Kyle Alexander Farrar v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00466-CR

Kyle Alexander Farrar, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 04-224-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

MEMORANDUM OPINION

Kyle Alexander Farrar appeals his conviction by a jury for aggravated sexual assault

of a child. See Tex. Pen. Code Ann. § 22.021 (West Supp. 2006). The jury assessed appellant’s

punishment at twenty-four years’ confinement, and the trial court sentenced him accordingly. In five

points of error, appellant claims that he received ineffective assistance of counsel, and that the trial

court erred in denying his motion for new trial without a hearing, in failing to suppress his written

statement, and in failing to make findings of fact and conclusions of law regarding the admissibility

of his written statement. Finding these contentions without merit, we affirm the judgment of

conviction.

FACTUAL BACKGROUND

The complainant, C.W., was nine years old at the time of the alleged offense and

eleven years old when she testified at trial. She testified that on October 31, 2003, after attending
a church party, she went to bed at approximately 9:00 p.m. Her parents had invited several friends

over to their home to play volleyball. Later that night, appellant, a friend of the family who had been

invited to play volleyball, entered the house to use the bathroom. He then entered C.W.’s bedroom

and approached her bed. Appellant knelt down next to C.W.’s bed, placed his hand underneath her

pajamas and underwear, and began rubbing her genitals with his hand. He inserted his finger into

C.W.’s vagina, hurting her with his sharp nails. After what seemed like a long time, about “twenty

minutes,” she rolled over, and appellant left. Testifying that she was “scared,” C.W. did not report

the incident that night. C.W.’s parents, Darla and Ira Hodges, and another witness testified that

appellant left the game and was inside the house for about fifteen or twenty minutes. Appellant was

the last person to leave at about 1:30 a.m.

The next morning, C.W. reported appellant’s conduct to her mother. Mr. and Mrs.

Hodges contacted the Williamson County Sheriff’s Office and met with Detective Pete Hughey.

Along with Detective Hughey, Mr. and Mrs. Hodges took C.W. to be examined by a sexual assault

nurse examiner, Robin Jaffers. During the examination, Jaffers observed and then testified at trial

that the labia minora of C.W.’s vagina were red, irritated, and scratched. According to Jaffers,

C.W.’s injuries were consistent with C.W.’s report of sexual assault by digital penetration. Jaffers

opined at trial that the injuries were the result of friction and rubbing, and not of a momentary

touching. C.W. was scratched, had pain, and was experiencing anxiety and fear of appellant.

After the examination, Hughey asked Mr. and Mrs. Hodges to come back to the

sheriff’s office to place recorded telephone calls to appellant. In the conversation with Darla

Hodges, appellant acknowledged that he went into C.W.’s bedroom and that, if he did anything, it

2
was “by accident.” Darla Hodges referred to the telephone calls in her testimony, but they were not

offered into evidence by the State or admitted as evidence at trial. Because the content of Hughey’s

later telephone call to appellant, which was admitted into evidence, indicates that appellant was

expecting his call, the parties agreed to allow Darla Hodges to refer to the call to provide the context

for the later call between Hughey and appellant.

On November 2, 2003, Hughey called appellant and requested an interview.

Appellant agreed to come in for an interview that same day. Hughey recorded both his telephone

call to appellant and the interview with an audiotape recorder. At the conclusion of the interview,

appellant gave a written statement acknowledging sexual contact with C.W. Appellant was later

arrested and indicted in two counts for aggravated sexual assault by intentionally or knowingly

causing the penetration of C.W.’s sexual organ by his finger and a lesser included offense of

indecency with a child by contact. The jury found appellant guilty of aggravated sexual assault.

ANALYSIS

In overlapping points of error, appellant contends that (i) the trial court erred in failing

to suppress his written statement and in failing to file findings of fact and conclusions of law, (ii) his

trial counsel provided ineffective assistance, and (iii) the trial court abused its discretion in denying

appellant’s motion for a new trial and doing so without a hearing.

