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Craig Hudson v. State ( 2008 )


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  • In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-07-050 CR

    ____________________



    CRAIG HUDSON, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the 252nd District Court

    Jefferson County, Texas

    Trial Cause No. 91693



    MEMORANDUM OPINION

    Following a bench trial, appellant, Craig Hudson, appeals a conviction for aggravated kidnapping. On appeal, Hudson asserts that the trial court abused its discretion in failing to hold a hearing on Hudson's motion for new trial and that trial counsel rendered ineffective assistance of counsel. We affirm.





    BACKGROUND

    Hudson forced his way into a car that his wife, Jacqueline Prevost ("Prevost"), (1) was driving on November 10, 2003, and drove off with Prevost in the car. Hudson and Prevost were separated at the time of the incident. Prevost testified that Hudson held her against her will for some period of time, threatening her and nicking her with a knife. Hudson waived his right to a jury trial. On January 10, 2007, the case was tried in a bench trial. While on the stand Hudson admitted to the prior conviction in the enhancement paragraph of the indictment. The court found Hudson guilty of aggravated kidnapping and sentenced him to twenty-five years in the Institutional Division of the Texas Department of Criminal Justice.

    In two issues, Hudson argues that (1) the trial judge abused his discretion in denying Hudson's motion for new trial without holding a hearing on the motion; and (2) Hudson's trial counsel rendered ineffective assistance of counsel at the punishment phase of trial because he did not obtain an instruction or ruling on whether Hudson met his burden of proof under section 20.04(d) of the Texas Penal Code.





    MOTION FOR NEW TRIAL

    The right to a hearing on a motion for new trial is not an absolute right. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). "[A] hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record." Id. at 816. However, "when an accused presents a motion for new trial raising matters not determinable from the record, upon which the accused could be entitled to relief, the trial judge abuses his discretion in failing to hold a hearing . . . ." Id. As a further prerequisite, the motion must be properly supported by affidavits specifically showing the truth of the grounds alleged as a basis for new trial. Watson v. State, 37 S.W.3d 559, 561 (Tex. App.--Beaumont 2001, no pet.). The affidavits must state facts that, if true, would entitle defendant to a new trial. Clark v. State, No. 09-06-230-CR, 2007 WL 4953634, at *1 (Tex. App.--Beaumont Feb. 27, 2008, no pet.) (not designated for publication).

    Hudson asserted two grounds in his motion for new trial. He contended that his jury waiver was involuntary because he entered the waiver with the understanding that his case would be expedited and the jury trial waiver would act as a request for a speedy trial. In the second ground he contended that the evidence presented to the court may have been tainted and the veracity of the complaining witness was lacking based on a possible undisclosed deal between the prosecutor's office and the complaining witness.

    The record shows that Hudson signed a written waiver of his right to a jury trial. In addition, the reporter's record of the hearing at which Hudson waived a jury trial reflects the discussion that took place between the Court, trial counsel, and Hudson regarding the timing of a bench trial versus a jury trial, as well as admonishments given by the Court prior to accepting Hudson's jury waiver. The Court expressed its opinion that the case would be put on the docket much faster with a bench trial, and would almost "certainly be put on a docket faster than 30 days." At the hearing, Hudson's trial counsel expressed concern in making sure that Hudson was not misled with respect to timing of a bench trial, stating "[s]ometimes we don't get to the cases because of . . . things that are going on. I don't want him to say we've misled him." The Court agreed and expressly stated that it was "not going to guarantee" anything other than the fact that the case would be set for trial.

    Additionally, the record establishes that Hudson was fully admonished by the trial court regarding the consequences of waiving his right to a jury trial and stated that he understood those consequences. The reporter's record contains the following exchange: [TRIAL COUNSEL]: If the Judge accepts this -- once the Judge accepts this, it cannot be withdrawn. Do you understand?



    THE DEFENDANT: Yes, sir.



    . . . .



    THE COURT: And do you fully understand that, by signing this waiver, you're giving up your right to a trial by 12 jurors, you're giving up your right to ask those 12 people to pass whether you're guilty or not and once you give up that right, I'm going to make that determination and I'm going to decide what punishment you get, if I do find you guilty?



    THE DEFENDANT: Yes, sir.



    THE COURT: Understanding all that, do you still want to waive your right?



    THE DEFENDANT: Yep.



    THE COURT: I accept this. That's been signed by [the] State and your attorney. I just want to make sure you understand that if you come back down here, on the 14th or whatever day we go on this case, you can't say, "I now want a jury," because I'm going to hold you to this.



    [TRIAL COUNSEL]: One other thing: We've discussed this case. This is what we term under the law a 3-G offense. And you understand -- I've explained to you what the Court can do if you're found guilty of the offense. You cannot get probation.



    THE DEFENDANT: Right.



    THE COURT: Have a good day.



