Darrell Glenn Wales v. The State of Texas--Appeal from 163rd District Court of Orange County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-314 CR
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DARRELL GLENN WALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B-040584-R
MEMORANDUM OPINION

Darrell Glenn Wales appeals his conviction of aggravated sexual assault and asserts in three issues that his conviction should be reversed. We affirm.

Background

After a jury trial, the jury convicted Wales on four counts of aggravated sexual assault of a child less than fourteen years of age. See Tex. Pen. Code Ann. 22.021 (Vernon Supp. 2006). The jury sentenced him to seventy years' confinement in the Texas Department of Criminal Justice-Institutional Division and a $10,000.00 fine for each count.

Prior to the grand jury's issuing its indictment against him, Wales gave a written statement to the Orange County Sheriff's Department regarding his account of the alleged offenses with his victim, an underage family member. During the trial, the State introduced Wales's statement into evidence.

Prior to admitting the statement, the trial court heard Wales's motion to suppress the statement. During this hearing, Wales claimed that he did not voluntarily give his statement to the police because he was under the influence of the drug Xanax at the time. He also claimed that he only gave the statement to avoid arrest; and, that because he was led to believe the victim's statement had already been taken, he told the officer what the officer wanted to hear to avoid discrediting the victim. At the suppression hearing, the investigating officer testified that Wales did not appear intoxicated and that he informed Wales of his constitutional rights more than once. The officer testified that in his opinion, Wales voluntarily gave his statement. Additionally, the officer testified that when he took Wales's statement, he had not yet interviewed the victim. Following the suppression hearing, the trial court denied Wales's motion to suppress.

Approximately two weeks before the trial commenced, Wales filed a motion for continuance. In his motion, his attorney asserted that she could not adequately prepare for trial: trial began on June 6 and she was not appointed until May 13. The motion also asserted that Wales needed additional time to obtain copies of his medical records, however, the motion did not contain an explanation regarding how the contents of the medical records would have assisted in Wales's defense. The trial court denied the motion for continuance. On several subsequent occasions, Wales re-urged the trial court to continue the trial setting, but all of his requests were denied.

After a two-day trial, the jury returned a guilty verdict on four counts of aggravated sexual assault. On each of the counts, the jury sentenced Wales to seventy years' confinement and assessed a $10,000 fine. The trial court ordered Wales's sentences to be served concurrently. In his three issues, Wales contends that the trial court erred when it denied his motion to suppress, erred in denying his motion for continuance, and complains that he received ineffective assistance of counsel.

Motion to Suppress

Wales asserts that the trial court erred in denying the motion to suppress his statement. Wales argues his written statement was involuntary for these reasons: (1) he was under the influence of drugs when he gave the statement; (2) the investigating officer represented to him that the victim's statement had already been taken; and (3) in return for giving his statement, he would not be arrested. Wales claims that he was not aware of the consequences of waiving his rights. (1)

At the suppression hearing, the State introduced Wales's written statement dated September 3, 2004. The first page includes Wales's name, address, and date of birth, as well as his initials by each of the individual Miranda warnings. Wales's signature is also found at the bottom of the page where he acknowledged that he waived certain rights and that his statement had been given of his own free will and without persuasion by any person. The second page consists of Wales's sworn account of the pertinent facts.

Although Wales testified at the hearing that he was under the influence of drugs when he made the statement, he admitted that he did not so advise the investigating officer. Wales also acknowledged that he failed to complain of any duress after being informed of his right to remain silent. The investigating officer testified that Wales "did not appear to be intoxicated in any shape, form, or fashion." The officer also testified about a phone call he received from a person claiming to be Wales's friend. After the officer told the caller that there were no warrants for Wales's arrest and that he would like to speak to Wales, the caller identified himself as Wales and offered to voluntarily come to the station to talk to the officer. The officer further stated that he was not attempting to coerce a statement from Wales. Wales testified that after this telephone conversation he went to the police station, gave a statement, and then left.

The trial court is the sole judge of the weight and credibility of the evidence at a hearing on a defendant's motion to suppress evidence. Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim. App. 2000); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). Almost total deference is afforded to the trial judge on his resolution of credibility questions. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Absent a clear abuse of discretion, the trial court's findings may not be disturbed on appeal. Alvarado, 912 S.W.2d at 211. When, as here, the trial judge does not enter findings of fact explaining the basis of his ruling that denied the motion to suppress; and, where neither party timely requested findings and conclusions from the trial court, we imply any necessary finding to support the trial court's ruling when the evidence, viewed in the light most favorable to the trial court's ruling, supports the implied finding. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006). Generally, we review the trial court's legal ruling de novo. Id.

