Carol Ann Davis v. State

Citation: Not availableDocket: 03-99-00615-CR

Court: Court of Appeals of Texas; May 18, 2000; Texas; State Appellate Court

Original Court Document: View Document

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Carol Ann Davis was found guilty of operating an investigations company without a license, violating the Private Investigators and Private Security Agencies Act. The court imposed a one-year incarceration and a $4,000 fine but suspended the sentence, placing her on community supervision. The case arose from her employment as a clerk for attorney Betty Homminga during a child custody dispute in 1995, where she was hired by client Carla Roberson to surveil her ex-husband for $36,000. Davis, not licensed as a private investigator, did not contest the evidence supporting her conviction but argued that the trial court erred by not instructing the jury on the 'attorney exception' to licensing requirements. This exception allows attorneys to conduct investigations necessary for legal services without a license. Testimony indicated that only licensed individuals employed by an attorney are exempt from this licensing requirement. Davis claimed her actions were under Homminga's direction, but she failed to request the jury instruction or object to its absence, leading the court to conclude that the trial court had no obligation to provide it. Consequently, her appeal on this ground was denied.

The appellant argues that the trial court should have granted her motion for a new trial due to newly discovered evidence. Under Texas law, a new trial can be granted when material evidence favorable to the accused emerges post-trial, provided the following criteria are met: 1) the evidence was unknown to the movant at trial; 2) the failure to discover it was not due to lack of diligence; 3) the evidence is admissible and not merely cumulative or impeaching; and 4) the evidence is likely true and could lead to a different trial outcome. The standard of review for denying such a motion is abuse of discretion. 

The evidence in question is the court reporter's record from a September 1995 custody hearing, which included testimony from Barry Washington about his surveillance of the appellant's former husband. During this hearing, it was established that Washington was hired by the appellant's attorney, Homminga, which contradicts statements made during the appellant's trial that Roberson hired the appellant without Homminga's knowledge. However, the trial court could reasonably determine that this newly discovered evidence was merely cumulative and would not likely change the trial's outcome, as Washington had previously testified at the trial that he believed he was employed by Homminga. Furthermore, the court ruled that evidence that solely impeaches trial testimony does not justify a new trial.

Washington did not suspect he had been misled by the appellant until the appellant requested his social security number for tax purposes. During the new trial hearing, he acknowledged that his earlier testimony at the custody hearing reflected a misunderstanding. The court determined that the appellant's reliance on Washington's custody hearing testimony was largely impeaching or cumulative and unlikely to alter the trial outcome, referencing case law. The appellant, employed in Homminga's office during the custody hearing, was aware of Roberson's custody modification motion. The court found that the appellant failed to diligently obtain the custody hearing record before her trial.

The appellant claimed newly discovered evidence indicating that Roberson's trial testimony was false, specifically regarding a charitable foundation and a horse farm, but this evidence was not presented in the motion for a new trial. Even if the claims about the foundation and farm were true, they pertained to unrelated matters and did not impact the appellant's guilt. Consequently, the court did not abuse its discretion in denying the motion for a new trial.

The appellant argued that prosecutorial misconduct denied her a fair trial, alleging a conspiracy involving Homminga, Roberson, and attorney Bradt for financial gain. She claimed the prosecutor improperly supported witness testimony and failed to disclose exculpatory evidence. Many assertions made by the appellant lacked factual support, while other claims, such as the importance of the custody case to Homminga, were not substantiated in the record. Notably, an anonymous letter from Homminga to the Department of Public Safety, which initiated the investigation leading to the appellant's prosecution, was acknowledged by the jury, allowing them to consider its impact on Homminga's credibility.

Appellant claims that witnesses Homminga, Roberson, Bradt, and others were part of the 'prosecution team,' implying that the State knew of and suppressed exculpatory testimony from the Panola County custody hearing, which would violate due process as established in Brady v. Maryland. However, the absence of legal authority supporting this classification and the lack of evidence that the State was aware of the testimony before it was presented at the new trial hearing undermines this claim. The State is not obligated to actively seek out exculpatory evidence for the defendant, nor does a Brady violation occur if the defendant could reasonably obtain the information themselves. Additionally, appellant argues that the prosecutor improperly enhanced the credibility of State witnesses through their testimonies about their achievements and service duration; however, no objection was raised to this testimony. Consequently, points of error five and six do not constitute reversible error, and there is no shown abuse of discretion regarding the trial court's denial of a new trial. Appellant's request for a new trial in the interest of justice, based on previously discussed evidence, is also overruled. The appellate court affirms the conviction.