Robert Joseph Schmitt v. State

NO. 12-01-00306-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS ROBERT JOSEPH SCHMITT, § APPEAL FROM THE 269TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § COLLIN COUNTY, TEXAS MEMORANDUM OPINION Appellant Robert Joseph Schmitt appeals from his convictions for two counts of sexual assault of a child. After finding him guilty, the jury assessed the maximum punishment available, twenty years of confinement and a $10,000.00 fine in each case. Appellant assails the convictions in twenty-three issues. We affirm. Background Due to difficulty dealing with her parents' divorce and her mother's illness, thirteen-year-old L.H. began counseling at the end of September 1996. Appellant was her counselor. Soon after she began going to Appellant for counseling, he initiated sexual contact. Not long after L.H.'s fourteenth birthday, which was October 24, 1996, he exposed his erect penis. Shortly thereafter, Appellant went to L.H.'s school and, without anyone's knowledge or permission, took her to his apartment where they engaged in sexual acts. Their sexual relationship continued for almost two years. In the spring of 2000, one of L.H.'s friends told L.H.'s dad about the abuse. He and L.H. then notified the police and this prosecution followed. The jury found Appellant guilty of sexual assault of a child occurring on or about June 9, 1997 and sexual assault of a child occurring on or about November 1, 1996. It assessed punishment at twenty years of confinement and a $10,000.00 fine for each offense. Affidavits in Support of Warrants In his first and second issues, Appellant contends the trial court erred in failing to suppress the affidavit of probable cause and arrest warrant dated April 6, 2000. In his sixth issue, he contends the trial court erred in refusing to suppress the affidavit of probable cause and search warrant dated April 10, 2000. In his fourteenth issue, Appellant asserts that the trial court erred in failing to quash the indictment because of perceived flaws in the affidavit supporting the arrest warrant. In his eleventh issue, Appellant contends, without elaboration, that "the trial court erred in permitting the State to go forward with the trial based on the Court's finding that the finding of the Grand Jury in filing the indictment resolved the problem of probable cause." He asserts that both affidavits were improperly based solely on hearsay information provided by L.H. and do not contain any supporting facts within the personal knowledge of the officer who prepared the affidavits. When the State produces a warrant valid on its face, the defendant must go forward to establish the invalidity of the warrant on some ground. Belton v. State, 900 S.W.2d 886, 893 (Tex. App.-El Paso 1995, pet. denied). The standards used to judge the showing of probable cause are the same for both arrest and search warrants. Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim. App. 1986). Whether an affidavit in support of a warrant is sufficient to show probable cause must be determined from the four corners of the affidavit itself. Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. 1982). The magistrate should be able to determine from the affidavit that there is a fair probability that the contraband or evidence will be found in a particular place, or with regard to arrest warrants, that an offense has been committed and that the person named in the affidavit committed the offense. Ware, 724 S.W.2d at 40; Belton, 900 S.W.2d at 893. The appellate court determines whether the magistrate, viewing the totality of the circumstances, had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S. Ct. 2317, 2328-29, 76 L. Ed. 2d 527 (1983). The affidavit must contain sufficient facts supporting the officer's personal knowledge or belief of the alleged facts such that a neutral and detached magistrate may determine whether probable cause exists. Gordon v. State, 801 S.W.2d 899, 914 (Tex. Crim. App. 1990). Where the victim or eyewitness to the offense is the direct source of the information conveyed to the magistrate via a police officer, neither facts independently corroborative of the occurrence nor the basis for the claimed reliability of the victim need be recited. Belton, 900 S.W.2d at 894. Both affidavits were prepared by Beth Chaney, the investigating officer. They set out specific facts regarding the offenses. Officer Chaney obtained these facts directly from L.H. Officer Chaney also obtained invoices and insurance forms from L.H.'s father showing dates L.H. received counseling from Appellant. This documentation shows Appellant had access to L.H. on the dates alleged in the indictment. Thus, the affidavits provided the magistrate with enough information to determine that probable cause existed to arrest Appellant and search his office. See Marx v. State, 953 S.W.2d 321, 336 (Tex. App.