Michael Leon Grubb v. the State of Texas ( 2022 )

Opinion filed February 3, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00037-CR
__________
MICHAEL LEON GRUBB, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 22033B
MEMORANDUM OPINION
After the trial court denied his motion to suppress his confession and his
motion for continuance, Appellant pleaded guilty to the offense of continuous sexual
abuse of a young child. The jury sentenced Appellant to confinement for a term of
forty years in the Institutional Division of the Texas Department of Criminal Justice.
Appellant challenges his conviction in three issues. We affirm.
Background Facts
On June 4, 2019, PSEUPO made an outcry to her grandfather, J.O., that
Appellant had been sexually abusing her. J.O. then took PSEUPO to the Law
Enforcement Center (LEC) in Abilene. Prior to arriving at the LEC, J.O. made a call
for service to the Abilene Police Department. Officer Kevin Pruitt responded to the
call in the LEC parking lot around 7:30 p.m. Officer Pruitt immediately made
contact with J.O., J.O.’s wife, and PSEUPO. Officer Pruitt spoke briefly with J.O.
and PSEUPO before Appellant and his wife, Rebecca Grubb, arrived at the LEC.
J.O. informed Officer Pruitt that Appellant had arrived, and Officer Pruitt
immediately requested assistance from other officers and went to intercept
Appellant. Appellant informed Officer Pruitt that he was there to file a runaway
report for his daughter, PSEUPO. Officer Pruitt informed Appellant that there were
sexual assault allegations against him. Officer Matt Clopton responded to Officer
Pruitt’s request for assistance and stood with Appellant. Before Officer Pruitt
returned to his conversation with J.O. and PSEUPO, Appellant handed his keys and
other personal items to Officer Pruitt.1
Throughout much of his time with Appellant, Officer Clopton was unaware
of the allegations made against Appellant. Officer Clopton spent around forty
minutes standing with Appellant. During the first half of their time together, much
of their conversation centered on things not involving the sexual abuse allegations.
However, Appellant’s wife, who had previously remained in the car, joined Officer
Clopton’s and Appellant’s conversation. Appellant’s wife asked Officer Clopton if
she could have a private moment with Appellant, but Officer Clopton denied her
request. Without any prompting from Officer Clopton, Appellant’s wife began
1
At Appellant’s punishment trial, Officer Pruitt testified that he thought it was strange that
Appellant personally surrendered his belongings.
2
asking Appellant if the allegations against him were true. In response to his wife’s
questions, Appellant admitted that PSEUPO and PSEUMM (Appellant’s stepchild)
were telling the truth and that he was guilty. However, Appellant maintained that
he had only inappropriately touched the kids, and it only occurred when he was still
drinking heavily.2
After making the admission to his wife, Appellant was taken inside the LEC,
where Detective Frank Shoemaker interviewed him. Detective Shoemaker gave
Appellant Miranda3 warnings, and Appellant waived his rights. During this
interview, Appellant made functionally the same admissions to Detective
Shoemaker that he had previously made to his wife. Following the interview, the
police arrested Appellant.
This case was originally set to go to trial in October 2019. However, on
September 25, 2019, Appellant’s counsel asked that the case be reset for a later date.
The case was then set to occur on December 9, 2019. Again, Appellant’s counsel
requested the trial court to reset the case for a later date. Following this second reset,
the case was set for January 6, 2020. On November 26, 2019, the trial court held a
docket call, but Appellant’s counsel was unable to attend. The trial court
administrator testified that she sent Appellant’s counsel’s office a letter dated
November 26, 2019, stating that the case was set for January 6 as the number one
case on the jury trial docket for that date. However, Appellant’s counsel claimed
that his office never received that letter and maintained that he did not know of the
number one status of the case for January 6 until shortly before the January 2 hearing
2
Appellant’s mother, Kathy Grubb, testified that prior to the events of June 4, 2019, Appellant was
an alcoholic. However, around 2016, Appellant joined a small religious group that helped him overcome
his addiction to alcohol. Appellant and his family remained heavily involved with this religious group from
the time they joined it until police arrested Appellant. Following his departure from the religious group,
Appellant reconnected with the mother of his only biological son, Sarah Baxter.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
3
on Appellant’s motion for continuance. The trial court denied Appellant’s motion
for continuance, and the case proceeded to trial on January 6, 2020.
