MICHELLE LEIGH HEDGECOCK, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 31, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01315-CR
............................
MICHELLE LEIGH HEDGECOCK, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No. 2006-I-918-CR
.............................................................
OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Michelle Leigh Hedgecock appeals her conviction for the misdemeanor offense of hindering apprehension or prosecution. In three issues, she claims her due process rights were violated because the trial court denied her motion for writ of attachment, her motion for continuance, and that a “government actor” prevented a material witness from testifying. We affirm the trial court's judgment.
 
background
        Michelle Hedgecock was charged by information in Grayson County with the class A misdemeanor offense of hindering apprehension or prosecution. See Tex. Penal Code Ann. § 38.05 (Vernon 2006); see also Tex. Penal Code Ann. § 12.21 (Vernon 2003) (class A misdemeanors punishable by a fine not to exceed $4,000, confinement in jail for a term not to exceed one year, or both). Trial was set to begin on September 5, 2007. On the morning of trial, defense counsel filed a motion for continuance and an “Application for Attachment of Witness.” When asked by the trial court if he was ready to proceed, counsel replied:
 
Not at this time, Your Honor. I just got a call from the Clover House where my witness is staying, Derek Hedgecock. He was the one that was in Safe P that we were trying to bench warrant the last time, and we continued this until he got out of the Safe P facility. He's currently in the Odessa Clover House, which is a private rehabilitation facility. We sent him a subpoena. He received a subpoena by FAX pursuant to the Code of Criminal Procedure. The Clover House has authorized his release, but the parole officer, Crystal [Kirk], has instructed the Clover House not to grant him that pass to be here to testify. We would either request a writ of attachment or a bench warrant, whatever is necessary to secure his presence.
 
Responding to the State's argument that defense counsel “had ample time since last resetting this case to make arrangements for his witnesses to be in court,” and that “[a]ny of these matters should have been taken care of prior to this day in court,” appellant asserted that all of his witnesses had been
 
lawfully subpoenaed under the Code of Criminal Procedure. It doesn't require a bench warrant to get him out of a private halfway house. What we've got is a state officer obstructing the ability of a witness to come to testify on behalf of a defendant.
 
The trial judge ultimately denied the motions to attach and to continue, finding they were not timely.
Appellant then made the following offer of proof:
 
I believe the witness, Derek Hedgecock, if testified [sic], would testify to the following: He came home on the night before his arrest in this case. He came in with Larissa Boston, Tressa Boston, Whitney Paschal. They stayed in the living room. Michelle Hedgecock was asleep in her bedroom in a three-bedroom apartment. When the officers knocked at the door Derek Hedgecock hid in a pantry area. Whenever Michelle Hedgecock went to the door Derek Hedgecock went to the end of the bedroom and began climbing out of the window. Michelle Hedgecock had no knowledge that he was in the apartment and did not assist in helping him to evade officers.
 
