                                 NOS. 12-18-00360-CR
                                      12-18-00361-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 TIMOTHY WAYNE WASHINGTON,                        §      APPEALS FROM THE 392ND
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      HENDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
         Timothy Wayne Washington appeals his convictions for murder and aggravated assault
with a deadly weapon. In two issues, Appellant argues that the trial court erred by denying his
motions for continuance and new trial. We affirm.


                                          BACKGROUND
         Appellant was charged by indictment with murder, aggravated kidnapping, and three
counts of aggravated assault with a deadly weapon, enhanced by a prior felony conviction. Before
trial, the State abandoned one of the aggravated assault counts. Appellant pleaded “not guilty” to
the remaining charges, and the matter proceeded to a jury trial.
         At trial, the evidence showed that Appellant and his wife, Melissa Washington, were
separated. One night, Appellant learned that Melissa went to a certain address. Appellant took the
couple’s three young children to the address and text messaged Melissa. Moments later, Melissa
and her coworker Mark Armick stepped outside the home. Almost immediately, Appellant fired a
.357 handgun in their direction, hitting Armick in the upper torso. Appellant, Melissa, and the
children left in Appellant’s vehicle and were soon stopped by the police. Armick died from his
wound.
       Ultimately, the jury found Appellant “guilty” of murder and one count of aggravated
assault and “not guilty” of the other count of aggravated assault and aggravated kidnapping.
Appellant pleaded true to the enhancement paragraph, and the trial court assessed his punishment
at imprisonment for forty years in the murder case and fifteen in the aggravated assault case. This
appeal followed.


                                         MOTION FOR NEW TRIAL
       In Appellant’s first issue, he argues that the trial court erred by denying his motion for new
trial based on his allegation that his trial counsel required him to commit perjury.
Standard of Review and Applicable Law
       A trial court has the authority to grant a new trial in the interest of justice. State v. Herndon,
215 S.W.3d 901, 906 (Tex. Crim. App. 2007). Legal grounds for which a trial court must grant a
new trial are listed in rule of appellate procedure 21.3:


       (a) except in a misdemeanor case in which the maximum possible punishment is a fine, when the
       defendant has been unlawfully tried in absentia or has been denied counsel;
       (b) when the court has misdirected the jury about the law or has committed some other material
       error likely to injure the defendant’s rights;
       (c) when the verdict has been decided by lot or in any manner other than a fair expression of the
       jurors’ opinion;
       (d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct;
       (e) when a material defense witness has been kept from court by force, threats, or fraud, or when
       evidence tending to establish the defendant’s innocence has been intentionally destroyed or
       withheld, thus preventing its production at trial;
       (f) when, after retiring to deliberate, the jury has received other evidence; when a juror has talked
       with anyone about the case; or when a juror became so intoxicated that his or her vote was probably
       influenced as a result;
       (g) when the jury has engaged in such misconduct that the defendant did not receive a fair and
       impartial trial; or
       (h) when the verdict is contrary to the law and the evidence.


See TEX. R. APP. P. 21.3. A trial court may grant a motion for new trial on other legal grounds as
well. Herndon, 215 S.W.3d at 907. A trial court should not grant a motion for new trial if the
defendant’s substantial rights were not affected. Id. at 908.
       An appellate court reviews a trial court’s denial of a motion for new trial for an abuse of
discretion, reversing only if the trial judge’s opinion was clearly erroneous and arbitrary. Riley v.
State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012) overruled on other grounds by Miller v. State,
548 S.W.3d 497, 498 (Tex. Crim. App. 2018); Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim.



