      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00278-CR
                                       NO. 03-12-00279-CR
                                       NO. 03-12-00280-CR



                                Mark David Simmons, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
                    NOS. CR-10-0799, CR-10-0802, & CR-10-0832
               HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Mark David Simmons was charged with the murder of Steven Woelfel, see Tex.

Penal Code § 19.02, the crime of evidence tampering for attempting to destroy or conceal Woelfel’s

body, see id. § 37.09, and the arson of Woelfel’s home, see id. § 28.02.

               Prior to trial, Simmons elected to represent himself, but the district court appointed

stand-by counsel to assist Simmons. See Walker v. State, 962 S.W.2d 124, 126 (Tex. App.—Houston

[1st Dist.] 1997, pet. ref’d) (explaining that stand-by counsel occurs when defendant requests to

represent himself and when trial court allows his attorney to remain on case and to advise defendant).

During a pretrial hearing, Simmons’s stand-by counsel requested that the district court conduct a

hearing regarding out-of-state subpoenas for witnesses that Simmons wanted to have testify during
the trial. At another pretrial hearing held two months later, Simmons requested that subpoenas be

issued for five out-of-state witnesses. After considering Simmons’s subpoena requests, the district

court initially granted the five requests.1 In another pretrial hearing held approximately two weeks

later, Simmons expressed that he was not ready for trial, in part, because “accommodations have to

be made for flights” for his out-of-state witnesses. Moreover, Simmons stated that his motion for

continuance had been “sent . . . in the mail” on the morning of the hearing.2 A few days after that

hearing, the trial began.

                During the trial but outside the presence of the jury, Simmons asked the district court

to issue orders providing his out-of-state witnesses with “some transportation and a motel room.”

In another hearing convened a few days later outside the presence of the jury, the district court

informed Simmons that it was “going to reconsider its ruling related to the subpoena of out-of-state

witnesses.” On the following day, the district court explained that it had reconsidered its prior ruling

and was denying Simmons’s request for the out-of-state subpoenas. When explaining its ruling, the

court stated, “[a]mong other things, the Court finds that these witnesses are not material to any

defenses that you have.” Accordingly, the district court denied Simmons’s request under article 24.28

of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 24.28 (setting out procedure for

securing attendance for out-of-state witnesses).



        1
          Simmons requested that other individuals be subpoenaed as well, including various
government officials, but the district court denied those requests. Simmons does not challenge
those rulings on appeal.
       2
         As will be discussed more thoroughly later in the opinion, Simmons filed several motions
for continuance both before and after the trial began.

                                                   2
               Over a week after the district court’s ruling, Simmons filed a motion for continuance.

In his motion, Simmons requested a continuance because the district court denied his request for the

out-of-state subpoenas. After reviewing the motion, the district court denied the motion.

               When the jury charge was prepared, the charge included instructions for an insanity

defense as well as for self-defense. At the conclusion of the trial, the jury found Simmons guilty of

all three crimes and sentenced Simmons to life in prison for the murder conviction, to ten years’

imprisonment for the evidence-tampering conviction, and to twenty years’ imprisonment for the

arson conviction. The district court ordered that the sentences run concurrently.

               After the district court issued its judgment, Simmons filed this appeal.3


                                          DISCUSSION

               On appeal, Simmons raises three related issues. First, he contends that the district

court erred when it reversed its previous decision granting Simmons’s request for the five out-of-

state subpoenas. In his second issue, Simmons urges that the district court erred when it overruled

his motion for continuance. Finally, Simmons contends that these two rulings by the district court

violated his right to procedural due process.


Subpoenas

               As mentioned above, in his first issue on appeal, Simmons argues that the district

court erred by denying his request for out-of-state subpoenas. In fact, Simmons contends that the


       3
         Subsequent to the State filing its brief in this case, Simmons filed a pro se brief. In this
opinion, we do not address the points made in Simmons’s pro se brief because he has no right to
hybrid representation. See Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. App. 2006).

