Douglas Ray Wyatt v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2011
• Docket: 14-10-00714-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 30, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00714-CR

Douglas Ray Wyatt, Appellant

V.

The State of Texas, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1213961

MEMORANDUM  OPINION

Appellant Douglas Ray Wyatt pleaded guilty to aggravated sexual assault with a deadly weapon, and the trial court assessed an enhanced sentence of confinement for 30 years.  We affirm.

BACKGROUND

The complainant was walking past appellant’s apartment complex on the evening of April 29, 2009 when appellant approached and asked her if she had a light for a cigarette.[1]  When the complainant looked down and searched for her lighter, appellant placed a knife to her throat and forced her to accompany him to his apartment.  Once inside the living room of the apartment, appellant locked the door and stated: “We can do this the easy way or we can do this the hard way.”  Appellant told the complainant that she was lucky he had not yet killed her.  Appellant turned on the television and turned up the volume.  The complainant told police that she feared for her life, and that when appellant ordered her to remove her clothes, she complied.

The complainant related the following information to the police:

            [The complainant] stated once she had removed her clothes, the defendant placed the knife to her throat before he lowered his pants and forced her to perform oral sex on him.  As she performed oral sex on the defendant, he held the knife to her throat and kept telling her he was going to kill her if she caused any trouble. . . .

            [The complainant] stated the defendant had her lie on the couch while he removed his pants.  She stated he then inserted his penis into her vagina and began to have sex with her. . . .

            [The complainant] stated she told the defendant she needed to use the restroom; however, he would not allow her to use his bathroom and directed her to use a blanket lying nearby as her toilet.  [The complainant] stated she defecated and urinated on the blanket.

            [The complainant] stated the defendant then removed several vibrators and sex toys from a backpack.  He inserted a vibrator inside her vagina and another inside her anus.  [The complainant] stated she told him she was thirsty and when he left the living room to get her a glass of water she was able to unlock the front door and escape.

            She stated she was totally naked as she ran to her boyfriend’s house where she redressed before calling the police from [a] nearby Texaco station. . . .

Appellant pleaded guilty to the allegation of aggravated sexual assault in the indictment; appellant also pleaded true to the enhancement paragraph.[2]  Appellant elected to have the trial court assess his punishment, and he filed a motion for community supervision.  The trial court directed the preparation of a PSI report and reset appellant’s punishment hearing. 

At appellant’s punishment hearing, the complainant testified that she has been afraid to walk outside at night or leave the house since the assault, and that she would not feel safe if appellant is released on community supervision.  She also testified that she has nightmares of being raped.[3]

Appellant’s common-law wife testified that she and her daughter were in appellant’s apartment the night of the incident, and that their bedrooms are about two or three feet away from the living room.  She testified that she heard loud music at some point and asked appellant to turn the volume down, but that she and her daughter were otherwise asleep and did not wake up until the police came to her door later that night.  She testified that she has seen the complainant a few times, and that the complainant came to her door the day after appellant was arrested to say that “she was sorry.” 

Appellant’s wife also testified that appellant is consistently employed, is not a violent person, would not be a danger to society, and would follow the terms of his community supervision if the trial court deferred adjudication of the offense.  She testified that appellant should be punished if he committed the offense, but that she’d “never known him to do anything like that.”  She testified that she understood he had pleaded guilty to the offense, but appellant’s plea didn’t change her opinion of him or his tendency toward violence.

Appellant testified that he has had a previous sexual relationship with the complainant, and that the two engaged in a consensual sexual encounter the night of the incident.  He said the complainant was “pretty distraught” that night because she had been on a “three-day [drug-related] adventure.”  He testified that he used the knife as part of a sex game for “amusement” and for “faster orgasm;” he testified that the complainant’s urination and defecation on the blanket in the living room were “an arousal thing” and also part of the sex game.  When questioned if he understood that the complainant “may have been afraid with the knife thing,” appellant answered, “Yes.”  He testified that the complainant picked up her drugs and left his apartment naked, and that he folded her clothes, left them by the front door, and fell asleep waiting for her to return.  He testified that the reason the complainant ran out of his apartment naked was because of her drug use.

Appellant testified that he would willingly comply with any community supervision requirements, and he would complete any court-ordered treatment or therapy.  He admitted that his actions in the living room the night of the incident with his wife and daughter in the next room were “a real bad thing.”

The trial court adjudicated appellant guilty of aggravated sexual assault with a deadly weapon and sentenced him to 30 years’ confinement. 

