Horner v. State
| Decision Date | 19 February 2004 |
| Docket Number | No. 13-01-637-CR.,13-01-637-CR. |
| Parties | Steven Richard HORNER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Donald Kubicek, Sinton, for appellant.
Steven Richard Horner, Abilene, pro se.
Michael Hess, Asst. Dist. Atty., Patrick L. Flanigan, Dist. Atty., Sinton, for state.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.
OPINION ON MOTION FOR REHEARING
Opinion by Justice RODRIGUEZ.
Appellant, Steven Richard Horner, filed a motion for rehearing arguing that this Court made an error in the disposition of his fourth issue. Upon our review of the record, we grant appellant's motion for rehearing, withdraw our prior memorandum opinion and judgment of August 14, 2003, and substitute the following as the opinion of the Court.
Appellant brings this appeal following his conviction for the felony offense of aggravated sexual assault. The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right of appeal." See Tex.R.App. P. 25.2(a)(2). Appellant contends the trial court erred by: (1) denying his motion for change of venue; (2) denying his motion to suppress evidence from State witness James Ronald Jones II; and (3) overruling his objection to the testimony of Carmela Quintanilla regarding the victim's out-of-court statement. Appellant also complains of ineffective assistance of counsel. We affirm.
Appellant was indicted for the first degree felony offense of aggravated sexual assault. The case was dismissed because of the death of the victim, her sister, and her mother. Appellant was later re-indicted for the same offense. The indictment alleged appellant caused the female sexual organ of C.S., a child younger than fourteen years of age, to contact the sexual organ of appellant. After a two-day trial, the jury found appellant guilty. It assessed punishment at ninety-nine years in the Institutional Division of the Texas Department of Criminal Justice and imposed a $10,000.00 fine.
By his first issue, appellant contends the trial court erred by denying his motion for change of venue. This Court reviews motions for change of venue under an abuse of discretion standard. Dewberry v. State, 4 S.W.3d 735, 744 (Tex.Crim.App.1999). The Texas Code of Criminal Procedure provides that a trial court may change venue upon a showing: (1) that there exists so great a prejudice against the defendant in the county where the prosecution is commenced that he cannot obtain a fair and impartial trial; or (2) that there is a dangerous combination against the defendant instigated by influential persons, by reason of which the defendant cannot expect a fair trial. Tex.Code Crim. Proc. Ann. art. 31.03(a)(1) & (2) (Vernon 1989). A motion made under either ground must be in writing and supported by three affidavits, one from the defendant and two from credible witnesses. See id. art. 31.03(a).
At the pretrial hearing, appellant provided the court with his motion for change of venue. However, the motion did not include affidavits from two witnesses. See id. The omission of these affidavits renders the motion fatally defective. Brooks v. State, 418 S.W.2d 835, 836 (Tex.Crim.App.1967). There is no abuse of discretion when the trial court denies a motion that does not adhere to statutory requirements. See Christopher v. State, 489 S.W.2d 573, 574 (Tex.Crim.App.1973); Stuart v. State, 456 S.W.2d 129, 131 (Tex.Crim.App.1970); Hinkle v. State, 442 S.W.2d 728, 733 (Tex.Crim.App.1969).
Thus, we conclude the trial court did not abuse its discretion in denying the motion for change of venue. See Dewberry, 4 S.W.3d at 744. Appellant's first issue is overruled.
By his second issue, appellant contends the trial court erred by denying his motion to suppress evidence provided by State's witness James Ronald Jones II. In his motion, appellant contended the State delayed disclosing Jones as a witness and the delay did not allow him sufficient time to properly prepare voir dire argument and cross examination. On March 5, 2001, appellant filed a motion entitled "Motion for Disclosure of Witness Names." The order granting the motion directed the State to provide such names no later than 5:00 p.m. on March 16, 2001. Jones was not disclosed as a witness until July 5, 2001. The State claims that the witness was not known until May. The State further asserts that his identity was not disclosed until July 5 because the witness was assisting the State with another investigation regarding appellant.
Upon request by the defense, notice of the State's witnesses should be given. Stoker v. State, 788 S.W.2d 1, 15 (Tex.Crim.App.1989) (citing Young v. State, 547 S.W.2d 23, 27 (Tex.Crim.App.1977)). If the trial court allows an undisclosed witness to testify, we review the decision for abuse of discretion. Castaneda v. State, 28 S.W.3d 216, 223 (Tex.App.-El Paso 2000, pet. ref'd) (citing Stoker, 788 S.W.2d at 15); Irvine v. State, 857 S.W.2d 920, 926 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). In determining whether the trial court abused its discretion, this Court should consider whether: (1) the prosecutor acted in bad faith in failing to provide the defense with the name of the witness; and (2) the defendant could reasonably anticipate that the witness would testify despite the State's failure to disclose the witness's name. See Stoker, 788 S.W.2d at 15; Castaneda, 28 S.W.3d at 223; Irvine, 857 S.W.2d at 927. In determining whether the State acted in bad faith in failing to provide the name of the witness, we consider whether the State intended to deceive, whether the State's notice left adequate time to prepare, and whether the State freely provided the defense with information. See Hardin v. State, 20 S.W.3d 84, 88 (Tex.App.-Texarkana 2000, pet. ref'd); see also Stoker, 788 S.W.2d at 15.
Here, although the State waited some time after discovering the witness to disclose his name to appellant, it does not appear to have been done with the intent to deceive. See Hardin, 20 S.W.3d at 88. The State delayed disclosure to protect another investigation and to allow for the witness to be transported to another facility. See id. Also, although the State did not disclose the identity of the witness until July 5, 2001, the trial did not begin until August 13, 2001. Thus, appellant had adequate time to prepare. See id. Furthermore, the State was willing to provide appellant with information that could be used to impeach the witness and with the terms of the State's agreement with the witness. See id. We find no showing of bad faith by the State.
We next consider whether the defendant could reasonably anticipate that the witness would testify for the State. Stoker, 788 S.W.2d at 15. The record shows Jones was assisting the State with another investigation regarding Horner. Appellant and Jones were inmates at the same correctional facility. They had no prior relationship and did not maintain a relationship after their incarceration. Furthermore, the record supports that the investigation was confidential and covert, thus, the defendant could not have reasonably anticipated that the witness would be called to testify. However, the record does not show there was a significant degree of disadvantage inherent in the surprise, if any, resulting from the State's late disclosure. See id. Counsel was informed on July 5, 2001 of the State's intent to call Jones and was given the scope of his testimony prior to trial. The trial court remedied any surprise to appellant by granting a continuance. See id. Voir dire began August 13, 2001, over a month after appellant was provided with the witness's identification.
Thus, we find the trial court did not abuse its discretion in refusing to suppress the witness's testimony. Appellant's second issue is overruled.
By his third issue, appellant contends he was not afforded effective assistance of counsel. The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant's sixth amendment right to counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex.Crim.App.1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex.App.-Corpus Christi 2000, no pet). To establish ineffective assistance of counsel, appellant must show: (1) his attorney's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Stone v. State, 17 S.W.3d 348, 349-50 (Tex.App.-Corpus Christi 2000, pet. ref'd). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Munoz, 24 S.W.3d at 434; Stone, 17 S.W.3d at 350. An allegation of ineffective assistance of counsel will be sustained only if it is firmly founded and the record affirmatively demonstrates counsel's alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex.App.-Corpus Christi 1996, no pet.). In assessing a claim of ineffective assistance of counsel, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001). Also, in the absence of evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation and will not conclude the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. See id.; Thompson v. State, 9 S.W.3d 808, 814 (Tex....
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