Robert Hartong v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-99-00133-CR
Robert HARTONG,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-0117
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 29, 2000

AFFIRMED

Robert Hartong appeals his conviction of and sentence for attempted murder. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 1997, Robert Hartong entered the law office of Frederick Deyeso, an attorney, without an appointment. Hartong on an impulse decided to pay Deyeso a visit to discuss the probate of his father's will. Hartong was admittedly upset about the will, because he believed the share he received was inadequate. For this, Hartong blamed Deyeso.

The meeting was tense and brief. Upon entering Deyeso's office, Hartong flung Deyeso's brief case, scattering some papers. It was apparent to Deyeso that Hartong was intoxicated. Hartong wasn't "falling down drunk," but his speech was slurred. Shortly after learning why Hartong was there, Deyeso suggested to Hartong that he leave the office and hire an attorney to look into the matter if he wanted to pursue it further.

Hartong proceeded to leave the office followed by Deyeso. It was at this time a struggle ensued for control over a concealed gun Hartong was carrying in his back pocket. Hartong eventually gained control of the gun and fired it three or four times, hitting Deyeso in the chest once. Believing he had killed Deyeso, Hartong wandered through the building in a state of panic, waving his gun and ripping telephone cords from the wall. For whatever reason, Hartong returned to Deyeso's office before leaving the building. Finding Deyeso still alive, Hartong said "You're not dead yet?" Hartong then pointed his revolver at Deyeso's head and fired at close range, hitting Deyeso in the ear. Hartong attempted to fire the gun again but luckily for Deyeso he had run out of bullets.

At trial Hartong claimed self-defense, arguing Deyeso was the initial aggressor in the struggle over the gun. Hartong also claimed the defense of involuntary intoxication. A jury found Hartong guilty of attempted murder. Hartong filed a motion for new trial, claiming ineffective assistance of counsel and denial of due process as a result of prosecutorial misconduct. A hearing was held and the trial judge denied the motion. Hartong appealed.

SUA SPONTE SUBMISSION OF JURY CHARGE ON Self Defense In his first point of error, Hartong argues the trial court erred in failing to sua sponte submit a jury charge on self-defense. A trial court has no duty to sua sponte instruct the jury on a defensive issue when the defendant fails to request such an instruction. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). This is so even where evidence introduced at trial raises the issue. Id. In the present case, Hartong neither requested a jury charge on self-defense nor objected to its omission. Therefore, the trial court did not err for failing to sua sponte instruct the jury on the defensive issue.

Ineffective Assistance of Counsel

Alternatively, Hartong contends trial counsel's failure to request an instruction regarding self-defense was ineffective assistance of counsel.

Applicable Law

When reviewing an ineffective assistance of counsel claim, we follow the test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To prevail, a defendant has the burden of showing by a preponderance of the evidence: (1) trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Allegations of ineffective assistance of counsel must be firmly founded in the record and "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)); Jackson, 877 S.W.2d at 771.

Discussion

Without deciding whether the evidence presented at trial was sufficient to raise the issue of self-defense, we hold that Hartong failed to establish counsel's performance was deficient because there is no evidence in the record to rebut the presumption of sound trial strategy. Moreover, even if we concluded counsel's failure to request an instruction was sufficient to satisfy the first prong of Strickland, Hartong would still have the burden of showing he was prejudiced. Here, Hartong failed to address Strickland's second prong in his brief. Failure to provide proof of prejudice precludes relief. Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) (when appellant claiming ineffective assistance makes no effort to prove Strickland's prejudice prong, failure to do so precludes relief), cert. denied, 120 S. Ct. 1680 (2000). We therefore overrule the point of error. EXCLUSION OF EXPERT TESTIMONY

In point of error number two, Hartong argues the trial court erred in excluding the testimony of his expert witness during the guilt/innocence phase of the trial. Specifically, he maintains the expert's testimony was sufficient to raise the issue of involuntary intoxication, thus entitling him to a charge on the defense.

Standard of Review

Preliminary questions concerning the admissibility of evidence are determined by the trial court. Tex. R. Evid. 104(a). We review a trial court's decision to exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court abuses its discretion when it acts without reference to any guiding rules and principles such that its decision was arbitrary and unreasonable. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.--Austin 1999, pet. ref'd), cert. denied, 121 S. Ct. 225 (2000). It is not an abuse of discretion for a trial court to exclude evidence that fails to raise a defensive issue. See Reed v. State, 794 S.W.2d 806, 809-811 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd), cert. denied, 500 U.S. 918 (1991).

A. Admissibility of expert testimony

Admissibility of expert testimony is governed by Texas Rule of Evidence 702. Weatherred, 15 S.W.3d at 542. "Under Rule 702, the proponent of scientific evidence must show, by clear and convincing proof, that the evidence he is proffering is sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or in determining a fact in issue." Id. Evidence is relevant if it tends to make the existence of a fact more probable or not. Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App. 1996).