3
Failure to Suppress Appellant’s Statement

In his fourth point of error, appellant claims that the trial court erred in failing to

suppress his written statement because it was not voluntary.1 Appellant filed a motion to suppress

his statement based on the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution; Article I, section 10, of the Texas Constitution; and article 38.22 of the Texas Code

of Criminal Procedure. See U.S. Const. amends. IV–VI, XIV; Tex. Const. art. I, § 10; Tex. Code

Crim. Proc. Ann. art. 38.22 (West 2005). He also claims that the statement, improperly obtained

during an interrogation, was inadmissible under article 38.23 of the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).

The trial court conducted a hearing on the motion to suppress. See id. art. 28.01(6)

(West 2006); see also id. art. 38.22; Jackson v. Denno, 378 U.S. 368, 380 (1964). The record

reflects that on November 1, 2003, after C.W.’s outcry to her mother was reported to the Williamson

County Sheriff’s Office, Detective Hughey contacted appellant by telephone. Hughey identified

himself and told appellant, “I need to talk with you.” Appellant agreed to meet Hughey at the

1
In setting forth the issues presented on appeal, appellant asserts in his fourth point of error,
“The trial court erred in denying Mr. Farrar’s Motion to Suppress his written statement as
involuntary.” As formulated by appellant, the issue does not challenge appellant’s tape-recorded oral
statement. In argument in his brief, however, appellant challenges the motion to suppress his
“statements,” asserting that he “filed a pre-trial Motion to Suppress his written statement with audio
recording as having been provided involuntarily.” In his fifth point of error, appellant expressly
challenges the failure of the trial court to make findings of fact and conclusions of law as to “the
admissibility of the objected to written confession in this case.” Whether appellant seeks to
challenge only the written statement in his fourth point or both the written and tape-recorded oral
statements, his challenge is rendered moot because at trial he failed to object to the admission of the
tape-recorded statement when it was offered and, therefore, failed to preserve error. We will thus
confine our discussion to the admission of the written statement.

4
sheriff’s office that afternoon. Appellant arrived at the sheriff’s office at approximately 2:00 p.m.

Hughey escorted appellant to his office, advising him that the interview was being recorded on

audiotape and that “you’re free to leave, that you’re not under arrest.” Appellant acknowledged that

he understood. Hughey did not advise appellant of his Miranda warnings.2 When Hughey told

appellant that the sexual assault nurse examiner had found injuries to C.W. and “now is the time to

get your stuff straightened out,” appellant responded, “That’s one of the reasons I wanted to talk to

you bad.”

Appellant told Hughey that on Halloween Day he went “out to drink with people at

work.” They went to a “couple different places,” and then went to the Hodgeses’ home at about

midnight to play volleyball. After playing volleyball “for a while,” appellant went into the house to

say hello to C.W. and to give her a hug. Appellant explained that he had been friends with the family

for a long time. He told Hughey that he did not “do anything” and that “I do not recall any way I

could have” because “I was not in there long.” He told Hughey that in a telephone conversation with

Darla Hodges he encouraged her to test the girl because he did not think it would show anything.

When Hughey advised the appellant that C.W. had a “fresh injury,” “she’s red,” and “she has a tear,”

appellant said that he just went in to wake her up and tell her goodbye:

She was balled up, so I went in and—I went to go check her again, sit next to the bed,
and I was—I didn’t mean to at first. I was touching her there because it was dark and
I didn’t know where I was grabbing, and for some reason I just—I thought about it
for a second, then I stopped. And she didn’t sit up and tell me bye and I didn’t know
what to do after that. I can’t believe I did that.

2
See Miranda v. Arizona, 384 U.S. 436 (1966).

5
Appellant denied sticking his finger inside C.W. and said he touched her “not long at all.” He

explained: “Then I just started touching her for a second, then I stopped because I realized what I

was doing and I couldn’t believe I was doing it.”

