Tanner Don Hole v. State ( 2007 )

MARY'S OPINION HEADING

                                                NO. 12-06-00207-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TANNER DON HOLE,        §                      APPEAL FROM THE 217TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

            A jury convicted Appellant Tanner Don Hole of two counts of aggravated assault on a public servant, and assessed his punishment at confinement for twenty five years on the first count and twenty years on the second.  In five issues, Appellant complains that he was deprived of his right to confront and cross examine the witnesses against him and that the trial court erred in refusing to allow a poem into evidence.  We abate and remand.

Background

            Appellant was the owner and driver of an automobile that Huntington Police Officer Richardson observed had no license plate light.  Officer Richardson turned on the overhead lights of his patrol car in an effort to stop Appellant’s vehicle, but Appellant fled.  In the pursuit that followed, the back seat passenger in Appellant’s car, Stephen Brandon Wilson, used Appellant’s .308 rifle to fire at Richardson’s patrol car.  One of the shots hit Richardson’s windshield.  Flying glass cut his eye causing him to lose control of the vehicle and hit a fence.  Almost immediately, the Huntington police chief, David West, and Constable Thomas Lee Selman, Jr. located the suspect vehicle and resumed the pursuit.  The chase ended when Appellant attempted to crash through the two police cars blocking his exit from a private drive. Appellant’s car first struck Constable Selman’s patrol car and then collided with a tree after he was wounded by one of ten bullets fired at Appellant’s car by Chief West.  Arrested with Appellant and the shooter, Stephen Wilson, was Appellant’s fiancé, Sabrina Canda.

            Wilson pleaded guilty before Appellant’s trial and received a thirty-five year sentence.  He was a major, if not the main, witness for the State.

            On May 11, 2006, four days before his trial commenced, Appellant filed a motion asking the trial court to replace his court appointed attorney.  He alleged that his court appointed attorney had failed to effectively represent him, had failed to meet with him and discuss the facts or a trial defense, and had filed no pretrial motions.  The trial judge conducted a pretrial hearing at which the evidence showed that Appellant’s counsel had met with Appellant and had reviewed the district attorney’s file on at least two occasions.  Appellant urged no legal reason requiring the replacement of his court appointed attorney, and the trial judge denied Appellant’s motion.

            After the jury had returned its verdict, the trial judge sentenced Appellant on May 17, 2006, and signed the judgment on May 18, 2006.  On June 13, 2006, Appellant filed a pro se motion titled “Motion to Appeal.”  In the motion’s concluding sentence, Appellant stated that he “does motion the court for a new trial or an appeal.”  Appellant urged the following grounds in his unsworn motion:

#1           There was severe conflict of interest, Scott Tatum, my court appointed attorney had represented Steven Brandon Wilson, the main witness agaist [sic] me, in a previous case.

#2           Insuffient councel [sic], with at least 40 things amiss

#3           Tanner Hole had requested a different attorney before trial and was refused.

#4           Important witnesses were not subpeoned [sic] on Tanner’s behalf

#5           Important evidence was not shown to the jury.

#6           Many important issues that show Tanner’s innocence were not show [sic] to the jury.

#7           Lawyers were on the jury and over ruled [sic] the other juriors [sic]

#8           One lawyer on the jury had prior information about Tanner’s juvenile record.

#9           Counsel should have pointed out “many” falsehoods that were stated

#10         Cousel [sic] was totally insuficient [sic], and trial corrupt.

No affidavits relating to the allegations were attached to the motion.

            On the same date, Appellant also filed a separate “Motion to Appoint Attorney on Appeal.”  The trial court appointed Bill Burnett as appellate counsel on June 16, 2006, exactly thirty days after Appellant was sentenced.

            On June 23, Appellant’s attorney on appeal filed a motion for a free reporter’s record, a written designation of matters for inclusion in the clerk’s record, and a request for preparation of the reporter’s record and a designation of matters to be included.

            Neither Appellant’s trial attorney, his appellate attorney, nor Appellant himself presented his motion for new trial and appeal to the trial court.  The motion was overruled by operation of law.

            The record does not show that Appellant’s trial attorney filed a motion to withdraw.