Here, the State does not dispute the reliability of the expert's testimony. Instead, the State contends Farrell's testimony is not relevant to the defense of involuntary intoxication. Pointing to the testimony of Hartong's alcoholism, mental illness, and lack of volition at the time of the offense, Hartong argues the testimony was relevant to the issue of voluntariness and intent. We agree with the State.

B. Involuntary intoxication

Voluntary intoxication is not a defense to criminal liability. TEX. PENAL CODE ANN. 8.04 (Vernon 1999). Intoxication is voluntary if the accused exercised independent judgement or volition in taking the intoxicant. Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. 1979). Involuntary intoxication is a recognized defense in Texas when the evidence shows:

(1) the accused has exercised no independent judgment or volition in taking the intoxicant; and

(2) as a result of his intoxication the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.

Id. The defense, however, is limited to the following three situations: (1) the defendant is unaware of what the intoxicating substance is; (2) force or duress; or (3) the defendant took medically prescribed drugs according to a prescription. Spriggs v. State, 878 S.W.2d 646, 649 (Tex. App.--Corpus Christi 1994, no pet.).

Dr. Jack Farrell, a psychologist who examined Hartong shortly after the incident, testified outside the presence of the jury that Hartong was suffering from some sort of mental incapacity. Farrell described Hartong as very confused, disorganized, and muddled when he first interviewed him. Farrell further concluded Hartong suffered from the significant effects of chronic alcoholism, including mental and neurological illness. However, Farrell would not say Hartong's incapacity rose to the level of temporary insanity. Farrell did state, though, that he thought Hartong's ingestion of the intoxicating substances, particularly the Valium, was not an independent or volitional act. On this point, Farrell reasoned Hartong had not acted voluntarily, because he was probably unaware of the effect of combining alcohol and Valium. Thus, according to Farrell, Hartong could not have known his conduct was wrong on the day of the offense and the acts he engaged in were out of his intentional or cognitive control.

The legal issue here with respect to voluntariness is not whether Hartong intended the effect of combining the two intoxicants but instead whether he intended the act of ingesting the drugs and whether he did so of his own volition. See Joiner v. State, 727 S.W.2d 534, 536-37 (Tex. Crim. App. 1987) (defendant's conduct is not rendered involuntary merely because he did not intend the result of his conduct); Hanks v. State, 542 S.W.2d 413, 415-16 (Tex. Crim. App. 1976) (evidence was not sufficient to raise the issue of involuntary intoxication where appellant was aware that a suspected drug had been placed in his drink and in spite of such knowledge he drank the beverage). Therefore, Farrell's testimony was not relevant for the purpose of establishing involuntary intoxication and the trial court did not abuse its discretion in excluding the testimony. We overrule Hartong's second point of error.

JURY CHARGE ON INVOLUNTARY INTOXICATION

In his third point of error, Hartong claims the trial court erred in refusing to submit his requested charge on involuntary intoxication to the jury. Specifically, Hartong argues his testimony and the testimony of his expert was sufficient to raise the issue of involuntary intoxication. Thus, according to Hartong, it was error for the trial court to refuse to submit an instruction on the defensive issue.

When evidence adduced at trial raises a defensive issue, and the defendant requests a charge on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.), cert. denied, 510 U.S. 837 (1993). This rule applies regardless of the evidence's substantive character, and the "defendant's testimony alone may be enough to raise a defensive issue requiring a charge." Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997). This ensures the jury rather than the judge will decide whether evidence is credible. Id.

Discusssion

Having dealt with the admissibility of expert testimony, we only address other evidence that allegedly supports Hartong's defensive issue. At trial, Hartong admitted he ingested Valium and alcohol on the day of the offense and on previous occasions despite the fact he had been told not to mix the two intoxicants. He also stated he knew his conduct was wrong. Furthermore, there was no evidence to suggest and Hartong does not contend that, on the day in question, he ingested the intoxicants as a result of force or duress, fraud, or trick. Thus, by his own admission, Hartong voluntarily ingested the alcohol and Valium. See Spriggs, 878 S.W.2d at 648-49 (Tex. App.--Corpus Christi 1994, no pet.) (court upheld jury finding that consumption of intoxicants was not involuntary where evidence showed defendant failed to take drug according to prescription in that he mixed it with alcohol). Evidence Hartong was intoxicated on the day of the offense and had experienced bouts of alcoholism in the past does not change the result mandated by Torres. Without some evidence to satisfy prong one of the Torres test, the issue of involuntary intoxication was not sufficiently raised to justify a jury charge on the issue. Therefore, the trial court did not err in refusing to instruct the jury on the defense of involuntary intoxication. Point of error number three is overruled.