- Austin 1997), aff'd, 987 S.W.2d 577 (Tex. Crim. App. 1999). The trial court did not err in failing to suppress the affidavits in support of the arrest warrant and search warrant. Further, the trial court did not err in refusing to quash the indictment or stop the prosecution on this basis. We overrule Appellant's first, second, sixth, eleventh, and fourteenth issues. Joinder In his third, fourth, and fifth issues, Appellant asserts the trial court erred in failing to quash the indictment because the affidavit in support of the arrest warrant does not establish that the two counts are based on a single criminal episode. He further argues that there are no supportive facts in the affidavit within the officer's personal knowledge. Our search of the record reveals no motion to quash the indictment presented to the trial court, but we shall briefly address the merits of this complaint. Assuming the affidavit is pertinent to disposition of these issues, we reject Appellant's argument that the affidavit is insufficient for the reasons stated above. Two or more offenses may be joined in a single indictment, with each offense stated in a separate count, if the offenses arise out of the same criminal episode as defined by Texas Penal Code Section 3.01. Tex. Code Crim. Proc. Ann. art. 21.24 (Vernon 1989). "Criminal episode" means the commission of two or more offenses under the following circumstances: 1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or 2) the offenses are the repeated commission of the same or similar offenses. Tex. Penal Code Ann. § 3.01 (Vernon 2003). Count I of the indictment alleged that Appellant, on or about the 9th day of June 1997, sexually assaulted L.H. in five different ways. Count II of the indictment alleged that Appellant, on or about the 1st day of November 1996, sexually assaulted L.H. in five different ways. L.H. testified that the sexual assaults began in the fall of 1996 and concluded in the summer of 1998. The two instances of sexual assault specified in the indictment constitute "repeated commission of the same or similar offenses." O'Hara v. State, 837 S.W.2d 139, 142 (Tex. App.-Austin 1992, pet. ref'd). Therefore, the offenses were properly joined in a single indictment. The trial court did not err in failing to quash the indictment for improper joinder. We overrule issues three, four, and five. Admissibility of Evidence In his tenth issue, Appellant asserts the trial court erred by "allowing into evidence any testimony in regard to Counts One and Two of the indictment because upon the affidavit of probable cause there was [sic] no supporting facts within the affiant police officer's personal knowledge to establish that the alleged offenses on November 1, 1996 and April 9, 1997 grew out of the same criminal episode." In his thirteenth issue, Appellant contends "the trial court erred in allowing into evidence any testimony in regard to Count One and Two of the indictment because the Appellant by his plea of 'not guilty,' which was never withdrawn preserved his constitutional error under the Constitution of the United States, amendments 4 and 14 and the Constitution of the State of Texas, Article 1, Section 9 without further objection as to its admissibility." Appellant grouped issues seven through sixteen in one multifarious argument. We find no argument explaining his contentions named in issues ten or thirteen, arguing his position, or citing to authority in support of his position. When a party raises an issue without citation of authority or argument, the party presents nothing for appellate review. State v. Gonzales, 855 S.W.2d 692, 697 (Tex. Crim. App. 1993). Further, to the extent the sufficiency of the affidavit in support of the arrest warrant has any impact on admissibility of evidence, we have already determined that the affidavit is sufficient and that the offenses grew out of the same criminal episode. We overrule issues ten and thirteen. Psychological Evaluation In his seventh issue, Appellant asserts the trial court erred in denying his motion for a psychological and/or psychiatric evaluation of L.H. and an evaluation of her diary. That denial, he claims, deprived him of due process. Appellant states that the decision to grant or deny his motion was within the trial court's discretion but does not argue his position. In the motion he filed with the trial court, Appellant insinuated that the allegations against him were false reports made by an emotionally disturbed teenager. He argued there that, if he is unable to obtain a psychological evaluation of L.H., he will be deprived of the presumption of innocence and the ability to prepare a defense. The record shows that a hearing on the motion was set for July 30, 2001. On the first day of trial, reference was made to that hearing. However, the record on appeal does not include a reporter's record of the July 30 proceedings. There is no general right to discovery in a criminal case under either the federal or Texas constitutions. State v. Stephens, 724 S.W.2d 141, 143 (Tex. App.