Appellant appeals, arguing (1) the trial court’s denial of appellant’s motion for new trial without an evidentiary hearing was prejudicial error; (2) the prosecution engaged in misconduct by cross-examining appellant about certain issues that the State promised would not be raised at trial; (3) the use of such “evidence” violated the Texas Code of Criminal Procedure; (4) the trial court erred in refusing to allow appellant 48 hours to review the PSI report prior to the punishment hearing; and (5) his guilty plea was involuntary.  We address appellant’s issues out of order. 

ANALYSIS

I.         48-Hour Review of PSI Report

Appellant argues in his fourth issue that the trial court erred in refusing to allow appellant 48 hours to review the PSI report prior to the punishment hearing.

The following exchange took place at the hearing:

THE COURT: [Counsel,] do you have any objection to the presentence investigation report?

[COUNSEL]: Well, judge, the only objection I have is, as I stated to the Court earlier, I just received the report yesterday afternoon at around 3:00 or 4:00 o’clock in the afternoon, Judge.

THE COURT: Yes, sir.

[COUNSEL]: And I was only able to discuss it with my client briefly this morning.  So, I would object at this time to the report based on the fact that I really didn’t have sufficient time to review it yesterday.

THE COURT: What time did you get it?

[COUNSEL]: Judge, around 3:00, I think it was.  Could have been 4:00 o’clock.

THE COURT: All right.  And it’s 10:30 this morning.

[COUNSEL]: Yes, sir.

THE COURT: I think you could read this report two or three times in that length of time.

THE COURT: That will be overruled.

Texas Code of Criminal Procedure article 42.12, section 9(d), provides that, “[u]nless waived by the defendant, at least 48 hours before sentencing a defendant, the judge shall permit the defendant or his counsel to read the presentence report.”  Tex. Code Crim. Proc. Ann. art. 42.12, § 9(d) (Vernon 2006).  Although the discussion between appellant’s counsel and the trial court reflects that the trial court did not abide by the 48-hour review requirement and appellant did not waive this right, appellant does not argue that he needed additional time to be able to challenge the factual accuracy of the information in the PSI report at the hearing.  See id. § 9(e) (“The judge shall allow the defendant or his attorney to comment on a presentence investigation or a postsentence report and, with the approval of the judge, introduce testimony or other information alleging a factual inaccuracy in the investigation or report.”).  We conclude on this record that harm has not been demonstrated.  See Tex. R. App. P. 44.2(b) (non-constitutional errors that do not affect substantial rights must be disregarded).  We overrule appellant’s fourth issue.

II.        Cross-Examination of Appellant

Appellant’s remaining four issues relate to the State’s cross-examination of appellant during the punishment hearing:

Q. Do you know a woman named Freddie Washington?

[COUNSEL]: Judge, I’m going to object to that.  That’s irrelevant, Judge.  That is irrelevant and not part of this proceeding.  It’s not connected to this case, and I’d object to that.

[STATE]: Judge, if I may —

THE COURT: I’ll ask the State to establish the relevance.  Overruled at this point.

Q. (By [STATE]) Do you know a woman named Freddie Washington?

A. No.

Q. You don’t?

Q. A woman who lived across the street from you?

Q. Never heard of her before?

A. I saw her, but I don’t know her.

Q. You know that she was found dead on December 24, 2008?

[COUNSEL]: And, Judge, I object.  There is no connection to him and Freddie Washington, Judge; and I object to that.

[STATE]: Judge, there is a connection.  This is a punishment thing, but there’s D.N.A. connecting the —

[COUNSEL]: No.  And, Judge, I would object to that.  And I strongly object to that, Judge.  That is wrong for him to say that; and I object to that, Judge.  That is wrong.

[STATE]: Well, there is —

[COUNSEL]: There is no D.N.A. that’s going to match his D.N.A., Judge, and I object to that.

[STATE]: There is a — he’s included in the D.N.A. report.  It’s not a high number, but he’s included.

[COUNSEL]: And that’s what’s so wrong about it, Judge.  It’s entirely wrong, and I object to that.

THE COURT: That’s not in evidence before the Court.

[STATE]: No, Judge; but it is a punishment hearing and we have a good faith basis.

[COUNSEL]: And, in fact, Judge, he told me this was not going to be part of any — of this case at all.

[STATE]: I said that we would not — we would not include it as any type of extraneous offense, which we did not.  It’s not included as any type of extraneous offense.  But I certainly have a good faith basis to question him about it.

[COUNSEL]: Judge, it’s entirely wrong, Judge.  To bring it up at this point in time is wrong.

THE COURT: Did you give him notice?

[STATE]: Yes, Judge.  It’s in the 404/609 notice of this case when it was set for trial.

[COUNSEL]: He also sent me a letter, Judge; and in his own letter — or a fax saying that he did not intend to use this for anything.  He faxed that to me.

