Solomon Guiffre Garrett v. State

Affirmed and Memorandum Opinion filed August 04, 2009

Affirmed and Memorandum Opinion filed August 04, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00413-CR

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SOLOMON GUIFFRE GARRETT, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1504964

M E M O R A N D U M   O P I N I O N

Appellant, Solomon Guiffre Garrett, was convicted of the misdemeanor offense of assault and sentenced to 180 days= confinement.  On appeal, he presents three related issues for our review, all of which arise from his claim that the prosecution and the trial court took actions precluding him from presenting trial testimony critical to his defense.  Finding no reversible error in the issues presented, we affirm.

Background

On September 23, 2007, police officers responded to a call from one of appellant=s neighbors reporting that appellant had allegedly assaulted the complainant.  When police arrived at the neighbor=s home, they found the complainant with a large bruise on her face.  The complainant told police that appellant had struck her face with a closed fist, which was corroborated by the complainant=s injuries.  Appellant was arrested and charged with assault, to which he pleaded Anot guilty.@ 

Before the scheduled trial date, the complainant apparently met with Assistant District Attorney Larissa Lorenz requesting that the charges be dropped.  She reportedly insisted that, notwithstanding her earlier statements to police and prosecutors,  appellant did not, in fact, assault her.  Lorenz informed the complainant that, if her earlier reports to officials were indeed false, she could be subject to prosecution.

The complainant did not appear at trial, and neither party attempted to compel her attendance.^[1]  Appellant=s neighbor testified that the complainant was afraid to appear at trial because appellant assaulted her and she could not testify otherwise, as he was pressuring her to do. 

Appellant attempted to call Lorenz to the stand to show that Lorenz had threatened the complainant with prosecution to influence her not to testify.  The trial court refused appellant=s request, and counsel made a bill of exception.

The jury found appellant guilty of assault, and the court sentenced him to 180 days= confinement.  Appellant timely filed a motion for new trial, which was ultimately overruled by operation of law. Appellant now appeals in three issues, all of which deal with Lorenz=s alleged threats to the complainant.

Analysis

A.        Right to Compulsory Process

In his first issue, appellant argues his Sixth Amendment right to compulsory process was violated because the complainant did not appear at trial to testify, allegedly because of the threat of criminal prosecution.  The Sixth Amendment provides that A[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.@  U.S. Const. amend. VI.  Although this constitutional right is fundamental, compulsory process is not an absolute right and may be waived by a defendant=s failure to attempt to exercise it.  See Whitmore v. State, 570 S.W.2d 889, 897 (Tex. Crim. App. 1976) (citing Washington v. Texas, 388 U.S. 14, 19 (1967)); Pinkston v. State, 744 S.W.2d 329, 335 (Tex. App.CHouston [1st Dist.] 1988, no pet.).  Here,  appellant failed to preserve his complaint related to the supposed denial of his compulsory-process rights.    

For a party to preserve a complaint for appellate review, the record must reflect that the complaining party made a timely, specific request, objection, or motion to the trial court.  Tex. R. App. P. 33.1(a).  This rule ensures that trial courts have the opportunity to correct mistakes at the time they are alleged to have been made.  Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002).  Here, however, appellant only generally complained of a violation of his Adue process@ rights.  He did not object that the complainant=s absence deprived him of his rights to compulsory process.  Thus, because his argument on appeal does not comport with the objection made at trial, appellant did not preserve this issue for our review.  See Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim. App. 1994).

Furthermore, even had appellant properly preserved this issue for our review, a defendant typically cannot complain that he was deprived of a constitutional right, such as compulsory process of witnesses, which he did not attempt to exercise.   Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987).  The law provides numerous vehicles for a party to secure the attendance of a witness, including attachments, bench warrants, and subpoenas.  See id.  Here, the record does not reflect that appellant availed himself of any of these remedies to compel the complainant to appear.  See id.  In fact, appellant did not even attempt to call the complainant as a witness.  Thus, we conclude appellant waived any complaint by failing to pursue any of the options available to him to exercise that right.  See Pinkston, 744 S.W.2d at 335.

B.      Assistant District Attorney=s Testimony

In his second issue, appellant argues the trial court erred by not allowing appellant to call Assistant District Attorney Lorenz, the opposing counsel, as a witness to testify as to the reasons surrounding the complainant=s absence at trial.  We review a trial court=s decision to exclude evidence under an abuse of discretion standard.  Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).  A trial court abuses its discretion if its decision lies outside the zone of reasonable disagreement.  See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).

With very few exceptions, Texas law does not permit parties to call their opposing counsel to testify as a witness.  In fact, the Court of Criminal Appeals has held that a trial court commits error by ordering opposing counsel to testify unless it first determines, outside the presence of the jury, that there a compelling need for counsel=s testimony.  Flores v. State, 155 S.W.3d 144, 148 (Tex. Crim. App. 2004).^[2] Under the compelling-need test, it must be shown that (1) there is no feasible alternative for obtaining and presenting the information to the jury except through opposing counsel=s testimony, and (2) the testimony is essential, not merely relevant, to the case.  Id. 