                                                 3
district court’s denial violates the Sixth Amendment, which provides, in relevant part, that an

“accused shall enjoy the right to . . . have compulsory process for obtaining witnesses in his favor.”

U.S. Const. amend. VI; see Washington v. Texas, 388 U.S. 14, 18-19 (1967) (expanding right

to compulsory process to state court proceedings); see also Tex. Const. art. I, § 10 (providing

compulsory process rights); Tex. R. App. P. 44.2(a) (stating that if record reveals constitutional

error in criminal case, appellate court must reverse unless “court determines beyond a reasonable

doubt that the error did not contribute to the conviction or punishment”).

               Although Simmons correctly points out that the right to compulsory process is

constitutional in nature, that right is not without limits and instead “guarantees only compulsory

process for obtaining witnesses whose testimony would be both material and favorable to the

defense.” See Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998). In other words,

“the defendant must make a plausible showing to the trial court, by sworn evidence or agreed facts,

that the witness’ testimony would be both material and favorable to the defense.” Id. at 528. If a

defendant “has not had an opportunity to interview a witness,” he “may make the necessary showing

by establishing the matters to which the witness might testify and the relevance and importance of

those matters to the success of the defense.” Id.; see also id. (explaining that if defendants did not

have burden of showing materiality and favorableness, there is potential for frivolous requests

that would make trial endless and unduly burdensome). However, a “mere belief that a witness

would support the defense’s case is insufficient to establish materiality.” Emenhiser v. State, 196

S.W.3d 915, 921 (Tex. App.—Fort Worth 2006, pet. ref’d); see Weaver v. State, 657 S.W.2d 148,

151 (Tex. Crim. App. 1983) (explaining that bare assertions that witness’s testimony will be material



                                                  4
are insufficient to satisfy this burden and that detailed factual bases are “necessary in the interests

of comity, economy, and efficiency”).

                In addition to these general requirements, the Code of Criminal Procedure sets

out the process for obtaining out-of-state subpoenas. For out-of-state witnesses, the Code reiterates

that trial courts overseeing a prosecution may issue subpoenas for “material” witnesses. Tex. Code

Crim. Proc. art. 24.28, § 4(a). After receiving an application, the trial court determines, among other

things, whether the “witnesses are material and necessary.” Ashby v. State, 646 S.W.2d 641, 644

(Tex. App.—Fort Worth 1983, pet. ref’d); see also Reader’s Digest Ass’n, Inc. v. Dauphinot,

794 S.W.2d 608, 610 (Tex. App.—Fort Worth 1990, orig. proceeding) (addressing propriety of order

denying request to quash subpoena in criminal case). The applicant has the burden of proving that

the out-of-state witness is material and necessary, and the trial court’s ruling is reviewed for an

abuse of discretion. Ashby, 646 S.W.2d at 644; see Emenhiser, 196 S.W.3d at 921. A trial court

abuses its discretion if it acts without reference to any guiding principles or rules. State v. Herndon,

215 S.W.3d 901, 907-08 (Tex. Crim. App. 2007).

                As discussed above, Simmons related to the district court that he wanted subpoenas

for five out-of-state witnesses. After expressing his desire to have those witnesses testify, Simmons

expressed his claim that Woelfel’s death was ultimately caused by pressure that various

governmental employees had been exerting on Simmons. Specifically, Simmons stated as follows:

“My whole defense is going to be involved in five or six years of nonstop harassment to which I

reported hundreds of times to officials in all capacities of government.” Simmons also related that

his defense was “insanity at the time, [Woelfel]’s mental duress at the time.”



                                                   5
               After generally discussing the purpose of calling the witnesses, Simmons mentioned

five individual witnesses. First, Simmons stated that he wanted Adriana Campos to testify. According

to Simmons, Campos was a citizen of Mexico and was Woelfel’s long-term girlfriend. Further,

Simmons stated that Woelfel was being harassed by the FBI and the Department of Homeland

Security and that Campos gave an interview in which she detailed that both she and Woelfel were

being harassed due to Woelfel’s political beliefs.

