TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 480735, HONORABLE DAVID CRAIN, JUDGE PRESIDING
The events giving rise to this prosecution took place in July and August 1995. At that time, appellant was employed as a clerk in the office of Betty Homminga, a Houston attorney. One of Homminga's clients was Carla Roberson, who was in the midst of a child custody dispute with her former husband. Roberson testified that she hired appellant, without Homminga's knowledge, to watch her husband for the purpose of obtaining information that might help her in the child-custody matter. Roberson paid appellant $36,000 for this service. Appellant, who was engaged to and later married a Department of Public Safety trooper, hired two other troopers, Ronnie Porter and Barry Washington, to conduct the surveillance when not on duty. Appellant was not a licensed private investigator or private investigations company. Appellant does not challenge the sufficiency of the evidence to sustain the conviction.
Appellant contends the trial court fundamentally erred by failing to instruct the jury on the "attorney exception" to the licensing requirement. See id., 64th Leg., R.S., ch. 494, § 1, 1975 Tex. Gen. Laws. 1312, 1315 (Tex. Rev. Civ. Stat. Ann. art. 4413(29bb), § 3(a)(5), since repealed and codified at Tex. Occ. Code Ann. § 1702.324 (West 2000)) (act does not apply to "an attorney-at-law in performing his duties"). Section 3(a)(5) permits an attorney to perform the type of investigatory work normally required in the course of rendering legal services, such as discovery of evidence, witnesses, and facts, without being licensed as a private investigator. See Tex. Att'y Gen. LO98-005 (1998). Several State's witnesses, including the chief investigator for the Texas Board of Private Investigators and Private Security Agencies, testified that a person employed exclusively by an attorney may conduct investigations for the attorney without being licensed. Appellant, who is not an attorney, testified that the surveillance of Roberson's husband was carried out pursuant to Homminga's instructions, and she insisted that both she and the officers were employed and supervised by Homminga.
Assuming that section 3(a)(5) applies to persons employed by an attorney and assuming further that the evidence raised an issue as to whether appellant's conduct was within the scope of section 3(a)(5), no error is presented. Appellant did not request the instruction or object to its absence. A trial court is under no duty to instruct on unrequested defensive issues. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998); see also Tex. Penal Code Ann. § 2.03(e) (West 1994) (ground of defense in penal law that is not plainly labeled as such has procedural and evidentiary consequences of defense). Point of error four is overruled.
By three points of error, appellant contends the trial court should have granted her motion for new trial based on newly discovered evidence. "A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Proc. Ann. art. 40.001 (West Supp. 2000). To obtain a new trial on this ground, a movant must show: (1) the evidence was unknown to the movant at the time of trial; (2) the movant's failure to discover the evidence was not due to a lack of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result in another trial. See Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994); Driggers v. State, 940 S.W.2d 699, 708 (Tex. App.--Texarkana 1996, pet. ref'd). Motions for new trial based on newly discovered evidence are not favored by the courts and are viewed with great caution. See Drew v. State, 743 S.W.2d 207, 225-26 (Tex. Crim. App. 1987); State v. Davenport; 866 S.W.2d 767, 771 (Tex. App.--San Antonio 1993, no pet.). The standard of review for the denial of a motion for new trial based on newly discovered evidence is abuse of discretion. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).
The newly discovered evidence is the court reporter's record of the September 1995 hearing on Carla Roberson's motion to modify child custody held in the 123rd Judicial District Court of Panola County. This record was admitted in evidence at the new trial hearing. Appellant draws our attention to Barry Washington's testimony at the custody hearing. Washington, one of the troopers hired to watch Roberson's former husband, was questioned by Roberson's attorney, Homminga, about various traffic offenses committed by Roberson's husband that Washington witnessed during the course of the surveillance. During this questioning, Homminga asked Washington, "And with regard to being retained by me to make these observations, did you -- were you paid for your personal services and for your time?" The officer answered, "Yes." During cross-examination, Washington was asked who hired him to watch Roberson's former husband. He answered, "Ms. Homminga did." Asked by the court to explain the basis for Washington's testimony, Homminga replied, "We retained him for the purposes of making these observations." Appellant urges that these excerpts from the custody hearing record demonstrate that Homminga and Roberson lied when they testified at appellant's trial that Roberson hired appellant to watch her husband without Homminga's knowledge, and that Washington lied when he testified that he was hired by appellant.
