State v. Jeffrey L. Spigener

State v. Spigener IN THE TENTH COURT OF APPEALS No. 10-96-129-CR THE STATE OF TEXAS, Appellant v. JEFFREY L. SPIGENER, Appellee From the 66th District Court Hill County, Texas Trial Court # 30,423 O P I N I O N The State appeals an order of the district court granting the appellee's motion for new trial. A jury found the appellee, Jeffrey Lynn Spigener, guilty of murdering his wife, and the trial court assessed punishment at twelve years' incarceration in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. §§ 12.32, 19.02 (Vernon 1994). Spigener was indicted by a Hill County grand jury for the murder of his wife, Carolyn Keel Spigener, and was found guilty on March 29, 1996. After the guilt-innocence stage but prior to the punishment phase of his trial, Spigener retained additional counsel to assist his originally retained attorney. Punishment was assessed by the trial court on April 3, 1996, and Spigener, through his new counsel, filed a motion for new trial. Spigener subsequently filed his "Motion to Arrest Judgment and First Amended Motion for New Trial." A hearing was held on June 4, 1996, and the trial court orally denied the motion. However, two days later, the trial court rescinded its oral order and granted the motion. On appeal, the State complains in a single point of error that the trial court abused its discretion when it reversed its original order based on a letter it received from Spigener's attorney in which the attorney impliedly accused the trial court of improper conduct. We will affirm. The proper standard of review for a trial court's granting of a motion for new trial is determining whether the court abused its discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). As an appellate court, it is not within our authority to substitute our judgment for that of the trial court; instead, we must decide whether the trial court's decision was arbitrary and unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Gonzalez, 855 S.W.2d at 695 n.4. The State contends the trial court based its decision granting Spigener a new trial on the letter sent to the court by Spigener's attorney. However, the State has failed to present a sufficient record on appeal showing the letter had any impact on the court's decision to reverse its previous denial of Spigener's motion for new trial. Tex. R. App. 50(d) (the burden is on the party seeking review to provide the appellate court with a sufficient record showing error requiring reversal); Gonzalez, 855 S.W.2d at 695 (when the State acquired the right to appeal, it also acquired the corresponding duty to provide the appellate court with a record showing error requiring reversal). Our review of the State's point of error does not end here. Because the written order granting Spigener's motion for new trial does not state the reason or reasons on which the trial court relied, we must presume the trial court relied on any one or more of the six grounds raised. We will affirm on any ground upon which the trial court could have properly relied. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978) (one sufficient ground will support a revocation of probation); Hendley v. State, 783 S.W.2d 750, 752 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (same); Aldredge v. State, 703 S.W.2d 354, 355 (Tex. App.—Waco 1985, no pet.) (same). Spigener moved for a new trial contending, inter alia, he received ineffective assistance of counsel. His motion was accompanied by the affidavit of a juror. In her affidavit, the juror stated that, during trial, Spigener's counsel had difficulty remembering Spigener's name, the attorney handled the gun used to kill the victim in a manner that made the jurors nervous, and during closing argument, the attorney told a story that she considered racist and inappropriate and a story about one of his missions during World War II which confused her. The court held a hearing on Spigener's motion. At the hearing, Spigener's trial counsel testified. Under oath, the attorney stated that he did not interview the State's medical or forensic experts or the victim's father, who was in Spigener's house at the time Carolyn Spigener was killed. He further admitted that he made a mistake in not timely filing a motion for the jury to assess punishment and an application for probation. Spigener testified at the hearing that his trial counsel spent very little time with him prior to trial. Spigener also stated that his trial counsel did not accurately explain the plea bargain offered by the State. Madeline Holland also testified at the hearing. She stated that Spigener's trial counsel never interviewed her prior to trial and that he did not elicit important testimony from her during the trial. The test for determining ineffective assistance of counsel at the guilt-innocence phase of trial is the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064 (1984). To prove ineffective assistance of counsel, the defendant must prove that trial counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that but for counsel's deficiency the result of the trial would have been different. McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992); see Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064; Chambers v. State, 903 S.W.2d 21, 32 (Tex. Crim. App. 1995); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Owens v. State, 916 S.W.2d 713, 716 (Tex. App.—Waco 1996, no pet.). Based upon the affidavit attached to Spigener's motion for new trial and upon the evidence adduced at the hearing on his motion, the court could have found that Spigener's trial counsel rendered ineffective assistance. See Ex parte Welborn, 785 S.W.2d 391, 396 (Tex. Crim. App. 1990); Diaz v. State, 905 S.W.2d 302, 307-08 (Tex. App—Corpus Christi 1995, no pet.). Consequently, the trial court did not abuse its discretion in granting Spigener a new trial. Having so determined, we need not reach any of the other grounds asserted in his motion. The order is affirmed, and the case is remanded for a new trial. BOBBY L. CUMMINGS Justice Before Chief Justice Davis, Justice Cummings, and Justice Vance Affirmed and remanded Opinion delivered and filed April 30, 1997 Do not publish “ejusdem generis” canon of construction, which states that the general phrase is limited to the same types of things that are listed more specifically. William D. Popkin, Materials on Legislation 345 (1993); see also Cortez v. Progressive County Mut. Ins. Co., 2000 WL 1125257, at *4 (Tex. App.—Austin Aug. 10, 2000, no pet.). Looking to subsection (L) of the current statute, we find that competitive team sports, such as softball, are still not within the catch-all phrase, “any other activity associated with enjoying nature or the outdoors.” While one might enjoy nature or the outdoors while playing softball, softball is not of the type of activities which are specifically listed in section 75.001(3), i.e., “hunting, fishing, swimming, boating, . . .” Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3). This supports our holding that the legislature intended not to include competitive team sports within the definition of “recreation.” See Martinez, 1 S.W.3d at 149. The second amendment occurred in 1999, when the legislature added hockey, in-line hockey, skating, and skateboarding as “recreation” activities, but only if conducted in an indoor municipal facility. Act of May 18, 1999, 76th Leg., R.S., ch. 734, § 1, 1999 Tex. Gen. Laws 3345 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 75.002(e) (Vernon Supp. 2001)). However, this amendment names specific competitive team sports, and appears in a different section. The inclusion of hockey and in-line hockey implies consideration and rejection by the legislature of other competitive team sports. See Johnson, 514 N.W.2d at 696. CONCLUSION The court erred when it granted the City’s motion for summary judgment. The judgment is reversed, and the cause is remanded for trial. BILL VANCE Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Reversed and remanded Opinion delivered and filed February 21, 2001 Publish