Prior to jury selection, the trial court heard Appellant’s motion to suppress his
confession to Detective Shoemaker. The trial court denied the motion to suppress.
The day after jury selection concluded, Appellant waived his right to have a jury
decide his guilt and he pleaded guilty before the jury. Following Appellant’s plea,
the trial proceeded to punishment.
Appellant subsequently filed a motion for new trial. In the motion, Appellant
asserted that “[d]ue to insufficient time to prepare, [he] was deprived of the ability
to call witnesses on his behalf that would benefit his sentencing determination.” The
trial court denied the motion for new trial.
Analysis
Motion to Suppress Confession
In Appellant’s first issue, he contends that the trial court erred by denying his
motion to suppress his confession. Appellant asserts that his second statement to the
police was tainted by the illegality of his first statement to the police, thus making
neither statement admissible. Specifically, Appellant contends that his confession
to his wife, which Officer Clopton recorded, was a custodial interrogation for which
he was not given Miranda warnings.
Appellate courts review a trial court’s ruling on a motion to suppress for an
abuse of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App.
2013). We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim.
App. 2018) (citing Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016)); see
Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997). At a hearing on a
motion to suppress, the trial judge is the sole trier of fact and judge of the credibility
of witnesses and the weight to be given to their testimony. Lerma, 543 S.W.3d at
4
190 (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)). Therefore,
we afford almost complete deference to the trial court in determining historical facts.
Id. (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)). When
the trial court makes no express findings of fact, appellate courts must review the
evidence in the light most favorable to the trial court’s ruling. Carmouche, 10
S.W.3d at 327–28.
The Fifth Amendment to the United States Constitution provides that no
person “shall be compelled in any criminal case to be a witness against himself.”
U.S. CONST. amend. V. The State may not use statements from “custodial
interrogations of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” Wilkerson v.
State, 173 S.W.3d 521, 526 (Tex. Crim. App. 2005) (citing Miranda, 384 U.S. at
444). The primary purpose of the Miranda rule is to guard “against coercive
custodial questioning by police; it protects a suspect from the possibility of physical
or psychological ‘third degree’ procedures.” Id. at 527 (quoting Cobb v. State, 85
S.W.3d 258, 263 (Tex. Crim. App. 2002)). This rule, and the procedural warnings,
are codified as Article 38.22 of the Texas Code of Criminal Procedure. TEX. CODE
CRIM. PROC. ANN. art. 38.22 (West 2018).
Generally, the protections of Miranda are only triggered when the accused
makes a statement while in custody and during a police interrogation. See George
E. Dix & John M. Schmolesky, 41 Texas Practice Series: Criminal Practice &
Procedure § 16:24 (3d ed.). Under Miranda, the custody analysis requires that
courts consider “the circumstances surrounding the interrogation and whether a
reasonable person in those circumstances would have felt that she was not free to
leave.” Wexler v. State, 625 S.W.3d 162, 167 (Tex. Crim. App. 2021) (citing
Thompson v. Keohane, 516 U.S. 99, 112 (1995)). Ultimately, our inquiry “is
whether, under the circumstances, a reasonable person would have believed that her
5
freedom of movement was restricted to the degree associated with a formal arrest.”
Wexler, 625 S.W.3d at 167 (citing Stansbury v. California, 511 U.S. 318, 322
(1994); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)).
Under Miranda, an interrogation is “any words or actions on the part of the
police . . . that the police should know are reasonably likely to elicit an incriminating
response.” State v. Cruz, 461 S.W.3d 531, 536 (Tex. Crim. App. 2015) (alteration
in original) (quoting Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980)). When
applying the test for whether an interrogation has occurred, the primary focus is on
the perceptions of the suspect, rather than what the police intended. Id. at 536–37
(citing Innis, 446 U.S. at 301). However, “volunteered statements are not barred by
Miranda, even when the accused is in custody.” Pugh v. State, 624 S.W.3d 565, 568
(Tex. Crim. App. 2021) (citing Arizona v. Mauro, 481 U.S. 520, 529 (1987)).
We conclude that Officer Clopton’s actions did not amount to a custodial
interrogation of Appellant. Officer Clopton’s involvement in this case began when
Officer Pruitt asked him to supervise Appellant in the parking lot. Throughout much
of the time Officer Clopton spent with Appellant, the two primarily discussed
Appellant’s line of work. However, Officer Clopton made it clear to Appellant that
Appellant had more information than Officer Clopton did regarding the outcry.