               Second, Simmons requested a subpoena for Sharon Patterson. According to Simmons,

Patterson was the manager of a storage facility that he used and was his best friend. When discussing

why he wanted to call Patterson, Simmons stated that Patterson had been interviewed by a law

enforcement officer and was “literally in fear of these people.” Further, he stated that “every single

time that I went to my storage shed I had two or three Civil Air Patrolmen circling my storage shed.”

               Third, Simmons asked for a subpoena for Richard Palmer. According to Simmons,

Palmer observed some of the harassment that Simmons had suffered. In particular, Palmer allegedly

observed planes flying over the places where Simmons worked and received phone calls regarding

Simmons from individuals falsely claiming to be working with the police.

                Fourth, Simmons requested a subpoena for Richard Brogan. Simmons related that

Brogan was the brother of his ex-wife and worked for the Tennessee Bureau of Investigations.

Simmons alleged that Brogan would be able to provide testimony regarding the governmental

harassment that Simmons had been receiving.4




       4
         Simmons conceded that he had not personally interacted with Brogan for a long period of
time, but he said that he had written him “quite a bit of hate mail since I’ve been in jail.”

                                                  6
               Finally, Simmons asked the district court to issue a subpoena for Mark Gwyn.

According to Simmons, Gwyn worked for Brogan. Simmons indicated that Gwyn had interviewed

Patterson and that during that interview, Patterson revealed to Gwyn that she had observed airplanes

flying over the storage facility when Simmons went to his storage unit.

               As mentioned above, the district court initially granted Simmons’s request for the

five subpoenas, but in subsequent hearings, the district court indicated that it intended to deny the

request. Specifically, after Simmons responded, “Yes,” to a question by the district court regarding

whether the testimony of the witnesses would bear upon “the issue of duress or coercion,” the district

court then asked Simmons when he last had any interaction with the witnesses. Simmons replied

that “it’s going to be within a year, year and a half of this incident.” Further, Simmons conceded

that he had never actually talked to Campos but believed that she would testify regarding the

harassment that Woelfel was being subjected to. See Weaver, 657 S.W.2d at 151 (determining that

defendant had failed to meet burden of showing that witnesses were material and noting that

defendant “had not spoken to any of the witnesses about testifying at his trial”). As support for this

assertion, Simmons mentioned a prior interview with law-enforcement personnel in which Campos

purportedly described the harassment.

               After Simmons described Woelfel’s fears regarding the government, the district court

asked how Woelfel’s fear related to Simmons’s defense, and Simmons replied, “Entrapment, as I

understand it, means that a situation has been intentionally provoked by law enforcement to a point

to where a normal person would not have been able to withstand the situation.” Simmons further

explained that he had phone records to show that he had made “hundreds of calls . . . to every single

                                                  7
senator and every single congressman” as well as the governor to report “this aerial harassment.”

On the day following this exchange, the district court informed Simmons that it was reversing its

prior decision and was now denying Simmons’s request for the five out-of-state subpoenas because

Simmons had not shown that the testimony was material to any defense that he had.

               When requesting the subpoenas, Simmons made no showing, “by sworn evidence or

agreed facts,” that the testimony from the witnesses would be material or favorable to his defense,

nor did he establish the subject matter “to which” the five witnesses “might testify and the relevance

and importance of those matters to the success of the defense.” Coleman, 966 S.W.2d at 528.

Although Simmons generally stated his belief that the witnesses might testify regarding

governmental pressure and harassment that had been repeatedly applied to both himself and

Woelfel and mentioned that several of the witnesses had observed the harassment, Simmons did

not establish how that harassment would have been relevant or material to any of his defensive

theories. See id. (concluding that defendant did not make requisite showing because although

he argued that witness could enlighten jury about his state of mind when he shot victim, “he made

no plausible showing to the court that the [witnesses]’ testimony would be material and favorable

to either of his defensive theories”). Morever, Simmons’s unsupported assertions that the testimony

would be relevant to his defensive theories are not sufficient to meet his burden. See Weaver, 657

S.W.2d at 151; Emenhiser, 196 S.W.3d at 921.

