In the Matter of A.M.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00483-CV
IN THE MATTER OF A.M.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-JUV-02514
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

 

Delivered and Filed: August 22, 2007

 

AFFIRMED

A.M., a juvenile, was charged with aggravated sexual assault of a child. The State sought determinate sentencing and, following a jury trial, the trial court entered an Order of Adjudication finding that A.M. did engage in delinquent conduct, specifically, aggravated sexual assault of a child. On March 31, 2006, after holding a disposition hearing, the trial court signed an order sentencing A.M. to a determinate sentence of forty years. A.M. contends on appeal that (1) the trial court erred in refusing his request for an evidentiary hearing on his motion for new trial; and (2) he received ineffective assistance of counsel under the United States and Texas Constitutions. We affirm the trial court's judgment.

Factual and Procedural Background

Ruben M. and Elisa W., although not married, have a daughter, M.M. Ruben's brother is Appellant A.M. and is therefore also M.M.'s uncle. During 2004, A.M. lived with his parents, John and Janie M. Although M.M. lived primarily with her mother, Elisa, she also spent time with her father, Ruben; paternal grandparents, John and Janie; and maternal grandmother, Graciela F.

During the weekend of November 15, 2004, M.M., who was four years old at the time, told Graciela that A.M. had "put his private in [her] private." Graciela reported this to the police. A.M. was charged with the offense of aggravated sexual assault of a child. He was later found by a jury to have engaged in delinquent conduct, specifically, aggravated sexual assault of a child.

The Order of Disposition was signed on March 31, 2006. On April 19, 2006, A.M.'s trial counsel, Gloria Early, filed a "Motion to Withdraw as Counsel, a Motion for New Trial, and a Notice of Appeal." Early's motion to withdraw as counsel was granted on April 19, 2006, and the motion for new trial was overruled on April 20, 2006. An order substituting new counsel, Kenneth Baker, was entered on April 27, 2006. Before the order substituting Baker was even entered, however, on April 21, 2006, Baker apparently filed an "Amended Motion for New Trial" containing the wrong cause number. Because of this error, the motion was filed in the wrong cause number. (1) And, because it was not filed in the cause number which is now on appeal, the "Amended Motion for New Trial" is not contained in the appellate record.

On June 27, 2006, A.M.'s new counsel, Baker, filed a second "Amended Motion for New Trial," which was overruled on July 3, 2006. Also on June 27, 2006, Baker filed "Defendant's Motion to Set Aside Order Denying Motion for a New Trial, Striking the First Filed Motion for New Trial and Deeming Respondent's Motion for a New Trial Timely Filed." This motion was likewise denied on July 3, 2006. Now, on appeal, A.M. contends the trial court was required to hold a hearing on his amended motion for new trial and that he received ineffective assistance of counsel.

Discussion

1. Failure of trial court to conduct evidentiary hearing on motion for new trial

In his first issue, A.M. argues that the trial court should have granted his request for an evidentiary hearing on his motion for new trial. He contends that the "Amended Motion for New Trial," which he filed on April 21, 2006, under the wrong cause number, was timely and, therefore, the trial court was required to consider it.

As a general rule, juvenile appeals proceed under the rules governing civil cases. Tex. Fam. Code Ann. 56.01(b) (Vernon 2002) ("The requirements governing an appeal are as in civil cases generally."); In re J.C.H., 12 S.W.3d 561, 562 (Tex. App.--San Antonio 1999, no pet.) (applying Rules of Appellate Procedure governing civil cases in juvenile case); J.E.S. v. State, No. 05-95-00834-CV, 1995 WL 634154, at *1 (Tex. App.--Dallas 1995, no writ) (applying in juvenile case motion for new trial rules set forth in Texas Rule of Civil Procedure 329b). In a juvenile case, the rules require that a motion for new trial be filed within thirty days after the order of disposition is signed. See In re J.C.H., 12 S.W.3d at 562; see Tex. R. Civ. P. 329b(a). Texas Rule of Civil Procedure 329b(b) allows a party to file an amended motion for new trial without leave of the trial court as long as the trial court has not yet overruled an earlier new trial motion, and the amended motion is filed within thirty days after the trial court signs the judgment. Moritz v. Preiss, 121 S.W.3d 715, 719-20 (Tex. 2003); see Tex. R. Civ. P. 329b(b).

In this case, A.M.'s trial attorney, Early, filed a motion for new trial within thirty days of the disposition order, and the trial court overruled it the following day. The subsequently filed amended motion for new trial, filed on April 21, 2006, by Baker, was timely in the sense that it was filed within thirty days of the disposition order. But, regardless of whether the amended motion was filed in the correct cause, the trial court was not required to consider it because the trial court had already overruled a previously filed motion for new trial. See Tex. R. Civ. P. 329b(b); Moritz, 121 S.W.3d at 719-20. Once the first motion for new trial was overruled, the rules do not allow the filing of an amended motion without leave of court. Tex. R. Civ. P. 329b(b). Furthermore, the amended motion for new trial filed by Baker on April 21, 2006, is not properly before us because it is not contained in the record on appeal.