Right to Cross Examine

            In his third and fourth issues, Appellant complains that the trial court violated his right under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Constitution of Texas by not allowing him to cross examine Stephen Brandon Wilson regarding a poem Wilson had written to a former girlfriend in which he described the ways he wanted to kill or maim her.  In his fifth issue, Appellant contends the trial court reversibly erred in refusing to allow the poem’s admission into evidence.

Standard of Review and Applicable Law

            The trial court’s evidentiary rulings are reviewed under an abuse of discretion standard.  Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).  The reviewing court should not reverse the trial court if its ruling was within the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

            The Sixth Amendment provides that “the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  U.S. Const. amend. VI.  The accused’s right to confront the witnesses against him necessarily includes the right to cross examine.  Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).

            In general, witnesses may not be impeached regarding collateral matters.  Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990).  “The test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his case tending to establish his plea.”  Id. (quoting Bates v. State, 587 S.W.2d 121, 133 (Tex. Crim. App. 1979)).  However, when a witness has voluntarily testified to a collateral matter resulting in a false impression, the witness may be impeached on that matter in order to correct the false impression.  Ramirez, 802 S.W.2d at 676.  A party cannot seek to impeach a witness by prompting or soliciting a misleading response to a collateral matter on cross examination.  Lopez v. State, 928 S.W.2d 528, 531 (Tex. Crim. App. 1996).

            “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross examination of the witness nor proved by extrinsic evidence.”  Tex. R. Evid. 608(b).

Analysis

            During cross examination of Stephen Brandon Wilson, an important State’s witness and the person identified as the shooter, Appellant asked Wilson, “Have you ever contemplated shooting at anybody else?”  Wilson replied, “No, sir.”  He then attempted to question Wilson about a poem he had written to a former girlfriend. The trial court sustained the State’s objection to questions regarding the poem.  In the poem, Wilson described his thoughts of “filling your skull full of lead” or ripping “your heart out as you lay in bed.”  The poem contained several other stanzas in the same vein.

            Appellant insists he was entitled to cross examine Wilson and introduce the poem to correct the false impression created by his answer on cross examination denying that he had ever contemplated shooting at anybody else before he shot at the officers pursuing Appellant’s car.

            Wilson’s poetic efforts, no matter how warped and violent, have no relevance to any issue in the case and are entirely collateral.  Wilson did not gratuitously or voluntarily deny that he had ever contemplated shooting at someone else.  Rather, his answer was solicited by Appellant on cross examination.  Any false impression was created by Appellant’s attempt to maneuver Wilson into making an inaccurate statement.  Wilson, throughout his testimony, had acknowledged that he was the person who fired all the shots at the officers.  In his testimony, he did not attempt to portray himself as an otherwise law abiding person.  The poem and the excluded testimony regarding it had no relevance to Wilson’s credibility. The use of the poem as a specific instance of conduct to attack Wilson’s credibility is plainly barred by Rule 608(b).

            The trial court did not err in limiting Appellant’s cross examination of Wilson and denying admission of Wilson’s poem into evidence.  Appellant’s third, fourth, and fifth issues are overruled.

Denial of Right to Counsel

            In his first issue, Appellant contends that he was without counsel during the thirty days following his sentencing.  He argues that this was a critical stage of his prosecution and that his lack of representation during this period was a denial of his right to counsel under the Sixth Amendment of the United States Constitution. 

            In his second issue, Appellant argues that his lack of representation violated his right to counsel guaranteed by Article I, Section 10 of the Constitution of Texas.  When an appellant provides no explanation for construing the Texas Constitution as conferring greater protection in an area of law than the federal constitution, we will not address his state constitutional argument. See Black v. State, 26 S.W.3d 895, 896 n.4 (Tex. Crim. App.2000). Here, Appellant has not made a separate substantive argument relating to his state claim.  Therefore, we do not address his second issue.

