George Nolan Hines v. the State of Texas ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
GEORGE NOLAN HINES, § No. 08-23-00328-CR
Appellant, § Appeal from the
v. § 198th Judicial District Court
THE STATE OF TEXAS, § of Kerr County, Texas
Appellee. § (TC# No. B21-233)
MEMORANDUM OPINION
A jury found Appellant George Nolan Hines guilty of continuous sexual abuse of a young
child. At the beginning of the punishment phase, his counsel moved for a continuance to prepare
a defense for punishment. The court denied the continuance and assessed a punishment of life in
prison without the possibility of parole. On appeal, Hines complains that the court abused its
discretion in denying the motion for continuance because the denial effectively deprived him of
his Sixth Amendment right to effective assistance of counsel. Hines also complains that the court
improperly assessed attorney’s fees against him. For the following reasons, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
George Hines was convicted by a jury of continuous sexual abuse of a young child after a
three-day bifurcated trial. Immediately after Hines’s conviction, the court released the jury and
commenced the punishment phase, at which point Hines’s counsel orally requested a motion for
continuance. He explained that he needed more time to secure a mitigation expert and prepare a
defense. The court confirmed that Hines’s counsel knew when the trial was slated to begin and
then denied the motion for continuance, later explaining that the trial had been set multiple times
over many months and that Hines was vigorously defended throughout the case.
During the punishment phase, the State presented one witness: an investigator who
identified Hines as the same defendant in a 31-year-old judgment for a violation of his probation
for a prior conviction of forgery. Hines’s counsel presented no witnesses and no mitigating
evidence, attributing this failure to inadequate time to prepare. He did, however, note that the only
evidence presented was the 31-year-old conviction and urged the court to consider that Hines had
not been in trouble since then.
The court orally pronounced the punishment of life in prison without the possibility of
parole. In its written order, the court assessed a fine of $15,240 for reimbursement of attorney’s
fees. In a subsequent judgment nunc pro tunc, the court removed the $15,240 fine.
II. MOTION FOR CONTINUANCE
In his first issue, Hines argues the court abused its discretion in failing to grant his motion
for continuance during the punishment phase of trial. By denying the motion, Hines contends he
was left defenseless during a critical phase of his trial, thereby violating his Sixth Amendment
right to effective assistance of counsel. He posits that had he had more time to prepare a defense,
he would have provided the court with mitigating evidence to aid the court in deciding a more
appropriate sentence.
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A. Standard of review and applicable law
We review the denial of a motion for continuance under an abuse-of-discretion standard.
Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); accord Cruz v. State, 565 S.W.3d
379, 381 (Tex. App.—San Antonio 2018, no pet.). Under this standard, we will not disturb the trial
court’s ruling so long as its decision is within the zone of reasonable disagreement. Cruz, 565
S.W.3d at 381. To find that a trial court abused its discretion in denying a motion for continuance,
the defendant must show specific prejudice to his case by the court’s decision. Heiselbetz v. State,
906 S.W.2d 500, 511 (Tex. Crim. App. 1995) (en banc). A bare assertion that counsel did not have
adequate time to prepare will not establish prejudice. Id. at 512.
B. Preservation of error
The Code of Criminal Procedure sets out requirements for motions for continuance. Article
29.03 provides for the continuation of a criminal action upon the “written motion of the State or
of the defendant, [for] sufficient cause shown[,] which cause shall be fully set forth in the motion.”
Tex. Code Crim. Proc. Ann. art. 29.03. Additionally, Article 29.08 requires that “[a]ll motions for
continuance . . . be sworn to by a person having personal knowledge of the facts relied on for the
continuance.” Id. art. 29.08. The Court of Criminal Appeals has construed these provisions to mean
that absent a sworn, written motion, a party fails to preserve error for appeal. Blackshear v. State,
385 S.W.3d 589, 591 (Tex. Crim. App. 2012).
Hines argues the trial court’s denial of his motion for continuance was an abuse of
discretion because it deprived him of effective assistance of counsel. In response, the State argues
that Hines never filed a sworn, written motion for continuance, and therefore he cannot complain
about the judge’s ruling on appeal. The record before us contains no sworn, written motion for the
continuance. Accordingly, we agree Hines failed to preserve this issue for our review.
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C. Sixth Amendment challenge
Even assuming the issue was preserved, Hines did not show prejudicial harm. Normally,
courts do not hesitate to find an abuse of discretion where the denial of a motion for continuance
results in representation by inadequately prepared counsel. Heiselbetz v. State, 906 S.W.2d 500,
511 (Tex. Crim. App. 1995) (en banc). Still, the standard requires a showing of specific prejudice
to the defense. Id. at 512. While Hines argues the harm was the denial of his constitutional right to
effective assistance of counsel, he fails to meet the Strickland test.
To establish a Sixth Amendment violation of one’s right to effective assistance of counsel,
a defendant must show (1) that his counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Rosales
v. State, 841 S.W.2d 368, 376 (Tex. Crim. App. 1992) (en banc) (measuring a claim of ineffective
assistance of counsel allegedly caused by the court’s denial of a continuance against both prongs
of the Strickland test). We presume that counsel’s conduct fell within the “wide range of reasonable
professional assistance.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The
second prong of the analysis is a but-for causation test: “appellant must show a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id.In evaluating claims of ineffective assistance of counsel, appellate courts look to the totality
of the representation and the circumstances of each case. Id. at 813. If counsel’s deficient
performance pertains to punishment, “prejudice would depend on a reasonable probability that the
sentencer would have assessed a more lenient punishment absent the errors.” Swinney v. State, 663
S.W.3d 87, 90 (Tex. Crim. App. 2022). In any case, allegations of ineffectiveness “must be firmly
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founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 813.
