Opinion
11-22-00221-CR
12-14-2023
TIMOTHY DUANE POOR, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See TEX. R. APP. P. 47.2(b).
On Appeal from the 238th District Court Midland County, Texas Trial Court Cause No. CR56919
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
W. BRUCE WILLIAMS JUSTICE
Appellant, Timothy Duane Poor, challenges his convictions for continuous sexual abuse of a young child and compelling prostitution, both first-degree felonies. See Tex. Penal Code Ann. §§ 21.02, 43.05(a)(2) (West Supp. 2023). Appellant raises five issues on appeal, but we only address one at this time. In his second issue, Appellant asserts that the trial court abused its discretion in refusing to grant his request for an evidentiary hearing on the issues raised in his motion for new trial. Because we find that the trial court abused its discretion by failing to hold a hearing, we sustain Appellant's second issue, abate this appeal, and remand the cause to the trial court for an evidentiary hearing on Appellant's motion for new trial.
We do not consider the matters raised in Appellant's motion for new trial but not raised on appeal. See Tex. R. App. P. 38.1(i). The trial court only needs to conduct an evidentiary hearing on the matters explicitly set forth in this order. The trial court did not abuse its discretion in refusing to conduct a hearing on the other grounds raised in Appellant's motion for new trial.
Procedural History
At trial, Appellant was represented by two attorneys: David Phillips and Sara Spector. The State called five witnesses. Appellant testified in his defense and called five additional witnesses.
After he was convicted, Appellant filed a motion for new trial on September 6, 2022, alleging that the State withheld evidence and that he was denied effective assistance of counsel. In support of his motion, he attached the unsworn declaration of Spector, who averred that the State failed to disclose material, exculpatory evidence prior to trial.
Spector claimed that the State provided only a small portion of the existing records kept by the Texas Department of Family and Protective Services (TDFPS) in connection with his case. Spector subpoenaed the remaining records herself, which included notes from interviews of the victim's mother, L.B. and the victim's younger brother, R.P. Spector hired an investigator to find the TDFPS employee who was present for the interview, Jolea Pogue, but was "not able to locate her in time for the trial."
Appellant claims that, the trial court signed an order reflecting the presentation of his motion on September 15, 2022, but acknowledges that "the signed order is missing" from the record. Appellant states that he has correspondence "from the court's staff confirming the order presenting was signed by the Judge on September 15, 2023 [sic]" but that the district clerk's office "is trying to locate the order to Supplement the Clerk's Record." The district clerk's office confirmed that the motion was forwarded to the trial court and that an unsigned order was returned to the district clerk's office from the trial court. The trial court did not hold an evidentiary hearing, and the motion was overruled by operation of law. See Tex. R. App. P. 21.8(c).
The district clerk's office confirmed that the motion for new trial and proposed order were submitted and forwarded to the trial court and that, on September 16, 2022, the trial court returned the unsigned order to the district clerk's office. As a result, for purposes of this order and to ensure Appellant's appellate rights are protected, we conclude that Appellant has shown that the motion was delivered and presented to the trial court for its consideration and that the trial court had actual notice of his motion for new trial and accompanying request for an evidentiary hearing. See Tex. R. App. P. 21.6 (defendant must present motion to the trial court). However, this conclusion only relates to the preservation of Appellant's second issue on appeal; as we have said, we do not address the merits of Appellant's motion for new trial by this order.
Analysis
"The purpose of a hearing on a motion for new trial is to: (1) decid[e] whether the cause shall be retried and (2) prepare a record for presenting issues on appeal in the event the motion is denied." Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009) (alteration in original) (internal quotation marks omitted). "[S]uch a hearing is not an absolute right." Id. (citing Reyes v. State, 849 S.W.3d 812, 815 (Tex. Crim. App. 1993)). "[A] hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record." Id. To be entitled to a hearing on a motion for new trial, a defendant must allege sufficient facts that show reasonable grounds to demonstrate that he could prevail. Hobbs v. State, 298 S.W.3d 193, 199-200 (Tex. Crim. App. 2009). We review a trial court's denial of a hearing on a motion for new trial for an abuse of discretion. Smith, 286 S.W.3d at 339. A trial court abuses its discretion in failing to hold a hearing if the motion and accompanying affidavits (1) raise matters not determinable from the record, and (2) establish reasonable grounds showing that the defendant could potentially be entitled to relief. Hobbs, 298 S.W.3d at 199. The second requirement limits and prevents "fishing expeditions." Id. (quoting Smith, 286 S.W.3d at 339).
A new-trial motion must be supported by an affidavit that specifically sets out the factual basis for the claim. Id. If the affidavit is conclusory, is unsupported by facts, or fails to provide requisite notice of the relief claimed, no hearing is required. Id.
State's Failure to Disclose Records
Appellant contends that because he demonstrated that the State failed to disclose material evidence that was favorable to his defense, and that such evidence would have affected the outcome of his trial, the trial court erroneously denied him an evidentiary hearing.
