Perry Ray Crawford v. The State of Texas--Appeal from County Court at Law No. 2 of Bell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-059-CR
PERRY RAY CRAWFORD,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
NO. 2C92-2050, HONORABLE JOHN BARINA, JUDGE PRESIDING

PER CURIAM

The county court at law found appellant guilty of assault. Tex. Penal Code Ann. 22.01 (West 1989 & Supp. 1993). The court assessed punishment at incarceration for 270 days and a $1000 fine, but suspended imposition of sentence and placed appellant on probation for two years.

On the night of April 24, 1992, appellant and his wife, Patricia Morrow, argued over appellant's discipline of "the boys." (1) Appellant slapped Morrow several times. Morrow responded by striking appellant on the head with a plate. Appellant began to slap Morrow with greater force. Morrow's daughter attempted to come to her aid, but was pushed away by appellant. Morrow picked up a steak knife but appellant pulled it from her hand, cutting two of her fingers. Appellant then forced Morrow into the bedroom and onto the bed, where he began to beat her with his fists. Neighbors summoned by Morrow's daughter succeeded in pulling appellant away from Morrow. Morrow sustained black eyes, a cracked nose, and numerous bruises in the assault.

Appellant testified that he had returned home at the request of Morrow's daughter. When he entered the house, Morrow attacked him with the knife, cutting his ear. Appellant admitted hitting Morrow, but asserted that he did so solely in self-defense. Michael Ferrell, one of the neighbors summoned by Morrow's daughter, testified that appellant did not have any visible injuries. Police officer Fred Salcido testified that appellant did not appear to be injured when he was booked into jail following his arrest.

In points of error one and two, appellant contends his motion for new trial should have been granted because he was put to trial without the benefit of available material witnesses and because his trial counsel failed to obtain a continuance to obtain these witnesses. Although he never uses the term, the essence of appellant's argument under these points of error is that he was afforded ineffective assistance of counsel at trial. See Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993).

The contentions appellant makes in his brief were not contained in his motion for new trial. The only ground for new trial contained in the motion was that "[t]he result of this case is contrary to the law and evidence." See Tex. R. App. P. 30(b)(9). This allegation cannot be fairly read as complaining of ineffectiveness of counsel, denial of witnesses, or denial of a continuance. See Alvarez v. State, 536 S.W.2d 357, 362 (Tex. Crim. App. 1976). At a hearing on motion for new trial, the defendant may offer evidence only on those grounds for new trial that are alleged in the motion. Trout v. State, 702 S.W.2d 618 (Tex. Crim. App. 1985). Moreover, if the defendant wishes to attack the verdict by proof of a matter not otherwise reflected in the record, the motion for new trial must be supported by his own affidavit or the affidavit of someone else in a position to know the facts. McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985); Beardon v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983); Hicks v. State, 171 S.W. 755 (Tex. Crim. App. 1914). Appellant's motion for new trial was not supported by affidavits from appellant, trial counsel, the uncalled witnesses, or anyone knowing what the witnesses would have said or the reasons for their failure to appear. Under the circumstances, appellant's ineffective assistance of counsel claim and the related contentions were not properly before the trial court at the new trial hearing.

Even if appellant's failure to properly present the issue below is ignored, the court did not err in overruling the motion for new trial. The only testimony adduced at the hearing was that of appellant. He testified that there were two witnesses who could have verified portions of his trial testimony. One of these witnesses, a Mr. Floyd, could have testified that appellant was with him before the incident and that appellant had been asked to come home by Morrow's daughter. The other missing witness was the police officer who arrested appellant, who could have testified to appellant's physical condition after the fight with his wife. According to appellant, his attorney told him before trial that it was not necessary to call witnesses because the case was going to be dismissed. After trial began, the lawyer told appellant that it was too late to call witnesses. Neither Floyd, the arresting officer, nor appellant's trial counsel testified at the new trial hearing.

Assuming that appellant's testimony at the hearing was entirely true, the court did not abuse its discretion by deciding that ineffective assistance of counsel was not shown. In order to prevail on such a claim, the convicted defendant must show that his attorney's representation was unreasonable under prevailing professional norms and that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In determining whether to grant a motion for new trial, the court may consider the trial record. Reyes, 849 S.W.2d at 815-16; Key v. State, 192 S.W.2d 563, 565 (Tex. Crim. App. 1946). At trial, Morrow's daughter acknowledged during cross-examination by defense counsel that she had asked appellant to come home on the night in question. The trial court could reasonably conclude, as we do, that testimony by Floyd to the same effect would have had no impact on the outcome of the trial. Similarly, there is no reasonable probability that testimony by the arresting police officer that appellant had been injured would have affected the result of the trial, since it was undisputed that Morrow struck appellant's head with a plate and attempted to defend herself with a knife.

The trial court has not been shown to have abused its discretion in overruling appellant's motion for new trial. Points of error one and two are overruled.

Appellant's remaining point of error challenges one of the conditions of probation imposed by the court. The condition in question, number seventeen, states that "[t]here will be no early release for this probationer." Appellant argues that this condition is contrary to the terms of article 42.12, section 23 of the Code of Criminal Procedure, which provides that the period of probation may be reduced or terminated by the court after the defendant satisfactorily completes one-third of the original probationary term. Tex. Code Crim. Proc. Ann. art. 42.12, 23 (West Supp. 1993). Appellant urges that it was unreasonable for the trial court to condition probation on appellant giving up his right to seek early termination. Appellant relies on Tamez v. State, 534 S.W.2d 686 (Tex. Crim. App. 1976), in which it was held that a condition of probation requiring the probationer to submit to a search of his person, residence, or vehicle at any time, with or without warrant, by any law enforcement officer, unnecessarily infringed on the probationer's constitutional rights and was unreasonable in light of the purposes of the adult probation law.

The challenged condition of probation is nothing more than a statement of the trial court's present intention not to exercise its discretion under section 23. The court may modify the conditions of probation at any time. Tex. Code Crim. Proc. Ann. art. 42.12, 11(a) (West Supp. 1993). Thus, the trial court retains the authority to delete condition seventeen, on its own or appellant's motion, and to exercise its discretion to reduce or terminate appellant's probationary term. We conclude, therefore, that appellant's right to seek early termination of probation has not been infringed. Point of error three is overruled.

The judgment of conviction is affirmed.

 

[Before Justices Powers, Kidd and B. A. Smith]

Affirmed

Filed: August 25, 1993

[Do Not Publish]

1. The evidence reflects that Morrow and appellant each had two children by prior marriages.