    Hudson filed an affidavit in support of his Motion for New Trial, stating that his understanding was that the waiver would get him to trial within forty-five days. He further asserted that "[t]he voluntariness of [his] wavier (sic) was base[d] on representation[s] by the court that [he] would have a speedy trial." The record sets forth the representations made by the court and trial counsel at the time of Hudson's jury waiver. Additionally, all requests for a speedy trial and all re-sets are established by the record. We hold that a hearing was not required to determine the first ground asserted in Hudson's Motion for New Trial. The fact that Hudson knowingly and voluntarily waived his right to a jury trial can be determined from the record.

    Under the second ground asserted in his Motion for New Trial, Hudson contended that the veracity of the complaining witness, Prevost, was lacking based on a possible undisclosed deal between the Prosecutor's Office and Prevost. Hudson submitted a supporting affidavit setting forth the facts upon which he relied. Hudson asserted two primary supporting facts: (1) that Prevost had stated in a letter to Hudson that "8 years turn[ed] into 4 months for out standing (sic) charges that she was facing;" and (2) Prevost had stated in a letter to Hudson's attorney dated December 19, 2004 that she was not going to testify, however, ultimately testified at trial. According to Hudson, based on these facts "it [was] evident that a deal was worked out for her testimony . . . ."

    The fact that no undisclosed deal (2) existed between Prevost and the State can be determined from the record. First, a complete copy of the letter Hudson references in his affidavit appears in the record attached to his motion for new trial. A full reading of the letter makes clear that Prevost's letter references time she served in state jail prior to meeting Hudson and prior to the events in question. (3) Second, Prevost testified at trial regarding her prior criminal history. On direct examination, Prevost testified about the four months she served for her "check writing problem," which she referenced in her letter to Hudson. Prevost further testified that she had not received any other convictions since 1999. In addition, Hudson's attorney was given the opportunity to cross-examine Prevost regarding her criminal history and did so. She testified regarding her 1999 probation revocation as well as misdemeanors she had prior to that. There is nothing in the record to indicate that Prevost faced any criminal charges after her probation revocation in 1999. Therefore, the court could have concluded, based on the record, that Prevost had no outstanding charges on which any alleged deal with the State could have been based.

    Prevost also testified at Hudson's trial regarding her initial representation that she would not testify and ultimately her decision to testify at trial. Prevost testified that she sent Hudson's attorney a letter stating that she was not going to testify because Hudson asked her not to testify and asked her to write a letter to his lawyer stating the same. Prevost explained that she changed her mind about testifying because she felt she was being manipulated by Hudson and that she just wanted to get the whole thing behind her. We hold that the second matter raised in Hudson's Motion for New Trial was determinable from the record.

    Hudson had the opportunity at trial to question Prevost regarding her criminal history and to fully develop any potential bias in Prevost's testimony, such as a deal with the State. Hudson's attorney cross-examined Prevost during the trial. To the extent Hudson failed to fully develop any bias of the complaining witness at trial by questioning her regarding any possible deals with the State, he waived appellate review by not doing so. See Hadley v. State, No. 09-96-025 CR, 1997 WL 7548, at *1-3 (Tex. App.--Beaumont Jan. 8, 1997, no pet.) (not designated for publication). We hold the trial court did not abuse its discretion in denying Hudson's motion for new trial without a hearing. We overrule issue one.

    INEFFECTIVE ASSISTANCE OF COUNSEL

    In his second issue, Hudson contends that trial counsel rendered ineffective assistance at the punishment phase of trial because counsel did not obtain an instruction or ruling on the mitigating circumstance of voluntary release in a safe place, under section 20.04(d) of the Texas Penal Code. Under section 20.04(d), at the punishment stage of a trial on aggravated kidnapping "the defendant may raise the issue as to whether he voluntarily released the victim in a safe place." Tex. Pen. Code Ann. § 20.04(d) (Vernon 2003). "If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree." Id.

    To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for the trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 688-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on his claim, Hudson must first prove that trial cousel's representation was deficient. Id. at 687. In other words, "the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission." Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). We first determine whether it was reasonable for Hudson's trial counsel not to request an instruction or obtain a ruling from the trial court on whether Hudson satisfied his burden of proof under section 20.04(d).

    Rarely will a reviewing court be able to fairly evaluate the merits of an ineffective assistance of counsel claim on direct appeal. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999)). "'In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.'" Id. (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)). When faced with a record that does not indicate trial counsel's strategy and tactics, we may not speculate as to why counsel pursued a particular course of action. Flowers v. State, 133 S.W.3d 853, 857 (Tex. App.--Beaumont 2004, no pet.) (citing Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001)). The more appropriate vehicle to raise ineffective assistance of counsel claims is an application for writ of habeas corpus. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (citing Mitchell v. State, 68 S.W.2d 640, 642 (Tex. Crim. App. 2002)). Hudson contends that a safe release finding was mandated by the evidence. We disagree. We hold that a reasonable attorney could have concluded that Prevost was not voluntarily released in a safe place. The Texas Court of Criminal Appeals recently clarified the meaning of "voluntarily" under section 20.04(d). The Court rejected a broad interpretation of "voluntarily" in favor of a narrow interpretation, "such as the absence 'of rescue by the police [or others] or escape by the [kidnap] victim.'" Brown v. State, 98 S.W.3d 180, 187-88 (Tex. Crim. App. 2003)(citing Model Penal Code § 212.1 cmt. at 233-34) (requirement that release be "voluntary" means that "rescue by the police or escape by the victim" will not reduce the punishment level of the offense.).