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App. 2006). A trial court abuses its discretion if no reasonable view of the record could support its
ruling. Riley, 378 S.W.3d at 457. This requires the appellate court to view the evidence in the light
most favorable to the trial court’s ruling. Id. The trial court is the sole factfinder and judge of the
appellant’s and counsel’s credibility at a motion for new trial hearing, both during live testimony
and in affidavits. Id. at 459. The appellate court must not substitute its own judgment for that of
the trial court and must uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Id. at 457.
Analysis
       After Appellant was convicted and sentenced, he filed a motion for new trial alleging that
his rights to counsel, due process, trial by jury, and to testify in his own behalf under the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution were violated when his trial
counsel required him to perjure himself. See U.S. CONST. amends. V, VI, XIV. Appellant further
alleged that the jury’s verdict is contrary to the law and evidence. See TEX. R. APP. P. 21.3(h).
       In his affidavit, Appellant claimed that before he testified, his trial counsel, Samuel Smith,
gave him a “script” consisting of the questions Smith would ask Appellant on the witness stand
and the responses he expected from Appellant. According to the affidavit, Appellant called and
left messages for Smith on the Sunday before he was to testify informing him that the script’s
response concerning his location at the time of the shooting was incorrect. When Smith visited
him the next day, Appellant explained that the script’s location would lead to an inference that
Armick was turning away from Appellant when he was shot. Smith became angry and told
Appellant, “No, it will work. It will be okay,” while Appellant said repeatedly, “I do not want to
lie. That is not what happened.” Smith further directed Appellant to falsely testify that Melissa put
the gun in his truck that day, and that after the shooting, Appellant cleared the gun’s chamber
inside Armick’s residence in front of Melissa—where an unspent bullet was found—rather than
outside where Appellant claims he cleared it. On the day of Appellant’s testimony, he spoke with
Smith again and told him that he was not comfortable lying on the witness stand and wanted to tell
the truth. Smith became upset and told him, “Do not change my strategy. Just say what I gave you
to say. Just trust me.” Appellant then perjured himself by testifying as Smith dictated and now
believes this caused the jury to find him guilty. Appellant testified similarly to his affidavit at the
hearing on the motion.




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         Smith filed an affidavit stating that Appellant’s story evolved throughout his representation
of him. Appellant would appear to have memory loss about important events, such as making
certain statements to the police. He frequently contradicted his own prior statements and failed to
acknowledge the contradictions even when shown his prior statements in writing. Before Appellant
testified, Smith gave him a list of questions and the responses Appellant gave him over the course
of his representation. The document stated twice that Appellant must answer all questions in court
honestly. Smith provided Appellant a copy to correct, change, or add to the responses if necessary.
Appellant did so and brought the edited document to court when he testified. Smith denied telling
Appellant that he must only respond with the answers in the document. Further, he asserted that
Appellant did not testify exactly as the document was written. Smith testified similarly to his
affidavit at the hearing on the motion. After the hearing, the trial court denied the motion for new
trial.
         On appeal, Appellant contends that the trial court erred by denying his motion for new trial
because his rights to counsel, due process, trial by jury, and to testify in his own behalf under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated when his
trial counsel encouraged him to perjure himself. We disagree.
         First, Appellant points to no authority, and we know of none, that entitles him to a new
trial based on his own alleged perjury. See TEX. R. APP. P. 38.1(i) (requiring brief to contain clear
and concise argument with appropriate citations to authorities). Such an allegation does not give
rise to a situation in which the trial court must grant a new trial. See TEX. R. APP. P. 21.3. Second,
the trial court was not required to believe Appellant’s allegations that he perjured himself and that
he did so at Smith’s insistence. See Riley, 378 S.W.3d at 459. As sole factfinder and judge of the
witnesses’ credibility, the court could have reasonably found Smith’s account more credible and,
in doing so, determined that Appellant was not entitled to a new trial. See id.
         Because a reasonable view of the record exists that supports the denial of the new trial
motion, we cannot conclude that the trial court abused its discretion by denying the motion. See
Riley, 378 S.W.3d at 457. Accordingly, we overrule Appellant’s first issue.


                                    MOTION FOR CONTINUANCE
         In Appellant’s second issue, he argues that the trial court erred by denying his motion for
continuance based on his receipt of a large amount of discovery shortly before trial.



