David Heath Fouse v. State ( 2010 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00108-CR

                                                ______________________________

                                    DAVID HEATH FOUSE, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                         On Appeal from the 8th Judicial District Court

                                                           Hopkins County, Texas

                                                          Trial Court No. 0820356

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                     MEMORANDUM OPINION

            David Heath Fouse has filed an appeal from six convictions.  Three are for the first- degree felony of aggravated sexual assault on a child (under fourteen—B.P.), and three are for the second-degree felony of sexual assault on a child (under seventeen—R.R. and C.J.).  A single brief has been filed to address all six appeals.  Fouse testified at trial.  He admitted that he was convicted in 1999 of the felony offense of assault on a peace officer and the state-jail felony offense of burglary of a building, and admitted having sexual intercourse with B.P. and C.J.

            This appeal is from his conviction for aggravated sexual assault on a child under fourteen, on B.P.  Fouse’s appellate brief raises no issue, and makes no argument, concerning this conviction.  When a point of error is inadequately briefed, we will not address it.  Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App. 1992).  This situation goes one step beyond simple inadequate briefing.  Points are not merely inadequately briefed, they are not raised at all.  This Court is not the appellant’s advocate. Although we have an interest in a just adjudication, we also have an interest in remaining impartial.  Ex parte Lowery, 840 S.W.2d 550, 552 n.1 (Tex. App.—Dallas 1992), rev’d on other grounds, 867 S.W.2d 41 (Tex. 1993).  Thus, we will not brief a defendant’s case for him or her. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995); see Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).

            Further, the Texas Court of Criminal Appeals has explicitly held that an appellate court cannot reverse a case on a theory not presented to the trial court or raised on appeal.  Gerron v. State, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002).  With no arguments or theories to support a request for reversal being made in connection with this conviction on appeal, there is nothing before this Court that we may review.

            We affirm the judgment.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          April 28, 2010

Date Decided:             April 29, 2010

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VI.      Conclusion

          We affirm the judgment of the trial court.
                                                                

                                                                           Donald R. Ross

                                                                          Justice

CONCURRING OPINION

          A trial court abuses its discretion in denying a defense motion to depose a witness in a criminal case if a good reason is shown for taking the deposition and the failure to allow it causes harm to the defendant. Morrow has not shown this. He pled guilty, and the trial concerned punishment only. He did not allege or demonstrate any surprise. A statement of the witness was used by the defense in cross-examining the witness. Clearly, the trial court did not abuse its discretion in denying the motion to depose the witness. I agree with the conclusion in the majority opinion. These comments address the discretion of a trial court in determining whether to order depositions in a criminal case.

          It is my view that the cases cited by the majority do not clearly suggest that the refusal of a witness to discuss facts surrounding the charge with the defense constitutes good cause to order a witness' deposition without other circumstances. In James, the court held that good cause did not exist even though there was no examining trial, police officers refused to talk to the appellant's investigator, and other circumstances. James v. State, 563 S.W.2d 599, 602 (Tex. Crim. App. [Panel Op.] 1978). The court did note that there was no showing that three other witnesses refused to talk with the appellant. Id. In Martinez, the court found that, because no facts were stated showing a good reason for the deposition, no affidavit was attached to the motion, and there was no showing that the witness refused to discuss the case with the appellant, there was no abuse of discretion in denying the motion for deposition. Martinez v. State, 507 S.W.2d 223, 226 (Tex. Crim. App. 1974). In Gentry, the court observed the case had been continued eight times since the filing of the motion for deposition and held the trial court did not abuse its discretion in denying the motion presented on the day of trial, which motion did not allege that the State's witnesses refused to discuss the case with the appellant's counsel. Gentry v. State, 494 S.W.2d 169, 172 (Tex. Crim. App. 1973). At most, the cases cited by the majority indicate that refusal of a witness to discuss the case with the defense is an important factor in determining whether a good reason exists to depose the witness.

          Although the refusal of a witness to discuss the case with the appellant is an important factor, such refusal is not the only factor which should be considered. A trial court has broad discretion in granting or denying a motion to take a deposition. Janecka v. State, 937 S.W.2d 456, 469 (Tex. Crim. App. 1996); see M.B. v. State, 901 S.W.2d 620, 623 (Tex. App.—San Antonio 1995, no pet.). A mere allegation that refusal of a witness to discuss the case is anticipated is not sufficient. Cooks v. State, 844 S.W.2d 697, 729 (Tex. Crim. App. 1992). In May v. State, the Texas Court of Criminal Appeals held that the trial court did not abuse its discretion when the statements of witnesses were produced, the appellant conducted an extensive voir dire examination, and the witnesses were cross-examined. 738 S.W.2d 261, 273 (Tex. Crim. App. 1987). As stated in the majority opinion, the defendant must establish that the witness possessed information critical to any significant factor at trial, or that the witness had any information exclusively within his or her knowledge. Janecka, 937 S.W.2d at 469–70. There are many factors which a court should consider when deciding whether to grant a motion to take a deposition of a witness. The Texas Court of Criminal Appeals has held that no abuse of discretion occurs if the witness was thoroughly cross-examined and the defendant failed to show that the denial resulted in harm even though a witness had declined to discuss the alleged assault with defense counsel. McKinney v. State, 491 S.W.2d 404, 406–07 (Tex. Crim. App. 1973).

          The statement in the majority opinion that Morrow established good reason to take the deposition because the witness would not talk with defendant's counsel (or investigator) could result in unintended consequences.

          What is the trial court to do when faced with evidence that a witness will not talk to the defense? One could read the majority opinion to require the trial court to order the deposition on evidence only that the witness refused to talk to the defense. The reasoning is that, since the trial court must make this decision before trial, it could not determine in advance whether the refusal to order the deposition would result in harm to the defendant. To avoid the possibility that it might be harmful, the trial court would be required to order the deposition in each instance when the witness fails to talk to the defense. This would be an improper conclusion. Trial courts must be granted the discretion to exercise a reasoned judgment. If the trial court concludes that the deposition is necessary to obtain critical evidence for the defendant to be able to confront the accusations and that failure to allow it will harm the accused, the trial court has the discretion to and should order a deposition. However, if the trial court finds that the defendant's rights will be properly protected by the production of witness statements, pretrial hearings, cross-examination, production of records, or other discovery procedures or measures, the trial court has the discretion to deny the motion.

          I concur in the decision to affirm the trial court's judgment.

                                                                           Jack Carter

                                                                           Justice

Date Submitted:      May 11, 2004

Date Decided:         June 30, 2004

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