               On the record before this Court, we cannot conclude that the district court abused

its discretion by determining that Simmons had not met his burden of showing that the testimony




                                                  8
of the requested witnesses was material.5 Accordingly, we also cannot conclude that the district

court’s decision to reverse its prior ruling deprived Simmons of his right to compulsory process.6

                For all of these reasons, we overrule Simmons’s first issue on appeal. See Talton v.

State, No. 06-03-00108-CR, 2004 Tex. App. LEXIS 2503, at *4 (Tex. App.—Texarkana Mar. 19,

2004, no pet.) (mem. op., not designated for publication) (determining that trial court did not abuse



        5
          We note that although Simmons acknowledges in his brief that he was obligated to show
“that the witness’ testimony would be both material and favorable to” his defense, his brief does not
explain how the testimony of any of the five witnesses would have been material or favorable.
        6
          In his brief, Simmons points to various delays as support for his assertion that the district
court acted improperly by denying his request for the out-of-state subpoenas. First, Simmons notes
that a hearing was held two months before trial regarding his competency, which resulted in no
further hearings until approximately two weeks before trial. Further, Simmons notes that it was
during this subsequent hearing that the district court initially granted his request for the out-of-state
subpoenas. In addition, Simmons highlights that the next hearing was not convened until a few days
before trial and that it was during this hearing that financial considerations and travel arrangements
for the witnesses were first discussed. Accordingly, Simmons contends that he was not provided
with enough time to procure the witnesses or to arrange for their travel.

        As a preliminary matter, we note that the first pretrial hearing in this case was convened a
year and a half before the trial actually began, and Simmons does not assert on appeal that he
mentioned his desire to obtain these specific out-of-state subpoenas until the hearing regarding his
competency, which was held two months before trial. We also note that after the district court
preliminarily granted Simmons’s subpoena requests, the district court admonished Simmons that it
was his responsibility to “deal with the courts from the other jurisdictions to get the witnesses here.”
In addition, Simmons’s stand-by counsel stated in a pretrial hearing that Simmons had discussed the
subpoenas with him 18 days before trial and that “18 days is adequate time to serve subpoenas all
over the country,” but Simmons expressly refused to allow his stand-by counsel to provide any help
regarding the out-of-state witnesses. See Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.—Fort
Worth 2006, pet. ref’d) (explaining that “the right to compulsory process is dependent upon an
accused’s initiative, and the nature of the right requires that its effective use be preceded by”
affirmative conduct and deliberate planning by defendant). In any event, as discussed above, we
conclude that the district court’s ultimate decision that Simmons failed to meet his burden of
establishing materiality was not an abuse of discretion. Accordingly, we do not believe that any
delay identified by Simmons resulted in the denial of his right to compulsory process.

                                                   9
its discretion by quashing subpoena where there was “no evidence about the nature of the testimony

that counsel sought to compel” and where there was “nothing in this record to show either that

counsel had interviewed the witness or attempted to do so”); Guzman v. State, No. 04-02-00198-CR,

2003 Tex. App. LEXIS 8795, at *7 (Tex. App.—San Antonio Oct. 15, 2003, pet. ref’d) (not

designated for publication) (concluding that defendant failed to meet burden where “nothing more

than speculation” was given regarding whether witnesses would have been able to offer favorable

and material testimony); cf. Price v. State, No. 10-11-00070-CR, 2012 Tex. App. LEXIS 8776, at

*9 (Tex. App.—Waco Oct. 18, 2012, no pet.) (mem. op., not designated for publication) (deciding,

in context of effectiveness of counsel, that counsel’s performance was not deficient for failing to

request continuance after pro se motion for subpoena had not been acted on when record did not

show “that the witnesses’ testimony would actually be material and favorable to the defense”).