Applicable Law

            A criminal defendant is constitutionally entitled to the assistance of counsel at each critical stage of his prosecution, absent a valid waiver.  See Michigan v. Jackson, 475 U.S. 625, 626, 106 S. Ct. 1404, 1405-06, 89 L. Ed. 2d 631 (1986).  The determination of whether a particular period is a critical stage turns on an assessment of whether, at the time in question, “the accused required aid in coping with legal problems or assistance in meeting his adversary.”  United States v. Ash, 413 U.S. 300, 313, 93 S. Ct. 2568, 2575, 37 L. Ed. 2d 619 (1973). 

            If a criminal defendant desires to file a motion for new trial, he must do so within thirty days after his sentence has been imposed or suspended in open court.  Tex. R. App. P. 21.4(a).  The motion may be amended within the same thirty days so long as the amendment is made before the court overrules any preceding motion for new trial, id., but a motion for new trial cannot be amended after thirty days from sentencing, even with leave of court.  Dugard v. State, 688 S.W.2d 524, 529-30 (Tex. Crim. App. 1985), overruled on other grounds, Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989); Belton v. State, 900 S.W.2d 886, 901-02 (Tex. App.–El Paso 1995, pet. ref’d).

            The Texas Court of Criminal Appeals has declared that “without doubt the hearing on a motion for new trial is a critical stage of the proceedings[,]” because “[i]t is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review.”  Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978) (emphasis added).  “If the hearing on a motion for new trial is a critical stage of the proceedings, then logic dictates that the time period for filing the motion is also a critical stage of the proceedings.” Oldham v. State, 889 S.W.2d 461, 462 (Tex. App.–Houston [14th Dist.] 1994), rev’d on other grounds, 977 S.W.2d 354 (Tex. Crim. App. 1998).  When a defendant presents a motion for new trial raising matters not determinable from the record, and which could entitle him to relief, the trial court abuses its discretion in failing to hold an evidentiary hearing; the motion must, however, be supported by affidavit specifically showing the truth of the grounds urged.  King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).

            Appointed counsel “shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel. . . .”  Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2006).  The order appointing Appellant’s counsel did not confine his attorney’s duties to the trial.  His attorney did not file and the court did not approve a motion to withdraw. Therefore, he remained Appellant’s counsel until appeals are exhausted or he is permitted to withdraw.  Tex. Code Crim. Code Ann. § 26.04(a).  The law presumes that counsel fulfilled this obligation in the absence of contrary evidence sufficient to overcome the Oldham presumption.

            When the record does not reflect that trial counsel withdrew or was replaced by new counsel after sentencing, there is a rebuttable presumption that trial counsel continued to effectively represent the defendant during the period for filing a motion for new trial.  Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998).  Even the filing of a pro se notice of appeal is evidence that the defendant was informed of at lease some of his appellate rights, and it will be presumed that he was adequately advised by counsel unless the record demonstrates otherwise.  Id.

            An indigent who manifests a desire to appeal is entitled to court appointed counsel, and where the assistance of counsel is constitutionally required, the right to furnished counsel does not depend upon request.  Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987). The trial court is not relieved of its obligation to appoint counsel even in the absence of a request by the defendant.  Id. at 799.

Rebuttal of the Presumption

            Appellant filed a hybrid but timely motion for new trial and appeal. Appellant alleged ineffective assistance by his appointed counsel before trial, and in his motion for new trial, he alleged his appointed counsel was constitutionally ineffective during trial. In Oldham and Smith, the filing of a pro se notice of appeal indicated to the court that the appellant “was aware of some of her appellate rights, and was adequately counseled unless the record affirmatively displays otherwise.”  Oldham, 977 S.W.2d at 363; Smith, 17 S.W.3d at 663.  Here, Appellant’s motion for new trial and appeal is an unsworn list of conclusory nonfactual allegations unsupported by affidavits.  It is so amateurish and ineffectual that it would be delusional to presume it a product of “adequate counseling.”  Rather it supports a contrary conclusion.¹

            In Prudhomme v. State, 28 S.W.3d 114, 119 (Tex. App.–Texarkana 2000, order), Appellant filed three pro se motions twenty-five days after sentencing, among them a “Motion to Withdraw Plea” in which he contended his plea was involuntary due to ineffective assistance of counsel.  Id.  In Prudhomme, as in the instant case, the record did not show that trial counsel was aware these motions were filed.  Id.  They were not presented to the trial court, and no hearing on the motions was requested. Id.  The Texarkana court concluded that Prudhomme’s filing of a motion for new trial that complained of ineffective assistance of trial counsel, together with the filing of a pro se notice of appeal and motion for an attorney on appeal, rebutted the presumption of continued adequate representation.  Id. at 120.

