John FRANGIAS, Appellant, v. The STATE of Texas, Appellee.
No. 14-10-01090-CR.
Court of Appeals of Texas, Houston (14th Dist.).
April 19, 2012.
367 S.W.3d 807
Eric Kugler, Houston, for state.
Panel consists of Chief Justice HEDGES and Justices BROWN and CHRISTOPHER.
OPINION
TRACY CHRISTOPHER, Justice.
Appellant John Frangias appeals his conviction for sexual assault and argues that his case should be retried because he received ineffective assistance of counsel. According to appellant, there was a witness who would have corroborated his version of events, and his attorneys’ failure to procure the witness‘s testimony, or to move for a continuance in order to do so, constituted ineffective assistance of counsel. Appellant additionally contends that the trial court abused its discretion in excluding the testimony of a lay witness as to appellant‘s health issues. Because the trial court did not abuse its discretion in denying appellant‘s motion for new trial on any of these grounds, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of sexually assaulting Canadian resident K.H. in July 2008 while she was a guest at a hotel in
To provide some context for the arguments presented on appeal, we summarize the testimony of the key witnesses.
A. The State‘s Case
On the evening of Thursday, July 10, 2008, appellant dropped K.H. off at a convention event. K.H. testified that she had two glasses of wine at the event, then accompanied her business partner to his hotel room where she had another glass of wine. She stated that she returned to appellant‘s hotel at 11:00 p.m. According to K.H., there was no one in the lobby when she entered and started up the stairs, but when she was nearly to the second floor, she saw appellant downstairs speaking to someone. He then excused himself and started up the stairs behind her. K.H. testified that she just wanted to go to her room, so she quickened her pace, but appellant did the same, and when she opened her door with her key, appellant pushed her into the room. K.H. stated that she initially laughed and told appellant that she was married and that he had to leave, but appellant grabbed her and kissed her. She stated that appellant pulled her hair as he fondled her breasts and genitals, but she was able to push him away enough to see that the door to her room was still open. She testified that when appellant saw her look in that direction, he pushed the door closed. As K.H. described it, appellant unbuttoned and unzipped her jeans, which fell to her knees, and when she tried to pull her jeans back up, appellant pushed her back onto the bed. She testified that she closed her eyes and put her hands over her face, and appellant removed her jeans and underwear. According to K.H., appellant had vaginal intercourse with her, then went into the bathroom and she heard water running. K.H. continued to cover her face, and she heard appellant dress and leave without speaking to her again. She stated that she showered and brushed her teeth, but decided not to call the police because she hadn‘t screamed or fought back. She related that she telephoned her husband at 11:24 p.m., but did not tell him what had occurred; she also checked her email and spent a half-hour on a business phone call. K.H. testified that she left the hotel at 7:00 a.m. the next day and took a cab to the hotel where her business partner was staying. The two of them went to the airport, and after her business partner‘s flight departed, K.H. emailed a friend to say that she had been raped. K.H. then flew back to Canada, and upon her arrival, she left a telephone message for another friend who was a former police officer. When the former police officer returned her call, K.H. described what had happened to her. Her husband heard K.H. crying and went to investigate. After K.H. told him what had happened, he took her to the police station to report the offense. Although K.H. was examined, there was no physical evidence of assault.
B. The Defense
In his defense, appellant attempted to show that (1) he was physically incapable of forcible rape; (2) when K.H. returned to the hotel on July 10, 2008, she was so intoxicated that she was confused, irration-
Through an interpreter, appellant‘s wife Maria testified that appellant has had substantial problems with kidney stones for the past three or four years. He had surgery for the problem in 2007, and had several subsequent procedures to dissolve the stones. Since he has had a medical device inserted, appellant has found erections to be very painful.
Ron Hansard testified that he stayed at appellant‘s hotel from about November 2007 to August 2008; that he was present when K.H. initially checked in; and that he heard her try to negotiate a lower rate. Hansard also stated that there initially was a man with her, but neither of them had luggage with them, and Hansard didn‘t see the man again. Hansard testified that he saw K.H. a couple of times later in the week, and it was his impression that she had been drinking. Hansard further testified that he later saw K.H. angrily ask appellant for a refund, but he did not see appellant give her any money.