- Dallas 1987, orig. proceeding). A criminal defendant's right to discovery under the United States Constitution is limited to exculpatory or mitigating evidence in the State's possession, custody, or control. In re State, No. 08-03-00004-CR, 2003 Tex. App. LEXIS 7430, at *12 (Tex. App.- El Paso August 28, 2003, orig. proceeding). Article 39.14 of the Texas Code of Criminal Procedure provides the defendant with a limited right of discovery. Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon Supp. 2003). That statute requires the defendant to show good cause, materiality, and possession of the discoverable item by the State. Id. That statute does not give the defendant a general right to discovery. Stephens, 724 S.W.2d at 144. It merely provides that judges may order the State to allow discovery of tangible objects that are not privileged. Id. It allows discovery of some written documents but specifically excepts from discovery written statements of witnesses. Tex. Code Crim. Proc. Ann. art. 39.14(a). The decision about what is discoverable is committed to the discretion of the trial court. State v. Williams, 846 S.W.2d 408, 410 (Tex. App.- Houston [14th Dist.] 1992, pet. ref'd). However, the trial judge is not free to order discovery more extensive than that authorized by the statute. Stephens, 724 S.W.2d at 144. The diary was written by L.H., a witness, and therefore not discoverable. Tex. Code Crim. Proc. Ann. art. 39.14(a). The diary is not in the appellate record. However, L.H. testified that she wrote in her diary that she and Appellant had sex during June of 1997. This is not exculpatory evidence. Further, during his cross-examination of L.H., Appellant asked if she had her diary with her at the trial. Later, he stated, "In your diary there is a fellow that you talk about all the time. His name started with an 'A.'" Later, he asked her who she referred to in her diary when she referred to Joseph. This would indicate that Appellant had read the diary. Finally, in a pretrial motion, Appellant mentioned that, although the District Attorney would not allow it to be copied, he allowed "some examination" of the diary. Appellant has no constitutional or statutory right to have L.H. examined. See Stephens, 724 S.W.2d at 144 (Trial court not empowered to order witness to submit to physical examination for purpose of providing criminal defendant with discovery.). Because the trial court was not authorized to order a psychological evaluation, and the diary was not discoverable, the trial court did not err in denying Appellant's motion for psychological evaluation. We overrule issue seven. Motion for Continuance In his eighth issue, Appellant asserts the trial court erred in denying his motion for continuance filed prior to trial because a two-day delay would have occasioned no hardship on the State and the denial effectively prevented him from properly presenting evidence on his own behalf. He explains that, because his motion for psychological examination was denied, he needed to call Dr. Michael Wolf, a psychologist, as his expert witness. However, Dr. Wolf was out of town on August 6, 2001, the day the trial was scheduled to begin. Appellant's motion for continuance was filed at 9:39 a.m. on August 6, 2001. He asked for a thirty-day continuance to obtain the presence of his expert, Dr. Wolf, who would be out of town until August 10, 2001. The motion does not comply with the statutory requirements for motions for continuance based on an absent witness. See Tex. Code Crim. Proc. Ann. art. 29.06, 29.07 (Vernon 1989). Further, it is not sworn to by a person having personal knowledge of the facts relied on for continuance. Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 1989). A motion for continuance is a matter left to the sound discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 29.06. Due to Appellant's lack of compliance with the statute, the trial court did not abuse its discretion in denying the motion. Further, to preserve error and challenge a trial court's refusal of a motion for continuance made because of an absent witness, Appellant must file a sworn motion for new trial, stating the testimony he expected to present by the witness. Ashcraft v. State, 900 S.W.2d 817, 834 (Tex. App.