BUI QUANG HOANG, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 24, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00910-CR
No. 05-07-00911-CR
............................
BUI QUANG HOANG, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 366-82326-05 & 366-82327-05
.............................................................
OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
        Bui Quang Hoang appeals his convictions for aggravated sexual assault of two children. After finding appellant guilty on both counts, the jury assessed punishment at life imprisonment in each case. In four points of error, appellant claims he received ineffective assistance of counsel at trial and the trial judge erred in denying appellant's request to be present at the hearing on his motion for new trial, admitting certain evidence, and making an improper comment during voir dire. We affirm.
        Appellant was charged with committing aggravated sexual assault of two young females, both of whom testified at trial. Appellant was subsequently convicted. Thereafter, appellant hired new counsel and filed motions for new trial. The trial judge denied the motions without a hearing. Appellant then filed motions to reconsider, stating he was entitled to a hearing on the motions because his motions for new trial raised matters not determinable from the record that could entitle him to relief. In particular, appellant raised a claim of ineffective assistance of counsel. The trial judge then held an evidentiary hearing on appellant's motions and, thereafter, denied them. This appeal ensued.
        In his first point of error, appellant claims the trial judge erred in refusing to grant his request to be present at the hearing on his motion for new trial. Under this point, appellant contends he had a constitutional right to be present at the hearing and the denial of this right mandates we reverse his conviction.
        A defendant has a right to be personally present at trial. See Cooper v. State, 631 S.W.2d 508, 511 (Tex. Crim. App. 1982) (citing Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2006)), overruled on other grounds by Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999); Phillips v. State, 288 S.W.2d 775, 776 163 Tex. Crim. 13, 13 (1956). This includes being present at a hearing on a motion for new trial. Coons v. State, 758 S.W.2d 330, 339 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd) (citing Phillips, 288 S.W.2d at 776, 163 Tex. Crim. at 13 (absent affirmative waiver of right to be present, appellant's presence at hearing on motion for new trial is required)). Because appellant was not allowed to be present at the hearing on his motion for new trial, the trial judge erred.
        Having concluded the trial judge erred, we address whether appellant was harmed by the error. See Aguirre-Mata v. State, 992 S.W.2d 495, 498 (Tex. Crim. App. 1999) (reviewing court will reverse conviction or punishment unless court concludes beyond reasonable doubt that error did not contribute to conviction or punishment). Thus, we must reverse this judgment unless we determine beyond a reasonable doubt that the trial judge's failure to allow appellant to attend the motion for new trial hearing did not harm appellant. See Tex. R. App. P. 44.2(a); Aguirre-Mata, 992 S.W.2d at 498.
        Appellant's motion for new trial alleged, among other things, ineffective assistance of trial counsel. On appeal, appellant argues his presence was necessary to help appellate counsel “do cross-examination and everything.” Specifically, he claims he was clearly harmed because “he was not there to show how he could have contradicted any of trial counsel's testimony.” During the hearing, appellate counsel did not call any witnesses. Instead, she re-offered the affidavits that had been filed previously with the court. She then stated, “And I'm not putting on [trial counsel]. I believe that's [the State's] burden to put her on.” The State did not call any witnesses. Thus, there were no witnesses to cross-examine. Because no live witnesses were called and appellate counsel declined to call trial counsel, appellant could not have assisted in cross-examination nor could he have “contradicted any of trial counsel's testimony.” Under these circumstances, we conclude appellant's absence at the motion for new trial hearing was harmless beyond a reasonable doubt. See Cooks v. State, 240 S.W.3d 906, 911-12 (Tex. Crim. App. 2007). We overrule appellant's first point of error.
        In his second point of error, appellant claims the trial judge erred in granting the State's objection to the admission of evidence. Specifically, appellant claims he should have been allowed to introduce videotapes of the interview of each complaining witness by a forensic investigator to impeach the complaining witnesses' testimony at trial.
        We review the decision to admit or exclude evidence under an abuse of discretion standard. See McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). We uphold the trial judge's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Hull v. State, 172 S.W.3d 186, 189 (Tex. App.-Dallas 2005, pet. ref'd).
        Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). As a general rule, hearsay evidence is inadmissible unless it falls within one of the many exceptions. See Tex. R. Evid. 802. To have evidence admitted under a hearsay exception, the proponent of the evidence must specify which exception he is relying upon. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
        During trial, the eleven-year-old and thirteen-year-old complaining witnesses testified. Appellant cross-examined each witness about what had happened as well as what each girl told the forensic investigator. When asked by appellant if she remembered telling the forensic investigator something, each witness occasionally answered, “I don't know,” or “I don't remember.” Out of the presence of the jury, appellant sought to have the videotapes of the girls' interviews with the forensic investigator admitted in their entirety. The prosecutor objected on the grounds the videotapes were hearsay. Appellant contended, as he does on appeal, that he was entitled to show the videotaped interviews in court to show the girls' demeanor during those interviews as well as to question them on any statement to which they had responded “I don't know,” or “I don't remember” during cross-examination.   See Footnote 1  The trial judge sustained the prosecutor's objection and excluded the videotapes. Later, at the conclusion of appellant's defense, appellant again sought to have the tapes admitted to show the girls' demeanor as well for impeachment purposes. After reasserting his argument, he then said:
 
        If the Court does not choose to admit them in whole, I ask permission to have them shown in part in the specific areas where I asked them if they said certain things and they either denied it or said they can't remember. In the alternative, if you can't do that, I ask that they be transcribed so I can highlight those areas and introduce them in that alternative.
 
The trial judge again denied appellant's request. The following then occurred:
 
JUDGE:
 
It's not proper impeachment by just introducing the videotapes. Also, the rule of optional completeness doesn't even come into play here. We are not going to stop the trial in order for you to do discovery that should have been done.
 