            There is little to distinguish Prudhomme from the instant case.  The procedural history in this case is similar.  Both Prudhomme and Appellant indicated by filing a pro se motion for new trial that they wished to pursue such a course.  In both cases, the pro se motion complaining of trial counsel’s ineffectiveness was ineptly drawn and insufficient to entitle the defendant to a hearing.  In neither case was a hearing held or requested.  We conclude that Appellant has effectively rebutted the presumption that his trial attorney continued to fulfill his statutory duty to represent Appellant until relieved.

Harm Analysis

            Except for constitutional errors deemed structural by the United States Supreme Court, federal constitutional error may be disregarded if the reviewing court finds it harmless beyond a reasonable doubt.  Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 828, 17 L. Ed. 705 (1967).  Denial of counsel between imposition of sentence and the deadline for filing a motion for new trial is not structural error, and it is therefore subject to harmless error review.  Hanson v. State, 11 S.W.3d 285, 289 (Tex. App.–Houston [14th Dist.] 1999, pet. ref’d); see  Tex. R. App. P. 44.2(a).

            In Hanson, the court determined that the appellant was not harmed by the lack of counsel because Hanson, pro se, had filed an articulate motion for new trial and notice of appeal.  Hanson, 11 S.W.3d at 289.  On appeal, appellate counsel relied primarily on the errors raised by Hanson, adding only the additional claim regarding the delay in the appointment of appellate counsel. Id.  The court concluded appellate counsel had conceded the efficacy of the pro se filings.  Id. 

            In the case before us, Appellant’s untutored attempt to draft a motion for new trial was not articulate. Though his claims were facially plausible, his motion was totally ineffective to achieve its purpose, to adduce facts related to matters not shown on the record with sufficient specificity, supported by affidavits so that, upon request, Appellant would have been entitled to a hearing on the motion and the opportunity to make a record for appellate review.  We cannot conclude beyond a reasonable doubt that Appellant’s loss of such an important opportunity did Appellant no harm.   See Massingill v. State, 8 S.W.3d 733, 738 (Tex. Crim. App. 1999); Tex. R. App. P. 44.2(a).  Appellant’s first issue is sustained.

Proper Remedy

            “Sixth Amendment violations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation.”  Massingill, 8 S.W.3d at 738 (citing United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 668, 66 L. Ed. 2d 564 (1981)).  The failure to provide Appellant with counsel did not contribute to Appellant’s conviction or punishment; therefore, reversal of the trial court’s judgment is not appropriate.  Prudhomme, 28 S.W.3d at 121; see Tex. R. App. P. 44.2(a) (reversal required unless appellate court determines beyond a reasonable doubt that error was harmless).  The proper course is to abate the appeal and remand the cause to the trial court so that the appellate timetables may run anew from the date of sentencing.  See Prudhomme, 28 S.W.3d at 121; Massingill, 8 S.W.3d at 738.

Conclusion

            Having sustained Appellant’s first issue, the appeal is abated and remanded to the trial court.  The timetable for Appellant’s motion for new trial shall run anew from the date this opinion is received by the district clerk.  If the trial court grants the motion for new trial, the record will be supplemented with a copy of the trial court’s order, and this appeal will be dismissed. If the trial court overrules the motion for new trial, the record will be supplemented with a record of the trial court’s order and the court reporter’s record of any hearing on the motion.  If the motion for new trial is overruled, the parties will be permitted to brief issues related to the overruled motion.  See Prudhomme, 28 S.W.3d at 121. This appeal shall be abated until ninety days after date of this opinion or until the required supplemental records are filed in this court, whichever is the earlier date, at which time this appeal shall be reinstated.

                                                                                                    BILL BASS

                                                                                                            Justice

Opinion delivered June 29, 2007.

Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)

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¹ Appellant does not complain of his trial counsel’s representation in the period between sentencing and the appointment of his appellate counsel.