Leachman v. State, No. 01-98-01255-CR (Tex. App. 4/8/2004)
| Decision Date | 08 April 2004 |
| Docket Number | No. 01-98-01255-CR,01-98-01255-CR |
| Parties | MATTHEW JAMES LEACHMAN, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 786224.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
We withdraw our Opinion of January 22, 2004 and issue the following one in its stead. Appellant's motions for rehearing and rehearing en banc are denied.
A jury found appellant, Matthew James Leachman, guilty of aggravated sexual assault of a child, and the trial court assessed punishment at 40 years' confinement. In seven points of error, appellant, representing himself pro se, contends that the trial court erred in overruling his (1) motion to dismiss for denial of counsel, (2) request to represent himself, pro se, (3) motion to suppress evidence, (4) request to admit testimony of the victim's sexual behavior, (5) objection to hearsay testimony, (6) objections to the State's final argument, and (7) request for a hearing on his motion for new trial.
We previously sustained appellant's seventh issue1 and, by our order of July 26, 2001, abated this appeal for the trial court to conduct a hearing on appellant's motion for new trial. A hearing was conducted, and a record of those proceedings and supplemental briefs from the parties are now before this Court. After the motion for new trial hearing, appellant raised two additional points of error asserting that (8) the trial court abused its discretion in denying his motion for new trial, and (9) he is being denied a fair appeal. We affirm.
In 1995, the complainant, who, at the time, was a nine-year-old boy, met the 23-year-old appellant at the Memorial Crest Apartments where the complainant lived with his grandmother. Appellant, who was using the alias, Perry Hootman, and his roommate, Andrew Smith, also lived in the Memorial Crest Apartments. Appellant approached the complainant and a friend and asked if they wanted to go swimming. After swimming, the boys went to appellant's apartment where he showed them his projection television and video games. In addition to the television and video games, appellant had computers and videos the boys could use. While the complainant's friend played a video game, appellant took the complainant into his bedroom where he sexually assaulted the complainant for the first time, by showing the complainant appellant's penis and having the complainant rub it.
The complainant returned to appellant's apartment several times following the initial assault. Appellant allowed the complainant to play video games, watch movies, and use the computer. On multiple occasions, appellant sexually assaulted the complainant through the use of bribes and games. The sexual assaults consisted of oral sex, masturbation, contact between the complainant's anus and appellant's penis and vice versa.
After the complainant and his grandmother moved from the apartments, he told his mother and grandmother that appellant had "done things" to him, but provided no details. Neither woman followed up on the conversation.
In March of 1996, Federal Bureau of Investigation Special Agent Mark Young executed a search warrant on appellant's apartment based on a federal investigation, which indicated that appellant and Andrew Smith were in possession of child pornography. Due to information gathered in the course of the investigation, Agent Young believed a child would be in the apartment at the time the warrant was executed. For assistance, he contacted Houston Police Officer James Chapman assigned to the Sex Crimes Unit of the Juvenile Division.
During the search, computers, computer software, and hundreds of photographs depicting young boys were seized. Because of his observations during execution of the search, the items seized and information gathered, Officer Chapman canvassed the apartment complex to find children who may have had contact with the appellant. This investigation led Officer Chapman to the complainant. Officer Chapman contacted the complainant's grandmother and arranged to meet the complainant at their apartment. When Officer Chapman arrived, the complainant was frightened and hiding in the closet. After talking to the complainant through the door, Officer Chapman eventually convinced the complainant to come out and speak with him. In a videotaped statement, the complainant later detailed the sexual abuse committed by appellant.
In point of error one, appellant contends that the trial court erred in denying his motion to dismiss because he was denied a fair trial when the trial court failed to appoint counsel when appellant was first charged in Texas.
On March 13, 1996, the FBI arrested appellant on a federal indictment and transferred him to custody in the Western District of Pennsylvania. On April 15, 1996, the State of Texas filed seven charges against appellant, including, in Harris County, the aggravated sexual assault of the complainant. No action was taken on appellant's Harris County case until he returned from Pennsylvania.
From Pennsylvania, appellant sent the Harris County district court coordinator two letters requesting that he be appointed counsel. The letters were accompanied by affidavits of indigency. When no counsel was appointed, appellant moved for dismissal with prejudice. The trial court denied appellant's motion on December 23, 1997. Appellant argues that his case should be reversed and dismissed because the trial court did not appoint counsel.2
Both the United States and Texas Constitutions guarantee the accused the right to assistance of counsel in all criminal prosecutions. U.S. Const., amend. VI; Tex. Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann. arts. 1.05, 1.051 (Vernon 1977 and Supp. 2003). This right attaches only at or after the initiation of adversary proceedings against the defendant. United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 2297 (1984). However, not every event following the inception of adversary judicial proceedings is a "critical stage" invoking the right to counsel. Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994).
A pre-trial proceeding is only "critical" if the accused requires aid in coping with legal problems or assistance in meeting his adversary. United States v. Ash, 413 U.S. 300, 313, 93 S. Ct. 2568, 2575 (1973); Green, 872 S.W.2d 717 at 720. Because there were no proceedings from the time of appellant's indictment until appellant was brought to Harris County, appellant was not deprived of counsel during a critical stage of adversarial judicial proceedings. See id.
We overrule point of error one.
In point of error two, appellant argues that the trial court erred in denying his request to represent himself, pro se.
While represented by counsel, appellant filed a pro se motion entitled, "Defendant's Ex Parte Motion to Vacate The Appointment of Counsel and To Recognize the Defendant as Self-Represented" on the previous indictments in the case. The State contends that "within the motion is also what in essence is a request for hybrid representation." We disagree with this characterization. In his motion, appellant sought permission from the trial court to proceed pro se—nothing less.
The clerk's record does not contain an order from the trial court denying appellant's request to proceed pro se. The abatement record, however, reflects that, during the motion for new trial hearing, appellant questioned his trial counsel, Brian Coyne, and asked if he remembered when the trial court denied appellant's motion to vacate appointment of counsel. Coyne did not recall the trial court's ruling, and appellant produced correspondence from the district clerk indicating that, on June 17, 1997, the trial court denied appellant's motion to vacate appointment of counsel. The district clerk's letter was attached as an exhibit to the motion for new trial hearing.
Appellant relies on the district clerk's letter as proof that the motion was presented to and denied by the trial court. The clerk's letter, however, is not a part of the clerk's record filed in this appeal. It is not dated and or authenticated in any way. As such, it does not constitute evidence of an appealable order. The record also does not contain a docket entry by the trial court reflecting a ruling on the motion. See Flores v. State, 888 S.W.2d 193, 195 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (). Because the record does not support appellant's contention that his motion to represent himself was presented to the trial court and was denied, we hold that appellant has not properly preserved this point of error. See Tex. R. App. P. 33.1.
We overrule point of error two.
In point of error three, appellant contends that the trial court erred in overruling his motion to suppress evidence seized from his apartment. He contends that the seizure was illegal because (1) the warrant was based on a false allegation made deliberately or with reckless disregard for the truth, and no probable cause existed absent the false allegation; (2) many items were seized that were not within the warrant's scope;3 — (3) the warrant was impermissibly vague; and (4) the warrant was overbroad.
In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court may accept or reject all or any part of a witness's testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980). In reviewing the trial court's ruling on a motion to suppress evidence, an...
To continue reading
Request your trial