Continuance

               In his second issue, Simmons contends that the district court erred by denying his

request for a continuance.

               Appellate courts review a “trial court’s ruling on a motion for continuance” under

an abuse-of-discretion standard. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002);

see Herndon, 215 S.W.3d at 907-08 (setting out when court abuses its discretion). In order for a

defendant to establish that a trial court abused its discretion by denying his motion for continuance,

he “must show that he was actually prejudiced by the denial of his motion.” Vasquez, 67 S.W.3d

at 240. When determining if the trial court abused its discretion, appellate courts should bear



                                                 10
in mind the overall interest in the efficient and prompt operation of justice. Rosales v. State,

841 S.W.2d 368, 374 (Tex. Crim. App. 1992). In addition, reviewing courts should also consider,

among other factors, the reasons given at the time that the request for a continuance was made, the

length of the requested continuance, the number of other continuances that have been requested and

granted or denied, the amount of time that the defense has had to prepare for trial, and the legitimacy

of the reasons given for the requested continuance. Id.

               In his motion for continuance, Simmons complained of the delay in obtaining

subpoenas for various witnesses and then urged that the testimony from three of the five out-of-state

witnesses was “critical to [his] being able to vindicate himself.”7 Regarding the three individuals,

Simmons stated that Campos had first-hand knowledge of Woelfel’s paranoid state of mind and his

violent tendencies, that Patterson was a witness to the harassment that “induced the state of mind at

the time of the offense,” and that Gwynn viewed a video showing harassment that Simmons had

endured over the years. Regarding the video, Simmons alleged that the video was “now missing

from evidence.” After discussing these individuals, Simmons requested that the district court grant

a continuance until those individuals were subpoenaed.

               As discussed in the previous issue, when originally seeking his subpoenas, Simmons

made no showing that the testimony of the five witnesses, with whom he had not interacted for at

least a year before the incident, would be material or favorable to his defense, nor did he establish




       7
         In the motion for continuance, Simmons mentioned the district court’s decision to not issue
subpoenas for other witnesses as well, including expert witnesses. However, the district court’s
rulings regarding these other witnesses are not challenged in his appellate briefing.

                                                  11
the subject matter that the witnesses might have testified about or how the testimony would be

relevant and important to his defense. For that reason, we concluded that the district court did not

abuse its discretion by denying Simmons’s request for out-of-state subpoenas. As evidenced by the

relief that he actually requested in his motion for continuance, Simmons essentially asked the district

court to reconsider its decision denying his request for subpoenas for three of the five out-of-state

witnesses, but he again did not show how testimony from those individuals would be material or

favorable to his defense.

               Moreover, other than expressing his desire to compel the testimony from witnesses

that the district court previously determined were not material to his defense, Simmons identified

no other reason that a continuance would be necessary. For example, he did not allege that he

needed additional time to more thoroughly investigate his defenses or to seek out other defensive

witnesses. In addition, Simmons did not specify the length of the continuance that he was seeking

or otherwise indicate how much additional time was needed to fully prepare his defense in light of

the fact that the district court had denied his subpoena requests. Furthermore, prior to requesting

this continuance, Simmons had filed eighteen other motions for continuance, and the record reflects

that the district court granted at least one of those prior motions. Moreover, the start of the trial

had been delayed by several months. In addition, although the trial had already commenced when

the district court ultimately denied Simmons’s subpoena requests, Simmons did not file the motion

for continuance at issue in this appeal until well over a week after the district court made its ruling

regarding his subpoena requests.




                                                  12
                In his appellate brief, Simmons alleges that the district court erred because the three

witnesses would have “addressed the mental stress that he and [Woelfel] were undergoing” and,

therefore, would have been “material and highly substantive regarding both his self-defense jury

charge and the ‘insanity at the time of the offense’ defense.” Further, Simmons contends that the

district court’s unexpected decision severely undermined his ability to present a defense. See Tex.