- Corpus Christi 1995, pet. ref'd). A showing under oath by means of an affidavit of the missing witness or some other source as to what that witness would testify must accompany the motion for new trial. Id. While Appellant did mention this complaint in his unsworn motion for new trial, he did not make a showing under oath as to what Dr. Wolf would have testified. We overrule Appellant's eighth issue. Pretrial Bond In his ninth issue, Appellant contends that the trial court erred in granting a pretrial bond increase because the amount was excessive and it imposed a condition that deprived him of due process. Issues concerning pre-trial bail are moot after the defendant is convicted. Oldham v. State, 5 S.W.3d 840, 846 (Tex. App.- Houston [14th Dist.] 1999, pet. ref'd) (op. on remand). We overrule Appellant's ninth issue. Absence of Appellant In his twelfth issue, Appellant asserts that the trial court erred in allowing the trial to proceed in Appellant's absence without an evidentiary finding reflected on the record that his absence was voluntary. Article 33.03 of the Code of Criminal Procedure provides that, when the defendant voluntarily absents himself after the jury has been selected, the trial may proceed to its conclusion. Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989). On August 6, 2001, a jury was empaneled and sworn. On the morning of August 7, 2001, the State called L.H. to the stand. She testified until the trial court stopped for a lunch break. After the lunch recess, the court stated: All right. For the record, we were having some discussions in the Court's chambers with regard to some procedural matters and the Defendant absented himself from the courtroom and continues to absent himself from the courtroom for some hour. And therefore, this court has - and I've been told by the sheriff deputies that they have been looking for him for that length of time and he has not been found. The jury was then brought in and seated. The court explained: "Ladies and gentlemen, in the State of Texas, the law says that when a person is on trial and voluntarily absents himself from the Court, that the jury trial will continue on." Direct examination of L.H. continued. The following morning, in the jury's absence, the court announced that Appellant had been arrested the night before. He was brought to the courthouse from the jail. The trial court had sufficient facts before it at the time it made the ruling to continue with the trial to conclude that Appellant's absence was voluntary. See Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984) (en banc). We overrule Appellant's twelfth issue. Motion in Arrest of Judgment In his fifteenth issue, Appellant asserts the trial court erred in summarily denying his motion in arrest of judgment. His scant argument regarding this issue merely states that the motion "relates to the probable cause inadequacy and required a hearing when so requested." His written motion in arrest of judgment argued that the sentence and judgment cannot be legally rendered upon the indictment because the affidavits of probable cause upon which the arrest and search warrants were based are insufficient as a matter of law because they are based on hearsay and fail to establish the credibility of the informant. Further, he argued that the search was illegal. A motion in arrest of judgment is a defendant's oral or written suggestion to the trial court that the judgment rendered was contrary to law. Tex. R. App. P. 22.1. The motion may be based on the ground that the indictment is subject to an exception on substantive grounds, that in relation to the indictment a verdict is substantively defective, or that the judgment is invalid for some other reason. Tex. R. App. P. 22.2. A motion in arrest of judgment, which reaches only errors of substance in the indictment, is essentially a post-trial motion to quash the indictment. Crittendon v. State, 923 S.W.2d 632, 634 (Tex. App.- Houston [1st Dist.] 1995, no pet.). However, the defendant is required to file a pre-trial motion to quash the indictment to avoid waiving such a complaint. State v. Borden, 787 S.W.2d 109, 110-11 (Tex. App.