        A jury convicted appellant, after which she filed a motion for new trial arguing that she was denied her right to due process of law and her right to present witnesses in her own defense, and that, alternatively, she was denied her right to compulsory service of process under the United States and Texas Constitutions. A hearing on appellant's motion was held on October 26, 2007.
        According to the testimony of Derek Hedgecock's probation officer, Crystal Kirk, she was contacted on Friday, August 31, 2007, by Nancy Farris, a counselor and program director at the Clover House treatment facility where Derek Hedgecock was staying under court order and told that a subpoena for Hedgecock had been received by facsimile transmission. Farris asked Kirk whether Hedgecock could leave the facility. Kirk told Farris not to let Hedgecock leave the facility until she got the approval of her supervisor. Kirk spoke to her supervisor and recalled that they both agreed they “needed more information” before allowing Hedgecock to leave the facility. Kirk pointed out that Hedgecock was a convicted felon with a substance abuse problem and that she did have any details regarding his release, the method of transportation to Grayson County, or who would pay Hedgecock's travel expenses. On Tuesday, September 4, 2007, Kirk spoke to Farris again and told her not to release Hedgecock “until further information was gathered.” She did not speak to defense counsel about the subpoena faxed to Clover House, which was (along with the confirmation page from the Grayson County sheriff's office) introduced into evidence.         
        Derek Hedgecock testified that he received the subpoena on the same day it was faxed, August 31, 2007. He received the documents requesting that he acknowledge the subpoena, but Farris told him not to fax the return acknowledgment because “they didn't know if [he] could make it or not.”
        Defense counsel testified that there was a Greyhound bus scheduled to leave Odessa on the night of September 4, 2007, and that it was scheduled to arrive in Gainesville, Texas, at approximately 2:30 p.m. on September 5, 2007. Counsel said that he “had every intention” of purchasing a bus ticket for Hedgecock but that he was told on the night of September 4 that Hedgecock “was not being allowed to leave the facility” because of his probation officer. Counsel also said that he spoke to Kirk on September 5 and that she “confirmed as such.”         
        Following the hearing, the trial court denied the motion for new trial on November 9, 2007. This appeal followed.
Discussion
        In her first issue, appellant argues that the trial court denied her the constitutional right of compulsory service of process by declining to issue the writ of attachment. The State responds that the trial court had no basis on which to issue a writ of attachment because the witness in question was never properly served.         
        An accused has a right to compulsory process for obtaining witnesses in his favor under both the United States and Texas Constitutions. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Washington v. Texas, 388 U.S. 14, 19 (1967); Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994) (citing Willis v. State, 626 S.W.2d 500, 504 (Tex. Crim. App. 1979)). Questions regarding limitations on the right to compulsory process are within the trial court's discretion. Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.-Forth Worth 2006, pet. ref'd); Rodriguez v. State, 90 S.W.3d 340, 358 (Tex. App.-El Paso 2001, pet ref'd); Muennink v. State, 933 S.W.2d 677, 684 (Tex. App.-San Antonio 1996, pet. ref'd).         
        Under the Texas Code of Criminal Procedure, to secure the attendance of a witness at trial, a defendant must file an application for subpoena with the clerk of the trial court. See Tex. Code Crim. Proc. Ann. art. 24.03(a) (Vernon Supp. 2008). The code of criminal procedure also provides that when a witness who has been subpoenaed fails to appear, the State or the defendant shall be entitled to have an attachment issued for the witness. Rodela v. State, 829 S.W.2d 845, 848 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). However, a trial court does not err in refusing to issue a writ of attachment for witnesses who are not duly and properly served with a subpoena. See Boyle v. State, 820 S.W.2d 122, 128 (Tex. Crim. App. 1989), overruled on other grounds, 801 S.W.2d 899, 911 n.13 (Tex. Crim. App. 1991); Erwin v. State, 729 S.W.2d 709, 713-14 (Tex. Crim. App. 1987), overruled on other grounds, Burk v. State, 876 S.W.2d 877, 904 (Tex. Crim. App. 1994); Ford v. State, 14 S.W.3d 382, 392 (Tex. App.-Houston [14th Dist.] 2000, no writ); Rodela, 829 S.W.2d at 848.
        In this case, defense counsel served Derek Hedgecock by electronic transmission pursuant to article 24.04(a) of the code of criminal procedure, which states:
 
 
(a) A subpoena is served by:
 
 
 
(1) reading the subpoena in the hearing of the witness;
 
 
 
(2) delivering a copy of the subpoena to the witness;
 
 
 
(3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or
 
 
 
(4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness unless:
 
 
 
(A) the applicant for the subpoena requests in writing that the subpoena not be served by certified mail; or
 
 
 
(B) the proceeding for which the witness is being subpoenaed is set to begin within seven business days after the date the subpoena would be mailed.
 
Tex. Code Crim. Proc. Ann. art. 24.04 (Vernon Supp. 2008) (emphasis added). The State claims the witness in question was not properly served under article 24.04(a)(3) because receipt of the subpoena was not acknowledged by the witness. According to subparagraph (b) of article 24.04:
 
The officer having the subpoena shall make due return thereof, showing the time and manner of service, if served under Subsection (a)(1) or (2) of this article, the acknowledgment of receipt, if served under Subsection (a)(3) of this article, or the return receipt, if served under Subsection (a)(4) of this article. . . .
 