After Officer Clopton and Appellant had been speaking for about thirty
minutes, Appellant’s wife asked if she could have a private moment with Appellant.
Officer Clopton denied her request. Following this denial, Appellant’s wife began
asking Appellant if there was any validity to the victim’s outcry, and Appellant
admitted to her there was. After not allowing Appellant and his wife to have a
private conversation, Officer Clopton stood idly by Appellant and never asked him
any questions, nor did Officer Clopton force Appellant to respond to any of his
wife’s questions. “Private citizens ordinarily are not regarded as law enforcement
6
officers and thus cannot engage in custodial interrogation[.]” Hailey v. State, 413
S.W.3d 457, 474 (Tex. App.—Fort Worth 2012, pet. ref’d).
A case that is instructive to the outcome of this issue is Arizona v. Mauro. In
Mauro, the police arrested the defendant and took him to the local police station.
481 U.S. at 522. Following his arrest, police gave the defendant his Miranda
warnings, and he invoked his right to counsel. Id. The police held the defendant in
the captain’s office. Id. Sometime after the police secured the defendant in the
captain’s office, the defendant’s wife arrived at the police station and demanded that
she be allowed to speak with him. Id. The police granted her request to speak with
her husband on the conditions that an officer be in the room with them and that the
conversation be recorded. Id. While speaking to his wife, the defendant told his
wife “not to answer questions until a lawyer was present.” Id. The State then used
this statement as evidence that the defendant was not insane at the time he committed
his offense. Id. at 523.
The Supreme Court held that the defendant was not subject to a custodial
interrogation during his conversation with his wife. Id. at 530. In reaching its
conclusion, the Court focused on the following factors: the officer’s decision to
allow the defendant’s wife to speak to him was not a psychological ploy; no evidence
existed to show that officers sent the defendant’s wife into the room with him with
the purpose of eliciting any information; and when viewing the situation from the
defendant’s perspective, there was little chance that the defendant would feel that he
was being coerced into making a confession. Id. at 527–28.
Appellant contends that Mauro is inapplicable to our facts because in Mauro,
the defendant was given his Miranda rights and had invoked his rights before he
made any statement. Id. at 522. However, we find this distinction immaterial to the
question of whether a custodial interrogation occurred when Officer Clopton
recorded Appellant speaking to his wife. As was the case in Mauro, there is no
7
evidence that the Abilene Police Department sent Appellant’s wife to talk to him in
order to circumvent the Miranda requirements. Additionally, when viewing the
situation from Appellant’s perspective, there is very little chance that he could feel
coerced into incriminating himself because Officer Clopton was not asking him any
questions regarding the outcry.
Appellant contends that Officer Clopton’s act of keeping him and his wife
together, within earshot of Officer Clopton’s body camera, was a psychological ploy
that ultimately amounted to an interrogation. Specifically, Appellant asserts that
Officer Clopton’s admission to his fellow officers that he kept Appellant with his
wife hoping they would talk is evidence of a psychological ploy. In Mauro,
however, the Court noted that “[o]fficers do not interrogate a suspect simply by
hoping that he will incriminate himself.” Id. at 529; see Escamilla v. State, 143
S.W.3d 814, 822–24 (Tex. Crim. App. 2004) (custodial interrogation did not occur
when reporter interviewed suspect even though police hoped suspect would confess
during the interview). Additionally, the Mauro Court stated that “[p]olice
departments need not adopt inflexible rules barring suspects from speaking with
their spouses, nor must they ignore legitimate security concerns by allowing spouses
to meet in private.” Id. at 530. Here, because Officer Clopton did not ask Appellant
any direct questions, after telling him and his wife that they could not speak in
private, it is irrelevant that he told his fellow officers that he was hoping Appellant
would say something incriminating. Further, Officer Clopton had legitimate safety
reasons to keep Appellant and his wife together. This is because Appellant and the
outcry victim were both still in the parking lot of the LEC when Officer Clopton
began supervising him.
We conclude that neither Officer Clopton nor Appellant’s wife conducted a
custodial interrogation of Appellant when Appellant answered his wife’s questions
regarding the outcry. Therefore, we overrule Appellant’s first issue.
