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Opinion filed December 6, 2007
In The
Eleventh Court of Appeals
__________
No. 11-06-00113-CR
__________
DENNIS E. BRYANT, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the County Court
Ector County, Texas
Trial Court Cause No. 05-3950
OPINION
Appellant appeals from the trial court=s denial of his motion for new trial. We affirm.
Background Facts
A jury convicted appellant of misdemeanor prostitution. The trial court sentenced him to six months in the county jail and a $500 fine probated for nine months. Appellant filed a motion for new trial. After a hearing, the trial court denied the motion for new trial.
Issues
Appellant asserts two issues on appeal. First, he contends that the trial court abused its discretion in denying his motion for new trial because he was denied the effective assistance of counsel at trial. Second, he contends that the trial court abused its discretion in denying his motion for new trial because there was a fatal variance between the information and complaint and the court=s charge to the jury. In response, the State contends that the trial court abused its discretion in allowing appellant to file his amended motion for new trial and conducting an evidentiary hearing based on that motion.
Standard of Review
A trial court=s ruling on a motion for new trial is reviewed for an abuse of discretion. 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). We do not substitute our judgment for that of the trial court but, rather, decide whether the trial court=s decision was arbitrary or unreasonable. Id.
Motion for New Trial Procedure
First, we note that appellant=s motion for new trial was not properly before the trial court because it raised issues not determinable from the record and was not supported by an affidavit. The State filed a response to appellant=s motion for new trial asserting that appellant=s motion was deficient in form and content because it lacked supporting affidavits. The State argued that appellant=s motion was null and void and that he was not entitled to a hearing on the motion. Appellant filed an amended motion for new trial supported by affidavits asserting the same points as the original motion. The trial court held a hearing on appellant=s motion over the State=s objection. A motion for new trial that raises issues not determinable from the record must be supported by an affidavit either of the accused or someone else specifically showing the truth of the grounds of attack. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985). If a criminal defendant desires to file a motion for new trial, he must do so within thirty days after his sentence has been imposed or suspended in open court. Tex. R. App. P. 21.4. A motion for new trial can be amended at any time within the same thirty days so long as the amendment is made before the court overrules any preceding motion for new trial. Id. However, a motion for new trial cannot be amended after the thirty days, even with leave of court. Dugard v. State, 688 S.W.2d 524, 529‑30 (Tex. Crim. App. 1985), overruled on other grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989); Prudhomme v. State, 28 S.W.3d 114, 117-18 (Tex. App.CTexarkana 2000, no pet.). Appellant amended his motion for new trial after the thirty-day window for filing a motion for new trial had expired. However, because the trial court conducted a hearing regarding appellant=s motion for new trial, we will consider the evidence presented at the hearing.
Variance
Appellant argues that there is a fatal variance between the complaint and information and the charge to the jury. The complaint and information in this case provide in relevant part:
DENNIS E. BRYANT, heretofore, styled the Defendant, did then and there knowingly offer and agree to engage in sexual conduct, namely sexual intercourse with S. Stanford, for a fee.
The jury charge provides in relevant part:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 12th day of August, 2005, in Ector County, Texas, the defendant, DENNIS E. BRYANT, hereafter styled the Defendant, did then and there knowingly offer or agree to engage in sexual conduct, namely deviate sexual intercourse with S. Stanford, for a fee, then you will find the defendant guilty.
A variance occurs when there is a difference between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 247 (Tex. Crim. App. 2001). When a variance occurs, the State has proven the defendant guilty of a crime that varies from the allegations in the charging instrument. Id. A hypothetically correct charge need not incorporate allegations that give rise to immaterial variances. Id. at 256. In determining whether a variance is Amaterial@ or Afatal,@ we must determine whether the indictment sufficiently informed appellant of the charge against him to allow him to prepare an adequate defense at trial and whether prosecution under the deficiently drafted indictment would subject him to the risk of being prosecuted later for the same crime. Id. at 257. The appellant has the burden to show prejudice or surprise. Bolyard v. State, 198 S.W.3d 806, 809 (Tex. App.CEastland 2006, no pet.).
The record does not show how appellant was surprised at trial by the State=s evidence of deviate sexual conduct. Appellant was able to prepare the defensive theory of no agreement between the parties. Furthermore, there is no possibility that the variance placed appellant at risk of double jeopardy. Prostitution occurs when a person knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee. Tex. Penal Code Ann. ' 43.02 (Vernon 2003). Sexual conduct includes deviate sexual intercourse, sexual contact, and sexual intercourse. Tex. Penal Code Ann. ' 43.01(4) (Vernon 2003). Because sexual conduct includes both deviate sexual intercourse and sexual intercourse, appellant cannot be charged with prostitution regarding this incident again. The variance between the charging instrument and the jury charge is not material. The trial court did not err in denying appellant=s motion for new trial.
Further, appellant did not object to the variance at trial. We review harm resulting from a charge error depending upon whether appellant objected at trial. If a timely objection has been made at trial, we search for Asome harm.@ However, if the error is urged for the first time on appeal, as in this case, we must find Aegregious harm@ in order to reverse. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In our review, we must consider the entire jury charge, the state of the evidence including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. There is nothing in the record to show how appellant was egregiously harmed by the variance at trial. The evidence clearly showed that the agreement was for deviate sexual intercourse, and trial counsel never argued that the agreement was for sexual intercourse. We overrule appellant=s second issue on appeal.