MOTION TO SUPPRESS WITNESS TESTIMONY

In his fourth point of error, Hartong argues the trial court judge erred in allowing certain witnesses to testify. He alleges these witnesses were impermissibly "group coached" by two State prosecutors the night before trial. Hartong makes two separate arguments with respect to this point of error.I. Violation of Due Process

Hartong first contends his right to due process under the Fourteenth Amendment of the United States Constitution was violated because the trial court allowed tainted witness testimony and because the prosecutors suppressed exculpatory evidence.

Applicable Law

In determining whether an accused's due process rights under the Fourteenth Amendment have been violated as a result of the State's investigative procedures, this court looks to the totality of circumstances. Ex Parte Brandley, 781 S.W.2d 886, 893 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 817 (1990). Improper State conduct that might give rise to a violation of due process includes but is not limited to the use of perjured testimony, the failure to correct unsolicited perjured testimony, the suppression of evidence favorable to the accused, the use of a coerced confession, and the concealment of a material witness whose testimony creates reasonable doubt. Id. at 891-92. While it is necessary to consider any misconduct by the State in analyzing a due process claim, this should only be done to ascertain the fairness of the proceedings to the accused. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Thus, in reviewing claims that the State suppressed material evidence favorable to the accused, the Fourteenth Amendment is violated "if the evidence is material to guilt or punishment." Harris v. State, 827 S.W.2d 949, 958 (Tex. Crim. App.), cert. denied, 506 U.S. 942 (1992). "Evidence is considered material where there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Brandley, 781 S.W.2d at 893.

A. Group coaching witnesses

Hartong cites no authority for the argument that meeting with witnesses in a group setting before trial violates a defendant's right to due process, and we are aware of no law that precludes this kind of trial preparation. In addition, the evidence adduced at trial does not support the contention the State group coached its witnesses. Of the witnesses present at the meeting, four actually testified at trial for the State. On cross examination, all admitted to attending the meeting. However, when asked, each stated they had not been influenced by what anyone else said at the meeting and that they had looked only at their own written statements, which were taken shortly after the shooting. More importantly, in testifying about the shooting and the events that occurred on October 22, 1997, the four witnesses, including the victim, expressed similar yet very distinct experiences and perceptions. Thus, it does not appear these witnesses were improperly coached. Nor does it appear the meeting influenced witness testimony to Hartong's disadvantage. For these reasons, we hold the violation, if any, was harmless.

B. Suppression of exculpatory evidence

Hartong also argues his right to due process was violated because the State suppressed exculpatory evidence that was allegedly produced at the group meeting the night before trial. However, there is no evidence in the record and Hartong does not point to any evidence that shows the State suppressed exculpatory evidence. Therefore, this ground is without merit and we overrule it.

II. Sequestration of Witnesses When "the Rule" is Invoked

Alternatively, Hartong claims the group meeting was held in violation of "the rule," which, according to Hartong, was invoked at a prior bond reduction hearing.

Standard of Review

Article 36.05 of the Texas Code of Criminal Procedure prohibits witnesses who are under the rule from hearing testimony "in the case." Tex. Code Crim. Proc. Ann. art. 36.05 (Vernon 1981). We review a trial court's decision to allow testimony from a witness who has violated the rule under an abuse of discretion standard. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997). Until the contrary is shown, we presume the trial court properly exercised its discretion. Id.

Discussion

Hartong argues the rule was invoked at a pretrial bond hearing on November 20, 1997. At trial, Hartong moved to suppress the testimony of witnesses at the group meeting, reasoning this testimony violated the rule. Hartong contends the rule's effect was not limited to the bond hearing. However, the trial judge was unaware of what transpired during the earlier bond hearing, because he did not preside over the proceeding. Likewise, the State was uncertain about whether the rule had been invoked at the bond hearing, because a different prosecutor was assigned to the case at that time. Nevertheless, the State maintained the rule, once invoked, applies only to the proceeding before the court, especially where, as here, the proceeding occurred the year before. We agree with the State.

Moreover, there is nothing in the record to support Hartong's contention the rule was actually invoked in the bond hearing. Hartong's statement about an occurrence in another courtroom where neither opposing counsel nor the judge were present is not sufficient to establish this fact. See Yarborough v. State, 947 S.W.2d 892, 895 (Tex. Crim. App. 1997). Even if there was evidence to show the rule was invoked in the prior bond hearing, we are unaware of any case and Hartong cites no case supporting the position that once the rule is invoked, it applies to later proceedings, including a trial held a year or more later. Therefore, the trial court did not abuse its discretion in permitting the witnesses to testify and we overrule Hartong's final point of error for the following reasons: (1) Hartong never established the rule was in fact invoked at the earlier hearing or whether it had been invoked for all purposes; (2) none of the witnesses that testified at the bond hearing testified in the present trial; and (3) even if invoked at the earlier bond hearing, the rule did remain in effect one year later after the hearing concluded.

The judgment of the trial court is affirmed.

Sarah B. Duncan, Justice

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