Hughey then asked appellant to provide a written statement. Appellant gave and

signed a written statement acknowledging that he was not under arrest and that the statement was

voluntary. The statement on its face recited: “I understand I am not under arrest or being detained

against my will and am free to leave at any time. I volunteer the following information and know

that it may be used for whatever purpose it may serve.” In the statement, appellant also

acknowledged that he had read the statement and affirmed that the facts were correct.

In a pretrial hearing on the motion to suppress appellant’s statement, Hughey testified

that he made no promises to appellant and that at no time during the interview did appellant request

to leave or manifest an intent to leave. At the conclusion of the interview, appellant asked that he

not be arrested at work if he was going to be arrested. The interview lasted approximately one hour,

and appellant left at the conclusion of the interview.

Appellant testified at the suppression hearing that he received a call from the detective

and agreed to meet with the officer “because I wanted to let him know, you know, exactly what did

and did not transpire that night.” Appellant acknowledged that he was not placed under arrest and

that he was told and knew that he was free to leave at any time. At the beginning of the interview,

the officer was “laid back” and appellant was “telling him my story, and everything was fine.”

Halfway through the interview, appellant testified, he was “basically through.” He “wanted to get

up,” and he “made a motion to get up.” Appellant stated that Hughey put his hands on appellant’s

6
wrist, pulled his chair closer to appellant, and “then started in on me again.” Appellant said that he

signed the statement because he was feeling sorry for himself and he thought it was his “only way

out.” Appellant testified that Hughey told him what to put in the statement and that it was not a

voluntary statement given of his own free will. Appellant stated that he is not a forceful person and

does not handle confrontation well. In the following colloquy, appellant stated that the detective

instructed him to add a phrase to the statement, and he merely complied:

Q [Detective]: Did you do anything the first time you went in?

A [Appellant]: No.

Q [Detective]: Well, just touch on it that you went in the first and you
just—you did hug her, right, and did say hi to her?

A [Appellant]: Yeah.

Q [Detective]: Okay. I’m not taking that away from you, Kyle. I believe that
you care. Okay? For her sake, be sure that you put in there
that you took your finger and you touched her vaginal area.

A [Appellant]: (Inaudible.)

Q [Detective]: Let me see what you’re writing. “When I did, I accidentally
touched her,” where? See, it doesn’t explain where. “[B]ut
continued for a second and immediately stopped.” It’s not
saying where you touched her. All right, you touched her
where? I want to make sure that’s clear. Okay. Then what
happened? All right, let me make sure that I understand. All
you did was rub, and if your finger went inside, it was an
accident?

A [Appellant]: Yes.

7
To the phrase “When I did I acciendtly [sic] touched her,” appellant added, “on her private part with

my finger.” Appellant testified that he was just telling Hughey what he wanted to hear and that,

because appellant was the only person that “they were going after,” he “was done.” The officer’s

testimony contradicted appellant’s testimony. At the conclusion of the suppression hearing, the trial

court overruled the motion and found that the statement had been freely and voluntarily given and

was admissible in evidence.

In a suppression hearing, the trial court is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d

539, 543 (Tex. Crim. App. 1990). The trial court may accept or reject any or all of a witness’s

testimony or evidence offered. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). In

reviewing the trial court’s decision, we do not engage in our own factual review; we determine only

whether the record supports the trial court’s findings. Romero, 800 S.W.2d at 543. We are not at

liberty to disturb supported findings of fact absent an abuse of discretion. Cantu v. State, 817

S.W.2d 74, 77 (Tex. Crim. App. 1991); Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990).

We shall not defer merely to the trial court’s findings regarding the historical facts but also to the

trial court’s conclusions regarding the legal significance of those facts that turn on an evaluation of

credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002);

State v. Carter, 915 S.W.2d 501, 504 (Tex. Crim. App. 1996); Dubose v. State, 915 S.W.2d 493, 497

(Tex. Crim. App. 1996). We will normally address only the question of whether the trial court

improperly applied the law to the facts. Johnson, 68 S.W.3d at 652-53; Romero, 800 S.W.2d at 543.