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Standard of Review and Applicable Law
       The Texas Legislature set forth the requirements for a motion for continuance in Articles
29.03 and 29.08 of the Texas Code of Criminal Procedure. Anderson v. State, 301 S.W.3d 276,
278-79 (Tex. Crim. App. 2009). Article 29.03 states that “[a] criminal action may be continued on
the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall
be fully set forth in the motion.” TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006); Anderson,
301 S.W.3d at 279. Article 29.08 provides that “[a]ll motions for continuance must be sworn to by
a person having personal knowledge of the facts relied on for the continuance.” TEX. CODE CRIM.
PROC. ANN. art. 29.08 (West 2006); Anderson, 301 S.W.3d at 279.
       The grant or denial of a motion for continuance is within the sound discretion of the trial
court. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). To establish reversible
error based on the denial of a pretrial motion for continuance, an appellant must show that the trial
court erred in denying the motion and that the lack of a continuance harmed him. Gonzalez v.
State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). A trial court may abuse its discretion when
the denial of a motion for continuance results in representation by unprepared counsel. See
Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). However, to find an abuse of
discretion for the denial of a motion for continuance, there must be a showing that the defendant
was prejudiced by his counsel’s inadequate preparation time. Id. A bare assertion that counsel did
not have adequate time to investigate discovery for potential mitigating evidence without a
showing of harm does not establish prejudice. See id. at 512.
Analysis
       The record in this case shows that on May 9, 2018, the parties announced that they were
ready for the trial setting of May 21. On May 10, the State provided Appellant a DVD recording
of 281 jail phone calls from Appellant to Melissa. On May 17, the State provided Appellant two
CD-R recordings of 998 jail phone calls from Appellant to other family members and a zip drive
containing a 12,188-page cell phone dump report. On May 18, Appellant filed a motion for
continuance requesting an additional thirty days to review the materials. A hearing was held the
same day. At the hearing, Appellant expressly did not object to the State’s use of the phone calls
given to him on May 10. Regarding the materials he received May 17, Appellant asserted that he
wanted to investigate them for the purposes of cross-examination, impeachment, and subpoenaing
additional witnesses. The trial court noted that Appellant knew about the phone calls and their



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substance because he was a party to them. The State advised the court Appellant also knew that
the calls were recorded because jail inmates are informed of this at the beginning of each phone
call. The trial court denied the motion for continuance but granted a motion in limine regarding
the May 17 discovery. The State did not use any of this discovery at trial.
         On appeal, Appellant argues that the trial court erred by denying the continuance because
the denial deprived him of his rights to effective assistance of counsel and to confront and cross-
examine witnesses, and that such denial of rights constitutes a specific prejudice to his defense.
We disagree.
         Appellant has failed to carry his burden of showing how the trial court’s error, if any,
prejudiced his defense. He identifies no additional witnesses he would have called if he were
granted a continuance and no additional questions he would have asked the witnesses who testified.
The law requires more than speculation to justify an appellate reversal of a case for a trial court’s
failure to grant a continuance. See Renteria, 206 S.W.3d at 702. Appellant’s bare assertion that
counsel did not have adequate time to investigate the discovery for potential mitigating evidence
without a showing of harm does not establish prejudice. See Heiselbetz, 906 S.W.2d at 512.
Therefore, he fails to demonstrate reversible error. See Gonzalez, 304 S.W.3d at 843. Accordingly,
we overrule Appellant’s second issue.


                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s judgments.


                                                                BRIAN HOYLE
                                                                  Justice


Opinion delivered March 31, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 31, 2020


                                         NO. 12-18-00360-CR


                              TIMOTHY WAYNE WASHINGTON,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 392nd District Court
                    of Henderson County, Texas (Tr.Ct.No. CR17-0368-392)

                         THIS CAUSE came to be heard on the oral arguments, appellate record and
briefs filed herein, and the same being considered, it is the opinion of this court that there was no
error in the judgment.
                         It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 31, 2020


                                         NO. 12-18-00361-CR


                              TIMOTHY WAYNE WASHINGTON,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 392nd District Court
                    of Henderson County, Texas (Tr.Ct.No. CR17-0370-392)

                         THIS CAUSE came to be heard on the oral arguments, appellate record and
briefs filed herein, and the same being considered, it is the opinion of this court that there was no
error in the judgment.
                         It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