[STATE]: In a punishment hearing, though, Judge.  I couldn’t bring it up in the case in chief.  I certainly agree to that.  But it’s not enough evidence to go forward on it, but I certainly have a good faith basis to question him about it.

[COUNSEL]: And that’s not part of the PSI report before you; so, I object to all that.

THE COURT: I’ll sustain his objection.

Appellant did not seek any further relief at the hearing.

A.        Trial Objections

Appellant argues in his second issue that the prosecution engaged in misconduct by cross-examining appellant about Freddie Washington and her death when the State had previously promised that the issue of Washington’s alleged murder would not be used at trial.[4]  However, appellant does not identify any improper ruling or action by the trial court in connection with his second issue.  The trial court granted appellant’s requested relief when it sustained appellant’s objection to the State’s cross-examination regarding Washington.  Appellant sought no additional relief for any alleged prosecutorial misconduct during the hearing.  We overrule appellant’s second issue.    

Appellant argues in his third issue that the use of such “evidence” violated the Texas Code of Criminal Procedure.  Questions, however, are not evidence.  Kercho v. State, 948 S.W.2d 34, 37 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).[5]  Appellant denied any knowledge of Washington or her death.  In response to arguments regarding alleged DNA evidence that may or may not link appellant to Washington in some unidentified way, the trial court specifically acknowledged: “That’s not in evidence before the Court.”  The State did not reference Washington at any point after the trial court sustained appellant’s objection.  The PSI report does not mention Washington.  No other evidence was admitted on this issue.  We overrule appellant’s third issue.

B.        Motion for New Trial

Appellant filed a timely motion for new trial after the punishment hearing, arguing that the State’s cross-examination of appellant about Washington rendered appellant’s plea involuntary.  If he had known the State would “introduce or comment” about the alleged murder, appellant contends that (1) he would not have believed that the trial court would consider deferred adjudication in light of such information; and (2) he would not have pleaded guilty.  The trial court denied the motion without a hearing.

Appellant argues in his fifth issue, as he did in his motion for new trial, that his guilty plea was involuntary.  Appellant argues in his first issue that the trial court’s denial of appellant’s motion for new trial without an evidentiary hearing was prejudicial error. 

The purpose of a hearing on a motion for new trial is to (1) decide whether the cause should be retried; and (2) prepare a record for presenting issues on appeal in the event the motion is denied.  Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009).  To deter “fishing expeditions,” a motion for a new trial must be supported by an affidavit showing the grounds of attack as a prerequisite to a hearing on that motion.  Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).  Entitlement to hearing is not an absolute right.  Smith, 286 S.W.3d at 338. 

A hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record.  Id.  We conclude that appellant’s motion depends on the development of facts not determinable from the record, such as the alleged promises made by the State and appellant’s asserted reliance on those promises in deciding to plead guilty.      

However, even a defendant who has raised matters not subject to being determined from the record is not entitled to a hearing on his motion for new trial unless he establishes the existence of “reasonable grounds” showing that the defendant could be entitled to relief.  Id. at 339.  The affidavit need not establish a prima facie case or reflect every component legally required to establish relief; it is sufficient if a fair reading gives rise to reasonable grounds in support of the claim.  Id. 

We must determine whether appellant’s motion and affidavits show reasonable grounds entitling him to a hearing on the motion based on his voluntariness argument.  A guilty plea must be entered into voluntarily and freely.  See Houston v. State, 201 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Tex. Crim. Proc. Code Ann. art. 26.13(b) (Vernon Supp. 2005), and Anderson v. State, 182 S.W.3d 914, 921 n.1 (Tex. Crim. App. 2006) (Hervey, J., concurring)).  We must examine the entire record when considering the voluntariness of a guilty plea.  Id. (citing Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam)).

A trial court’s substantial compliance with article 26.13 in admonishing a defendant constitutes a prima facie showing that the defendant’s guilty plea was entered freely and voluntarily.  Id. (citing Martinez, 981 S.W.2d at 197).  The record shows that the trial court admonished appellant in accordance with article 26.13, and appellant does not challenge the sufficiency of these admonitions or appellant’s attestation during his initial plea hearing that his plea was voluntary.[6]  Thus, the “heavy burden” shifts to the appellant to show that he was unaware of the consequences of his plea such that he consequently suffered harm.  Id.