If the trial court’s decision is correct on any theory of the law applicable to the case, it will be

8
sustained even though the trial court may have given the wrong reason for its ruling. Osbourn v.

State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002); Romero, 800 S.W.2d at 543; Calloway v. State,

743 S.W.2d 645, 651-52 (Tex. Crim. App. 1988).

We must determine from the facts whether the trial court abused its discretion. We

first determine whether appellant was in custody and subject to custodial interrogation. Because

Hughey advised appellant that he did not believe appellant was telling the whole truth and appellant

began to cry as he responded to Hughey’s questioning, appellant contends that his will was

overborne and that he was physically prevented from leaving when Hughey moved his chair closer

to appellant and held his wrist. Appellant asserts that he went from “being free to leave, to being in

custody.” Hughey’s testimony at trial disputed that there was coercion or compulsion.

If an investigation is not at an accusatorial or custodial stage, a person’s Fifth

Amendment rights have not yet come into play, and the voluntariness of the waiver of those rights

is not implicated. Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim. App. 1990). Voluntariness is

an issue only if the confession was obtained while the speaker was in custody. Id.; White v. State,

874 S.W.2d 229, 236 (Tex. App.—Houston [14th Dist.]), pet. dism’d, 890 S.W.2d 69 (Tex. Crim.

App. 1994). Miranda and article 38.22 apply only to statements made as a result of custodial

interrogation. Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.—Austin 1997, no pet.). Thus,

if appellant’s statement did not stem from a custodial interrogation, neither Miranda nor article 38.22

requires its suppression. See id. at 215; Morris v. State, 897 S.W.2d 528, 531 (Tex. App.—El Paso

1995, no pet.).

9
 “‘Custodial interrogation’ is questioning initiated by law enforcement officers after

a person has been taken into custody or otherwise deprived of his freedom in any significant way.”

Cannon v. State, 691 S.W.2d 664, 671 (Tex. Crim. App. 1985). In determining whether an

individual was in custody, the court must examine all the circumstances surrounding the

interrogation, but “the ultimate inquiry is simply whether there [was] a ‘formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler,

463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)); see also

Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990). Questioning a suspect at the

police station does not, by itself, constitute custody. Dowthitt v. State, 931 S.W.2d 244, 255

(Tex. Crim. App. 1996). But a police interrogation that begins as a noncustodial interrogation may

become custodial during the course of the interview. Id.

Although courts have discussed factors that may be relevant to the inquiry, including

(1) probable cause to arrest; (2) focus of the investigation; (3) subjective intent of the police; and (4)

subjective belief of the defendant, Meek, 790 S.W.2d at 621-22; Melton, 790 S.W.2d at 326;

Turner v. State, 685 S.W.2d 38, 42 (Tex. Crim. App. 1985), these four factors have given way to the

more flexible “reasonable person” test. See United States v. Bengivenga, 845 F.2d 593, 596

(5th Cir.), cert. denied, 488 U.S. 924 (1988).

In Stansbury v. California, 511 U.S. 318 (1994), the Supreme Court established the

rules for determining whether a person being questioned by law enforcement officers is held in

custody and thus entitled to Miranda warnings. The Court made clear that the initial determination

of custody depends on the objective circumstances of the interrogation, not on the subjective views

10
harbored by either the interrogating officer or the person being questioned. Id. at 323-24. Thus, the

officer’s subjective view that the individual under questioning is a suspect, if undisclosed, does not

bear upon the question whether an individual is in custody for the purpose of Miranda. Id. at 324.

The Court further noted that focus of the investigation alone does not constitute custody. Id. In light

of the reasonable person test, an officer’s knowledge and belief may bear upon the Miranda custody

issue if they are conveyed to the individual being questioned, but even a clear statement by an officer

that the person under interrogation is the prime suspect is not in itself dispositive of the custody

issue, for some suspects are free to come and go until the police decide to make an arrest. Id. at 325.

