Linda Faye Smith v. The State of Texas--Appeal from 198th Judicial District Court of Kimble County

MEMORANDUM OPINION

No. 04-04-00864-CR

Linda Faye SMITH,

Appellant

v.

The STATE of Texas ,

Appellee

From the 198th Judicial District Court, Kimble County, Texas

Trial Court No. 03-1310

Honorable Stephen B. Ables , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: October 11, 2006

AFFIRMED

Linda Faye Smith appeals her conviction for interference with child custody and sentence of two years confinement in the Texas Department of Criminal Justice - State Jail Division, and a $10,000 fine. We overrule Smith's issues on appeal and affirm the trial court's judgment.

1. In her first issue, Smith asserts the District Clerk failed to preserve the court's record for appeal, "so that it is impossible for Appellant to address all the errors that would require a reversal of her conviction." Smith, however, fails to identify any particular document that is missing from the clerk's record, or any hearing or portion of trial that was requested but omitted from the reporter's record; she also fails to explain how any purportedly missing item is material to her appeal. See Tex. R. App. P. 34.6(f)(3); see also Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999) (new trial is authorized only if lost or destroyed portion of record is necessary to resolve the appeal). The clerk's record contains the documents required by Tex. R. App. P. 34.5(a), and Smith does not claim that she was denied supplementation of the clerk's record or that any filed document has been lost or destroyed. See Tex. R. App. P. 34.5(c), (e). Further, we granted Smith's motion to supplement the reporter's record; a supplemental reporter's record consisting of two pre-trial hearing transcripts were filed in this court on January 26, 2006, with appellant's brief due thirty days later. See Tex. R. App. P. 34.6(d). No further supplementation of the reporter's record was requested, and Smith does not contend that any part of the reporter's record was lost or destroyed. See Tex. R. App. P. 34.6(f).

Smith also complains that the District Clerk refused to provide her with copies of unspecified "public documents" before trial, which "cumulative effect establishes ... the District Clerk's unwillingness or inability to maintain documents and file them with the Appeals Court... ." In support, she cites a portion of the September 20, 2004 pre-trial hearing transcript related to the two child custody orders at issue in this case. That record citation, however, negates her claim as it contains the prosecutor's explanation that he had personally traveled to Junction, obtained copies of the two custody orders, and previously delivered a copy of the orders to defense counsel. At trial, the two custody orders were admitted into evidence without objection, and the orders are included in the exhibit volume of the reporter's record. We have no basis to conclude that the District Clerk failed to preserve the appellate record or to conclude that the record is incomplete. Smith's first issue is overruled.

2. In her second and third issues, Smith contends that she did not receive adequate notice of the September 21, 2004 trial date, and the trial court's denial of her motion for continuance deprived her of her federal and state due process rights and her right to effective assistance of counsel. At a pre-trial hearing on Monday, September 20, 2004, Smith objected that she had just learned of the September 21st trial setting on the preceding Thursday and there was inadequate time to prepare and obtain witnesses; Smith admitted, however, that she thought the trial had been reset to a date in August. Smith's counsel orally moved for a continuance, stating he needed additional time to obtain the presence of some out-of-town therapists who could testify to Smith's state of mind based on her belief that her daughter was in danger. The court denied the request, explaining that it was the eve of trial, and the court had nothing before it showing the witnesses could not appear or that their testimony would be beneficial to Smith; however, the judge agreed to possibly recess trial for a day, if necessary, to permit the witnesses time to travel. The judge further stated he would permit counsel to re-argue the continuance in the morning if he had determined the witnesses were helpful but unavailable. The next morning, Smith filed a written motion for continuance on the ground that Smith "has a meritorious defense in that the defense of necessity is a viable defense to a charge of interfering with a child custody order." The motion did not name any particular witness or summarize any testimony. Before general voir dire began, Smith's counsel re-urged his request for continuance, reporting to the court that some defense witnesses were present, one therapist was coming the next morning, and he was still trying to obtain the presence of other witnesses on the defense of necessity for the next day; counsel stated that some witnesses had moved and could not be located. The court proceeded with the jury selection and trial.