Registered nurse Mindy Colson testified that in July 2008, she went to appellant‘s hotel when she was unable to find a room elsewhere.1 Colson testified that appellant said he would try to make a room available. Colson stated that while she waited, she observed appellant “running around and doing things,” but he looked sick and stressed. To Colson, appellant appeared sweaty, “somewhat hobbled,” and in pain. She related that at around midnight, appellant saw a woman lying on her stomach in front of the entrance to the hotel. According to Colson‘s description, the woman had a large build, was dressed in jeans and a T-shirt; appeared to be in her early 30‘s, and smelled of alcohol. When appellant turned the woman over, the woman awoke and seemed disoriented. She began crying and then screaming. Colson testified that when appellant began trying to help the woman up, the woman grabbed him and tried to kiss him. When appellant freed himself, the woman staggered into a wall. Colson stated that appellant and another man helped the woman up the stairs, and appellant came back to the lobby approximately five minutes later. He then took towels upstairs and returned within two minutes. Colson stated that she left sometime after midnight without ever getting a room.
Appellant testified that when K.H. checked in, a man was with her. Appellant did not see her again until the next day when he drove K.H. and another guest to the convention center. He stated that K.H. smelled of alcohol when he picked her up at noon and when he drove her to the convention center the next day. He related that K.H. called him for a ride back to the hotel, but he refused because he was in pain. According to appellant, he and K.H. argued that evening about the room rate and about his failure to pick her up from the convention center that afternoon. He testified that when he drove K.H. and another woman to the convention center the next morning, K.H. again smelled strongly of alcohol and appeared to be intoxicated. According to appellant, K.H. was rude to him and asked him questions that upset him, so he loudly told her not to come into his car or back inside the hotel.
Appellant testified that he next saw K.H. at about 12:30 a.m. as she lay on the
To impeach appellant‘s testimony, the State offered evidence that six months before the alleged assault, appellant complained of erectile dysfunction and his doctor prescribed Viagra. In addition, the State introduced medical records showing that four months after the charged offense, appellant had a medical test for which he was required to run on a treadmill, and the examiner noted in appellant‘s records that he had excellent exercise capacity.
A jury convicted appellant and assessed punishment at eight years’ confinement in the institutional division of the Texas Department of Criminal Justice. Appellant‘s motion for new trial was overruled by operation of law.
II. ISSUES PRESENTED
In four issues, appellant contends that his state and federal constitutional rights to effective assistance of counsel were violated in that his trial attorneys failed to procure Jay Sotomayor‘s testimony, either live or by deposition, or in the alternative, failed to move for a continuance to do so. In a fifth issue, appellant argues that we must reverse his conviction because the trial court erroneously excluded Hansard‘s proffered testimony about the state of appellant‘s health in July 2008.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Under the Strickland test, an appellant must prove that his trial counsel‘s representation was deficient and the deficient performance was so serious that it de-
Our review of defense counsel‘s performance is highly deferential, beginning with the strong presumption that the attorney‘s actions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we “review the totality of the representation and the circumstances of each case without the benefit of hindsight.” Lopez, 343 S.W.3d at 143 (citing Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Under the totality of the circumstances, a single error may be so egregious that it satisfies the Strickland test. Id. See, e.g., Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (counsel‘s failure to request a jury instruction on the issue of necessity after the issue was raised by the appellant‘s testimony was sufficient both to demonstrate counsel‘s deficient performance and to undermine confidence in the verdict). But, isolated errors of omission or commission usually will not render counsel‘s performance ineffective. Robertson, 187 S.W.3d at 483. Moreover, “[i]t is not sufficient that the appellant show, with the benefit of hindsight, that his counsel‘s actions or omissions during trial were merely of questionable competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Rather, to establish that trial counsel‘s acts or omissions were outside the range of competent professional assistance, a defendant must show that counsel‘s errors were so serious that he was not functioning as counsel. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).