Whether we apply the four-factor test or the reasonable person test of Stansbury, the result here is

the same. See, e.g., Dowthitt, 931 S.W.2d at 254-55.

In the instant case, appellant accepted the invitation or request of a detective to come

to his office regarding an ongoing investigation. If the circumstances show that an individual acts

upon the invitation or request of a law enforcement officer and there are no threats, express or

implied, that he will be forcibly taken, then that person is not in custody for the purposes of Miranda.

Anderson v. State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996), cert. denied, 521 U.S. 1122 (1997).

In the tape-recorded interview, appellant expressed his desire to talk to the officer and straighten

things out because, he explained, he had done nothing wrong. Appellant urges that the interrogation

that was admittedly noncustodial at the outset became custodial when Hughey placed his hand on

appellant’s wrist and moved his chair closer to appellant in the small office.

It is the province of the trial court, as the fact-finder in the hearing on the motion to

suppress, to evaluate the credibility of the witnesses and determine whether the admittedly

11
noncustodial interview became custodial in nature. The trial judge heard the witnesses and was in

the best position to judge their credibility and the weight to be given their testimony. The trial court

expressly found that the written statement was not the product of a custodial interrogation. Based

on the testimony at the hearing, the trial court could have reasonably concluded that Hughey’s

interaction with appellant would not have caused a reasonable person to believe that his freedom of

movement was restrained to the extent that he believed he was no longer free to leave as the officer

had advised him at the beginning of the interview. That appellant committed his statement to writing

on a pre-printed form containing language informing appellant that he was not in custody and was

free to leave at the time he made his written statement supports this conclusion. Appellant never

asked to leave. That appellant recognized he was free to leave is clear from his question to the

officer as to whether he should go ahead and quit his job, as well as his request that he not be

arrested at his job, and his statement that he would need to take a “week or so vacation.” This was

in response to the officer’s statement, “You’re gonna get up and walk out of here. I’m not gonna

say that there’s not something gonna come out of this and I think you know that, okay?” The

interview ended with Hughey asking appellant, “Ready to get out of here?” to which appellant

responded, “Yeah.”

Because we afford almost total deference to the trial court’s determinations, and our

review of the record supports the trial court’s ruling, we hold that the trial court did not abuse its

discretion in denying appellant’s motion to suppress. We overrule appellant’s fourth point of error.

12
Findings of Fact and Conclusions of Law

Appellant contends that the trial court failed to enter findings as required by article

38.22, section 6, of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art.

38.22, § 6. When the voluntariness of a statement is challenged, a trial court is required to make

findings with regard to its determination. Id.; Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App.

2004). Such findings are mandatory even when there is no objection at trial. Urias, 155 S.W.3d at

142. A trial court will be found to have complied with article 38.22, section 6, if the court dictates

its findings and conclusions to the court reporter and those findings are made part of the appellate

record. Murphy v. State, 112 S.W.3d 592, 601-02 (Tex. Crim. App. 2003); Parr v. State,

658 S.W.2d 620, 623 (Tex. Crim. App. 1983). As the Dallas court of appeals explained:

Findings need not be made with minute specificity as to every alleged and
hypothetical possibility for physical or mental coercion, but need only be sufficient
to provide the appellate court and the parties with a basis upon which to review the
trial court’s application of the law to the facts.

Nichols v. State, 810 S.W.2d 829, 831 (Tex. App.—Dallas 1991, pet. ref’d).

After a hearing on appellant’s motion to suppress, the trial court denied the motion

and made the following findings:

I find the statement was voluntary. In fact, it’s kind of a classic pattern of an
individual that comes down and believes they’re going to talk their way out of it and
by simple persistence telling them that you don’t believe them. I don’t understand
the psychology behind it, but it happens again and again. People break down and tell
them the truth under those circumstances. So the motion to suppress is denied.

13
The district court’s findings make specific reference to facts adduced through testimony at the

hearing and events on the audiotape. We hold that these findings were recited into the record and,

although a close issue, are sufficiently detailed to comply with the requirements of article 38.22,

section 6. See Murphy, 112 S.W.3d at 601-02; Nichols, 810 S.W.2d at 831. We overrule appellant’s

fifth point of error.