Code Crim. Proc. art. 29.13 (allowing for continuance when it is shown that “by some unexpected

occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant

is so taken by surprise that a fair trial cannot be had”).

                However, other than the general statements listed above, Simmons again failed

to show in his brief how the testimony would have been material and favorable to his defense.

Although Simmons correctly points out that the district court’s denial of his subpoena requests

prohibited him from calling the desired witnesses, he does not identify how the failure to grant the

subsequent request for a continuance prejudiced him. In other words, Simmons does not mention

on appeal any potential benefit to him that would have resulted from a delay of the proceedings.

Moreover, the record reveals that Simmons was able to introduce evidence pertaining to his defense

regarding governmental harassment. See Jones v. State, No. 13-98-00284-CR, 2000 Tex. App.

LEXIS 5414, at *9 (Tex. App.—Corpus Christi Aug. 10, 2000, no pet.) (not designated for

publication) (explaining that defendant did not show that he was prejudiced by failure to grant his

continuance when testimony from witness “would have only been cumulative of the disinterested




                                                   13
testimony” of two other witnesses)8; cf. Vasquez, 67 S.W.3d at 241 (determining that defendant

was not prejudiced by failure to grant motion for continuance and noting that defendant was able

to “procure witnesses to counter” allegedly problematic testimony). For example, he extensively

questioned witnesses regarding allegedly improper acts committed by various government agencies

and regarding the effect that government harassment might have on an individual’s mental state,

played a video of an interview by Campos, questioned a private investigator regarding his claims of

harassment who agreed that some of Simmons’s complaints had merit, and admitted into evidence

video recordings he made of planes flying over his house.

               For all these reasons, we cannot conclude that the district court abused its discretion

by overruling Simmons’s motion for continuance. Accordingly, we overrule Simmons’s second

issue on appeal.


       8
          In his brief, Simmons notes that the Court of Criminal Appeals has previously stated that
“an accused’s first application for continuance because of the absence of a witness is generally not
subject to attack on the ground that the testimony sought would be merely cumulative.” Foster v.
State, 497 S.W.2d 291, 293 (Tex. Crim. App. 1973). In light of that statement, Simmons contends
that the fact that he was able to introduce other evidence pertaining to his defense is irrelevant. We
believe that Simmons’s reliance on Foster is misplaced.

         In Foster, the defendant moved for a continuance on the first day of trial due to “the absence
of a material witness,” but the trial court overruled his request. Id. at 292. On review, the Court of
Criminal Appeals determined that the motion for continuance should have been granted. Id.
However, unlike the present case, Foster provided an explanation regarding why the witness was
material. In particular, Foster alleged “that the testimony of the witness would be material in regard
to the issue of the voluntary nature of an oral statement which he made to police officers at the time
of his arrest. According to the allegations of the motion, the witness observed a beating which
appellant had received from police officers at the time of arrest.” Id. Moreover, unlike the present
case, Foster alleged that he only learned about the existence of the material witness two days before
the start of trial and that he requested the continuance as soon as practicable. Id. In addition, unlike
in the present case, Foster had not previously requested any continuances. Id. at 293.

                                                  14
Due Process

               In his third issue on appeal, Simmons asserts that the district court’s abuses of

discretion identified in his first two issues constituted violations of his right to procedural due

process. As discussed above, we have concluded that the district court did not abuse its discretion

by denying Simmons’s request for out-of-state subpoenas or by overruling his motion for

continuance. Accordingly, we do not believe that Simmons has identified violations of his procedural

due process that would warrant relief. For that reason, we overrule Simmons’s third issue on appeal.


                                         CONCLUSION

               Having overruled all three of Simmons’s issues on appeal, we affirm the district

court’s judgments of conviction.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: June 3, 2014

Do Not Publish




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