"[A]s soon as practicable after receiving a timely request," the State shall disclose all "evidence material to any matter involved in the action" that is "in the possession, custody, or control of the state or any person under contract with the state," and "not otherwise privileged." Tex. Code Crim. Proc. Ann. art. 39.14(a) (West Supp. 2023). Article 39.14(h) further places upon the State the free-standing duty to disclose "any exculpatory, impeachment, or mitigating" evidence "that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged." Id. art. 39.14(h); see Watkins v. State, 619 S.W.3d 265, 277 (Tex. Crim. App. 2021). It creates an "independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense even if that evidence is not 'material.'" Watkins, 619 S.W.3d at 277.
The baseline inquiries for determining a violation under the Michael Morton Act as embodied in Article 39.14 are: (1) whether the State failed to disclose evidence (that was not work product or otherwise privileged); (2) whether the withheld evidence was favorable to the defendant; and (3) whether the evidence was material. Fortuna v. State, 665 S.W.3d 861, 867 (Tex. App.-Houston [14th Dist.] 2023, no pet.) (citing Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) (setting out the Brady three-prong test)); see also Watkins, 619 S.W.3d at 290. "The remedy for a disclosure violation is a new trial." Fortuna, 665 S.W.3d at 867 (citing Ex parte Miles, 359 S.W.3d 647, 664 (Tex. Crim. App. 2012)). However, the failure to disclose evidence is subject to a harm analysis. Watkins, 619 S.W.3d at 269, 291; see Williamson v. State, No. 04-20-00268-CR, 2021 WL 4976326, at *3 (Tex. App.-San Antonio Oct. 27, 2021, no pet.) (mem. op., not designated for publication) (performing harm analysis following holding in Watkins). "[W]hen only a statutory violation is claimed, the error must be treated as non-constitutional for the purpose of conducting a harm analysis." Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005); see Williamson, 2021 WL 4976326, at *3-4 (applying Tex.R.App.P. 44.2(b) harm analysis to Article 39.14 violation); Branum v. State, 535 S.W.3d 217, 225-26 (Tex. App.-Fort Worth 2017, no pet.) (same); Ziegler v. State, No. 04-15-00559-CR, 2016 WL 5795208, at *2 (Tex. App.-San Antonio Oct. 5, 2016, no pet.) (mem. op., not designated for publication) (same). Rule 44.2(b) requires reviewing courts to disregard any nonconstitutional errors that do not affect an appellant's substantial rights. Tex.R.App.P. 44.2(b).
Based on Spector's affidavit, which included excerpts from the purportedly undisclosed records, we cannot say that the trial court's refusal to hold a hearing was within the zone of reasonable disagreement. While it is undisputed that Appellant's counsel used the records in his defense at trial, further inquiry was necessary to determine whether the State violated Article 39.14 under the three-prong test, and whether Appellant suffered harm as a result. Spector's affidavit and the excerpts from the TDFPS records at least alleged sufficient facts on an issue not determinable from the record and demonstrated Appellant "could potentially be entitled to relief." Hobbs, 298 S.W.3d at 202 (emphasis added). Therefore, Appellant was entitled to a hearing on this issue.
Ineffective Assistance of Counsel
Appellant likewise contends that the trial court should have held an evidentiary hearing to address his claims that his trial counsel was ineffective for failing to: (1) subpoena R.P. to testify; (2) subpoena TDFPS records; and (3) file a motion for continuance based upon the late disclosure and discovery of the TDFPS records. Appellant does not reassert on appeal the other alleged deficient acts of trial counsel raised in his motion for new trial, and we find no abuse of discretion in the trial court's refusal to hold a hearing on those matters.
To be entitled to a hearing on his motion for new trial alleging ineffective assistance of counsel, Appellant must have alleged sufficient facts from which the trial court could reasonably conclude both that counsel failed to act as a reasonably competent attorney, and that, but for counsel's failure, there is a reasonable likelihood that the outcome of the trial could have been different. Smith, 286 S.W.3d at 339-41 (citing Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)).
Failure to conduct an adequate investigation may constitute ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 521-23 (2003). "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. A claim for ineffective assistance based on trial counsel's failure to investigate generally fails absent a showing of what the investigation would have revealed that reasonably could have changed the result of the case. Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd) (citing Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007)).
We first address Appellant's claim that his counsel failed to timely subpoena R.P. Spector filed an application for a subpoena on August 2, 2022 requesting that L.B. bring R.P. to court. When challenging an attorney's failure to call a particular witness, a defendant must show that the witness would have been available to testify, and that his testimony would have been of some benefit to the defense. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007).
