Steven Richard Horner v. State ( 2003 )

NUMBER 13-01-637-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

STEVEN RICHARD HORNER , Appellant,

v.

THE STATE OF TEXAS , Appellee.

___________________________________________________________________

On appeal from the 36th District Court

of San Patricio County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Rodriguez

Appellant, Steven Richard Horner, 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.

I. FACTS

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. MOTION FOR CHANGE OF VENUE

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 that 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.

III. MOTION TO SUPPRESS

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 that 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.3d 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 that the trial court did not abuse its discretion in refusing to suppress the witness's testimony. Appellant's second issue is overruled.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

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 (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; 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. Crim. App. 1999). Finally, an appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong. Garcia, 57 S.W.3d at 440.

Appellant contends his trial counsel was ineffective in: (1) failing to properly object to responses of venire members; (2) failing to file a statutorily sufficient motion for change of venue; and (3) failing to preserve evidence of prejudicial print and media coverage for the motion for change of venue.

Appellant urges that his trial counsel's failure to object to responses of venire members resulted in the voir dire process being tainted. The record shows that trial counsel did not object to responses made by the venire members. However, he did use his challenges to ensure all commenting venire members were eventually stricken for cause. In the absence of evidence showing counsel's reasons for the challenged conduct, we assume a strategic motivation and will not conclude that the conduct was deficient. See Garcia, 57 S.W.3d at 440. Furthermore, appellant has not proven by a preponderance of the evidence that the responses tainted the voir dire process.Munoz, 24 S.W.3d at 434.

Appellant next challenges trial counsel's action regarding his motion for change of venue. Specifically, appellant complains trial counsel was ineffective because he failed to attach the affidavits of two witnesses to his motion for change of venue as required by article 31.03(a) of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 31.03(a). Appellant correctly asserts the motion was defective and failed to comply with the statutory requirements. However, appellant provides no evidence that his trial counsel would have been able to obtain two credible individuals willing to sign affidavits on his behalf or that the affidavits would have provided information sufficient to warrant a change of venue. Therefore, appellant did not prove by a preponderance of the evidence that the trial court would have granted the motion for the change of venue if the affidavits had been properly filed. See Strickland, 466 U.S. at 687; Munoz, 24 S.W.3d at 434.

Finally, appellant claims trial counsel was ineffective because he failed to preserve evidence of prejudicial print and media broadcast coverage. However, appellant has not presented evidence of the alleged extensive prejudicial print and media broadcast coverage. See Munoz, 24 S.W.3d at 434. To the contrary, the record reveals only one newspaper article, and it was written over a year before jury selection. In the absence of evidence showing counsel's reasons for the challenged conduct, we will assume a strategic motivation and will not conclude the conduct was deficient. See Garcia, 57 S.W.3d at 440. Thus, the record fails to affirmatively demonstrate counsel's alleged ineffectiveness. See Guzman, 923 S.W.2d at 797.

We conclude appellant was not denied effective assistance of counsel. Appellant's third issue is overruled.

V. OUT-OF-COURT STATEMENT

By a supplemental issue, appellant argues the out-of-court statement of C.S., the victim, does not fall within rule 803(4) of the Texas Rules of Evidence. See Tex. R. Evid. 803(4). ⁽¹⁾ Appellant further contends that the admission of the statement violated his confrontation rights under the Sixth and Fourteenth Amendments of the United States Constitution and article 1, section 10 of the Texas Constitution. See U.S. Const. amends. VI & XIV; Tex. Const. art. I, § 10.

During the course of her interview with C.S., Carmela Quintanilla, a social worker at Driscoll Hospital, asked eight-year-old C.S. if anybody had touched her. C.S. responded by writing appellant's name on a piece of paper. Quintanilla recounted this statement to the jury. Appellant objected on hearsay and constitutional grounds. The trial court overruled appellant's objection and admitted the statement under rule 803(4). See Tex. R. Evid. 803(4).

A. Waiver

1. Hearsay Objection

A defendant must make a timely objection in order to preserve error in admission of evidence. Tex. R. App. P. 33.1(a). Failure to do so waives error, and hearsay admitted without objection is probative evidence. See Fernandez v. State, 805 S.W.2d 451, 455-56 (Tex. Crim. App. 1991). Moreover, "[i]t is well-established that the admission of the same evidence, without objection, waives any previously stated objections to the evidence." Martinez v. State, Nos. 01-02-00475-CR, 01-02-00476-CR, 2003 Tex. App. LEXIS 1771, at *15 (Houston [1st Dist.] Feb. 27, 2003, no pet.) (citing Massey v. State, 933 S.W.2d 141, 143 (Tex. 1996)).

Appellant timely objected to Quintanilla's testimony that C.S. wrote appellant's name on a piece of paper in response to her questioning whether anyone had touched her. However, following the court's ruling on appellant's objection to this evidence, Quintanilla provided further testimony, with no objection from appellant, that after C.S. wrote appellant's name on the paper:

[s]he began to cry, then she began to talk. She said that Steven Horner had hurt her when her mother had an accident, and when her mother was at work. She stated that her mother worked late, and so it happened at home when her mother was at work. She also mentioned it happened in November.

This testimony provided the same evidence previously objected to by appellant: his identification as the perpetrator of the sexual assault. By failing to object to this testimony, appellant's trial counsel waived any previous objection to alleged hearsay evidence. See Tex. R. App. P. 33.1(a).

2. Constitutional Error

Appellant also complains that the admission of Quintanilla's testimony violated his right to confront the witness against him in violation of his constitutional rights. At trial, however, while appellant objected to the written statement on constitutional grounds, he did not object to Quintanilla's subsequent testimony set out above. Because he did not object to constitutional error in response to this testimony, appellant also waived this argument. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001) (citing Dewberry, 4 S.W.3d at 752 n.16) (only hearsay objection made at trial, thus, constitutional argument waived on appeal); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (even constitutional error may be waived); Ex parte Crispen, 777 S.W.2d 103, 105 (Tex. Crim. App. 1989) (appellate courts will not consider error which could have been but was not called to attention of trial court at time when such error could have been avoided or corrected). Thus, we conclude appellant did not preserve error in the admission of C.S.'s out-of-court statement. Appellant's supplemental point is overruled.

VI. CONCLUSION

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish .

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 14th day of August, 2003.

1. Rule 803(4) of the Texas Rules of Evidence provides that statements made for purposes of medical diagnosis or treatment are not excluded by the hearsay rule. See Tex. R. Evid. 803(4).