Homminga's questions and her statements to the court at the custody hearing, considered as evidence of the truth of the matters stated, are objectionable as hearsay. See Tex. R. Evid. 801(d). At appellant's trial, they would have been admissible only to impeach Homminga's testimony. See Tex. R. Evid. 613(a). The discovery of new evidence that merely impeaches trial testimony is not grounds for a new trial. See Moore, 882 S.W.2d at 849.
Washington's testimony at the custody hearing was given under oath, and therefore is not hearsay. See Tex. R. Evid. 801(e)(1)(A). The trial court could reasonably conclude, however, that this evidence was cumulative and would not bring about a different result in a new trial. Washington testified at appellant's trial that he was told by appellant that she was acting as Homminga's agent, and that he originally believed that Homminga was his employer. His written request for departmental approval of his outside employment, admitted in evidence, identified Homminga as his employer. Washington testified that he did not begin to suspect that he had been misled by appellant until later, when appellant asked him for his social security number for tax purposes. At the new trial hearing, Washington said that his testimony at the custody hearing, which was only two months after he had been hired to watch Roberson's husband, reflected his initial misunderstanding of the situation.
Viewed in light of the whole case, the passages from the custody hearing relied on by appellant are merely impeaching or cumulative of other trial evidence, and would not likely produce a different result at a new trial. See Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986); Elledge v. State, 890 S.W.2d 843, 846 (Tex. App.--Austin 1994, pet. ref'd). In addition, appellant was working in Homminga's office in September 1995 when the custody hearing was held and, by her own testimony, was familiar with the details of Roberson's motion to modify custody. The county court at law could reasonably have concluded that appellant failed to use due diligence to obtain the custody hearing record prior to her trial in January 1999.
Appellant asserts that there is other newly discovered evidence showing that Roberson's trial testimony was false and misleading. Roberson testified that she established a charitable foundation with a portion of the money she received in a wrongful death action. She also stated that she owned a horse farm near Nacogdoches. Appellant contends she learned after her trial that the foundation was "dissolved" in September 1997 and the horse farm was "forfeited" in February 1998. This alleged new evidence was not mentioned in appellant's motion for new trial or presented to the court at the new trial hearing. The asserted facts are not in the record before us. Even if true, these facts relate to collateral matters having nothing to do with appellant's guilt of the charged offense.
For the reasons stated, the county court at law did not abuse its discretion by overruling appellant's motion for new trial. Points of error one, two, and three are overruled.
In points of error five and six, appellant contends the trial court should have ordered a new trial in the interest of justice because misconduct by the prosecutor and his "prosecution team" deprived her of her right to a fair trial under the United States and Texas constitutions. See U.S. Const. amend XIV; Tex. Const. art. I, § 10; see also State v. Gonzalez, 855 S.W.2d at 694 (trial court may grant new trial in interest of justice). It is appellant's contention that Homminga, Roberson, and another Houston attorney, Leonard Bradt, conspired against appellant for their financial gain, that the prosecutor improperly "bolstered" the testimony of these and other witnesses, and that the State failed to disclose the "exculpatory testimony" by members of the "prosecution team" at the Panola County custody hearing previously discussed.
Many of the facts cited by appellant as evidence of the conspiracy against her, such as the details of Roberson's child-custody case, are not in the record before us. Other facts cited by appellant are not facts at all, but merely assertions. For example, appellant states that the Roberson custody litigation was Homminga's "career case" and for Roberson to prevail it was necessary to discredit appellant. One fact cited by appellant was undisputed: Homminga wrote an anonymous letter to the Department of Public Safety advising the department that appellant was hiring off-duty troopers as unlicensed private investigators. This letter began the investigation that resulted in appellant's prosecution. This letter may reflect an animus toward appellant on the part of Homminga, but the jury was aware of the letter and was able to take it into consideration in assessing the credibility of Homminga's testimony.
Appellant asserts that Homminga, Roberson, Bradt, and the State's other witnesses were members of the "prosecution team," and therefore the State must have known about and suppressed the allegedly exculpatory testimony at the Panola County custody hearing. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (suppression of material evidence favorable to accused violates due process). Appellant cites no authority by which the State's witnesses are considered part of the "prosecution team." There is no evidence before us that the State was aware of the testimony at the Panola County proceeding before it was introduced in evidence at the hearing on appellant's motion for new trial. Brady does not require the State to seek out exculpatory material for use by the defendant. See Palmer v. State, 902 S.W.2d 561, 563 (Tex. App.--Houston [1st Dist.] 1995, no pet.). Moreover, a Brady violation does not arise if the defendant could have obtained the information at issue using reasonable diligence. See Jackson v. State, 552 S.W.2d 798, 804 (Tex. Crim. App. 1976).
