Opinion
06-23-00082-CR
03-20-2024
TROY LADALE MUMPHREY, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted: January 24, 2024
On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 52002-A.
Before Stevens, C.J., van Cleef and Rambin, JJ.
MEMORANDUM OPINION
Scott E. Stevens Chief Justice
Troy Ladale Mumphrey was charged by indictment with the offense of indecency with a child by contact, a second-degree felony. Mumphrey pled not guilty to the charge. Following a bench trial, the trial court found him guilty and sentenced him to seven years in prison. Mumphrey appeals, arguing that (1) the record is insufficient to show that he freely, knowingly, and intelligently waived his right to a jury trial and (2) the trial court erred when it denied his motion for continuance. For the reasons below, we affirm the judgment of the trial court.
See Tex. Penal Code Ann. § 21.11(a)(1). On May 27, 2022, the State filed a motion to amend its original indictment, asking the trial court for permission to change the date of offense from January 1, 2017, to March 1, 2019. That same day, the trial court granted the State's motion.
I. Mumphrey Waived His Right to a Jury Trial
Because this case does not involve an evidentiary issue, we find it unnecessary to include a recitation of the facts.
In his first point of error, Mumphrey contends that the record is insufficient to show that he freely, knowingly, and intelligently waived his right to a jury trial. According to Mumphrey, because he did not freely, knowingly, and intelligently waive his right to a jury trial, his "trial before the court below was structural error, and the resulting conviction cannot stand."
"As a matter of protecting a defendant's constitutional right to a jury trial, the State must establish on the record an express, knowing, and intelligent waiver." Munguia v. State, 636 S.W.3d 750, 757 (Tex. App.-Houston [14th Dist.] 2021, pet. ref'd) (citing Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009)). "A defendant's mere acquiescence in proceeding to trial without a jury does not constitute an express waiver." Id. (citing Ex parte Lyles, 891 S.W.2d 960, 962 (Tex. Crim. App. 1995) (orig. proceeding)). Even so, "[n]either the federal nor the state constitution requires that trial by jury be waived in writing." Id. (citing Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002)). Yet, "Article 1.13 of the Texas Code of Criminal Procedure requires a defendant who waives his right to a jury trial to do so in writing in open court with the approval of the court and the State." Clark v. State, 592 S.W.3d 919, 931 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Tex. Code Crim. Proc. Ann. art. 1.13(a)).
A "waiver of [a] jury can never be presumed from a silent record, at least on direct appeal." Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983). That said, we do not have a silent record in this case. Here, Mumphrey signed a waiver of jury trial, and that document is contained in the record. Additionally, the trial court's judgment recited that Mumphrey waived the right of trial by jury, stating, "Defendant waived the right of trial by jury and entered the [not guilty] plea indicated above. It appeared to the Court that Defendant was mentally competent to stand trial, made the plea freely and voluntarily, and was aware of the consequences of the plea." "[A] recitation of a waiver of the right to a jury trial is 'binding in the absence of direct proof of [its] falsity.'" Munguia, 636 S.W.3d at 758 (alteration in original) (quoting Johnson, 72 S.W.3d at 349). "Without direct proof, the appellant cannot overcome the presumption of regularity in the judgment." Id. After scouring the record, we conclude that there is no direct proof of falsity in the trial court's recital that Mumphrey waived his right to a jury trial.
The written waiver stated as follows:
I, TROY LADALE MUMPHREY, Defendant in the above entitled and numbered cause, joined herein by my attorney in open Court do hereby waive my right of trial by jury and agree that this cause may be tried by the Courts only.
AND, I joined by my attorney, do further waive the ten (10) days' trial preparation time allowed by law.
AND, I do further waive the reading of the indictment.
Moreover, Tom Watson, Gregg County's criminal district attorney, consented and approved to the waiver and agreed to a trial before the court.
Citing Rios v. State, 665 S.W.3d 467, 484-85 (Tex. Crim. App. 2022), Mumphrey argues,
Even assuming that Mumphrey knew that he had the right to be tried by a jury, the record does not show the extent of his knowledge about that right (e.g., that he had an absolute right to a jury trial, that he would receive a jury trial unless he waived the right, etc.).
We disagree.
In Rios, the Texas Court of Criminal Appeals addressed the knowing- and intelligent-waiver requirement and set out several factors that could be considered in the analysis. One of the factors the court considered is whether there was a written waiver. Id. at 470. The court also considered "whether the trial court admonished the defendant about his right to a jury." Id. at 480. Even so, the court stated, "While admonishments are preferred by many courts, numerous courts have held a colloquy regarding the waiver of a jury is unnecessary." Id. at 480 n.25.
