Kirby, Sean Lamont v. State

Affirmed and Memorandum Opinion filed February 27, 2007

Affirmed and Memorandum Opinion filed February 27, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-00674-CR

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SEAN LAMONT KIRBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 956755

M E M O R A N D U M   O P I N I O N

Appellant Sean Lamont Kirby challenges the trial court=s denial of his motion for new trial, in which he primarily asserts ineffective assistance of counsel.  We affirm.

                        I.  Factual and Procedural Background

On January 8, 2004, appellant pleaded guilty to felony theft in accordance with a plea bargain with the State.  The trial court found appellant guilty of the charged offense, and assessed a punishment of five years= probation, and a fine of $1,000.00. 

On May 25, 2005, the State filed a motion to revoke appellant=s probation, alleging that appellant had violated the terms of his probation by committing insurance fraud and by failing to perform community service as ordered by the court.  The insuranceBfraud allegations involved the submission of an insurance claim for the alleged theft of stereo equipment from appellant=s truck.  After a hearing, the trial court found the allegations in the State=s motion to revoke to be true, revoked appellant=s probation, and assessed punishment at five years= confinement and a fine of $1,000.00.  Appellant timely filed a motion for new trial and requested a hearing.  Despite timely presentment, no hearing was granted, and the motion for new trial was overruled by operation of law. 

In his motion for new trial, appellant raised matters not determinable from the record, upon which he reasonably could be entitled to relief.  Appellant raised the following matters in his motion for new trial and supporting affidavits:

(1)     His trial counsel was allegedly ineffective by failing to subpoena (i) a critical defense witnessCCondrey Mallard, the owner of Sound Quest (ii) business records from Sound Quest; and (iii) medical records from a motorcycle accident;

(2)     The State allegedly coerced defense witness Condrey Mallard from attending his motion-to-adjudicate hearing by threatening Mallard with criminal prosecution; and

(3)     A new trial should be granted based on newly discovered cancelled checks from Sound Quest, which allegedly would provide proof that appellant did not commit insurance fraud, as well as some of appellant=s medical records.  Appellant claims the Sound Quest receipts and cancelled checks show that he purchased the stereo equipment from Sound Quest before his truck was stolen and he submitted his insurance claim, not after he submitted his claim. He contends the medical records show that his failure to fulfill community service hours was due to physical injuries.

Appellant=s affidavit in support of his motion for new trial contained evidence that he requested his attorney to subpoena records to show that he did not violate his community service hours intentionally, but was involved in a motorcycle accident that prevented him from completing the hours in a timely manner.  This affidavit raised serious questions as to whether his attorney adequately pursued appellant=s defensive issues.  The issue of whether appellant purchased the stereo equipment (allegedly stolen from his truck) after he made his claim to the insurance company was a critical issue at the motion-to-adjucate hearing.  If appellant=s attorney would have secured the testimony and evidence that appellant allegedly requested for his defense, and if such testimony and/or evidence would have indicated that appellant did not commit insurance fraud, it is possible that appellant would not have been found in violation of his probation.  In addition, appellant raised an issue that his attorney may have failed to obtain and introduce medical records that would support appellant=s claims that he did not intentionally fail to complete his community service hours on time, but that he could not do so because of a motorcycle accident.  Accordingly, following appellant=s appeal to this court, we abated the appeal, and by order dated August 24, 2006, we remanded this case for a hearing on appellant=s motion for new trial. 

On November 2, 2006, in response to the abatement order, the trial court held a hearing on appellant=s motion for new trial.  At the hearing, the court considered testimony from appellant=s trial counsel and Condrey Mallard, and the court also considered the medical records regarding the motorcycle accident.  The trial court then denied appellant=s motion for new trial.^[1]

II. Issue and Analysis

Appellant contends the trial court erred in denying his motion for new trial because (1) his trial counsel was ineffective for failing to secure the attendance of defense witness Condrey Mallard at the motion-to-adjudicate hearing, (2) his trial counsel was ineffective for failing to subpoena appellant=s medical records in regard to his motorcycle accident, and (3) his appellate counsel identified newly discovered evidence.^[2]

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  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) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 688B92.  Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).  We review the court's decision to deny the motion for new trial for an abuse of discretion.  Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).

A.      Did the trial court abuse its discretion in denying appellant=s motion for new trial on his claim that trial counsel was ineffective for failing to subpoena medical records and offer testimony regarding appellant=s motorcycle accident at the motion-to-adjudicate hearing?    

We first address appellant=s ground that his trial counsel was ineffective for failing to subpoena appellant=s medical records relating to his motorcycle accident.  Presuming without deciding that appellant=s counsel was ineffective for failing to subpoena and introduce these medical records at the motion-to-adjudicate hearing, we conclude the trial court did not abuse its discretion by impliedly concluding that appellant failed to show  a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  See Strickland, 466 U.S. at 688B92. 

On January 8, 2004, appellant was ordered to complete five years of community service in connection with his probation for his felony theft conviction.  Under this order, appellant was required to perform a total of four hundred hours at the rate of sixteen hours per month, beginning February 8, 2004.  The State alleged that appellant failed to perform these hours at the court-ordered rate and thus had violated the conditions of his probation.  In his motion for new trial, appellant asserted that medical records relating to a serious motorcycle accident would have shown that he was excused from performing his community service at the court-ordered rate.  He further asserted that had these records been admitted at the motion-to-adjudicate hearing, his probation would not have been revoked.