See id. art. 24.04(b) (emphasis added). In her brief and during oral argument, appellant suggests article 24.04(a)(3) does not require a valid return in order for there to be effective service. She also points out that, according to evidence introduced at the motion for new trial hearing, the witness received the subpoena at the Clover House rehabilitation facility in Odessa, Texas, on the same day it was faxed, Friday August 31, 2007.
        The parties have not directed us to any cases interpreting article 24.04(a)(3) and our own research has found none. We note, however, that article 24.04(a)(3) is not applicable in this case because the code of criminal procedure contains an entirely separate provision--one not cited by either party--for serving subpoenas on out-of-county witnesses. Article 24.17 provides:
 
[t]he officer receiving said subpoena shall execute the same by delivering a copy thereof to each witness named therein. He shall make due return of said subpoena, showing therein the time and manner of executing the same, and if not executed, such return shall show why not executed, the diligence used to find said witness, and such information as the officer has as to the whereabouts of said witness.
 
Id. art. 24.17 (emphasis added).
        We have found no cases either interpreting article 24.17 or, more broadly, discussing the distinction in chapter 24 of the code of criminal procedure between “in-county” and “out-of-county” witnesses. See George E. Dix & Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure 27.11, at 474 (2d ed. 2001) (“[t]he Code of Criminal Procedure has from its inception provided differently for compelling the presence of those witnesses who reside in the county in which the prosecution is brought and those who reside elsewhere in the state.”). The general rule, however, is that we give effect to the plain meaning of the statutory text unless the “application of a statute's plain language would lead to absurd consequences that the Legislature could not possibly have intended[.]” Ex parte Noyola, 215 S.W.3d 862, 866 (Tex. Crim. App. 2007) (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). Only if “the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.” State v. Neesley, 239 S.W.3d 780, 783 (Tex. Crim. App. 2007).
        Article 24.17 specifies delivery of the subpoena, which is only one of the methods of service identified in article 24.04, and there is no mention of electronic transmission of the subpoena or service by mail for out-of-county witnesses. If the Legislature had wanted to authorize additional methods of service in cases involving out-of-county witnesses, they could have done so. “'Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.'” Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991) (quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex. Crim. App. 1967), overruled on other grounds, Ex Parte Hill, 528 S.W.2d 125 (Tex. Crim. App. 1975)). Thus, according to the plain language of article 24.17, in cases involving out-of-county witnesses, the subpoena must be served by personally delivering a copy to the witness, “in contrast to the more flexible manner in which a subpoena for an in-county witness may be served.” See George E. Dix & Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure 27.62, at 492 (2d ed. 2001); see also 24A Tex. Jur. 3d Criminal Law § 3719 (2001) (“[w]here the witness resides outside the county in which the prosecution is pending, service is made by delivering a copy of the subpoena to that witness”).         
        In the present case, the witness resided outside the county in which the prosecution was pending. The prosecution was pending in Sherman, Texas, and the witness resided, according to defense counsel's representations to the trial court, at the “Odessa Clover House, which is a private rehabilitation facility.” It is undisputed that the witness was not served via personal delivery of the subpoena. The record, in other words, shows that Derek Hedgecock was not properly served. Only when a witness has been properly subpoenaed and the witness fails to appear can the trial judge compel the presence of the witness by issuing the writ of attachment. See Boyle, 820 S.W.2d at 128; Erwin, 729 S.W.2d at 713-14; Ford, 14 S.W.3d at 392; Rodela, 829 S.W.2d at 848. This is true for both in-county and out-of-county witnesses. See Tex. Code Crim. Proc. Ann. art. 24.12, 24.22 (Vernon 1989). As a result of appellant's failure to effectuate proper service, there was no denial of her constitutional right of compulsory process. See Robinson v. State, 453 S.W.2d 836, 838 (Tex. Crim. App. 1970) (no denial of compulsory process of witness if record does not show the witness was served with a subpoena); Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987) (defendant cannot complain about denial of his constitutional right of compulsory process if he did not exercise that right). Furthermore, although neither party cited article 24.17, it is well-established that if the trial court's decision is correct on any theory of law applicable to the case, it will be sustained. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We overrule appellant's first issue.
