David Riley v. The State of Texas--Appeal from 71st District Court of Harrison County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00093-CR

______________________________

DAVID RILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 04-0420X

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

David Riley appeals from his conviction by a jury for two counts of sexual assault and two counts of improper sexual activity with a person in custody. // The jury assessed punishment on each of the two counts of sexual assault at twenty years' imprisonment and assessed two years' confinement on each of the remaining two counts. The trial court sentenced Riley in accordance with the jury verdicts and ordered the sentences for the two counts of sexual assault to run consecutively. Riley appeals, contending that the trial court erred in denying his motion for continuance and that he received ineffective assistance of counsel at trial. We overrule these contentions and affirm the judgment.

Riley was a detention officer at a juvenile center. B.T., a sixteen-year-old juvenile who was in custody there, accused Riley of causing the juvenile to insert his penis into Riley's anus, and alleged that Riley performed oral sex on him. The acts allegedly occurred in a portion of the facility with no video surveillance, while B.T. was helping Riley clean the facility after most of the inmates had been locked away for the night.

The State provided testimony about the layout of the facility, confirming that B.T. had been out working that night and that juveniles were not to be taken into the area where the acts allegedly occurred. B.T. told another detention officer about the acts the next day. The officer took B.T.'s underwear and kept it pending investigation. The State had the underwear tested for DNA. The State's expert, Carolyn Van Winkle, testified that she identified B.T.'s sperm and that epithelial (skin) cell samples taken from the inside front of the underwear matched Riley. She also testified that the amount of epithelial samples found was a relatively large quantity and that casual contact would usually only transfer a minimal amount.

Riley contends the trial court abused its discretion in denying his pretrial motion for continuance. He contends that, because the State did not provide him with a copy of the report on the DNA testing until three weeks before the case was set for trial, he did not have time to retain his own DNA expert and thus could not adequately rebut the strongest evidence presented by the State. He filed a motion seeking continuance March 11, 2005. That motion was denied March 15, 2005, the date trial commenced.

Riley's contentions on appeal present two related arguments: first, that the continuance should have been granted, and second, that counsel was constitutionally ineffective because of the court's refusal to allow him enough time to obtain and retain the expert assistance he needed to effectively attack the State's DNA testimony.

A trial court's ruling on a motion for continuance is reviewed for abuse of its discretion. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06(6) (Vernon 1989). To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his or her motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz, 906 S.W.2d at 511 12.

The State contends we should apply the rationale of Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999), and conclude that counsel did not show adequate diligence in pursuing the remedy. In that case, counsel for Dewberry knew two months before trial what testimony was wanted from a witness, and of that witness' importance long before that, but did not attempt to subpoena such witness until after the trial started, and did not file a written request for a continuance until the defense had presented all its evidence and rested its case. On those facts, the court concluded the defendant did not meet the requirement for diligence set out in Article 29.06 and thus preserved no error with his untimely written motion for continuance. // Id. That case provides some support for the State's position, but is not conclusive, as it addresses a post-trial request for continuance rather than a pretrial motion, and far less diligence is shown under the facts of Dewberry than in the instant case.

In this case, the sworn motion for continuance indicates counsel knew three months before trial that samples had been taken and sent for DNA analysis. The motion does not, however, state that counsel was unaware of the results of the analysis. The motion seeks more time because counsel did not receive a copy of the report itself until three weeks before trial. The motion reflects that the report was completed November 30, 2004. We have no record of a hearing on the motion, but before voir dire commenced on the day of trial, the court stated it had discussed the motion the preceding Friday, and further stated that counsel "was informed of the results of the report in December . . . ." Counsel did not take issue with the court's summary of events, save only to provide the exact date when the report itself was actually presented to him, by fax on February 22, 2005.

As previously stated, whether to grant a continuance is vested in the sound discretion of the trial court, and reversal is justified only when it is shown the trial court has abused its discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982). To obtain a continuance because of the absence of a witness, a defendant must show, among other things, he or she exercised due diligence to secure the witness' attendance. Tex. Code Crim. Proc. Ann. art. 29.06(2) (Vernon 1989). In this case, information was before the court to show that counsel was aware of the results of the test for more than three months before trial, but had not made any effort to pursue the matter earlier. Although it appears the State did not provide the formal report in a timely fashion, the record indicates counsel was already aware of the results. In light of that information, counsel had much more than the three weeks that he posits to obtain expert assistance and a separate DNA review.

In situations where a witness is not subpoenaed until near the date of trial, courts regularly hold that the party has failed to exercise the due diligence necessary to support a motion for continuance. Peoples v. State, 477 S.W.2d 889, 891 (Tex. Crim. App. 1972); see also Norton v. State, 564 S.W.2d 714, 716 17 (Tex. Crim. App. [Panel Op.] 1978); Hughes v. State, 962 S.W.2d 89, 90 (Tex. App. Houston [1st Dist.] 1997, pet. ref'd) (expert witness left country, no subpoena sought until shortly before trial was to commence diligence not shown).

Similarly, we conclude in this case that the trial court acted within its discretion in concluding that diligence was not shown by counsel because of the time that had elapsed since counsel was informed of the results of the analysis with no effort made to obtain an expert.

We also recognize there is authority that the only means of preserving error in the overruling of a motion for continuance due to the absence of a witness, or newly discovered evidence, is by motion for new trial. Tucker v. State, 109 S.W.3d 517, 520 21 (Tex. App. Tyler 1999, pet. ref'd). To establish the necessary abuse of discretion, the defendant must show he or she was actually prejudiced by the denial of the motion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). //

Under that authority, the issue in the present case has not been preserved for review because Riley did not file a motion for new trial. See Burns v. State, 923 S.W.2d 233, 237 (Tex. App. Houston [14th Dist.] 1996, pet. ref'd). Without a motion for new trial, Riley has not demonstrated how he was prejudiced by the trial court's denial of the motion. See Owens v. State, 119 S.W.3d 439, 445 (Tex. App. Tyler 2003, no pet.).

Accordingly, Riley has demonstrated neither error nor harm. The contention of error is overruled.

Riley also contends that, because of this failure, he necessarily received ineffective assistance of counsel. To show that trial counsel was ineffective, an appellant must demonstrate that: 1) trial counsel's performance was deficient because it fell below an objective standard of reasonableness; and 2) a probability sufficient to undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 689 (1984). Application of that standard requires our scrutiny of counsel's performance to be highly deferential, and we are to indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. Thus, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id.; Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Although the complained-of failure can reasonably raise a question about trial counsel's preparation for trial, in the absence of any indication how the testimony of an expert might have assisted Riley in his defense, and because trial counsel has not had an opportunity to respond to these areas of concern, ineffective assistance has not been shown.

The Texas Court of Criminal Appeals has repeatedly stated that the record on direct appeal will generally not be sufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard. Rylander, 101 S.W.3d at 110; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). This is such a situation. The contention is overruled.

Because we hold the trial court did not abuse its discretion in denying Riley's motion for continuance and because Riley has not shown his trial counsel rendered ineffective assistance, we affirm the judgment.

Donald R. Ross

Justice

Date Submitted: November 4, 2005

Date Decided: November 29, 2005

Do Not Publish