At the hearing on the motion for new trial, however, the trial court heard testimony regarding the motorcycle accident and had the benefit of reviewing appellant=s medical records. The medical records show that the accident occurred on April 23, 2004, and that  appellant was ejected from his motorcycle while it was moving at a speed of about six miles per hour.  Although appellant suffered some abrasions and a broken shoulder from this accident, there is no evidence that these injuries prevented him from performing  community service for more than a year after the accident occurred.   

Moreover, the record shows that appellant was delinquent in the performance of his community service hours even before the motorcycle accident. Between February 8, 2004, when appellant was scheduled to begin community service, and April 23, 2004, when he was involved in the accident, appellant failed to complete the requisite number of hours.  Appellant was consistently behind in the performance of his community service hours, both before and after the motorcycle accident.  According to appellant=s probation officer, the delinquency continued for many months.  The State did not file its motion to revoke appellant=s probation until May 2005, over a year after the accident.  If, during the time of his recovery from the motorcycle fall, appellant was unable to perform his normal community service, he could have requested light duty or some other alternative form of community service in an effort to avoid violating the terms of his probation.  There is no indication in the  record that appellant investigated this possibility or made any other attempt to comply with his court-ordered hours of community service during this time period.

To satisfy the second prong of Strickland and establish prejudice, the appellant must prove there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different.  Id.  A reasonable probability has been defined as a probability sufficient to undermine confidence in the outcome of the proceedings.  Id. Based on the evidence presented at the hearing, the trial court impliedly concluded that appellant, despite his claimed inability to perform, had been capable of performing the required community service and yet had failed to do so.  The trial court did not abuse its discretion in impliedly concluding that appellant failed to show the result of the motion-to-adjucate hearing would have been different, but for his counsel=s alleged ineffectiveness in failing to subpoena appellant=s medical records and offer testimony regarding appellant=s motorcycle accident at the motion-to-adjudicate hearing.  Therefore, the trial court did not abuse its discretion in denying appellant=s motion for new trial as to this alleged instance of ineffective assistance of counsel.

B.      Did the trial court abuse its discretion in denying appellant=s motion for new trial on his claim that his counsel was ineffective for failing to subpoena defense witness Condrey Mallard to appear at the motion-to-adjudicate hearing?

As for appellant=s claim that his trial counsel was ineffective for failing to secure the attendance of defense witness Condrey Mallard, we conclude the trial court did not abuse its discretion in impliedly determining that appellant failed to satisfy the second prong of Strickland.  The testimony of Condrey Mallard on the separate ground for revocationCregarding insurance fraudCwould not have made a difference  in the proceeding because the trial court was entitled to grant the State=s motion to adjudicate based solely on appellant=s continual delinquency in his community service hours.  See O=Neal v. State, 623 S.W.2d 600, 661 (Tex. Crim. App. 1981) (concluding that proof of any violation of the terms of probation will support an order revoking probation).  The trial court did not abuse its discretion in impliedly concluding that appellant failed to show the result of the motion-to-adjucate hearing would have been different, but for his counsel=s alleged ineffectiveness in failing to subpoena Condrey Mallard to appear at the motion-to-adjudicate hearing.  Therefore, the trial court did not abuse its discretion in denying appellant=s motion for new trial as to this alleged instance of ineffective assistance of counsel.

C.        Did the trial court abuse its discretion in denying appellant=s motion for new trial on his claim for newly discovered evidence?

Finally, as for appellant=s claim that a new trial should have been granted because of newly discovered evidence, we conclude that the trial court did not abuse its discretion in denying the motion on this ground.  Motions for new trial based on newly discovered evidence or newly available evidence are not favored and are viewed with great caution.   Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987); Dedesma v. State, 806 S.W.2d 928, 934 (Tex. App.CCorpus Christi 1991, pet. ref=d).   A motion for new trial based on newly discovered evidence is addressed to the sound discretion of the trial court, and its decision should not be disturbed on appeal absent a clear abuse of discretion.  Jones v. State, 711 S.W.2d 35, 36 (Tex. Crim. App. 1986).  To show that the trial court abused its discretion, the record must indicate that (1) the newly discovered evidence was unknown to the movant at the time of trial, (2) the movant=s failure to discover the evidence was not due to his want of diligence, (3) the materiality of the evidence is such as would probably bring about a different result in another trial, and (4) the evidence is admissible, and not merely cumulative, corroborative, collateral, or impeaching.  Drew, 743 S.W.2d at 226; Dedesma, 806 S.W.2d at 934.  Should it appear to the trial court that, under the circumstances, the weight or credibility of the new evidence probably would not bring about a different result in a new trial, it is within the discretion of the trial court to deny the motion. Jones, 711 S.W.2d at 36‑37; Dedesma, 806 S.W.2d at 934.  As stated above, the trial court, at the hearing, reviewed the medical records and testimony, and apparently reached the conclusion that appellant, despite his claimed inability to perform, had been capable of performing the required community service and yet had failed to do so.  Based on these facts, it appears that the trial court concluded that the evidence would not have brought about a different result were a new trial granted.   Thus, we cannot say that the trial court abused its discretion in denying appellant=s motion for new trial on this ground.

Having found no abuse of discretion, we overrule appellant=s sole point of error, and we affirm the judgment of the trial court.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed February 27, 2007.

Panel consists of Justices Anderson, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  After the motion-for-new-trial hearing, appellant and the State provided new briefing in light of this hearing.

^[2]  In his appellate rebriefing appellant does not argue the second ground from his motion for new trialCthat the State allegedly coerced defense witness Condrey Mallard from attending his motion-to-adjudicate hearing by threatening Mallard with criminal prosecution. Therefore, we do not address this issue.