Ineffective Assistance of Counsel

In his first point of error, appellant contends his trial counsel was constitutionally

ineffective for failure (i) to challenge certain evidence, (ii) to investigate fully and interview one of

the persons present at the Hodgeses’ home on the night in question, and (iii) to obtain the services

of an expert to assist him in evaluating the nurse’s examination report and in preparing his defense.

The legal principles that govern claims of ineffective assistance of counsel were set

out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). “An ineffective

assistance claim has two components: A petitioner must show that counsel’s performance was

deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521

(2003) (citing Strickland, 466 U.S. at 687). To establish deficient performance, the defendant must

demonstrate that his attorney’s representation “fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. Courts have declined to articulate specific guidelines for appropriate

attorney conduct, emphasizing instead that the proper measure of performance “remains simply

reasonableness under prevailing professional norms.” Wiggins, 539 U.S. at 521. In addition to

deficient performance, the appellant must show that there is a reasonable probability that, but for the

attorney’s deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707,

14
712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel’s

representation so undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result. Strickland, 466 U.S. at 687.

Our review of counsel’s representation is highly deferential; we indulge a strong

presumption that counsel’s conduct falls within a wide range of reasonable representation. Id. at

689; Tong, 25 S.W.3d at 712. When assessing appellant’s claims, we presume counsel’s actions and

decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State,

877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). This Court will not second-guess through

hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued

a different course support a finding of ineffectiveness. Strickland, 466 at 689-90; Blott v. State,

588 S.W.2d 588, 592 (Tex. Crim. App. 1979). That another attorney, including appellant’s counsel

on appeal, might have pursued a different course of action does not necessarily indicate ineffective

assistance. Miniel v. State, 831 S.W.2d 310, 325 (Tex. Crim. App. 1992); Harner v. State,

997 S.W.2d 695, 704 (Tex. App.—Texarkana 1999, no pet.). Any allegation of ineffectiveness must

be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); McFarland v. State,

928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

Appellant first urges that his counsel was deficient in failing to move to suppress

appellant’s statements to Darla and Ira Hodges when they placed calls to him following the event

at issue. He urges that the couple acted under the direction of the State and elicited the statements

by threat and coercion and that he was precluded from developing this evidence because the trial

15
court denied his motion for new trial without a hearing. Because the recordings were not in

evidence, the State responds that appellant is unable to show prejudice. The State also asserts that

appellant failed to raise this claim in his motion for new trial and, therefore, failed to present an

adequate record on which this Court may evaluate his trial counsel’s actions.

At the beginning of the trial,3 the State recited on the record that there were telephone

calls between appellant and both Darla and Ira Hodges: “[W]e discussed that on those phone calls

there are things that are extremely detrimental to the defendant as well as things that could be

culpatory [sic] to the defendant.” The parties agreed that they would not proffer the recordings, but

they would reference the calls to show how Hughey came to ask the questions he did in the

interview. The State agreed to “make clear that he didn’t confess in those tapes.” Appellant’s

counsel alerted the court that, if the State allows “specifics” to come into evidence that are harmful

to his client, he might seek to play the entire recordings. He then suggested that the court “exclude

the tapes in their entirety, and nobody can refer to them.” Neither party made a motion at that time

relating to the telephone tapes, and the court did not rule on the admissibility of the recorded

conversations. The court concluded:

I can’t make an evidentiary ruling until the issue is brought up. It sounds like both
of you want to avoid having them come in. But it also sounds like either side could
knock around enough, if they open enough doors, that they do come in. We’ll just
have to play it by ear and see what happens.