Appellant’s motion for new trial was accompanied by a letter dated February 23, 2010, in which the prosecutor states: “Included is a copy of the statement [appellant] made to HPD in regards to the murder of Freddie Washington.  I don’t actually intend on using this statement nor do I intent [sic] to bring up the murder during [appellant’s] trial, but I wanted you to have a copy of the statement regardless.”  Appellant attached his affidavit to the motion, in which he states that he pleaded guilty only because the State made this promise.  The motion was accompanied by an affidavit signed by appellant’s trial counsel, in which trial counsel stated: “At all times [appellant] vehemently denied commission of the [alleged Washington murder].  I related the State’s Agreement not to mention the [alleged Washington murder] to [appellant] before he entered his plea of guilty.” 

Even assuming the truth of these statements, appellant’s motion and affidavits do not reflect the existence of reasonable grounds showing that appellant could be entitled to relief.  See Smith, 286 S.W.3d at 339.  Appellant’s voluntariness argument is based on his contention that the circumstances of his plea changed when the trial court heard questioning about Washington.  According to appellant, this questioning was tantamount to evidence that the trial court could not possibly disregard in determining whether to defer adjudication of appellant’s guilt.  As we have explained, the State’s questions about Washington do not constitute evidence.  See Kercho, 948 S.W.2d at 37.  The voluntariness of appellant’s plea could not have been affected by the State’s cross-examination, regardless of whether (1) the State promised not to reference Washington “for any purpose;” and (2) appellant relied on that asserted promise in deciding to plead guilty.  Appellant’s contention fails because the trial court did not hear and could not have relied upon any objectionable evidence in deciding whether to defer adjudication of appellant’s guilt.

The trial court did not abuse its discretion in denying appellant’s motion without granting appellant’s request for a hearing.  See Buerger v. State, 60 S.W.3d 358, 362–63 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (in context of ineffective assistance of counsel claim, appellant failed to demonstrate significance of the complained-of actions and how, if they occurred, they were deficient or harmed appellant).  We overrule appellant’s first and fifth issues.

CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the judgment of the trial court.

                                                                        /s/        William J. Boyce

                                                                                    Justice

Panel consists of Justices Brown, Boyce, and Jamison.

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

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[1] These facts are taken from the presentence investigation report (PSI report), which summarizes the complainant’s allegations as described in the police report.  The complainant testified at the sentencing hearing that everything she told the police about the incident was true.

[2] Despite his guilty plea, appellant disputed the complainant’s allegations during his presentence investigation interview.  Appellant stated during this interview that he knows the complainant and has had a sexual relationship with her for years.  According to his version of the events, the complainant called him the night of the incident asking for money; she purchased crack with the money appellant gave her and smoked it at appellant’s apartment.  He claims that they engaged in consensual sex on the living room couch, and that the complainant became paranoid from smoking more crack afterward.  He explained that the complainant suggested that they use the sex toys, which belonged to a friend of appellant’s who had left them at appellant’s apartment.  After having sex again, she took her remaining crack and crack pipe and ran out of the apartment naked.  Appellant denied he kidnapped the complainant, used a knife, or forced her to have sex against her will.

[3] The complainant admitted to four theft convictions, two of which were felonies; two prostitution convictions; one felony forgery conviction; one felony credit card abuse conviction; and two felony drug possession convictions.

[4] Appellant also argues that the State “used” this evidence in its “argument to the court.”  The record contains no such reference in the State’s arguments outside of the context of the State’s attempt to cross-examine appellant about Washington.

[5] Appellant did not object to the questions on the grounds that they constituted testimony by counsel or assumed facts not in evidence.  See, e.g., Duncan v. State, 95 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“Prohibiting this kind of interjection of prejudicial hearsay as fact, in front of the jury, is the purpose of the objections ‘assumes facts not in evidence’ and ‘counsel testifying.’”) (citing Ramirez v. State, 815 S.W.2d 636, 652 (Tex. Crim. App. 1991)).

[6] The trial court asked appellant several questions regarding his plea, and appellant responded that (1) he was making such pleas because, in fact, he is guilty and the allegations in the enhancement paragraph are true; (2) no one threatened him or coerced him into making such pleas; (3) he has no history of mental illness; (4) he was aware of and relinquished his absolute right to a jury trial and wished to proceed with a presentence investigation; (5) he was satisfied with the representation of trial counsel, who had explained to appellant the legal meaning of his signed waiver of constitutional rights, agreement to stipulate, judicial confession, and plea of guilty, as well as related admonitions regarding his plea and sex offender registration; (6) appellant understood the range of punishment associated with aggravated sexual assault; and (7) he understood that the trial court alone would decide whether to defer appellant’s adjudication or sentence appellant within the appropriate range of punishment after receiving the PSI report.  Appellant and his counsel also signed written plea admonitions.  Appellant confirmed his desire on the record to continue with his plea after receiving these admonitions.