Finally, appellant complains that the prosecutor improperly "bolstered" the State's witnesses "by having them testify as to their achievements and length of time in service." Appellant refers to testimony by the various police officers regarding their length of service and commendations, and to Homminga's testimony regarding her pro bono work. Appellant did not object to this testimony. See Tex. R. App. P. 33.1.
Points of error five and six do not present reversible error. Assuming that the trial court's failure to grant a new trial in the interest of justice is reviewable on appeal, no abuse of discretion is shown. Points of error five and six are overruled.
Appellant's seventh point of error asks this Court to grant her a new trial in the interest of justice, citing the evidence and arguments previously discussed. Motions for new trial are properly addressed to the trial court. See Tex. R. App. P. 21.1. When the trial court overrules a motion for new trial, our role as an appellate court is limited to a review of that decision for an abuse of discretion. Point of error seven is overruled.
The judgment of conviction is affirmed.
J. Woodfin Jones, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: May 18, 2000
Do Not Publish
otion for new trial or presented to the court at the new trial hearing. The asserted facts are not in the record before us. Even if true, these facts relate to collateral matters having nothing to do with appellant's guilt of the charged offense.
For the reasons stated, the county court at law did not abuse its discretion by overruling appellant's motion for new trial. Points of error one, two, and three are overruled.
In points of error five and six, appellant contends the trial court should have ordered a new trial in the interest of justice because misconduct by the prosecutor and his "prosecution team" deprived her of her right to a fair trial under the United States and Texas constitutions. See U.S. Const. amend XIV; Tex. Const. art. I, § 10; see also State v. Gonzalez, 855 S.W.2d at 694 (trial court may grant new trial in interest of justice). It is appellant's contention that Homminga, Roberson, and another Houston attorney, Leonard Bradt, conspired against appellant for their financial gain, that the prosecutor improperly "bolstered" the testimony of these and other witnesses, and that the State failed to disclose the "exculpatory testimony" by members of the "prosecution team" at the Panola County custody hearing previously discussed.
Many of the facts cited by appellant as evidence of the conspiracy against her, such as the details of Roberson's child-custody case, are not in the record before us. Other facts cited by appellant are not facts at all, but merely assertions. For example, appellant states that the Roberson custody litigation was Homminga's "career case" and for Roberson to prevail it was necessary to discredit appellant. One fact cited by appellant was undisputed: Homminga wrote an anonymous letter to the Department of Public Safety advising the department that appellant was hiring off-duty troopers as unlicensed private investigators. This letter began the investigation that resulted in appellant's prosecution. This letter may reflect an animus toward appellant on the part of Homminga, but the jury was aware of the letter and was able to take it into consideration in assessing the credibility of Homminga's testimony.
Appellant asserts that Homminga, Roberson, Bradt, and the State's other witnesses were members of the "prosecution team," and therefore the State must have known about and suppressed the allegedly exculpatory testimony at the Panola County custody hearing. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (suppression of material evidence favorable to accused violates due process). Appellant cites no authority by which the State's witnesses are considered part of the "prosecution team." There is no evidence before us that the State was aware of the testimony at the Panola County proceeding before it was introduced in evidence at the hearing on appellant's motion for new trial. Brady does not require the State to seek out exculpatory material for use by the defendant. See Palmer v. State, 902 S.W.2d 561, 563 (Tex. App.--Houston [1st Dist.] 1995, no pet.). Moreover, a Brady violation does not arise if the defendant could have obtained the information at issue using reasonable diligence. See Jackson v. State, 552 S.W.2d 798, 804 (Tex. Crim. App. 1976).
Finally, appellant complains that the prosecutor improperly "bolstered" the State's witnesses "by having them testify as to their achievements and length of time in service." Appellant refers to testimony by the various police officers regarding their length of service and commendations, and to Homminga's testimony regarding her pro bono work. Appellant did not object to this testimony. See Tex. R. App. P. 33.1.
Points of error five and six do not present reversible error. Assuming that the trial court's failure to grant a new trial in the interest of justice is reviewable on appeal, no abuse of discretion is shown. Points of error five and six are overruled.
Appellant's seventh point of error asks this Court to grant her a new trial in the interest of justice, citing the evidence and arguments previously discussed. Mo