3
The discussion occurred in the context of a motion in limine which does not appear in the
record.

16
 During opening argument, the State referred to statements appellant made during the

recorded telephone conversation with Darla Hodges in response to her characterization of C.W.’s

accusation that appellant touched C.W. The State argued:

“[C.W.] is telling me you touched her.” He says, “Well, if I did, it must have been
an accident. I don’t think I did. No, I didn’t. I don’t remember that. If K—it must
have been because I was drinking. No, I didn’t do it. I didn’t do it. I wouldn’t have
done that. Well, if she says I did it, I did it.”

There was no objection to the argument.

At trial, both Hughey and Darla Hodges referenced her telephone calls to appellant.

Hughey testified that he asked Darla Hodges to place a call to appellant and ask him about C.W.’s

accusation. Hughey testified that appellant, in response to Darla Hodges’s questioning, told her that

he was not sure, that maybe he did, but if he did, it was an accident and that he did not mean to touch

her. Based on that conversation, Hughey called appellant to request an interview. Darla Hodges

then testified that appellant told her that “if he did it, it was by accident” and that maybe “he had had

something to drink.” At that point, appellant’s counsel asked to approach the bench, advising the

court that:

Your Honor, we have the motion in limine regarding these tapes, and the question
was how much will be—your Honor, we discussed the motion in limine regarding
these tapes prior to getting into them. Now, we both understood that a little bit of the
testimony is going to be fine. But if they’re going to get into every little bit of pro-
State stuff that’s going to happen. I don’t see a way without being able to play all the
tapes. I don’t want to have to do that. But my understanding is that we’re going to
limit it to he never outright said he did it. But he made some statements that would
have corroborated the story, such as he went in the room. He woke her up. He said
good night. I’m okay with that stuff. But if we start getting into the intoxication
issues, then that’s prejudicial leaning toward it happened.

17
The State agreed to limit testimony about the conversations except to “make clear that [appellant]

never came out and admitted.” Defense counsel agreed, concluding that “[w]e might just be we’ve

got to play the tapes, but we’ll see how far it goes.” Darla Hodges then testified:

Q [State]: Now, in all fairness, he never came out and said that he did
this?

A [D. Hodges]: No.

Q [State]: Never confessed or admitted to you that he had actually gone in
and—he went in but not that he had actually touched her private area?

A [D. Hodges]: Her private area, right.

Q [State]: It was only, “If I did, it was an accident.”?

A [D. Hodges]: Yes.

Ira Hodges did not testify concerning any recorded telephone conversation he had with appellant.

None of the recordings of telephone conversations between appellant and Darla and Ira Hodges were

offered or admitted as evidence at trial.

Appellant did not raise this claim of ineffectiveness in his motion for new trial. A

claim of ineffective assistance may be properly raised on direct appeal only if the appellate record

is developed sufficiently to allow this Court to evaluate the reasoning behind trial counsel’s actions.

Moore v. State, 140 S.W.3d 720, 728 (Tex. App.—Austin 2004, pet. ref’d). Absent evidence of

counsel’s reasons for the challenged conduct, we will not conclude the challenged conduct

constituted deficient performance unless the conduct was so outrageous that no competent attorney

would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson,

18
9 S.W.3d at 814. On this record, we cannot conclude that counsel’s actions with regard to the

recorded telephone conversations between appellant and Mr. and Mrs. Hodges were deficient. The

referenced testimony concerning portions of the recorded telephone conversations provided little,

if any, benefit to the State in support of its case. It merely provided a context for other testimony and

was consistent with appellant’s defense strategy of accident and lack of intent. When defense

counsel objected, the State agreed to limit testimony and elicited testimony helpful to the defense

and consistent with the defense strategy. Defense counsel reserved the right to play the tapes in their

entirety, but ultimately, the tapes were not played for the jury and do not appear in the record.

Although appellant complains on appeal that the State agreed that the tapes were “extremely

detrimental” to appellant and that they “detail devastating extraneous offenses, specifically

Mr. Farrar’s ‘prior sexual assault case,’ as well as ‘fighting incidents and screaming matches

between him and [his girlfriend],’” this evidence was neither offered nor admitted at trial.

