Meek, Robert Allen v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed  September 30, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01024-CR

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ROBERT ALLEN MEEK, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 905,824

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O P I N I O N

Robert Meek appeals his conviction for theft, contending that (1) the trial court erred by failing to hold a hearing on his motion for new trial and (2) he received ineffective assistance of counsel. We affirm.

Facts

After Tropical Storm Allison severely damaged many homes in Houston, appellant approached some sixteen elderly persons to repair their homes. After submitting a contract to each person, he required and received half of the contract price up front. After taking each s money, appellant would simply never return. One complainant s story was featured on a local television station, and other individuals from whom appellant took money then came forward.

The State charged appellant with felony aggregate theft of between $20,000 and $100,000. After the State reduced the theft charge to an aggregate amount between $1,500 and $20,000, appellant pleaded guilty. The trial court assessed punishment of twenty years imprisonment after holding a pre-sentence investigation hearing. After the hearing, appellant filed a motion for new trial because the trial court did not have letters from satisfied customers when considering punishment. He further contended in his motion for new trial that he might have received a lesser sentence if the letters had been submitted. The trial court denied the motion for new trial without hearing.

Hearing on Motion for New Trial

  In appellant s first issue, he contends the trial court erred by failing to hold a hearing on his motion for new trial. Specifically, he contends he was entitled to a hearing because his motion for new trial raised matters not determinable from the record. We review a trial court s denial of a hearing on a motion for new trial for an abuse of discretion. Buerger v. State, 60 S.W.3d 358, 361 (Tex. App. Houston [14th Dist.] 2001, pet. ref d). The purpose of such a hearing is to allow a defendant an opportunity to develop matters raised in his or her motion. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002). However, the right to a hearing on a motion for new trial is not absolute. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). The trial court abuses its discretion in failing to hold a hearing only when a motion for new trial raises matters not determinable from the record. Id. at 816; Buerger, 60 S.W.3d at 361 62.

Appellant contends on appeal that because his motion for new trial was based on ineffective assistance of counsel, he needed a hearing to develop a record. We disagree that his motion was based on ineffective assistance of counsel. Appellant s motion for new trial reads in part:

Defendant moves that the court grant him a new trial on the basis that the court did not have before it evidence which was available to the defense and favorable to defendant, and which could have impacted the court s view of defendant s action and the appropriate punishment.

In the next paragraph, appellant lists the actions that trial counsel took for the punishment hearing, including the following: (1) providing affidavits from appellant, appellant s significant other, and three subcontractors employed by appellant; (2) providing a letter from appellant s stepfather regarding restitution; (3) providing some forty completed contracts from previous customers; and (4) arguing that the thefts at issue represented a small number of contracts out of many satisfied customers.

In one sentence in his motion for new trial, appellant lists a single failure of trial counsel: However, counsel did not provide any letters of testimony from satisfied customers. Appellant attaches ten letters and several accompanying contracts from satisfied customers, and ends his motion with this summation:

Had the court had all of the information including the letters, which was obtainable as evidenced by the attachment of the contracts to the PSI addendum, the court may have assessed a lesser punishment rather than the maximum sentence.

Having reviewed appellant s motion for new trial, we find that it was not based on ineffective assistance of counsel, but merely sought reconsideration of punishment in light of the letters from satisfied customers. As a prerequisite to preserving a complaint for appellate review, the record must show that a timely objection, request, or motion was made sufficiently stating the grounds therefore and that the trial court made an adverse ruling. Tex. R. App. P. 33.1(a). The grounds appellant presented at the trial court level are different from the grounds he raises on appeal that is, he did not clearly apprise the trial court that he needed a hearing on his motion for new trial because he was complaining about ineffective assistance of counsel as opposed to merely asking the court to reconsider

punishment. A point of error which does not comport with the trial objection presents nothing for review. See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990). Because appellant s objections do not comport with the argument made on appeal, the issue of failure to hold a hearing is not preserved for our review. See Leno v. State, 934 S.W.2d 421, 423 (Tex. App. Waco 1996), pet. dism d, improvidently granted, 952 S.W.2d 860 (Tex. Crim. App. 1997) (arguments on appeal regarding confession were not preserved where they varied from arguments made in motion to suppress).

However, even if appellant had clearly shown that he needed a hearing to demonstrate ineffective assistance of counsel, his argument is still without merit. No hearing on the motion for new trial was necessary because counsel s effective performance was determinable from the record. Reyes, 849 S.W.2d at 816. Indeed, appellant s motion for new trial actually emphasizes the many ways in which counsel s assistance was adequate. In his motion, appellant mentions only one failure not supplying the court with ten letters and corresponding contracts from satisfied customers. Nonetheless, appellant s counsel did submit forty prior, completed contracts with homeowners. An appellant who complains about trial counsel s failure to present witnesses affidavits must show, in part, that he would benefit from their testimony. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Evidence that is merely cumulative will rarely be judged by trial or appellate courts to bring about a different result. Cf. Kennerson v. State, 984 S.W.2d 705, 708 (Tex. App. Houston [1st Dist.] 1998, pet. ref d). Simply, an attorney is not ineffective for failing to present cumulative testimony. See Tutt v. State, 940 S.W.2d 114, 121 (Tex. App. Tyler 1996, pet. ref d). Similarly, we hold that a trial court is not required to conduct a hearing on a motion for new trial to hear complaints about counsel s failure to present cumulative evidence.[1]

Accordingly, we overrule appellant s first point of error.

Ineffective Assistance of Counsel

In appellant s second issue, he contends his counsel s performance was ineffective. To demonstrate ineffective assistance of counsel, a defendant must show that (1) counsel s performance fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). As we stated above, the ten letters and accompanying contracts, which trial counsel did not submit, were merely cumulative evidence. Trial counsel submitted some forty prior contracts for the pre-sentence investigation to demonstrate that appellant did not routinely take customers money without providing repairs. The additional letters and contracts merely bolstered the forty other contracts. Again, counsel is not ineffective for failing to present cumulative evidence. See Tutt, 940 S.W.2d at 121. We overrule appellant s second issue.

Accordingly, we affirm the trial court s judgment.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed September 30, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] We note that appellant filed a motion to reconsider his motion for new trial, which the trial court also denied. Attached to the motion to reconsider was an affidavit from trial counsel. In it, counsel explained that appellant failed to timely deliver affidavits from past customers as promised to include in the pre-sentence investigation. Additionally, counsel stated that he contacted some past customers, but many complained about appellant s poor workmanship, did not want to help, or could not remember appellant because of their old age. He averred that he feared the State might file additional charges if aware of additional customer complaints.