We determine the voluntariness of a statement based on an examination of the totality of the circumstances under which it was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). A statement is involuntary "only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado, 912 S.W.2d at 911; see also State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999).

Wales initiated contact with the investigating officer and voluntarily traveled to the police station to discuss his case. According to the officer's testimony, Wales received Miranda warnings prior to discussing the case and again before he signed his written statement. The warnings about the consequences of providing a statement are included on the same document as Wales's written statement. Since it was within the trial court's discretion to believe the officer's testimony regarding the circumstances under which Wales gave his statement, the trial court did not abuse its discretion in denying Wales's motion to suppress. See Alvarado, 912 S.W.2d at 211. Wales's first issue is overruled.

Motion for Continuance

Wales asserts that the trial court should have granted his motion for continuance because medical records were needed for his defense and his trial counsel had inadequate time to prepare for trial. "Where denial of a continuance has resulted in representation by counsel who was not prepared, we have not hesitated to declare an abuse of discretion." Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). Nevertheless, discretion is afforded the trial court to grant or deny a motion for continuance. Id. To demonstrate an abuse of discretion by the trial court, a defendant must show he was prejudiced by his counsel's inadequate preparation. Heiselbetz, 906 S.W.2d at 511; Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986).

The only specific claim that Wales makes regarding his counsel's allegedly inadequate preparation is that his medical records were not obtained. As a result, he contends he was deprived of a "potential defense." However, there is neither evidence regarding the contents of the medical records nor an explanation that demonstrates how the records would have assisted him. Thus, Wales has not shown any prejudice to his defense. The bare assertion that one's attorney did not have time to adequately prepare for trial does not alone establish prejudice. Heiselbetz, 906 S.W.2d at 512. In Hernandez v. State, 643 S.W.2d 397, 399-400 (Tex. Crim. App. 1982), the Texas Court of Criminal Appeals held that when counsel had approximately twenty-three days to prepare for a capital murder trial, "no specific, serious matter ha[d] been raised by the appellant and the record d[id] not otherwise show that the appellant's defense was prejudiced by counsel not having more time to prepare for trial."

Without a showing of harm, Wales's assertion that his attorney did not have time to obtain medical records likewise fails to establish an abuse of discretion. See Heiselbetz, 906 S.W.2d at 512; Duhamel, 717 S.W.2d at 83. The record does not show prejudice, and absent a showing that the records were relevant, Wales's mere complaint that the records might have been of assistance in his defense does not raise a specific, serious matter. See Hernandez, 643 S.W.2d at 399-400. Absent a showing of prejudice, Wales fails to demonstrate that the trial court abused its discretion in denying his motion for continuance. Wales's second issue is overruled.

Ineffective Assistance of Counsel

Wales also contends that his attorney's failure to obtain his medical records deprived him of effective assistance. Without explaining how the records would do so, Wales asserts that the records mitigate the testimony the jury heard.

We review claims of ineffective assistance of counsel in accord with the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Strickland provides a two-step test by which an appellant must show that: (1) his counsel's performance fell below an objective standard of reasonableness; and, (2) but for his counsel's unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. 466 U.S. at 687-88, 694. Reasonable probability is the "probability sufficient to undermine confidence in the outcome." Id. at 694. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); see also Strickland, 466 U.S. at 689. A claim of ineffective assistance must be firmly supported in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

Although Wales's appellate counsel filed an amended motion for new trial claiming Wales received ineffective assistance of counsel, it appears that Wales never obtained a hearing on his motion. Thus, the record before us does not explain the reasons for trial counsel's actions. See Thompson, 9 S.W.3d at 814. Generally, a silent record cannot rebut the presumption that counsel's actions were the result of sound or reasonable trial strategy. Thompson, 9 S.W.3d at 813; see also Strickland, 466 U.S. at 689. Because Wales's claims are not firmly founded in the record, he fails to meet his burden to show ineffective assistance. See Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 814. We overrule Wales's third issue.

Conclusion

Having considered Wales's issues, we find that the trial court did not abuse its discretion by denying Wales's motion to suppress or his motion for continuance. We further hold that Wales failed to establish that he received ineffective assistance of counsel. We find no reversible error and affirm the judgment of the trial court.

AFFIRMED.

 

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HOLLIS HORTON

Justice

 

Submitted on November 1, 2006

Opinion Delivered March 28, 2007

Do Not Publish

 

Before Gaultney, Kreger, and Horton, JJ.

1. At the hearing on his motion to suppress, Wales addressed his written statement but not the audiotape of his interview made at the same time. At trial, the State introduced the audiotape without objection. Wales also fails to mention the audiotape in his brief.