Ineffective Assistance of Counsel
Appellant asserts in his motion for new trial that he was denied effective assistance of counsel at trial. To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer=s performance fell below an objective standard of reasonableness and that there is a Areasonable probability@ the result of the proceeding would have been different but for counsel=s deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The purpose of this two-pronged test is to judge whether counsel=s conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992)). The review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex. App.CEastland 2005, pet. ref=d).
Appellant contends that his trial counsel was ineffective in failing to object to the variance between the complaint and information and the charge to the jury. Appellant=s trial counsel testified at the hearing on the motion for new trial that he did not object to the variance because he did not catch it. As discussed above, the variance was not fatal; therefore, trial counsel=s failure to object was not unreasonable.
Appellant further contends that his trial counsel was ineffective because (1) he consumed alcohol before and during the trial, (2) he did not effectively voir dire the jury, (3) he did not properly exercise his peremptory strikes, and (4) he used profane language and accusatory cross-examination techniques.
At the hearing on the motion for new trial, appellant=s trial counsel testified that he had one Bloody Mary the morning of appellant=s trial and a glass of wine at lunch. Trial counsel stated that the drinks did not affect his performance as counsel in appellant=s trial. Appellant testified at the hearing on the motion for new trial that he smelled alcohol on his trial counsel=s breath the morning of the trial. Judge Jerry Don Caddel, the trial judge at appellant=s trial, testified at the hearing on the motion for new trial. He testified that his court administrator informed him after lunch that the prosecutors had told her that they thought appellant=s trial counsel had been drinking. Judge Caddel testified that he observed appellant=s trial counsel throughout the trial and that Ahis demeanor was perhaps different than I had ever seen in my court.@ However, Judge Caddel also testified that many times the demeanor of trial counsel was Atypical West Texas trial. What we are used to seeing by attorneys in our local bar.@
Appellant argues that trial counsel=s voir dire was so short that it effectively was not a voir dire. Appellant=s trial counsel testified that he gave a short voir dire and did not ask any questions because he felt that the trial court and the State=s attorney had already covered everything. He testified that he had sufficient knowledge to exercise his peremptory challenges.
Appellant asserts that he and his trial counsel agreed to strike Juror Calloway, but due to trial counsel=s errors, Juror Calloway was the foreman of the convicting jury. Two mistakes were made seating the jury. After the seating corrections were made, both the State=s attorney and appellant=s trial counsel agreed that the final jury seated was correct. At the hearing on the motion for new trial, appellant=s trial counsel testified that there was some confusion as to who the proper jurors were to be called, and he admitted that the confusion could have been caused by his strike list. Each side could exercise three peremptory strikes. Appellant=s trial counsel had struck four names on his jury list. He testified that he was not sure why he had struck four names. He stated that Amaybe we changed our minds.@ He testified that he did not recall appellant telling him to strike Juror Calloway. Appellant testified at the hearing that he talked to his trial counsel about striking Juror Calloway. Judge Caddel testified that it was never brought to his attention that Juror Calloway was meant to be a peremptory strike.
Appellant contends that trial counsel=s use of the word Ablow job@ was offensive to the jury and placed appellant in a bad light. Appellant=s trial counsel testified that he was getting the jury used to that language at voir dire because that was the testimony it was going to hear throughout the trial. Judge Caddel testified that appellant=s trial counsel presented the Abizarre@ defensive theory that Aa ten-dollar blow job@ was entrapment as a matter of law. He further testified that trial counsel emphatically argued the theory and was accusatory toward the officer. However, he also testified that trial counsel was Aloud, boisterous, all those things that trial lawyers do when they are trying to make a point.@ Judge Caddel also testified that he could not tell how the jury perceived trial counsel=s demeanor and trial tactics.
The record does not demonstrate that trial counsel was deficient. There is no evidence that any consumption of alcohol affected trial counsel=s performance at trial. There is abundant testimony regarding trial counsel=s trial strategy. Trial counsel testified that his defensive theory was that there was no agreement between appellant and S. Stanford. He further testified that he believed the State=s case was weak. The video of the incident did not have any audio and did not show appellant making any agreement for sex. Therefore, the case turned on the credibility of the witnesses. The analysis for ineffective assistance of counsel is undertaken in light of the Atotality of the representation@ rather than by examining isolated acts or omissions of trial counsel. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).
There is nothing in the record to overcome the presumption that counsel=s actions were not reasonable trial strategy. The record does not show a reasonable probability that the outcome of appellant=s trial would have been different but for trial counsel=s actions. Furthermore, appellant has not demonstrated how his trial counsel=s actions undermined the proper functioning of the adversarial process such that the trial could not have produced a just result. The trial court did not err in denying appellant=s motion for new trial based on ineffective assistance of counsel. We overrule appellant=s first issue on appeal.
Conclusion
The trial court=s judgment is affirmed.
RICK STRANGE
JUSTICE
December 6, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Strange, J., and Hill, J.[1]
[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.