We review the trial court's denial of a motion for continuance for abuse of discretion. Ross v. State, 133 S.W.3d 618, 629 (Tex. Crim. App. 2004). To preserve error, a motion for continuance must be sworn and in writing. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999). Article 29.06 provides that when a motion for continuance is based on the absence of a witness, the written motion must state, among other information, the witness's name and residence, the diligence used to procure the witness's attendance, and the material facts expected to be proved by the witness. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 1989). Smith's written motion contained none of the required witness information. Moreover, diligence in the timeliness of a motion for continuance is required as well as diligence in procuring the presence of witnesses. Dewberry, 4 S.W.3d at 756. Smith's motion was not filed until the morning of trial, and did not show the diligence required to support the motion. Id. (internal citations omitted). In addition, an out-of-town counselor did testify on the second day of the guilt/innocence phase as to Smith's belief that her daughter had been sexually abused while in her father's custody and to Smith's state of mind based on that belief. Smith's counsel did not object during trial that he was unable to secure the presence of any other witness, or make a proffer of any unavailable witness's testimony. We conclude that the court did not abuse its discretion in denying Smith's motion for continuance, and Smith has not shown actual prejudice from the denial of the continuance. See Ross, 133 S.W.3d at 629; see also Heiselbetz v. State, 906 S.W.2d 500, 511-12 (Tex. Crim. App. 1995) (to establish an abuse of discretion based on denial of a continuance, defendant must show he was prejudiced by his counsel's inadequate preparation time). Smith's second and third issues are overruled.

3. Smith next complains that she was denied effective assistance of counsel by her attorney's failure to "review[ed] the available documents, obtain[ed] additional evidence the prosecutor owed under his 'open file' policy, then me[e]t with Appellant, and secure[d] the expert witnesses ... who had to come in from Lubbock." Smith asserts that if her attorney had taken these actions, there is a reasonable probability the jury would have found her not guilty or given her a less severe punishment.

To establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999); Harling v. State, 899 S.W.2d 9, 12 (Tex. App.--San Antonio 1995, pet. ref'd). To establish deficient performance, the defendant must show that counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-14 (Tex. Crim. App. 1999). To satisfy this firstStrickland prong, any allegations of ineffectiveness must be firmly founded in the record. Id. at 813. We do not look at isolated acts or omissions to determine effectiveness, but review the totality of the representation. Id.; Harling, 899 S.W.2d at 12.

Smith does not specify the particular documents she claims her attorney did not review or obtain, and does not explain how the testimony of any unavailable out-of-town witness would have benefitted her defense. We note that at the September 20, 2004 pre-trial hearing, Smith's counsel stated he had received a packet of discovery from the prosecutor on Monday; the prosecutor explained the packet contained the police report, complaint, a witness statement and some letters that he had recently obtained in Junction. The prosecutor also stated his entire file was available to defense counsel for his review. There is nothing in the record to show that Smith's attorney failed to review the produced discovery or to review the State's file. Further, the record shows that, at a minimum, Smith's attorney met with her twice before trial and conferred with her on the day of trial and during trial. Finally, her attorney's efforts to obtain the presence of the out-of-town witnesses were discussed on the record before trial began, and one out-of-town counselor testified at trial. Ineffective assistance was not alleged in Smith's motion for new trial, and the record is therefore silent as to trial counsel's reasons for any acts or omissions in his representation of Smith. Without evidence in the record to both establish deficiency and rebut the presumption that counsel's conduct fell within the wide range of reasonable professional assistance, Smith is unable to satisfy the firstStrickland prong, and her claim of ineffective assistance therefore fails. See Thompson, 9 S.W.3d at 813; Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (failure to call witnesses is irrelevant to effectiveness determination absent showing of availability and benefit to the accused). Smith's fourth issue is overruled. (1)

4. In her fifth issue, Smith claims that prosecutorial misconduct by two assistant district attorneys who were not involved in her trial prejudiced her and caused her irreparable harm. Smith does not identify the particular acts of misconduct, other than to allege that one prosecutor used her official position "to advance her client's interests in a civil proceeding." Smith also does not explain how the alleged misconduct prejudiced her interests in the criminal proceeding. We do not address this issue because Smith inadequately briefed it by failing to provide any argument or authority with respect to how her rights were prejudiced by the purported misconduct of two prosecutors that were not involved in her criminal trial. See Tex. R. App. P. 38.1(h).

5. Finally, Smith asserts that the cumulative effect of the above errors deprived her of due process under the federal and state constitutions. Based on our conclusion that none of Smith's appellate issues have merit, we overrule this issue.

The trial court's judgment is affirmed.

Phylis J. Speedlin , Justice

Do not publish

1. In support of her ineffective assistance claim, Smith invites us to take judicial notice that her attorney's license was suspended during trial for failure to timely pay bar dues and/or the attorney occupation tax. Suspension of an attorney's license for a technical, rather than substantive, violation does not establish incompetence as a matter of law, even if properly included in the record. See Cantu v. State, 930 S.W.2d 594, 602-03 (Tex. Crim. App. 1996).