Here, it is unclear whether L.B. was ever served with a subpoena to bring her son, R.P., to court. And Spector's affidavit is silent regarding whether she and co-counsel made a strategic decision not to call R.P. We note that while R.P. contradicts L.B.'s testimony that she did not spank K.F., some of R.P.'s other statements corroborate K.F.'s account. See Pham v. State, 639 S.W.3d 708, 713, (Tex. Crim. App. 2022) (discussing the dilemma trial counsel faces when deciding to call witnesses). In fact, Appellant testified that R.P. was a liar and denied being alone with K.F., stating that he never sent R.P. into another room to play video games or outside to play. Therefore, the trial court could have reasonably determined from the record alone that trial counsel's decision not to call R.P. did not fall below an objective standard of reasonableness. See Strickland, 466 U.S. at 688, 694-95. We conclude that Appellant did not allege sufficient facts showing that he could have prevailed on a claim of ineffective assistance of counsel for the failure to call R.P. as a witness, and the trial court thus did not abuse its discretion by refusing to have a hearing on the failure to call R.P.
Next, Appellant claims that his trial attorneys were ineffective for failing to timely subpoena TDFPS records, and for failing to request a continuance. Spector's co-counsel, David Phillips, filed a verified and sworn motion for continuance on July 28, 2022 to reset the trial scheduled for August 1, 2022, the following Monday. Therein, Phillips requested additional time for a forensic psychologist to review the newly discovered TDFPS records. The record does not reflect whether the motion was raised prior to trial, or whether the trial court explicitly ruled thereon.
Spector explained in her unsworn declaration that she subpoenaed the previously undisclosed TDFPS records and received them on July 28, 2022. She mentions no strategic decisions or lack thereof regarding a motion for continuance- she states only that with more time, she might have been able to locate Jolea Pogue, a potentially favorable witness to the defense.
We recognize that a "particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Ex parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006) (quoting Wiggins, 539 U.S. at 522-23). Appellant's trial attorneys indeed investigated-shown, at minimum, by their independent discovery of the records at issue. They also called several witnesses at trial, including one expert and one TDFPS caseworker. But Spector's statement that she was unable to locate a potentially favorable witness under the time constraints raised a matter not determinable from the record, and grounds on which Appellant could potentially be entitled to relief. See Hobbs, 298 S.W.3d at 199-202. Appellant should have been given a hearing on these issues. See id.
Importantly, before trial counsel's representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Although one of Appellant's attorneys filed an affidavit raising concerns, his other attorney did not. As such, his performance cannot be deemed ineffective unless the conduct at issue was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We do not find such outrageousness in the record, and without Spector's affidavit, Appellant's allegations may have been determinable from the record. But because Spector's unsworn declaration raised more questions than answers, an evidentiary hearing was warranted in this case to address those concerns. See Martinez v. State, 74 S.W.3d 19, 21-22 (Tex. Crim. App. 2002) ("[t]he affidavit need not reflect each and every component legally required to establish relief, but rather must merely reflect that reasonable grounds exist for holding that such relief could be granted").
Conclusion
We sustain Appellant's second issue. The purported facts support Appellant's allegations that the State may have failed to disclose favorable evidence, and that trial counsel may have failed to timely secure the testimony of witnesses favorable to the defense. Trial counsel's affidavit was sufficient to put the trial court on notice that reasonable grounds existed to believe, according to at least one of Appellant's trial attorneys, that counsel's representation may have been ineffective. See id. at 22.
Appellant was entitled to an evidentiary hearing on his motion for new trial as to the State's alleged failure to disclose favorable evidence and any harm caused as a result. Additionally, Appellant was entitled to an evidentiary hearing to determine the merits of his contention that trial counsel failed to timely subpoena TDFPS records, move for a continuance, and whether he was consequently prejudiced. Rule 44.4 of the Texas Rules of Appellate Procedure provides that a court of appeals may direct a trial court to correct an error when the trial court's error prevents the proper presentation of a case on appeal. Tex.R.App.P. 44.4(a)-(b). This rule allows the trial court to remedy an error without requiring a new trial if the remedy will permit the appellate court to evaluate the appeal properly. LaPointe v. State, 225 S.W.3d 513, 520-21 (Tex. Crim. App. 2007).
The trial court abused its direction in failing to hold an evidentiary hearing on Appellant's motion for new trial. The appropriate remedy is to abate the appeal with instructions to the trial court to hold an evidentiary hearing on Appellant's motion for new trial. See Hobbs, 298 S.W.3d at 203; Walker v. State, 651 S.W.3d 7, 15 (Tex. App.-Houston [14th Dist.] 2020, pet. dism'd). We abate this appeal and order the trial court to hold a hearing on Appellant's motion for new trial within forty-five days of the date of this order. The trial court is further ordered to enter a written ruling on Appellant's motion for new trial within fifteen days of the hearing.
We further order (1) that the district clerk forward a supplemental clerk's record containing the trial court's written ruling on Appellant's motion for new trial within thirty days after the trial court files its written order, and (2) that the court reporter for the 238th District Court create a supplemental reporter's record containing a transcript of the hearing and to file the supplemental reporter's record with this court within thirty days after the trial court files its written order.
Upon the filing of the supplemental clerk's record and the supplemental reporter's record with this court, the appeal will be reinstated. This court will issue further orders and instructions to the parties as necessary upon the receipt of the record from the hearing on Appellant's motion for new trial.
It is so ordered.