8
Motion for Continuance
In Appellant’s second issue, he asserts that the trial court erred by denying his
motion for continuance. Appellant contends that the trial court provided his trial
counsel with inadequate notice of the January 6, 2020 trial setting, and that as a
result, he and his trial counsel had inadequate time to prepare for trial. Specifically,
Appellant asserts that the trial court did not give his trial counsel adequate notice
that his case was “set number one” for January 6. In this regard, there are at least
two other instances in the clerk’s record where Appellant’s trial counsel was notified
in writing that the case was set for trial on January 6: (1) a setting letter dated
October 9, 2019 and (2) a docket call notification dated November 5, 2019. The trial
court also issued a setting letter on November 26, 2019, stating that the case was “set
#1” for January 6. Appellant’s trial counsel asserts that he never received this letter.
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007) (citing
Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)). A defendant must
satisfy a two-prong test to show reversible error predicated on the denial of a pretrial
motion for continuance. See Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim.
App. 2010). First, the defendant must show that “the case made for delay was so
convincing that no reasonable trial judge could conclude that scheduling and other
considerations as well as fairness to the State outweighed the defendant’s interest in
delay of the trial.” Id. (quoting George E. Dix & Robert O. Dawson, 42 Texas
Practice Series: Criminal Practice & Procedure § 28.56 (2d ed. 2001)). Second,
the defendant must show that he was actually prejudiced by the denial of his motion.
Id.
In both his written motion for continuance and at the hearing on the motion,
Appellant asserted that he and his trial counsel were unfairly surprised by the
9
January 6 setting that the case was number one, thus causing him prejudice.4 In
support of this assertion, Appellant claims that they never received the November 26
setting letter. However, at the hearing on the motion for continuance, the trial court’s
administrator testified that she called the office of Appellant’s trial counsel in
November and notified counsel’s secretary of the January 6 setting. She further
testified that she placed a notice letter in counsel’s box at the courthouse on
November 26 notifying him of the trial setting. Accordingly, the matter of timely
notice to Appellant’s trial counsel of the January 6 setting as the number one case
was a disputed issue at the hearing. “Appellate courts view the evidence in the light
most favorable to the trial court’s ruling, defer to the court’s credibility
determinations, and presume that all reasonable fact findings in support of the ruling
have been made.” State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014)
(addressing a motion for new trial).
Appellant essentially based his motion for continuance on the ground that he
needed additional time for trial preparation. As noted by the court in Gonzales, a
defendant filing a motion for continuance based upon a need for additional trial
preparation must show diligence as a precondition to the motion. 304 S.W.3d at 843
(citing Wright v. State, 28 S.W.3d 526, 533 (Tex. Crim. App. 2000)). As noted by
the court, “[a] request for delay to permit further investigation or other preparation
for trial is based on nonstatutory and therefore equitable grounds. It is particularly
within the discretion of the trial court.” Id. at 844 n.11 (quoting Dix & Dawson,
§ 28.56).
The record before the trial court at the time of the hearing on the motion for
new trial does not show diligence in trial preparation. The January 6 setting was the
4
Appellant’s trial counsel also indicated at the hearing on the motion for continuance that he was
“still in the same position” because Appellant “hasn’t fully paid me for trial.”
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third setting in the case. The case was originally set for October, and then December,
before the January 6 setting. The case was reset on the two prior occasions at the
request of Appellant’s trial counsel. In addition to the November 26 setting letter,
the trial court’s setting letter dated October 9, 2019, and the docket notification dated
November 5, 2019, notified Appellant’s trial counsel that the case was set for trial
on January 6. The trial court, when determining whether to grant a motion for
continuance, may consider the history of the case with respect to previous
continuances and a party’s request to reset the trial setting. See Rosales v. State, 841
S.W.2d 368, 374 (Tex. Crim. App. 1992) (stating that “whether other continuances
were . . . granted” is a factor relevant to the need for continuance in some contexts).
The record does not show that the trial court abused its discretion by denying
Appellant’s motion for continuance based upon his claims of unfair surprise and the
need for more time to prepare for trial. We overrule Appellant’s second issue.
Motion for New Trial
In Appellant’s third issue, he contends that the trial court erred by denying his
motion for a new trial. Specifically, Appellant contends that he presented material
and favorable evidence at his new-trial hearing that he would have presented at trial
had his motion for continuance been granted. “We review a trial court’s denial of a
motion for new trial under an abuse of discretion standard.” McQuarrie v. State,
380 S.W.3d 145, 150 (Tex. Crim. App. 2012). We do not substitute our judgment
for the trial court’s judgment but, instead, determine whether the trial court’s
decision was arbitrary or unreasonable. Colyer v. State, 428 S.W.3d 117, 122 (Tex.
