In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-00640-CR
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STEPHEN ELLIS MANLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 15
Harris County, Texas
Trial Court Cause No. 1045072
O P I N I O N
A jury found appellant guilty of assault, with an affirmative finding of domestic violence. The trial court assessed punishment at 300 days in the Harris County Jail. We affirm.
Background
Appellant and his girlfriend, the complainant, lived together. On November 17, 2000, they got into an argument. Appellant pushed the complainant onto the bathroom floor, causing her to hit her head on the bathtub. The complainant ran into the living room, where appellant bit her on the shoulder. He kicked her in the right leg, the buttocks, and the vaginal area. He then forced her to have sex with him.
The complainant called 911, but hung up. She later went to her cousin's house, where she called 911 for the second time. Officer Escobedo was dispatched to the cousin's house. The complainant told the officer that appellant had assaulted her five hours earlier. The officer took pictures of the complainant's injuries and prepared a report.
The complainant did not testify at trial. At the hearing on the motion for new trial, however, she recanted her original statement to the police and claimed that appellant did not assault her. She testified that, instead, she walked in on appellant having sex with another woman, Shenika Jones. She got into a fight with Jones, and then Jones, not appellant, bit and kicked her, while appellant tried to break the two women apart. She falsely told the officers that appellant assaulted her because she was mad at him for sleeping with another woman. She testified that the prosecutor told her that she would go to jail if she changed her story.
Motion for New Trial
The denial of a motion for new trial lies within the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). When reviewing a trial court's denial of a motion for new trial, we do not substitute our judgment for that of the trial court, but rather, we consider whether the trial court's decision was arbitrary or unreasonable. Id.
Rule 21.3(e)
In his sole point of error, appellant contends that the trial court abused its discretion in denying his motion for new trial under Texas Rule of Appellate Procedure 21.3(e), which provides that a defendant must be granted a new trial "when a material defense witness has been kept from the court by . . . threats." Tex. R. App. P. 21.3(e).
Appellant argues that the complainant was a material defense witness who did not testify because the prosecutor threatened her. At the motion for new trial hearing, the complainant testified that the prosecutor told her she would go to jail if she did not testify against appellant. In response, the prosecutor testified that he neither threatened physical force nor yelled at the complainant. He simply warned her about the consequences of changing her story:
I explained to her that if she decided to lie, then she might have possible consequences herself for facing something like perjury. I also - based on what she had told me about, she was essentially recanting the fact that the assault had happened; and I explained to her that I knew she had told the police on one occasion that it did happen and now she was saying it didn't and that she could be facing false report to a police officer it if turned out that in fact we determined she did lie.
In addition, evidence was produced at the new trial hearing to show that the complainant's new story was not credible. See Driggers v. State, 940 S.W.2d 699, 709 (Tex. App.--Texarkana 1996, pet. ref'd). The State presented Jennifer Varela, a licensed social worker, who explained that victims of domestic violence, like the complainant, may refuse to testify because they are afraid of the abuser or believe the abuser's promises to change.
At a motion for new trial hearing, the trial court is the trier of fact and the sole judge of the credibility of the witnesses. Lewis, 911 S.W.2d at 7. The trial court did not abuse its discretion in disbelieving the complainant's testimony. Nor did it abuse its discretion in believing that the prosecutor did not threaten the complainant, but simply warned her about the consequences of changing her story.
Moreover, appellant did not subpoena the complainant to testify at trial. Mere failure of a witness to voluntarily appear for trial does not constitute "intentional withholding of evidence" under rule 21.3(e). Rodriguez v. State, 21 S.W.3d 562, 567 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).
Appellant did not establish that the complainant was kept from the court by threats under rule 21.3(e). Thus, we hold that the trial court did not abuse its discretion in denying a new trial.
We overrule appellant's sole point of error.
Conclusion
We affirm the judgment of the trial court.
Adele Hedges
Justice
Panel consists of Justices Mirabal, Hedges, and Jennings
Do not publish. Tex. R. App. P. 47.4