Here, the trial court conducted a hearing on Mumphrey's waiver of jury trial on the same day that he signed a waiver.
THE COURT: Okay. And, Mr. Mumphrey, I have before me a Waiver of Jury Trial. Did you sign this waiver?
[BY MUMPHREY]: Yes, sir.
THE COURT: Before you signed it, did you talk to your attorney, Mr. Kim, about it?
[BY MUMPHREY]: Yes, sir.
THE COURT: Okay. It's my understanding that you don't want a jury trial; is that correct?
[BY MUMPHREY]: Yes, sir.
[BY THE COURT]: So what I understand -- talking to your attorney, talking to the State -- this is a trial before me, the Court. Is that what you want?
[BY MUMPHREY]: Yes, sir.
. . . .
THE COURT: Okay. Mr. Mumphrey, you would return Wednesday at 8:30, and we will begin a non-jury trial. The State had offered you 5 years in the Institutional Division of the Texas Department of Criminal Justice to plead guilty. It's my understanding you don't want to do that; you want a trial.
If you're found not guilty, we would -- this case would -- it would be - - we would be finished with the case, if I found you not guilty. If you were found guilty, you would go before the Court for punishment. Is that what you want to do?
[BY MUMPHREY]: Yes, sir.
. . . .
THE COURT: Okay. So, Mr. Mumphrey, this sounds -- it's complicated because you've probably never been through this before. But if you're found not guilty, we're finished; if you're found guilty, you would come back, and we'd have a punishment hearing at a later date.
So you could -- you could -- you and your attorney could ask for probation; the State could agree, disagree. To make a long story short -- I think it's 2 to 20?
[BY THE STATE]: It is, Judge.
THE COURT: Okay.
[BY THE STATE]: It's indecency.
THE COURT: Okay. So I don't know what's going to happen. I don't even know if you're going to be found guilty, you know what I mean?
But knowing all that, do you still want me to approve the waiver?
[BY MUMPHREY]: Yes, sir.
THE COURT: Okay. So we'll see what happens. The attorneys are kind of telling me this may last all day Wednesday, it may go into Thursday. So we'll just have to wait and see.
Knowing all of that, do you still want me to approve the waiver?
[[BY MUMPHREY]: Yes, sir.
THE COURT: And, Mr. Kim, you did talk to Mr. Mumphrey, and you think he knows what he's doing?
[BY MUMPHREY'S COUNSEL]: Yes, Your Honor.
Furthermore, on the day the bench trial began, the trial court stated, "All right. This is 52,002-A, The State of Texas vs. Troy Ladale Mumphrey. This case is set for a trial to the Court. The jury was previously waived on May the 27th, 2022." Both parties announced that they were ready for trial. There were no objections, comments, or discussions regarding Mumphrey's waiver of a jury trial or to his consent to proceed to trial before the court.
The record demonstrates that, after Mumphrey signed a written waiver of a jury trial, the trial court made it clear that Mumphrey had a right to a jury trial. The trial court also explained to Mumphrey the consequences of waiving a jury trial and that, if Mumphrey were found guilty, the trial court would determine his punishment. Mumphrey acknowledged that he consulted with his trial attorney about the waiver. From Mumphrey's exchange with the trial court about the waiver, Mumphrey appeared to understand his discussion with the trial court and did not require the presence of an interpreter. Mumphrey's trial counsel confirmed to the trial court that he believed Mumphrey knew "what he[ was] doing." Finally, before the bench trial began, Mumphrey's counsel announced that he was ready for trial but made no comment or objection to the lack of a jury. Counsel's "ready for trial" announcement supported the inference that Mumphrey was aware of his right to a jury trial but wished for a bench trial. Likewise, although Mumphrey was present, he did not indicate surprise about counsel's statement, and though Mumphrey filed a motion for a new trial, he never complained of the lack of a jury trial until now. As a result, "the record shows that [Mumphrey] at least had sufficient awareness of the relevant circumstances and likely consequences of waiving his right to a jury." See Rios, 665 S.W.3d at 482 (citing Brady v. United States, 397 U.S. 742, 748 (1970)).
Having considered the Rios factors, we conclude that the evidence was sufficient to show that Mumphrey expressly, knowingly, and intelligently waived his right to a jury trial and that there is no structural error.
We overrule Mumphrey's first point of error.
II. The Trial Court Did Not Err by Denying Mumphrey's Motion for Continuance
In his second point of error, Mumphrey contends that the trial court's denial of his pretrial motion for continuance amounted to an abuse of discretion and infringed on his constitutional rights to due process and effective assistance of counsel.