Crim. App. 2014). The trial court is the sole judge of a witness’s credibility. Id.“Even if the testimony is not controverted or subject to cross-examination, the trial
judge has discretion to disbelieve that testimony.” Id. “We view the evidence in the
light most favorable to the trial judge’s ruling and presume that all reasonable factual
findings that could have been made against the losing party were made against that
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losing party.” Id. When denying a motion for a new trial, a trial court abuses its
discretion only if no reasonable view of the record could support the ruling. Id.With one major exception, Appellant’s motion for new trial was an extension
of his motion for continuance. The exception concerned witness testimony that
Appellant asserts he was deprived of using because the trial court did not grant his
motion for continuance. He asserts on appeal that his motion for continuance was
based on an absent witness. This assertion is incorrect because Appellant sought a
continuance based upon his claims of unfair surprise and inadequate time for his trial
counsel to prepare for trial.
When a motion for continuance is based upon an absent witness, a defendant
must show that he has exercised diligence to procure the witness’s attendance, that
the witness is not absent by the procurement or consent of the defendant, and that
the motion is not made for delay; he must also state the facts expected to be proved
by the absent witness. CRIM. PROC. art. 29.06 (West 2006); Harrison v. State, 187
S.W.3d 429, 434 (Tex. Crim. App. 2005). It must appear to the trial court that the
facts which are expected to be proved by the witness are material. CRIM. PROC. art.
29.06(3). Appellant’s motion for continuance did not meet any of these
requirements because Appellant did not identify the absent witnesses or the
substance of their anticipated testimony. Appellant’s motion merely stated that
“[d]efendant . . . received insufficient notice of trial and cannot be ready for trial at
the currently scheduled date, and counsel for defendant cannot render effective
assistance of counsel.”
Appellant’s trial counsel testified at the hearing on the motion for new trial
about the matters raised in the motion for continuance. He testified that his office
“never received written notice of the number one setting in this case” for the
January 6 setting. Appellant’s trial counsel also testified that, if he had been
provided more notice of the number one status of the case for the January 6 setting,
12
“there were a number of things that they planned to do” including having Appellant
tested for the HPV virus to establish that he would have conceivably transmitted it
to PSEUPO. He further testified that the short timeframe required him to make a
number of judgment calls regarding the witnesses that would be called at trial.
Counsel stated that he had insufficient time to interview witnesses and get subpoenas
issued for them.
On cross-examination, Appellant’s trial counsel testified that he had been
representing Appellant for six months prior to the January 6 setting. Counsel
acknowledged that he knew about the witnesses that he wanted to call for “several
months prior to trial” but that he did not utilize the e-filing system to seek the
issuance of subpoenas for them. Counsel also testified that he had access to an online
docketing system that indicated the settings in the case. Thus, the testimony offered
at the hearing on the motion for new trial supported the trial court’s implicit
determination of a lack of diligence in trial preparation. See Gonzales, 304 S.W.3d
at 843.
Regardless of whether Appellant met his burden under the first prong of
Gonzales to show diligence in preparing for trial, the record also does not establish
that Appellant suffered prejudice by not having more time to prepare. Appellant’s
trial counsel was able to prepare a motion to suppress Appellant’s confession for the
trial court to consider. Trial counsel was also able to review the Child Advocacy
Center’s videos of the victims before trial. Additionally, Appellant’s trial counsel
was able to skillfully cross-examine each witness. Because Appellant’s counsel was
able to present his motion to suppress and was able to cross-examine each witness,
Appellant was not prejudiced by the trial court’s decision to deny his continuance
motion for lack of additional preparation time.
Moreover, the record does not establish that the trial court abused its
discretion by determining that Appellant was not prejudiced by not being able to call
13
the additional witnesses that he wanted to call. The first witness Appellant presented
at his motion for new trial was Bill Roberson, Appellant’s pastor. Appellant asserts
that Roberson would have been a potential fact and character witness. During his
testimony at the hearing on the motion for new trial, Roberson testified about
Appellant’s struggles with alcohol and how Appellant overcame his addiction.
Roberson also testified that at the time of Appellant’s punishment trial, there were
two reasons why he would have hesitated to appear in court. First, Roberson did not
want to swear under oath. Second, Roberson testified that he was hesitant to testify
at trial because he “knew the ramification of what [Appellant] had been basically
convicted of. [He] knew the damage, the other things that [Appellant] had caused.”