Here, appellant raised his allegations of ineffective assistance of counsel through a motion for new trial. We may not reverse the trial court‘s denial of a motion for new trial absent an abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by
A. Failure to Present Sotomayor‘s Testimony
In his first two issues, appellant argues that the trial court erred in overruling his motion for new trial because his defense attorneys were aware before trial of Sotomayor‘s existence and the testimony that he could offer, but took no steps to secure his presence or to preserve his testimony via a videotaped deposition. See
On the second day of trial, defense attorney Alfred Valdez represented to the trial court that Sotomayor was hospitalized in El Paso, and that although Valdez had intended to have someone fly to El Paso and escort Sotomayor to Houston to testify that day, Sotomayor had represented that he was unable to travel. Valdez further stated that he was trying to arrange to have a court reporter administer an oath to Sotomayor the next morning and have Sotomayor testify by telephone. Valdez explained that he had a copy of an affidavit in which Sotomayor stated that K.H. was intoxicated on July 10, 2008, and that he, Sotomayor, had gone upstairs behind K.H. and appellant and observed that appellant did not enter K.H.‘s room. To explain why arrangements for Sotomayor‘s testimony had not been made earlier, Valdez stated, “We were trying to track him down, and he kind of dropped out of sight on us.” The State objected that Sotomayor‘s testimony duplicated the testimony of other witnesses who had been or would be called, and the trial court stated that it would rule after it heard the other testimony.
After appellant‘s remaining witnesses finished testifying, Valdez asked the trial court on the fourth day of trial to rule as to whether Sotomayor would be allowed to testify by telephone. Valdez stated, “[W]e have been attempting to ... get [Sotomayor] here.... But we tried to locate him, and we have found him, but he‘s not allowed to travel.” In denying the request, the trial court stated, “I have no subpoena in here indicating that he was served with a subpoena to be here. I have no proof that he‘s medically incapacitated.”
Although appellant moved for a new trial asserting that he was denied effective assistance of counsel by his trial attorneys’ failure to offer Sotomayor‘s evidence through live testimony or deposition,3 the evidence in support of the motion
Because we must presume that the trial court made all factual findings and credibility determinations in a manner that supports its ruling, see Charles, 146 S.W.3d at 208, we presume the trial court found that appellant‘s defense team did not subpoena Sotomayor or seek to depose him prior to trial because until October 22, 2010, they were unaware of his location5 and of his ability to testify that (1) the intoxicated woman in the hotel lobby on July 10, 2008 was K.H., and (2) he followed appellant upstairs on two occasions that night and saw that appellant did not enter K.H.‘s room.
It is true that after learning these facts, defense counsel did not file an application for leave to depose Sotomayor. Nevertheless, we cannot agree that the failure to do so fell outside the broad range of prevailing professional norms.
An application to depose a witness in a criminal case must be supported by an affidavit. See
An application for deposition also must be filed in a timely fashion. In Langston v. State, for example, the Court of Criminal Appeals held that the trial court did not abuse its discretion in denying an application filed on the Friday before a Monday trial setting because the indictment had been pending for almost a year, the defendant‘s attorney was appointed two months before trial, and the trial was passed on two prior occasions. 416 S.W.2d 821, 822 (Tex. Crim. App. 1967). Here, the indictment had been pending for just three days less than a year, appellant had been represented by his two retained attorneys for more than four months, the trial was repeatedly set and rescheduled; and the trial court previously continued the case at appellant‘s request. See also Aguilar v. State, 468 S.W.2d 75, 78-79 (Tex. Crim. App. 1971) (finding no abuse of discretion in trial court‘s denial of application for deposition filed two days after defendant announced “ready” for trial); Jasso v. State, 699 S.W.2d 658, 663 (Tex. App.—San Antonio 1985, no pet.) (finding no abuse of discretion in denying an application for deposition filed four days before trial, because “[s]uch request for relief comes too late“). For this reason, too, the trial court would not have abused its discretion in denying such a motion.
Under all these circumstances, we cannot conclude that defense counsel‘s conduct in failing to procure Sotomayor‘s testimony before or during trial fell below prevailing professional norms. We accordingly overrule appellant‘s first two issues.