- Houston [14th Dist.] 1990, no pet.). Appellant did not file a pre-trial motion to quash the indictment. He therefore waived any complaint that the judgment rendered was contrary to law as contemplated by Rule 22.1. Id. Additionally, his complaint goes to the affidavits in support of the arrest and search warrants. It does not address any alleged substantive errors in the indictment. Accordingly, the trial court did not err in denying his motion in arrest of judgment. To the extent Appellant is complaining of the trial court's failure to hold a hearing on the motion, that complaint has no merit. The rule does not require a hearing and anticipates the trial court's failure to formally rule on a motion in arrest of judgment by explicitly deeming as denied a motion not timely ruled on. Tex. R. App. P. 22.4. We conclude that no hearing is required. We overrule Appellant's fifteenth issue. Communication Between Judge and Jury In his sixteenth issue, Appellant contends that the trial court erred in responding to a written note from the jury during their deliberations without notice in open court. Appellant wholly failed to argue this issue, therefore raising nothing for review. Gonzales, 855 S.W.2d at 697. We overrule issue sixteen. Ineffective Assistance of Counsel In his issues seventeen through twenty-three, Appellant contends his trial counsel was ineffective in the following ways: (17) he failed to consult with Appellant for a seventeen-month period from the date he was hired until the date of trial, (18) he failed to object to inadmissible hearsay statements set forth in the affidavit of probable cause and the arrest warrant, (20) he made no independent investigation of the facts, (21) he failed to consult Appellant prior to trial as to a plan of defense or witnesses to be interviewed or subpoenaed to testify, (22) he had a conflict of interest with Appellant, (23) he failed to secure a signed discovery order and obtain discovery items for trial preparation, and (19) his conduct fell below an objective standard of reasonableness in such a way as to undermine confidence in the outcome of the trial. His list of the issues is followed by slightly more than one page of argument. He has not argued issues nineteen, twenty-two, or twenty-three at all. The arguments concerning issues seventeen, eighteen, twenty, and twenty-one are meager, providing insufficient facts or discussion for a proper review. Accordingly, he has presented no ineffective assistance complaints for review. Gonzales, 855 S.W.2d at 697. To the extent we are able to review these complaints, they fail on the merits. The United States Supreme Court has established a two-part test, also adopted by Texas courts, to determine whether the representation of counsel was effective. The defendant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant has the burden of proving ineffective assistance of counsel claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Claims of ineffective assistance of counsel must be supported by the record. See Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. [Panel Op.] 1981). The record shows that the arrest warrant issued on April 6, 2000. The first surety bond was signed by counsel on April 11, 2000. Thereafter, he signed several docket settings. He appeared at the second bond hearing and signed the new bond. Toward the end of May 2001 he filed several motions. The trial began on August 6, 2001, with counsel in attendance. The depth and breadth of counsel's pre-trial investigation is not reflected in the record. The record is silent with regard to whether or when counsel consulted with Appellant and what they discussed. This court cannot assume a lack of diligent preparation. Sanders v. State, 715 S.W.2d 771, 774 (Tex. App.- Tyler 1986, no pet.). As explained above, it was not error for counsel to fail to object to the affidavit of probable cause and the arrest warrant. Therefore, the failure to object cannot be ineffective assistance. Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.- Houston [1st Dist.] 1986, pet. ref'd). Appellant has failed to show that his counsel's performance fell below the objective standard of reasonableness. Further, even if we agreed that trial counsel's performance was deficient, Appellant has failed to make any showing that he was prejudiced as a result. Therefore, Appellant has failed to show that there is a reasonable probability that the result of the proceeding would have been different but for the alleged error made by counsel. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Appellant has failed to meet his burden of proving ineffective assistance of counsel. Jackson, 973 S.W.2d at 956. Accordingly, we overrule issues seventeen through twenty-three. Conclusion After considering Appellant's twenty-three issues, we determine that none have merit and he has raised no error. We affirm the trial court's judgment. JAMES T. WORTHEN Chief Justice Opinion delivered October 22, 2003. Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J. (DO NOT PUBLISH)