    "The cases determining when a kidnapper voluntarily releases the victim in a safe place require the kidnapper to release the victim without any element of rescue or escape." Cooks v. State, 169 S.W.3d 288, 291 (Tex. App.--Texarkana 2005, pet. ref'd). When a victim is released or abandoned as a result of police intervention or confrontation, the defendant's conduct likely will not rise to the level of "voluntary release" under section 20.04(d). See Ballard v. State, 193 S.W.3d 916, 919 (Tex. Crim. App. 2006)(appellant did not voluntarily release victim where she did not extricate herself until police directly intervened); see also LaHood v. State, 171 S.W.3d 613, 624-25 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd) (Victim was released from custody of kidnapper only after his vehicle was pulled over by a police officer and he was arrested); Fowler v. State, 958 S.W.2d 853, 860 (Tex. App.--Waco 1997), aff'd, 991 S.W.2d 258 (Tex. Crim. App. 1999) (victim was not "released" where he surrendered to police and left victim unharmed inside hotel room); Oestrick v. State, 939 S.W.2d 232, 238-39 (Tex. App.--Austin 1997, pet. ref'd) (no voluntary release in a safe place where defendant abandoned victim in his truck in an attempt to escape after being surrounded by police). Such circumstances are more analogous to a rescue or escape, and will prohibit a finding of voluntary release. See Brown, 98 S.W.3d at 188.

    Here it is undisputed that Hudson did not release Prevost until he was confronted by a police officer, at which time Hudson abandoned Prevost in an effort to evade capture. Prevost testified that after Hudson drove back into Port Arthur, the car was spotted by a police officer who turned on his lights in an effort to pull Hudson over. Hudson, however, attempted to lose the officer by speeding up, while the officer continued in pursuit of the vehicle. Eventually, Hudson pulled into a driveway but was unable to back out because of transmission problems with the vehicle. The police officer was able to block the car in the driveway, at which time Hudson got out of the car and ran, leaving Prevost in the vehicle. Hudson was ultimately apprehended by police in a nearby alleyway.

    We hold that a reasonably competent lawyer could have concluded under the circumstances of this case that the release of Prevost was not "voluntary," but was more akin to a rescue. See Ballard, 193 S.W.3d at 919; see also LaHood, 171 S.W.3d at 625; Fowler, 958 S.W.2d at 860; Oestrick, 939 S.W.2d at 239. Additionally, we note that a reasonably competent lawyer may also have concluded that Prevost was not released in a "safe place." See Oestrick, 939 S.W.2d at 239 (such a tense and potentially volatile situation existed where victim was abandoned that it could hardly be said to be a "safe place" as a matter of law); see also McLaren v. State, 104 S.W.3d 268, 274 (Tex. App.--El Paso 2003, no pet.)(no error where court could have found that a volatile situation existed in the area where victims were released). Thus, trial counsel's failure to obtain a ruling on whether defendant met his burden under section 20.04(d) or request an instruction in a bench trial, was not ineffective assistance of counsel. See Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005). We overrule issue two. Having overruled both of appellant's issues, we affirm the judgment of the trial court.

    AFFIRMED.

    __________________________________

    CHARLES KREGER

    Justice



    Submitted on February 14, 2008

    Opinion Delivered October 29, 2008

    Do not publish



    Before McKeithen, C.J., Gaultney and Kreger, JJ.

    1. After she divorced Hudson in April 2004, Jacqueline reclaimed her maiden name Jacqueline Prevost. For ease of reference we will refer to her as "Prevost" in this opinion.

    2. On appeal Hudson emphasizes the fact that prior to trial, he and his attorney made both written and oral requests for the State to disclose any agreement they may have with any witness that may testify.

    3. Prevost stated in pertinent part:

    Maybe I can help you find God like I have and when that happens, your prayers get through and something good may happen. Remember when I met you and told you my story. Craig I was looking at 8 years in state jail. But the minute I knew this thing was too big for me I surrendered my all to God. I allowed him to take my problem, handle it as he saw fit, and let him know that I was willing to go through any thing [sic] he needed me to go through he created a miracle in my life. 8 years turned into 4 months. Not only did he work it out for me but he gave the faith I needed to trust him for all things today.