B. Failure to Move for Continuance
In his third and fourth issues, appellant argues that even if his trial attorneys did not locate Sotomayor until October 22, 2010, they rendered ineffective assistance by failing to move for a continuance to secure his attendance or deposition. In her affidavit in response to appellant‘s motion for new trial, Jones stated that she did not move for a continuance because she did not think it would be granted. Because there is no evidence that appellant‘s trial counsel could have met the statutory requirements governing
A defendant who files a first motion for a continuance based on a witness‘s absence must identify the witness and the material facts he expects the witness to prove.
As previously discussed, there is no evidence that anyone with personal knowledge of Sotomayor‘s condition was willing to swear that he was medically unable to travel to Houston to testify at the October 25th trial setting. Moreover, defense counsel already had successfully continued the trial once to bring two witnesses from Canada. To move for a second continuance, appellant‘s trial attorneys would be required to show that they reasonably expected to procure Sotomayor‘s testimony at the next term of court.8 Because there is no evidence that defense counsel could have made such a showing, we cannot say that defense counsel rendered ineffective assistance by failing to move for a further continuance. Cf. Nwosoucha v. State, 325 S.W.3d 816, 828 (Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d) (concluding that trial court did not abuse its discretion in denying a motion for continuance filed on the date of trial where the case previously had been continued and “out-of-county physicians, federal prisoners, and numerous persons over sixty-five, had been subpoenaed and were ready to testify“). We therefore overrule appellant‘s third and fourth issues.
IV. EXCLUSION OF EVIDENCE
In his final issue, appellant contends that the trial court reversibly erred in excluding certain testimony by Ron Hansard about appellant‘s health and physical condition. We review a trial court‘s admission or exclusion of evidence for an abuse of discretion. Campos v. State, 256 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2008, pet. ref‘d) (cit-
The record shows that Hansard initially attempted to testify regarding appellant‘s health as follows:
Q. Did you know anything about Mr. Frangias‘[s] health at that time?
A. He had been having some health problems for quite a while. And I was always getting on to him about go ahead and get your problems taken care of here. And he couldn‘t even—how do I say it, he couldn‘t even go to the bathroom, you know.
Q. What do you mean by that?
THE STATE: Objection, this is going to be hearsay, Your Honor.
THE COURT: That will be sustained.
Q. So, you said he couldn‘t even go to the bathroom?
THE STATE: Objection.
DEFENSE: I‘m repeating what he said.
THE STATE: And [the trial court] sustained the objection that that was hearsay.
Q.: How did he appear to you healthwise?
THE STATE: Objection, Your Honor, relevance.
THE COURT: That will be sustained.
Q.: Did you ever see Mr. Frangias have difficulty doing any tasks?
THE STATE: Objection, Your Honor, relevance.
THE COURT: That will be sustained.
Defense counsel made an offer of proof of the excluded testimony. Thus, the record shows that Hansard would have testified that (1) while he was staying at the hotel, he saw appellant frequently during the day, and appellant spoke with him in his room three to five nights each week; (2) he became aware that appellant had health issues; (3) appellant had difficulty urinating; (4) appellant had gastric problems; (5) appellant‘s health started to deteriorate before July 2008; (6) at times, appellant appeared yellowish, as though he were jaundiced; (7) appellant had less strength in July 2008 than in previous months, and on some days, appellant “would just sit there“; (8) appellant frequently had to go to his room to rest, and (9) Hansard did not believe that appellant had a lot of strength or could lift heavy objects. When asked why appellant had problems urinating, Hansard stated, “I‘m not real sure. I figured that he had some kind of prostate. I don‘t know first hand what his problem was. John had some gastral [sic] problems that were bad.” The State objected that Hansard‘s testimony was hearsay in that it had to be based on appellant‘s statements as to how he was feeling. In excluding the testimony, the trial court observed that Hansard is not a medical doctor.
We conclude that the exclusion of this testimony did not result in reversible error. There was no evidence that Hansard had first-hand knowledge of appellant‘s gastric problems or difficulty urinating;
V. CONCLUSION
Because the record does not affirmatively show that appellant‘s trial counsel rendered ineffective assistance, the trial court did not abuse its discretion in allowing appellant‘s motion for new trial to be overruled by operation of law. We further conclude that the trial court did not abuse its discretion in excluding Hansard‘s testimony regarding appellant‘s apparent health. We therefore affirm the trial court‘s judgment.