"The trial court's ruling on a motion for continuance is reviewed for abuse of its discretion." Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (per curiam) (citing Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995)). "To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion." Id.; see also Tex. Code Crim. Proc. Ann. art. 29.06. "Where [a] denial of a continuance has resulted in demonstrated prejudice, we have not hesitated to declare an abuse of discretion." Janecka, 937 S.W.2d at 468 (citing Rosales v. State, 841 S.W.2d 368, 372 (Tex. Crim. App. 1992)).
After the trial court continued multiple trial settings, Mumphrey's trial was set to begin on March 16, 2023. Just ten days before trial, on March 6, 2023, Mumphrey filed a motion to appoint a forensic expert. On that same day, he filed a motion for continuance of trial asking for additional time "to allow a Forensic Expert adequate time to review, provide [a] report, and prepare for this case in order for Counsel to provide effective representation." At the hearing on his motion for continuance, Mumphrey argued,
Your Honor, it's become apparent to me that -- my client is entitled to a constitutional right to effective representation. I want to give him that adequate representation.
And I've learned that there are forensic experts out there that could identify -- take a look at and review materials such as an outcry video that the State is using as its prominent evidence against my client.
Due to the nature of the charges, and the severity of the consequences therein, we're asking for more time for this forensic expert to review this video. This expert would be retained and paid for on the Defense side; it wouldn't cost the county any money.
And in order to protect my client's constitutional rights, as well as his right to effective representation, we'd ask for more time for this expert to take a look at the video evidence.
The trial court pointed out that the case had been pending for quite some time and that Mumphrey had not filed a motion for continuance until March 6, 2023, regarding a trial date of March 16, 2023. The trial court asked, "Why the . . . filing of this [motion for continuance] right on the eve of a noted trial setting?" In response, Mumphrey's counsel explained that the reason he had not employed a forensic expert in a timely manner was "primarily because of [his] lack of knowledge as far as forensic experts in general."
Because of "the nature of what a forensic expert . . . might or might not do -- given the fact th[e] case ha[d] been pending a while and the State[] oppos[ed Mumphrey's motion for a continuance]," and given the fact that the victim wanted the trial to begin, the trial court denied Mumphrey's motion.
On appeal, Mumphrey complains that the trial court's denial of his motion for continuance amounted to a violation of his due-process rights because he was not given the opportunity to hire an expert to review the State's expert's findings and conclusions and to rebut those findings and conclusions, if necessary. In Harrison v. State, 187 S.W.3d 429 (Tex. Crim. App. 2005), the Texas Court of Criminal Appeals explained,
When the defendant's motion for continuance is based on an absent witness, it is necessary to show (1) that the defendant has exercised diligence to procure the witness's attendance, (2) that the witness is not absent by the procurement or consent of the defense, (3) that the motion is not made for delay, and (4) the facts expected to be proved by the witness. It must appear to the trial court that the facts are material.Id. at 434 (footnote omitted) (citation omitted).
During the hearing on his motion for continuance, Mumphrey identified the expert witness he intended to hire and that the expert had "two offices[,] one in Waco and one in Plano." He also explained that the expert witness "would review the CAC interview of the complaining witness. He would review it to make sure that there wasn't improper procedure as far as the questioning in the interview." He continued, "From there, he would write a report and submit that to us." Yet, Mumphrey did not explain, with any specificity, the expected substance of the expert's testimony or how his testimony would be beneficial to Mumphrey's defense. In addition, Mumphrey did not tender any type of evidence in support of his motion, such as the expert's sworn affidavit setting forth the facts he expected to prove through his testimony. "Mere conclusions and general averments are not sufficient for the court to determine their materiality, and the motion for continuance must show on its face the materiality of the absent testimony." Id. Moreover, Mumphrey did not show that he used due diligence to secure the expert witness's attendance at trial during the considerable amount of time that elapsed between the filing of the indictment in June 2021 and the filing of Mumphrey's March 6, 2023, motion for continuance. Mumphrey claims the motion for continuance was not made to delay the trial, but he wholly failed to establish why he did not obtain an expert witness earlier in the process, except to say that he had just recently become aware of what an expert could do in this type of case.
The same is true of his written motion for continuance.
For these reasons, we find that the trial court's denial of Mumphrey's motion for continuance did not, under the facts of this case, constitute a denial of his constitutional rights. Therefore, the trial court did not abuse its discretion in denying his motion.
We overrule Mumphrey's second point of error.
III. Conclusion
We affirm the trial court's judgment.