In The
Court of Appeals
For The
First District of Texas
______________
NO. 01-02-00046-CR
______________
TED LAWRENCE ROBERTSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1055969
O P I N I O N
A jury found appellant, Ted Lawrence Robertson, guilty of assault and assessed punishment at 30 days in jail and a $1,000 fine. We address (1) whether trial counsel was ineffective because he did not subpoena a witness; (2) whether the trial court abused its discretion in denying appellant's request for a continuance on the day of trial; and (3) whether appellant preserved his complaint that the trial court improperly instructed the jury panel about the burden of proof. We affirm.
Facts
The complainant, Urita Emanuel, was driving her son and Rachel Zeno to school, when appellant, her ex-husband, began following her. Upon arrival at McArthur Elementary School, appellant approached the driver's side of the complainant's vehicle, opened the door, struck the complainant three times in her left torso area, and spat in the complainant's face. The complainant asked Zeno to call the police. Appellant left the scene, and the complainant attempted to follow him, but she abandoned the pursuit after a short time.
Ineffective Assistance of Counsel
In his first point of error, appellant contends that he was deprived of effective assistance of counsel due to counsel's failure to subpoena a witness for the defense. Appellant asserts that his counsel did not subpoena the only witness who could have provided a material defense by challenging the credibility of the complainant.
To prevail, appellant must show that counsel's representation fell below an objective standard of reasonableness and, but for counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The reasonableness standard in Strickland requires analyzing the attorney's performance based on the "totality" of the representation. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The defendant must overcome the presumption that the challenged action of counsel might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
The decision to call witnesses is generally considered a matter of trial strategy. Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd); State v. Thomas, 768 S.W.2d 335, 337 (Tex. App.--Houston [14th Dist.] 1989, no pet.). Similarly, the decision to subpoena a defense witness or to request that the trial court order a witness to return is a matter of trial strategy. Placing a witness under orders of the trial court, rather than merely asking the witness to return voluntarily, might cause apprehension, resentment, or even injurious testimony on the part of a witness alienated by the coercive action. Requesting a subpoena could also reveal the existence of a witness who would be otherwise unknown to the prosecution. The record shows that defense counsel fully expected the witness to return and that only a family emergency prevented the witness's return. Under these circumstances, appellant has not overcome the presumption that the challenged action might be considered sound trial strategy. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.).
We overrule appellant's first point of error.
Denial of Motion for Continuance
In his second point of error, appellant contends that the trial court abused its discretion by denying his motion for continuance. Appellant requested a continuance because his unsubpoenaed witness had not appeared at trial.
To obtain a continuance for a missing witness, the defendant must show, among other things, that he exercised due diligence to secure attendance. Tex. Code Crim. Proc. Ann. art. 29.06(2) (Vernon 1989). The trial court has discretion to grant a continuance, and reversal is justified only when the trial court has abused its discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982). If a defendant does not apply for process of a witness until a day or two before trial, he has failed to exercise the due diligence necessary to support a motion for continuance. People v. State, 477 S.W.2d 889, 891 (Tex. Crim. App. 1972). Appellant neither subpoenaed his witness nor presented him to be sworn to return on the day of trial, but merely made an oral motion for continuance on the day of trial. Appellant relied solely upon a promise for the witness to return. To obtain relief from the denial of a motion for continuance, an affidavit of the absent witness or an application for subpoena of the witness is necessary to show an abuse of discretion. Robinson v. State, 454 S.W.2d 747, 748 (Tex. Crim. App. 1970). Appellant secured neither. Accordingly, the trial court did not abuse its discretion by overruling the motion for continuance.
We overrule appellant's second point of error.
Reasonable Doubt Definition
In his third point of error, appellant asserts that the trial court abused its discretion when it gave the jury panel an instruction with respect to the burden of proof. Appellant claims that the trial court's providing a definition of "beyond a reasonable doubt" prior to voir dire of the jury panel caused appellant egregious harm and deprived him of a fair trial.
To preserve a complaint for review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling the defendant sought from the trial court with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a)(1). Appellant alleges that the trial court improperly instructed the jury on the burden of proof; however, appellant failed to object to the instructions given by the trial court.
Appellant relies on Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) for the proposition that we must review even unobjected-to jury instructions. Almanza applies to jury charges, however, not to statements made by the trial court during voir dire. See id. To the latter, a defendant must object or waive error, except for fundamental error, as recently emphasized in Blue v. State. See id., 41 S.W.3d 129, 131 (Tex. Crim. App. 2000).
Here, while explaining the burden of proof in his introductory remarks, the trial court contrasted the various burdens of proof for civil cases, terminations of parental rights, and criminal cases. Appellant seizes on a slight misstatement, taken out of context, to argue that the trial court equated the State's burden of proof with the clear and convincing standard for termination of parental rights. When examining the entirety of the trial court's statements, however, there is no error even arguably approaching that in Blue, in which the trial court made comments that undermined the defendant's presumption of innocence. See id. at 132. Accordingly, appellant's failure to object waived the error.
We overrule appellant's third point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Alcala, and Price. (1)
Do not publish. Tex. R. App. P. 47.1.
1. The Honorable Frank C. Price, former Justice, Court of Appeals, First District
of Texas at Houston, participating by assignment.