Additionally, Roberson testified to the importance of showing grace and that at first
blush, forty years with no opportunity of parole seemed harsh to him. However,
upon further questioning, Roberson stated that he could possibly consider the jury’s
sentence as reasonable if he had received all the information that the jury had at trial.
Furthermore, during Appellant’s case-in-chief at punishment, Appellant’s
mother essentially provided the same relevant testimony that Roberson would have
provided. She testified that Appellant had stopped drinking after joining Roberson’s
group. Accordingly, the testimony that Roberson might have provided at trial was
not necessarily favorable to Appellant or material.
The next witness Appellant presented at his motion for a new trial was Sarah
Baxter, the mother of Appellant’s biological son. He contends that Baxter would
have been a material fact and character witness for him. Appellant points to two
aspects of Baxter’s testimony that he contends makes her a material witness. First,
Baxter testified that Appellant was “a good man” with a “good heart.” She further
testified that Appellant was “a helpful person” and “a good family man” who had
made some bad choices. However, during cross-examination, Baxter testified as
follows:
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Q. I mean, you understand that was the evidence in the trial was,
that along with several things, performing oral sex on his own
biological daughter was one of the accusations?
A. I did not know that.
Q. What do you think about a man that performs oral sex on his
biological daughter? Do you think that’s a good family man?
A. I think there’s some issues there that need to be addressed.
Q. Encourages and, in fact, teaches his biological daughter to
perform oral sex on him.
A. Yeah. That’s not right.
This testimony suggests that Baxter, as a character witness, was not fully informed
of Appellant’s character. Moreover, during Appellant’s punishment trial, the jury
heard essentially the same testimony from Appellant’s mother to the effect that he
was “a great dad.”
The second aspect of Baxter’s testimony that Appellant contends warranted a
new trial on both guilt/innocence and punishment is that she is HPV positive.
Appellant asserts that this aspect of Baxter’s testimony is material because it would
have “sown doubt as to whether PSEUPO’s allegation of vaginal intercourse was
true.” During her testimony at the new trial hearing, Baxter testified as follows:
Q. All right. Let’s move on to a different topic here for a minute.
Do you have the HPV virus?
A. Yes, sir.
Q. All right. And do you believe that [Appellant] may have the
HPV virus?
A. Yes, sir.
Appellant asserts that if his pretrial continuance would have been granted, he could
have learned that Baxter had HPV before trial and gotten tested himself to further
develop his theory. However, the State later elicited testimony from Appellant’s
trial counsel that he had no evidence to present at the new-trial hearing that Appellant
15
had HPV, or any STD for that matter. Accordingly, the trial court could have
reasonably concluded that Baxter’s testimony would not have been material.
The third witness Appellant attempted to present at his new trial hearing was
Justin Jackson, Appellant’s coworker. Jackson did not appear at Appellant’s hearing
despite having been issued a subpoena. Appellant relied on a prior interview and his
written motion for a new trial to establish what Jackson’s testimony would have
been. Appellant contends that he established that Jackson would have testified as a
character witness for him. Appellant contends that Jackson would have testified that
Appellant was a “straightforward, honest guy” who was also a very hard worker.
Additionally, Jackson would have testified that Appellant “didn’t say foul things”
and “never really participated in foul stuff because of his religious beliefs.”
However, during Appellant’s punishment trial, Appellant’s mother offered
functionally the same testimony that Jackson would have given:
Q. . . . [W]hat personality traits would you highlight to the jury
that have stood out to you about [Appellant] and who he is?
A. Your willingness to stand by you regardless of what others
may say about you or . . . or how it hurts, or how it would . . . distance
him from . . . other people that he loved . . . and that he would stand
beside you, made a commitment and would stay with you. Growing
up, he held himself accountable for . . . things that he had done. . . .
[S]ince he was -- became sober, he’s the one that if you called him . . .
being an electrician, family members always called him, said, Hey,
[Appellant], says, looking to do this. Would you come help me? He
was there. Helped them. Uh, he had communication with a lot of my
different family in that way, uh, more than I had.
....
A. Very hard working.
The trial court did not abuse its discretion by its implicit determination that Jackson’s
testimony was not material. We overrule Appellant’s third issue.
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This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
February 3, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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