        In her second issue, appellant claims the trial court's denial of her motion for continuance constituted a denial of her right to compulsory service of process.         
        An appellate court reviews a trial court's ruling on a motion for continuance for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). To establish an abuse of discretion, the defendant must show she was actually prejudiced by the denial of her motion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz, 906 S.W.2d at 511.         A criminal action may be continued on the written motion of a party for sufficient cause shown. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006); Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). The motion must be sworn to by someone who has personal knowledge of the facts relied on for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 2006); Harrison, 187 S.W.3d at 434. When a defendant's motion for continuance is based on an absent witness, it is necessary to show: (1) the defendant has exercised diligence to procure the witness's attendance; (2) the witness is not absent by the procurement or consent of the defense; (3) the motion is not made for delay; and (4) the facts expected to be proved by the witness. Tex. Code Crim. Proc. Ann. art. 29.06; Harrison, 187 S.W.3d at 434. A motion for continuance must show on its face the materiality of the absent testimony. See Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 2006); Harrison, 187 S.W.3d at 434. Mere conclusions and general averments are not sufficient for the trial court to determine the materiality of the absent testimony. See Harrison, 187 S.W.3d at 434. The only means of preserving error in the overruling of a motion for continuance due to the absence of a witness is by motion for new trial. Taylor v. State, 612 S.W.2d 566, 569 (Tex. Crim. App. 1981); Tucker v. State, 109 S.W.3d 517, 520 (Tex. App.-Tyler 1999, pet. ref'd).         
        Here, appellant filed his first and only motion for continuance on the morning of trial, Wednesday, September 5, 2007. Although it was made in writing, it was not sworn. It, therefore, presents nothing for this Court's review. See Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) (motion for continuance must be made in writing and must be sworn, otherwise any complaint is waived). Furthermore, even if it had been a sworn motion in proper form, we note that the record shows the witness was not properly served, and merely applying for or causing a subpoena to issue for a particular witness is not sufficient diligence. Tex. Code Crim. Proc. Ann. art. 29.06(2) (Vernon 2006). We overrule appellant's second issue.
        In her third issue, appellant argues that she was denied her right to due process of law because a “government actor” prevented Derek Hedgecock from testifying at her trial.
        The general rule is that the “deliberate concealment” of a material witness in order to prevent his testimony at trial violates due process. See White v. Estelle, 685 F.2d 927, 928 (5th Cir. 1982); Hernandez v. Estelle, 674 F.2d 313, 315-17 (5th Cir. 1981); Ex parte Salinas, 660 S.W.2d 97, 101 (Tex. Crim. App. 1983); White v. State, 517 S.W.2d 543, 548 (Tex. Crim. App. 1974). In White v. State, for example, the case on which appellant chiefly relies, the holding appears to have been based on concerns that the State suppressed evidence by “facilitating and encouraging” the absence of the witness. See White, 517 S.W.2d at 546-48. But even if there is a deliberate concealment by the State, due process is not violated “unless the missing witness' testimony circumstantially derived from and evaluated in the context of the entire record, would create a reasonable doubt of the defendant's guilt that did not otherwise exist.” Salinas, 660 S.W.2d at 101.
        We conclude the record in this case does not establish that the State deliberately interfered with appellant's right to compulsory process. Instead of the deliberate concealment of a material witness, the record suggests that Hedgecock's absence owes much more to a lack of communication between defense counsel and Hedgecock's probation officer than to any deliberate attempt by the State to deprive appellant of the right of compulsory process. Further, Hedgecock was not properly served with the subpoena. Defense counsel admitted during the motion for new trial hearing that he could have requested the subpoena for Hedgecock weeks or even a month in advance of trial but chose not to do so because of trial strategy. It is undisputed that Hedgecock could not leave the Clover House facility without the authorization of his probation officer. Kirk's testimony suggests she was willing to release Hedgecock to travel to Grayson County but not “until further information was gathered,” including information regarding travel arrangements and payment for travel expenses. There is, however, no indication that Kirk was contacted by defense counsel and told about the subpoena or advised when and how Hedgecock would travel to Grayson County. Based on the record before us, we therefore overrule appellant's third issue.         
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071049F.U05