 
 
DEFENSE:
 
I am not doing discovery.
 
 
 
JUDGE:
 
Listen, you want to get a transcript. You want to look at the videotapes again. How else are you going to do that unless we stop the trial?
 
 
 
DEFENSE:
 
Because you won't let me introduce them.
 
        As noted by the State, the videotapes contain “numerous inadmissible statements by both girls in addition to the statements Appellant claims were admissible as prior inconsistent statements.” Appellant attempted to offer evidence that contained potentially admissible statements along with clearly inadmissible statements without segregating or identifying the potentially admissible statements. The trial judge is not required to sort through the evidence offered to determine which statements are potentially admissible under the theory proposed by the party offering the evidence. Id. “When a trial judge is presented with a proffer of evidence containing both admissible and inadmissible statements and the proponent of the evidence fails to segregate and specifically offer the admissible statements, the trial [judge] may properly exclude all of the statements.” Id. Because that is precisely what appellant did in this case, we cannot conclude the trial judge erred in refusing to admit the videotapes.   See Footnote 2  We overrule appellant's second point of error.
        In his third point of error, appellant claims the trial judge abused his discretion in refusing to grant his motion for new trial. Appellant first complains “the trial court's initial ruling denying the motion for new trial without a hearing was erroneous.” When a defendant presents a motion for new trial raising matters not determinable from the record that could entitle him to relief, the trial judge abuses his discretion in failing to hold a hearing. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002) (citing King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000)). Nevertheless, the record shows appellant filed a motion to reconsider, and the trial judge held an evidentiary hearing. Thus, appellant was not harmed by the initial denial of his motion for new trial without a hearing. See Cooks, 240 S.W.3d at 911-12.
        Next, appellant complains that, based on the affidavits offered, trial counsel was ineffective. We examine ineffective assistance of counsel claims under well-known standards. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). It is appellant's burden to show by a preponderance of the evidence trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.         The court of criminal appeals has made clear that in most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.
        During the motion for new trial hearing, appellate counsel declined to call trial counsel although trial counsel was present in the courtroom. In support of this decision, appellate counsel stated she believed it was the State's burden to put trial counsel on to testify. When the prosecutor responded he believed it was appellant's burden, the trial judge agreed, stating “I mean, as far as I'm concerned, the way she conducted the trial, that was strategy as far as what she did at trial and that was the way she did it in conjunction and with the approval of [appellant].” Appellate counsel then stated, “Well, I guess our position, Your Honor, would be that there is no evidence it is strategy without her saying that it's strategy.” The trial judge disagreed and denied appellant's motions.
        The law is clear that it is appellant's burden to rebut the presumption of reasonable assistance by showing trial counsel's actions and decisions fell below the prevailing professional norms. The record shows trial counsel was present and could have been called to testify but appellate counsel declined to do so. Instead, she re-filed affidavits originally attached to appellant's motions for new trial. Filing affidavits from witnesses who would have testified that appellant “had numerous positive traits” and “was very loving and generous and would help anyone that needed help” does not overcome the strong presumption of reasonable assistance of counsel, nor does it afford trial counsel the opportunity to explain her actions and decisions. Because appellant failed to rebut the presumption of reasonable assistance during the hearing, we cannot conclude the trial judge abused his discretion in denying appellant's motions for new trial on the basis of ineffective assistance of trial counsel. We overrule appellant's third point of error.
        In his fourth and final point of error, appellant claims that, during voir dire, the trial judge erred in making a comment which implied appellant's guilt. Appellant claims the comment violated his right to be tried by an impartial jury. We disagree.
        During voir dire, trial counsel asked the venire panel if there was anything that “might affect your ability to sit as a fair and impartial juror.” An unidentified venire person responded that he thought he could judge fairly but was “not sure if convicted [he] would approve probation.” The following then occurred:
 
DEFENSE:
 
All right. Here is the question I would ask you, and let me ask it the right way: If you convicted somebody of an offense, aggravated sexual assault of a child under the age of 14, could you fairly consider probation?
 
 
 
VENIRE
PERSON:
 
No.
 
 
 
DEFENSE:
 
Thank you.
 
 
 
JUDGE:
 
Let's back up a little bit. It's not a matter of after you convict them. It's at this time, before you heard [sic] anything, can you consider it? That is all we are asking.
 
 
 
DEFENSE:
 
I would object to that. I think the law says that the proper question is: Once you have convicted, can you fairly consider it.
 
The trial judge overruled the objection.
        On appeal, appellant claims we must reverse this case because the underlying message in the trial judge's comment presumed a conviction and advised “prospective jurors that after conviction, they need not be open to consideration of probation as a potential punishment.” We initially question whether appellant preserved this precise issue for review. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (when appellant's trial objection does not comport with issue raised on appeal, he fails to preserve complaint for review), cert. denied, 549 U.S. 861 (2006); Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003) (same). Nevertheless, the above discussion shows that the judge and trial counsel disagreed about the point in time in which the venire members could consider probation. Contrary to appellant's complaint, the judge's comment did not presume a conviction nor did it instruct the venire not to consider probation. Rather, it instructed the venire to consider probation as a possibility before hearing any evidence. In contrast, trial counsel's question required the venire person to consider probation only after a conviction had occurred. Because the trial judge's comment did not imply appellant's guilt or in any way instruct the venire panel not to consider probation, we cannot conclude it was error. We overrule appellant's final point.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
0700910F.U05
 
Footnote 1 At trial, appellant specifically stated the statements were admissible for impeachment purposes and under the rule of optional completeness. The State, however, did not offer the videotapes or any testimony contained therein during trial.
Footnote 2 The record reflects appellant made no pretrial request for copies or transcripts of the videotapes.