Applying the test, we conclude that appellant failed to demonstrate a compelling need for Lorenz=s testimony.  Even if he could meet the second prong by establishing that Lorenz=s testimony was essential to his defense, he failed to satisfy the first prong because he did not show the absence of a feasible alternative to Lorenz=s testimony.  Certainly, the complainant could have testified to the same facts that appellant sought to elicit from Lorenz.  And, as previously noted, appellant made no attempt to compel the complainant=s testimony.  Therefore, the trial court did not abuse its discretion by excluding the prosecutor=s testimony.  See id. at 149. Appellant=s second issue is overruled.

C.        Motion for New Trial

Finally, in his third issue, appellant argues that the trial court erred in denying his motion for new trial because a material defense witness, the complainant, was allegedly kept away from court by threats of prosecution.  Under Texas Rule of Appellate Procedure 21.3(e), a motion for new trial must be granted if Aa material defense witness has been kept from court by force, threats, or fraud.@  Tex. R. App. P. 21.3(e).  The denial of a motion for new trial lies within the discretion of the trial court.  See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).  When reviewing a trial court=s denial of a motion for new trial, we may not substitute our judgment for that of the trial court.  See id.  Rather, we must decide whether the trial court=s decision was arbitrary or unreasonable.  See id.  

The State responds that the record does not show that the complainant was kept from court by threats.^[3] To prove a violation of Rule 21.3(a), a defendant must show the acts constituting force, threats, or fraud that prevented the missing witness from appearing in court.  See Rodriguez v. State, 21 S.W.3d 562, 567 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Although it is obviously improper to threaten or intimidate a witness into refusing to testify, a prosecuting attorney may admonish prospective witnesses of the penalties for testifying falsely as long as the admonitions constitute no more than a cautious and judicious warning.  See Maya v. State, 932 S.W.2d 633, 638 (Tex. App.CHouston [14th Dist.] 1996, no pet.); Davis v. State, 831 S.W.2d 426, 438 (Tex. App.CAustin 1992, pet. ref=d).   

The affidavits considered by the trial court in denying the motion for new trial clearly demonstrate that the complainant was informed she could face criminal prosecution if her  testimony indicated that she had originally made false statements to the police.^[4]  However, the available evidence does not indicate that Lorenz acted improperly or otherwise issued more than Aa cautious and judicious warning.@  See Davis, 831 S.W.2d at 438.  There is no evidence in the record, such as an affidavit or testimony from the complainant, establishing that she was actually kept from court by threats of prosecution. And, as noted several times previously, the complainant was never actually subpoenaed or otherwise called as a witness.

Absent proof that the complainant was kept from court by improper force, threats, or fraud, appellant failed to establish entitlement to relief under rule 21.3(e). See Tex. R. App. P. 21.3(e).  Therefore, we cannot conclude that the trial court=s decision to deny appellant=s request for a new trial was arbitrary or unreasonable.  Appellant=s third issue is overruled.

Conclusion

Accordingly, because we find no merit in the issues presented, the judgment of the trial court is affirmed.

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/s/        Kent C. Sullivan

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

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

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^[1]           Domestic violence raises extraordinarily complex issues relative to law enforcement and human relations.  Research suggests that victims of domestic violence disproportionately may withdraw their accusations or refuse to cooperate with prosecutors.  See, e.g., Thomas L. Kirsch II, Problems in Domestic Violence: Should Victims be Forced to Participate in the Prosecution of Their Abusers?, 7 Wm. & Mary J. Women & L. 383, 392 (2001); Tom Lininger, Evidentiary Issues in Federal Prosecution of Violence Against Women, 36 Ind. L.Rev. 687, 709 n.68 (2003). Thus, prosecutors often try domestic violence cases without the complainant=s testimony.  See Davis v. State, 169 S.W.3d 660, 671 (Tex. App.CAustin 2005), aff=d, 203 S.W.3d 845 (Tex. Crim. App. 2006).

^[2]           Flores involved the State=s attempt to call defense counsel as a fact witness.  Id. However, in support of its decision to adopt the compelling-need test, the Court cited two cases addressing requests that the prosecutor be required to testify.  See id. (citing United States v. Prantil, 764 F.2d 548, 551B54 (9th Cir. 1985); Ullmann v. State, 647 A.2d 324, 333B37 (Conn. 1994)).  Thus, the rule applies with equal force to a defendant=s request to cross-examine a prosecutor.  See id.

^[3]           The State also contends that this issue was not preserved for appellate review because appellant did not obtain an adverse ruling.  We disagree.  A motion for new trial that is not timely ruled-upon by written order will be deemed denied by operation of law.  See Tex. R. App. P. 21.8; Belcher v. State, 93 S.W.3d 593, 595 (Tex. App.CHouston [14th Dist.] 2002, pet. dism=d).  In this case, the trial judge orally denied appellant=s motion for new trial at the hearing, but he did not sign a written order denying the motion.  Thus, it was denied by operation of law.  See Tex. R. App. P. 21.8.   However, denial of the motion by operation of law does not preclude us from reviewing  the evidence presented at the hearing.  See Jaenicke v. State, 109 S.W.3d 793, 797 n.4 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).

^[4]           For example, section 37.08 of the Penal Code provides that A[a] person commits an offense if, with intent to deceive, he knowingly makes a false statement [to a peace officer] that is material to a criminal investigation.@ Tex. Penal Code Ann. ' 37.08 (Vernon 2003).