Frangias v. State
| Decision Date | 27 February 2013 |
| Docket Number | NO. PD–0728–12,PD–0728–12 |
| Parties | John Frangias, Appellant v. The State of Texas |
| Court | Texas Court of Criminal Appeals |
George McCall Secrest Jr., Attorney at Law, Houston, TX, for Appellant.
Eric Kugler, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for State.
Price, J., delivered the opinion of the Court in which Keller, P.J., and Womack, Johnson, Keasler, Hervey, Cochran and Alcala, JJ., joined.
A jury convicted the appellant of sexual assault and assessed his punishment at eight years' confinement in the penitentiary. Represented by different counsel on appeal, the appellant filed a motion for new trial in which he argued that his trial counsel provided ineffective assistance when they failed 1) to secure the presence of a critical witness at the guilt phase of the trial, 2) take his deposition in order to memorialize his testimony for presentation to the jury, or 3) alternatively, seek a continuance in order to secure that witness's testimony. The trial court allowed the motion for new trial to be denied by operation of law,1 and the Fourteenth Court of Appeals upheld that ruling, holding that the trial court did not abuse its discretion because the appellant did not establish that his trial counsel performed deficiently.2 We granted the appellant's petition for discretionary review in order to examine this holding. We now reverse the judgment of the court of appeals and remand the cause for further proceedings not inconsistent with our holding today.
In March of 2010, the appellant was indicted for the offense of sexual assault, a second degree felony,3 allegedly committed on or about July 10, 2008. By the time of trial in October of 2010, the appellant was represented by retained attorneys Lisa Jones and Alfred Valdez, both of whom had been on the case since at least early June of 2010. Trial was scheduled to begin with voir dire on Friday, October 22, 2010, but on October 19th, the trial court continued the case until the following Monday, October 25th, in order to allow time for defense witnesses to come in from Canada. The jury was selected on that Monday, and testimony began on Tuesday, October 26th.
The State's evidence showed that the complainant, K.H., flew from Toronto to Houston to attend a Microsoft conference during the week of July 7, 2008. Upon arrival, she discovered that her hotel was overbooked, and a room was arranged for her at the appellant's hotel, the Rainbow Inn Suites. On the evening of Thursday, July 10th, K.H. attended a social event sponsored by Microsoft. Afterward, she accompanied her business partner to his hotel for about an hour before taking a shuttle back to the Rainbow Inn Suites. She testified that she arrived at around 11:00 p.m. and proceeded upstairs to her room. Arriving on the second floor, she noticed that the appellant was there talking with another patron. When the appellant saw K.H., he excused himself from his conversation and followed her down the hall to her room. There, he pushed her through the door and onto the bed, forcing himself on her. After the appellant left, K.H. brushed her teeth and took a shower to try to eradicate his taste and smell. She then telephoned her husband and a business contact, but she told neither of them about the sexual assault. She explained to the jury that she did not immediately report the assault because she was afraid and humiliated, and she simply wanted to “bury” the incident and pretend that it had not happened.
Testifying on his own behalf, the appellant, a native Greek of longstanding United States citizenship, and proprietor of the Rainbow Inn Suites, imparted a fundamentally different story in halting English. According to the appellant, K.H. arrived at the doorstep of his hotel shortly after midnight in a state of profound inebriation. After the appellant and one of his employees, Jay Sotomayor, helped K.H. up to her room, she called down to the front desk for additional towels. The appellant took towels up to her room, but he did not tarry. He testified that, over the course of that week, he had driven K.H. to a number of functions and had noticed on several of those occasions that she seemed intoxicated.4 When she began to ask him inappropriately personal questions, he asked her to find a room at another hotel. At no time did he enter her room, and he “1000 percent” did not sexually assault her. In fact, he claimed to suffer from a chronic kidney stone
condition, the treatment for which made it very painful for him to attain an erection.5
When she returned to Toronto on July 11th, K.H. telephoned Stephanie Jones, an old acquaintance whom she knew to be a former police detective, and reluctantly told Jones about the assault. Contrary to her trial testimony, K.H. told Jones that the appellant had knocked on her door—not that he had followed her to her room and pushed her through the door—before assaulting her. Jones advised K.H. to immediately tell her husband what had happened and to submit to a medical examination, both of which K.H. did. The rape kit turned up no forensic evidence, however, and the nurse who conducted the examination noticed no bruising or other injury indicative of forcible rape.
Both sides were able to produce testimony to corroborate their respective accounts. One witness, an intensive care nurse who happened to be in the lobby of the Rainbow Inn Suites at around midnight on July 10th, testified that an obviously drunken woman had passed out at the front door and that the appellant and another man had helped her up to her room. The appellant later took towels up to a room, but came back down within minutes. This witness was not asked, however, and evidently could not definitively say, whether the woman she saw was K.H. On the other hand, testimony from K.H.'s business partner, the business contact whom she telephoned after the assault, and her husband, all placed K.H. at the Rainbow Inn Suites substantially before midnight. K.H.'s cell phone records apparently backed up this testimony.6 Based upon this evidence, the prosecutor would later make it a pervasive theme of her guilt phase summation to the jury that the drunken woman whom the defense witnesses had seen at midnight was not, in fact, K.H., but some other unidentified woman.
Midway through the first day of testimony, on Tuesday, October 26th, shortly after the lunch break and during the State's case-in-chief, one of the appellant's trial counsel, for the first time on the record, broached the subject of a missing witness, Jay Sotomayor—the Rainbow Inn Suites employee who the appellant would later testify helped him to escort the drunken woman to her room. This first mention, during a bench conference, was fleeting.
treatment. He's not allowed to travel. We're going to ask maybe during a break to discuss that issue and how we can get his testimony by telephone if we have a court reporter.
THE COURT: We'll take that up at the break. I'll let you know.
Later, during an afternoon recess, the matter was taken up in greater detail.
treatment; that this was his second round of cancer treatment. We were trying to track him down, and he kind of dropped out of sight on us....
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