A.M. emphasizes that he eventually filed a "Second Amended Motion for New Trial" in the correct cause number on June 27, 2006. Also on June 27, 2006, he filed "Defendant's Motion to Set Aside Order Denying Motion for a New Trial; Striking the First Filed Motion for a New Trial and Deeming Respondent's Motion for a New Trial Timely Filed." In that motion, he contended that Early had not been authorized to file a motion for new trial. However, because the trial court's plenary power ended thirty days after the first filed motion for new trial was overruled, none of these motions filed on June 27, 2006, were timely. See Tex. R. Civ. P. 329b(e). The first filed motion for new trial was overruled on April 20, 2006, and, therefore, the trial court's plenary power expired on May 22, 2006. Thus, any motions filed after May 22, 2006, were of no effect.

A.M.'s first issue on appeal is overruled.

2. Ineffective Assistance of Counsel

A juvenile is entitled to effective assistance of counsel in adjudication proceedings. See In re R.D.B., 102 S.W.3d 798, 800 (Tex. App.--Fort Worth 2003, no pet.). We review the effectiveness of counsel's representation in a juvenile proceeding under the two-prong Strickland standard. Id. First, the appellant must show that his counsel's performance was deficient; second, he must show the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In doing so, we strongly presume that counsel's conduct fell within the wide range of reasonable professional assistance. Id. Further, an allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. Moreover, our scrutiny must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Id. That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); see also Sessums v. State, 129 S.W.3d 242, 246 (Tex. App.--Texarkana 2004, pet. ref'd).

The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial. Strickland, 466 U.S. at 687. In other words, an appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694; Thompson, 9 S.W.3d at 812.

A.M. argues that his trial counsel was ineffective because (1) he failed to object to the admission of hearsay testimony of the outcry witness based upon lack of notice, and (2) he failed to cross examine the outcry witness during the outcry hearing.

The Family Code requires that, in the prosecution of a child for a sex-related offense allegedly committed against a child twelve years of age or younger, outcry testimony (2) is not inadmissible because of the hearsay rule if, among other requirements, the party intending to offer the statement gives notice fourteen days before the date of the hearing of its intention to offer the statement. Tex. Fam. Code Ann. 54.031 (Vernon 2002). The Texas Code of Criminal Procedure contains a nearly identical provision that applies in adult criminal proceedings. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005); In re Z.L.B., 102 S.W.3d 120, 121 (Tex. 2003). The outcry statutes contained in the Family Code are to be interpreted no differently in a juvenile trial than in an adult criminal trial. In re Z.L.B., 102 S.W.3d at 123.

The purpose of the outcry witness notice provision is to prevent surprise. See Alvarado v. State, 817 S.W.2d 738, 740 (Tex. App.--San Antonio 1991, no pet.). Compliance with the rules governing outcry witness testimony is mandatory in order for the outcry statement to be admissible. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990); Berotte v. State, 992 S.W.2d 13, 18-19 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). However, when the rules are not strictly followed, so long as the defendant has received actual notice, any error is harmless. Berotte, 992 S.W.2d at 19.

The record in this case shows that A.M. had adequate notice of the State's intent to use M.M.'s maternal grandmother, Graciela F., as its outcry witness and that A.M. was not surprised. In a pre-trial hearing, the judge stated on the record that a notice of outcry had been filed in a case that had previously been filed against A.M. involving the same alleged offense. The State offered to refile the outcry notice in the case that is the subject of this appeal. At that point, A.M. objected to the outcry notice on the ground that it was untimely filed. After a brief recess, A.M.'s attorney stated to the court that A.M. would waive his right to fourteen days notice:

COURT: Okay. And then the State did file [its] motion to inform counsel of intent to use hearsay statement of a child abuse victim. And, Ms. Early, you received a copy?

 

EARLY: Yes, I did.

 

COURT: And I'm sure it's identical to the notice that was given several months ago under the other cause number?

 

EARLY: Yes, Your Honor.

 

COURT: Okay. And the respondent is willing to waive [his] fourteen days notice; is that correct?

 

EARLY: Yes.

 

COURT: Okay. And that's because you already received notice under a different cause number -

EARLY: Right. And all of our witnesses have been subpoenaed for this day.

 

COURT: Good. And then your previous notice was on - on or about October 19, 2005, correct?

 

EARLY: Right.

 

COURT: So you don't have any surprise about this outcry statement; is that correct?

 

EARLY: No. That's correct.

 

COURT: Okay. Then we'll proceed. Bring your witness in.

