Dunn v. State, 02-17-00206-CR

MICHAEL DONTE DUNN APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-17-00206-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

August 23, 2018

FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1436656D

MEMORANDUM OPINION¹

I. INTRODUCTION

A jury found Appellant Michael Donte Dunn guilty of aggravated kidnapping and attempted sexual assault, and the trial court sentenced him to forty-five years' confinement for aggravated kidnapping and fifteen years' confinement for attempted sexual assault. Dunn raises four issues on appeal.His first two issues challenge the sufficiency of the evidence primarily concerning his intent to commit these offenses, his third issue presents an ineffective-assistance-of-counsel challenge, and his fourth issue contends that the trial court abused its discretion in failing to conduct a hearing on his motion for new trial. We will affirm as modified.

II. FACTUAL BACKGROUND²

On November 13, 2015, at approximately 8:00 a.m., a twenty-four-year-old woman, Letty Mathow,³ left her Fort Worth apartment to go to nursing school. As Mathow walked down the stairs, she was approached by Dunn—a person who lived in the same apartment complex and whom Mathow had met once before. Mathow stated that Dunn asked her if he could use her cell phone because he did not have a phone and he needed to make a phone call since he was being evicted. Mathow unlocked her phone and gave it to Dunn. Dunn began walking and seemingly talking on the phone. Shortly thereafter, Mathow told Dunn that she needed her phone back because she had to go to class to take a quiz. Dunn responded by asking Mathow if she liked watches. Mathow said that she did,and when she began following Dunn up the stairs, he grabbed her arm and pulled her into his apartment.⁴

Once inside, Dunn locked the door and told Mathow to go upstairs to see the watches. Mathow explained that she needed to go to class and said that Dunn could keep her phone. Dunn then pulled out a screwdriver, threatened to shoot Mathow, and told her that "[she] wasn't going anywhere." Mathow—who had her backpack when she was pulled into Dunn's apartment—remembered she had a knife in her backpack, and she got it out. She told Dunn he needed to let her go, but Dunn again told her that she wasn't going anywhere. As Dunn moved toward Mathow, she cut his lower arm. Dunn grabbed her and threw her to the ground. As the two struggled on the ground, Dunn got on top of Mathow, straddled her, and tried to pull her shirt up. Still in possession of her knife, Mathow cut Dunn on his shoulder. Dunn remained on top of Mathow and pressed his knee against her throat to choke her. Mathow pretended to lose consciousness, and Dunn lessened the pressure he was applying with his knee. Mathow scrambled up off the floor and ran for the door. But Dunn caught her, and their struggle resumed. Mathow slashed Dunn in his torso, and he "started freaking out saying he was going to die because he lost -- he lost a lot of blood."

At this point, in an odd turn of events, Dunn asked Mathow to help him and to not tell anyone what had happened; Dunn told her he had five kids and could not go to jail. Mathow told Dunn she was a nursing student, said she would help him, and told him to go get some towels and her phone. When Dunn went to get the towels, Mathow grabbed her phone and her backpack, ran out of the apartment, and called 9-1-1. Paramedics arrived and treated Mathow for her injuries, including facial bruising, a swollen lip, and a broken blood vessel in her eye. She was covered in Dunn's blood.

In response to Mathow's 9-1-1 call, Officer Joseph Harvick of the Fort Worth Police Department (FWPD) was dispatched to the apartment complex. His field-training partner, Officer Garcia, arrived with him. At the apartment-complex office, they found Mathow shaky, scared, and covered in blood. Harvick spoke with Mathow and put out an alert for officers to be on the lookout for Dunn based on Mathow's description of him. Harvick confirmed at trial that as Mathow recounted the incident to him she did not mention that Dunn had pulled up her shirt; but Harvick said Mathow told him she thought Dunn was going to rape her.

Officer Sammie Brinegar of the FWPD was also dispatched to the scene and upon arrival searched for the suspect. Brinegar received a call that a male matching Dunn's description was banging on apartment doors in a nearby apartment complex and that he appeared to be injured. Brinegar drove there and quickly spotted Dunn in a breezeway. When Dunn saw Brinegar approaching, Dunn said, "You got me. I give up." Dunn asked Brinegar what crime he wasbeing charged with and said he had not hurt anyone. Brinegar took Dunn back to the scene where he was treated by MedStar EMTs and taken into custody.

