsel; three complaints his guilty plea was not voluntary; a complaint his prosecution was barred by limitations; a complaint of error in failing to give the parole charge; and a complaint the court erred in limiting cross-examination of a State witness. Because Curry was convicted of an offense with a ten-year limitations period; because Curry was not harmed by the lack of a parole instruction or the limited cross-examination of a State witness; because Curry failed to prove his trial counsel rendered assistance that was deficient or that prejudiced his defense; and because the credible evidence shows Curry entered his plea voluntarily, we overrule all points and affirm the judgment.

In his first and second points, Curry contends because he was indicted on June 6, 1991 for an offense which allegedly occurred on September 31, 1983, his prosecution was barred by the five-year limitations period, and he was denied effective assistance of counsel because trial counsel failed to seek dismissal of the indictment because it was barred by the statute of limitations. ¹

Curry was indicted for sexual assault under TEX.PENAL CODE ANN. § 22.011(a)(2) (Vernon Supp.1993), which is included in the ten-year section of the limitations article. See TEX.CODE CRIM.PROC.ANN. art. 12.01(2)(D) (Vernon Supp.1993). Although this offense fell under the five-year period when it occurred, article 12.01 was amended, effective September 1, 1987, to include Curry's offense and his prosecution was not time barred. See Archer v. State, 577 S.W.2d 244 (Tex.Crim.App. [Panel Op.] 1979). ² Points one and two are overruled.

In points four and five, Curry contends the trial court erred by not giving the parole instruction and he was denied effective assistance of counsel because trial counsel failed to object to the omission. We overrule both points, because the parole instruction was crafted to increase jury sentences and its absence did not harm Curry. See Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.--Dallas 1992, pet. ref'd).

Curry's sixth and seventh points concern the trial court sustaining the State's "relevancy" objection and not allowing him to cross-examine his ex-wife, who was the victim's mother, about a debt she owed him. Curry contends the witness's testimony was crucial to the State's case and denying him the right to cross-examine her, to demonstrate her bias and motive for testifying, was a violation of his right to confrontation under both federal and state constitutions, and he was denied effective assistance of counsel because his attorney failed to make a bill of exception.

We overrule point seven because a bill of exception was not required to preserve error in this instance. Error was preserved by establishing the subject matter which he wished to address in cross-examination. See Koehler v. State, 679 S.W.2d 6, 9 (Tex.Crim.App.1984).

We overrule point six because, while we hold the trial court erred by denying Curry the right to cross-examine the witness about possible bias, the error was harmless.

In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the United States Supreme Court established the appropriate analysis for determining whether a denial of the right to cross-examination under the confrontation clause was harmless error. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. Our Court of Criminal Appeals has held a proper analysis of harmless error under Van Arsdall requires we employ the factors set out in that opinion. See Shelby v. State, 819 S.W.2d 544, 547 (Tex.Crim.App.1991). The Van Arsdall factors are:

(1) The importance of the witness's testimony in the prosecution's case;

(2) Whether the testimony was cumulative;

(3) The presence or absence of evidence corroborating or contradicting the testimony of the witness on material points;

(4) The extent of cross-examination otherwise permitted; and (5) The overall strength of the prosecution's case.

Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; Shelby, 819 S.W.2d at 547.

Considering the first and fifth Van Arsdall factors, we find the witness's testimony was not particularly important to the State's case while the State's case was a strong one. The witness was unaware Curry had abused W.K. until after she and Curry had divorced.

Points three, nine, ten, eleven, fourteen, fifteen, sixteen, seventeen, eighteen, and nineteen concern the effectiveness of counsel during the guilt-innocence phase of trial. To prove ineffective assistance of counsel at this phase of trial, a convicted defendant must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). ³

In his third point, Curry contends it was incumbent upon trial counsel to move to quash the indictment because it alleged the offense occurred on a non-existent date, September 31, 1983.

Curry cannot prove trial counsel was ineffective, in this regard, because an indictment alleging an impossible date is not fundamentally defective. See Ex parte McFarland, 632 S.W.2d 621 (Tex.Crim.App.1982). In addition, contrary to Curry's contention, his defense was not prejudiced by counsel's failure to object to the indictment. The record shows trial counsel engaged in extensive discovery and was aware of what the State's evidence showed in terms of the offense date. Point three is overruled.

In his eleventh point, Curry claims his counsel should have filed a motion requesting notice of the State's intent to use extraneous offense evidence.

First, we note that because counsel filed a motion in limine including extraneous offenses, he was given the opportunity to hear the evidence and present arguments against its admissibility outside the presence of the jury. In addition, Curry failed to show how the failure to request notice prejudiced his defense, since he did not allege or argue the evidence was inadmissible. Point eleven is overruled.

In points nine, ten, fourteen, fifteen, seventeen, eighteen, and nineteen, Curry claims his plea was involuntary because it was based on erroneous advice of counsel and his trial counsel rendered ineffective assistance.

We recognize the validity of a guilty plea depends upon whether it was entered voluntarily and made intelligently and, if upon advice of an attorney, that counsel was reasonably competent and rendered effective assistance. Ex parte Evans, 690 S.W.2d 274, 276 (Tex.Crim.App.1985); TEX.CODE CRIM.PROC.ANN. art. 26.13(b) (Vernon 1989). Because Curry indicated at the plea hearing he understood the nature of the proceeding and was changing his plea because the allegations contained in the indictment were true, and not because of any outside pressure or influence, he has a heavy burden to prove otherwise. See Sawyer v. State, 778 S.W.2d 541, 543 (Tex.App.--Corpus Christi 1989, pet. ref'd). After reviewing the record, we hold Curry failed in his proof.

In his ninth and tenth points, Curry contends his guilty plea is invalid because he did not enter it knowingly and voluntarily and his counsel gave him erroneous advice concerning the amount of time he would have to serve.

Point nine is overruled because the attainment of parole is so speculative that erroneous advice regarding the number of years to be served before being eligible for parole would not render a guilty plea involuntary. See Ex parte Wilson, 716 S.W.2d 953, 958 (Tex.Crim.App.1986).

Concerning Curry's ineffective assistance claim, the trial judge fully admonished Curry at the hearing on his guilty plea. Curry stated unequivocally he was not pleading guilty because of any promises made, or any hope of pardon or parole, but solely because he was guilty of the offense as charged in the indictment. In contrast, at the hearing on his motion for new trial, Curry testified he pled guilty because his counsel advised him he would not have to serve a one-fourth mandatory portion of his sentence because he did not use a weapon. Although counsel's advice was erroneous, Curry failed to establish this error prejudiced his defense because: he did not enter his plea on the basis of a plea bargain; he received a complete admonishment; and he stated he was satisfied with his counsel's representation. Point ten is overruled.

Points fourteen and fifteen concern Curry's claim his trial counsel told him that his prior probation could be used to impeach him if he testified.

At the motion for new trial hearing, Curry and his fiance, Linda Litrell, testified trial counsel advised him that if he testified during the guilt-innocence phase the State could introduce evidence that he had been placed on probation for sexual assault. Curry stated he entered his guilty plea because of this advice. Contrary to the evidence at the motion for new trial hearing, the evidence at the plea hearing shows that immediately after Curry pled guilty, the State took up the issue of prior convictions. When the State sought authorization to introduce evidence of two convictions, for which Curry had successfully completed probation, defense counsel stated:

We're going to object to 1 and 2 on the basis that State's Exhibit No. 2 indicates that Mr. Curry has successfully completed the terms and conditions of...