Ryan v. State

• Decision Date: 19 December 1996
• Docket Number: No. 09-95-015CR,09-95-015CR
• Citation: 937 S.W.2d 93
• Parties: Margaret E. RYAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 93

937 S.W.2d 93

Margaret E. RYAN, Appellant, v. The STATE of Texas, Appellee.

No. 09-95-015CR.

Court of Appeals of Texas Beaumont.

Submitted June 27, 1996.

Decided Dec. 19, 1996.

John D. MacDonald, II, Conroe, for appellant.

Daniel Rice, District Attorney, Gail Kikawa McConnell, Assistant District Attorney, Conroe, for State.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

Appellant Margaret Elizabeth Ryan was convicted by a jury of two counts of possession of a controlled substance by fraud. The court assessed punishment and sentenced Ryan to forty years' confinement in the Texas Department of Criminal Justice, Institutional Division.

FACTS

John Van Alstein, the managing pharmacist of Wal-Mart Pharmacy on Sawdust Road in The Woodlands, testified he received a telephone prescription for diazepam on February 18, 1994 for a Margaret Ryan. The person calling in the prescription identified herself as Dr. Bodas' nurse. At trial, Van Alstein identified the person who picked up the prescription the afternoon of February 18 as the defendant, Margaret Ryan. The February 18 incident is Count I of the indictment.

On February 19, 1994, Deputy Toby Swansey came into the pharmacy and asked Van Alstein if he had received any prescriptions for a Margaret Ryan. Van Alstein responded affirmatively and told Swansey about the prescription of the previous day. According to Van Alstein, Swansey said the prescription was "bogus" and requested Van Alstein to alert Swansey's office if he saw her again.

On February 21, 1994, a prescription for Xanax was called into Van Alstein for a Gary Powers. The caller identified herself as Laura, calling for Dr. Ang's office. Van Alstein testified he was suspicious about the prescription because he had never heard of Dr. Ang, Gary Powers was not a regular customer, and the address given for Powers was a Houston address, rather than The Woodlands or other nearby location. Shortly after taking this prescription, Van Alstein received a call from someone in the sheriff's department who alerted him to "bogus prescriptions" being called in under the name of Gary Powers. Van Alstein informed the police about the prescription for Powers. Van Alstein testified that both diazepam and xanax are controlled substances and are used as tranquilizers.

On February 22, 1994, Van Alstein received a call from a female who wanted to know if the prescription for Powers was ready. According to Van Alstein, she told him she was going to pay for it with an insurance card. Margaret Ryan came to Wal-Mart Pharmacy on February 22 and presented Powers' prescription card to Van Alstein. The police were called, and Ryan was arrested and taken to jail. To confirm the validity of the prescription, Van Alstein called Dr. Ang's office and was informed that Dr. Ang had not called in the prescription. The February 22 incident is Count II of the indictment.

POINT OF ERROR ONE

Appellant raises three points of error on appeal. In Point of Error One, appellant argues the trial court abused its discretion when it denied appellant's motion for new trial without an evidentiary hearing. ¹ On December 16, 1994, appellant filed a pro se handwritten Motion For New Trial and a Sworn Pauper's Oath/Affidavit. On December 26, 1994, appellant filed a pro se typed Motion For New Trial, based on the following grounds:

1. Defendant was not responsible for her criminal conduct at the time of said crime due to a mental disease or defect.

2. Defendant was unable to assist her own defense due to her mental disease and/or defects.

3. Defendant was not capable of understanding the wrongfulness of her conduct or to conform her conduct to the requirements of the law.

4. Defendant had inadequate counsel.

5. Defendant's witnesses were not informed of the defendant's trial, therefore leaving out testimony that could have cleared the defendant.

Both motions were filed within the 30 day time-frame prescribed by TEX.R.APP. P. 31(c)(1).

The trial court must have concluded Ryan's motion for new trial was sufficient under the law to warrant a hearing, since it conducted a hearing on January 27, 1995, on both the motion for new trial and the indigency status of appellant. Although the motion was not presented within the ten day time-frame contemplated by Rule 31(c)(1), it was, nevertheless, within the judge's discretion to allow presentment and hearing at any time within the 75 day time frame. See Rule 31(c)(1). We conclude the hearing on January 27 constituted presentment of the motion for new trial, as required by Rule 31. See State v. Balderas, 915 S.W.2d 913, 916 (Tex.App.--Houston [1st Dist.] 1996, pet. filed).