III. PROCEDURAL BACKGROUND⁵

A Tarrant County grand jury indicted Dunn for the offenses of aggravated kidnapping and attempted aggravated sexual assault, and approximately six months later, Dunn's cases reached a third trial setting scheduled for June 26, 2017. On June 22, 2017, the State uploaded a two-hour video of an interview the FWPD had conducted with Dunn. Dunn filed a motion for continuance because the State had uploaded the video for the first time only four days before trial, and Dunn's counsel needed more time to review the video because, due to technical difficulties, he had been unable to access it for viewing until the day before trial.

At the pretrial hearing held on the morning of trial, Dunn's counsel explained the existence of the video had surprised him because he had filed a written discovery request and "Michael-Morton-Act letter" over one year earlier, and that even with three previous trial settings, the State had not produced the video earlier. Dunn's counsel explained that when he viewed the video for the first time the day before trial, he heard statements by Dunn during the interview that he had been unaware of because he knew only of Dunn's statements included in the police offense report. Thus, Dunn's trial counsel argued that theState's late production of the video necessitated a short two- or three-week continuance of the trial so he could conduct additional investigation.

The prosecutor acknowledged that the last-minute uploading of the video was the State's mistake but explained that Dunn's counsel should still have known about the video because it was referenced extensively in the police report. The prosecutor explained that the State did not intend to introduce the video at trial, so that in any event, Dunn was not harmed. The trial court ruled that the video would be excluded from evidence for all purposes, including impeachment.

Dunn was arraigned, and he pleaded not guilty. The State presented six witnesses at trial—Mathow, Harvick, and Brinegar, as well as FWPD crime scene officers Susan Shore and Laurie Scheiern and the assistant apartment manager, Shelli Dickey. Dunn did not present any witnesses. Neither side objected to the jury charge, and the jury returned a guilty verdict for the offenses of aggravated kidnapping and attempted sexual assault,⁶ and a finding that a screwdriver was a deadly weapon.

Dunn elected to have the trial court assess punishment, and the court assessed his punishment at forty-five years' confinement for aggravated kidnapping and fifteen years' confinement for attempted sexual assault.

After Dunn filed his notice of appeal, he filed a motion for new trial and eventually a second amended motion for new trial, supported by his affidavit, in which he argued, among other things, that he had received ineffective assistance of trial counsel. Despite Dunn's request for a hearing, the trial court did not hold a hearing or rule on the motion for new trial, and it was overruled by operation of law.

IV. WHETHER THE EVIDENCE IS SUFFICIENT TO PROVE THAT DUNN INTENDED TO

INFLICT BODILY INJURY ON MATHOW OR TO SEXUALLY ABUSE HER

In his first issue, Dunn asserts that the evidence is insufficient to prove he intended to inflict bodily injury on, violate, or sexually abuse Mathow, which the State alleged as the aggravating element of the aggravated kidnapping offense. Dunn's basic contention is that there was no evidence to show he intended to inflict bodily injury on Mathow, to violate her, or to sexually abuse her because her testimony regarding this element was inconsistent and unreliable.

A. Standard of Review

When determining whether the evidence is sufficient to support a criminal conviction, we apply the well-established standard set forth in Jackson v. Virginia, 443 U.S. 307, 316 (1979). Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to the verdict and determine whether a rational jury could have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 313; Brooks, 323 S.W.3d at 899. The jury, as the fact-finder, may make reasonable inferences from the evidence presented at trial in determining an appellant's guilt. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). When there is conflicting evidence, we presume the fact-finder resolved those conflicts in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326; see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the trier of fact's determinations of a witness's credibility and the weight to be given their testimony. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding against the rare occurrence when a fact-finder does not act rationally. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (citing Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009)).

B. Applicable Law

A person commits an offense of aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to: inflict bodily injury on heror violate or abuse her sexually. Tex. Penal Code...