Hines argues he was harmed by the court’s denial of his oral motion for continuance
because he was left defenseless during the punishment phase of his trial. Hines believes that had
he been given more time to prepare, the judge would have had “more information to consider in
determining [the] appropriate sentence based on [Hines’s] life, not just the offense.” But Hines
failed to show what mitigation evidence he would have presented to the trial court that would have,
within reasonable probability, changed the outcome of his sentence. See Montez v. State, No. 04-
20-00033-CR, 2021 WL 4443722, at *2 (Tex. App.—San Antonio Sept. 29, 2021, pet. ref’d)
(mem. op., not designated for publication) (“[A] claim of ineffective assistance based on trial
counsel’s failure to sufficiently investigate cannot succeed ‘absent a showing of what the
investigation would have revealed that reasonably could have changed the result of the case.’”);
Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (stating the rule that failure to call a
witness does not demonstrate ineffective assistance without showing that the witness was available
to testify and their testimony would have benefitted the defendant). Hines cannot show prejudicial
harm without showing how the evidence he would have presented would have benefited him—
and the record is not developed as to the evidence he would have presented.
Hines’s bare assertion that his counsel did not have adequate time to prepare does not
demonstrate an abuse of discretion. See Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App.
2007). We overrule Appellant’s first issue on appeal.
III. ATTORNEY’S FEES
In his second issue, Hines contends the court erroneously assessed attorney’s fees against
him in the amount of $15,240, despite his indigence and contrary to Code Criminal Procedure
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article 26.05(g) and relevant case law. See Ramirez v. State, 432 S.W.3d 373, 377 (Tex. App.—
San Antonio 2014, pet. ref’d) (“[T]he defendant’s financial resources and ability to pay are explicit
critical elements in the trial court’s determination of the propriety of ordering reimbursement of
costs and fees.” (quoting Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013))). After
Hines filed his brief, this Court received a supplemental record showing that the trial court entered
a judgment nunc pro tunc, which removed the $15,240 fine.
The State concedes that Hines should not have been assessed attorney’s fees and argues
the inclusion of the fine in the judgment was a clerical error, properly corrected through the
judgment nunc pro tunc, as evinced by (1) the court’s failure to mention a fine in its oral
pronouncement of the sentence at the conclusion of trial, (2) the court’s appointment of a regional
public defender to represent Hines on appeal, and (3) the court’s order granting Hines’s motion to
receive a free copy of the reporter’s record for his appeal. The State argues this point of error is
now moot. However, it agrees that should we find the error was judicial in nature, rather than
clerical, the original judgment should be modified to remove the assessment of attorney’s fees.
To determine whether the issue is moot, we consider the validity of the judgment nunc pro
tunc. See Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (citing Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002) (en banc) (“An
appellee’s concession of a legal issue involved in an appeal does not relieve this court of its
obligation to independently determine whether the appellee’s concession is based on sound
analysis.”)). Judgments nunc pro tunc may be used to correct clerical errors but not judicial errors.
Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007); accord Interest of A.M.R., 528
S.W.3d 119, 122 (Tex. App.—El Paso 2017, no pet.). Clerical errors are those that do not result
from judicial reasoning or judgment. Interest of A.M.R., 528 S.W.3d at 122. By contrast, a judicial
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error is one that results from a mistake in law or fact, and thus requires judicial reasoning to correct.
Id.Whether an error is clerical or judicial in nature is question of law. Id. The party claiming
the judgment actually rendered contains a clerical error has the burden to show, by clear and
convincing evidence, that “the trial judge intended the requested result at the time the original
judgment was entered.” Id.Here, the trial court first entered judgment orally in open court at the conclusion of Hines’s
trial. The court sentenced Hines to life in prison without parole but did not mention a fine of
$15,240 for the reimbursement of attorney’s fees. Additionally, the court granted Hines’s
application for the appointment of counsel on account of his indigence at the beginning of the case,
indicating the court was aware of Hines’s inability to pay the fee. As such, we find that the
judgment nunc pro tunc was used to correct a clerical error rather than a judicial error. See In
Interest of A.M.R., 528 at 123 (finding that judgment nunc pro tunc was used to correct clerical
error where the court’s oral pronouncement of the judgment failed to mention the provision at
issue in the written judgment); but cf. Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App.
2007) (finding there was no clerical error where the written judgment perfectly matched the
judgment pronounced in court).
Because we find the judgment nunc pro tunc is valid and removes the fee Hines complains
of on appeal, Hines’s second issue on appeal is moot. See Jack v. State, 149 S.W.3d 119, 123 n.10
(Tex. Crim. App. 2004) (“A case becomes moot on appeal when the judgment of the appellate
court can no longer have an effect on an existing controversy or cannot affect the rights of the
parties.”); Lee v. State, 425 S.W.2d 698, 699 (Tex. App.—San Antonio 1968, no writ) (recognizing
that appellate courts may not decide moot controversies.).
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IV. CONCLUSION
We affirm the judgment of the trial court.
LISA J. SOTO
July 29, 2024
Before Alley, C.J., Palafox, and Soto, JJ.
(Do Not Publish)
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