At the January 27 hearing, the trial court became aware of the fact Ryan was not represented by counsel; the trial judge informed Ryan he would appoint an attorney to represent her. Reflecting the judge's comment to that effect is a letter, dated February 2, 1995, in the record on appeal in which the trial court notified an attorney of his appointment as Ryan's counsel. Appellant's counsel on appeal raised no objection regarding the timeliness of the court's notification by letter of the appointment.

In addition to the February 2 letter notifying counsel of his appointment, there is also in the record an "Order Setting Hearing" in which the trial court set the hearing on the motion for new trial for February 24, 1995; that date, as it turned out, was three days after the motion for new trial was overruled by operation of law.

The instant case has procedural issues similar to those in Vera v. State, 836 S.W.2d 344, 347 (Tex.App.--Amarillo 1992, no pet.). There, the trial court set the hearing date on the motion for new trial some 86 days after sentence was imposed. The Amarillo Court found it to be an abuse of discretion since Vera had complied with the requirements of TEX.R.APP. P. 31 by timely filing and presenting a motion for new trial which raised matters extrinsic to the record and was supported by affidavit. The Amarillo court found the trial court's action in setting the hearing date more than 75 days after the date sentence was imposed to be a denial of a hearing in a case where the defendant had a right to a hearing and thus an abuse of discretion.

In the instant case, the trial court did not deny the appellant the right to have a hearing. In fact, the trial judge held an initial hearing, determined the appellant was not represented by counsel, appointed an attorney to represent her, and scheduled another hearing on the motion for new trial at a later date, albeit three days after the motion was overruled by operation of law. The burden was on appellant, through her appointed counsel, to request and obtain a hearing on her motion prior to the 75th day after imposition of sentence. See Brooks v. State, 894 S.W.2d 843, 847 (Tex.App.--Tyler 1995, no pet.).

In Johnson v. State, 925 S.W.2d 745, 747-749 (Tex.App.--Fort Worth 1996, pet. ref'd), another case with procedural issues similar to those in the instant case, the appellant claimed the trial court erred by refusing to complete a hearing on Johnson's amended motion for new trial after the initial May 5, 1995 hearing was interrupted by a bomb threat. A subsequent hearing was held on August 24, 1995, at which time the trial court determined it no longer had jurisdiction on the motion for new trial because the motion had already been overruled by operation of law. Id. at 748 (citing State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex.Crim.App.1987)).

In reviewing the trial court record, the appellate court in Johnson found no docket notations, motions, writs, hearing transcripts, or any other written indication that Johnson made any attempt before the August 24 hearing to schedule a continuation of the hearing. The appellate court concluded it was incumbent upon Johnson, before the expiration of the trial court's jurisdiction, to develop some record, which would demonstrate his efforts to reschedule the hearing. Johnson, 925 S.W.2d at 748. The appellate court held the burden is on the appellant to provide evidence of his efforts if he wishes to argue he falls within an exception to the rules. Id. at 748.

In the instant case, an attorney was notified of his appointment in advance of February 21, the date the motion for new trial would be overruled by operation of law. For some reason, the trial court set the date for another hearing on the motion for new trial for February 24. There is nothing in the record to indicate any efforts by appellant to obtain another hearing prior to the February 21 deadline. Furthermore, appellant does not argue on appeal she falls within any "good cause" exception necessitating or allowing suspension of the time limits of Rule 31. See TEX.R.APP. P. 2(b). Like the court in Johnson, supra, we conclude it was incumbent on appellant's attorney to either obtain a hearing prior to February 21 or demonstrate why Ryan falls within an exception to the rules. Appellant did neither; we overrule point of error one.

POINT OF ERROR TWO

In point of error two appellant claims ineffective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 9, of the Texas Constitution. Appellant cites, among others, the following instances of ineffective assistance allegedly rendered by her trial attorney:

1. Only two pretrial motions were filed, those being a Motion for Psychological Evaluation and a Motion for Probation and Punishment Assessment.

2. Trial counsel did not object to inadmissible and harmful testimony--specifically the repeated references in John Van Alstein's testimony to conversations with out-of-court declarants.

3. Appellant's attorney failed to object to extraneous offense testimony.

4. Trial counsel failed to conduct effective cross-examination.

5. Trial counsel failed to object to an instruction in the charge on the law of parties and failed to ask for a limiting...