 

Under these circumstances, we cannot say that Early rendered ineffective assistance of counsel in failing to object that the outcry notice was untimely. Nor can we find ineffective assistance of counsel by the failure of Early to cross-examine the outcry witness. Even if Early had cross-examined the outcry witness, Graciela F., and been successful in excluding her testimony, there was an abundance of other testimony that A.M. had sexually assaulted M.M. Not only did M.M. testify to the sexual assault, but there was also testimony from a counselor, a Child Protective Services investigator, and a sexual assault nurse that M.M. told them A.M. had sexually assaulted her.

A.M. additionally claims that his trial counsel was ineffective for failing to call Catherine Cordova as a witness. Her testimony was essential, according to A.M., because she would have testified that she was the only person who had a key to the apartment where the alleged incident occurred and that M.M. and A.M. were not together at the time of the alleged assault.

A trial counsel's failure to call a particular witness, however, is irrelevant unless there is a showing that the witness was available and that the witness's testimony would have benefitted the accused. Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Here, the record shows not only that Cordova was unavailable and that her testimony was cumulative of other witnesses' testimony, but also that Early made diligent, but unsuccessful, attempts to secure Cordova's attendance at trial. During the pretrial hearing, Early asked for the trial judge's help with writs of attachment for certain witnesses who might fail to appear for trial. At the beginning of trial, Early indicated to the court that she had served her witnesses. She informed the court that Cordova had been difficult to serve. So, Early asked to have the sheriff's office contact Cordova the following morning because Cordova had not returned her phone calls. The trial judge said she would have Cordova picked up. Later during the trial, the trial judge indicated attempts to reach Cordova had been unsuccessful, noting that Cordova had not answered her phone. But, the trial judge said that someone would be sent to her house that night to secure her attendance. Subsequently, the judge stated on the record that Cordova's mother had responded to the call from the court and said she would try to locate a new phone number and address for Cordova. Apparently Cordova was never located and, after both sides rested, Early made an offer of proof. She stated on the record that she had spoken with Cordova who was the tenant leasing the apartment where the sexual assault allegedly occurred. According to Early, Cordova would have testified that when she left the apartment she made everyone else leave because she was the only one with a key to the apartment. Further, Cordova did not believe A.M. had ever been in her apartment.

Considering the persistent, but unsuccessful efforts of both Early and the court, to secure Cordova's attendance at trial, A.M. has failed to show that Cordova was available to testify at trial. Without such a showing, A.M. cannot meet his burden of showing ineffective assistance of counsel. Ex parte McFarland, 163 S.W.3d at 758. Further, there was no need for Cordova's testimony inasmuch as her testimony was cumulative of other witnesses' testimony. Tim Rodriguez, who lived in Cordova's apartment, testified that Cordova was the only person who had a key to the apartment and that when Cordova was not there, nobody was allowed in the apartment. He further testified that he was at the apartment on the weekend of the alleged offense and that A.M. was not there at any time. A.M.' s father, John M., testified that because of prior accusations by M.M. against A.M., the family made sure A.M. was never around M.M. And, A.M.'s mother, Janie M., testified that there was never an opportunity for A.M. to assault M.M. There was similar testimony from A.M.'s father, Ruben M. concerning A.M.'s lack of access to M.M. Ruben testified that during the weekend that the assault allegedly occurred, A.M. was never at the apartment where M.M. was visiting with him. Finally, A.M. testified that he was not around M.M. during the time in question. Consequently, we find Early did not render ineffective assistance of counsel because of her failure to call Cordova as a witness.

A.M.'s final complaint is that Early opened the door to extraneous offenses committed by A.M. against M.M. by eliciting such testimony from M.M.'s grandmother, Graciela F. The State counters that even if Early did open the door to extraneous offenses, Early's actions would not amount to ineffective assistance of counsel because the evidence was admissible under article 38.37 of the Texas Code of Criminal Procedure. We agree with the State.

Evidence of other crimes, wrongs or acts committed by the accused against the child who is the victim of the alleged offense is admissible to show: "(1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child." Tex. Code Crim. Proc. Ann. art. 38.37, 2 (Vernon Supp. 2006). The State is required to give the defendant notice of its intent to introduce such evidence upon timely request by the defendant. Id. art. 38.37, 3. In this case, the State did give notice before trial to A.M. of its intent to use the extraneous offense evidence. Thus, because the evidence was admissible, whether Early opened the door to the extraneous offense evidence is irrelevant.

Finding no error, we affirm the judgment of the trial court.

 

Karen Angelini, Justice

1. Baker has provided a copy of the amended motion for new trial, which he contends was filed on April 21, 2006, under the wrong cause number, in an appendix to his brief.

2. Outcry testimony consists of statements that describe the alleged violation that were made by a child who is the alleged victim and were made to the first person eighteen years of age or older, to whom the child made statements about the violation. Tex. Fam. Code Ann. 54.031(b) (Vernon 2002).