It is unlikely that the tapes would have been suppressed. Moreover, appellant

advances no ground on which the tapes would have been suppressed and, therefore, fails to

demonstrate the result of the suppression hearing would have been different. As with the later

statements given by appellant, he was not in custody when he had the conversations with Mr. and

Mrs. Hodges, and he had not been charged with any offense. See Cebula v. State, 828 S.W.2d 234,

236 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (audiotape recording of telephone

conversation between defendant and co-defendant admissible because, at the time of the

conversation, defendant was not in custody and had not been formally charged with the offense).

The act of recording the conversations was legal because Mr. and Mrs. Hodges were aware of and

19
consented to the recording.4 Even apart from appellant’s failure (i) to provide a record upon which

this Court could evaluate whether counsel’s conduct was deficient with respect to the recordings and

(ii) to show prejudice, we cannot say that counsel’s conduct regarding the tape-recorded

conversations fell below an objective standard of reasonableness or that the result of the trial would

have been different. See Strickland, 466 U.S. at 687-88.

Also under the rubric of his counsel’s ineffectiveness and failure to move to suppress

the telephone recordings, appellant urges that his statement given to Hughey should have been

suppressed because it was the product of and tainted by the alleged illegal telephone calls from Darla

and Ira Hodges. Because we have found that the recordings were not introduced into evidence, are

not part of the record, and were not illegal, we conclude that this contention is without merit.

Appellant also urges that his counsel was deficient because he failed to request a jury

instruction on the voluntariness of appellant’s statement. As we have also addressed, appellant urges

that his statement was involuntary and was given while he was in custody. His counsel moved to

suppress the statement on this ground, but did not seek a jury instruction to advise the jury that, if

it believed or had a reasonable doubt that the evidence was obtained illegally, the jury shall disregard

the evidence. See Tex. Code Crim. Proc. Ann. art. 38.23(a). The State responds that appellant was

not entitled to an article 38.23 instruction as to the voluntariness of his oral confession because,

when the recording of his oral statement was offered at trial, his counsel said “no objection.” And,

4
See Tex. Pen. Code Ann. § 16.02(c)(3)(A) (West Supp. 2006) (providing as affirmative
defense to unlawful interception of communication that person who is a party to the communication
has given prior consent to interception).

20
the State argues, appellant suffered no prejudice from the failure of his counsel to request an

instruction concerning his written statement.

That his counsel stated that he had “no objection” to the offer of the oral statement

does not address whether counsel was thereby deficient. The question remains whether counsel’s

conduct was deficient because he failed to request a jury instruction on voluntariness. Appellant

does not separately challenge on appeal the failure of the trial court to give a jury instruction on

voluntariness. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6.

Generally, when evidence from any source raises a defensive issue and the defendant

properly requests a jury charge on that issue, the trial court must submit the issue to the jury.

Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (citing Moore v. State, 574 S.W.2d

122, 124 (Tex. Crim. App. 1978)). The trial court must then instruct the jury to disregard illegally

obtained evidence if the defendant raises a fact issue concerning the manner in which the evidence

was obtained and requests the instruction. Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App.

1986). The evidence raising the issue may be strong, weak, contradicted, unimpeached, or

unbelievable. Muniz, 851 S.W.2d at 254 (citing Sanders v. State, 707 S.W.2d 78, 80 (Tex. Crim.

App. 1986)). Article 38.23(a) provides that in any case where a party raises an issue regarding

whether evidence was obtained in violation of the laws of Texas or the United States, the jury shall

be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained because

of such a violation, then the jury shall disregard any such evidence. Tex. Code Crim. Proc. Ann.

art. 38.23(a); see also Miniel, 831 S.W.2d at 316.

21
 Before an instruction is required, however, some evidence must be presented to the

jury that raises the voluntariness issue. Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App.

1994). “Only when some evidence is presented that a confession is not voluntary is the matter put

in issue.” Miniel, 831 S.W.2d at 317 (emphasis added). Thus, we must determine whether any

evidence was presented to the jury which shows the confession was not voluntary, thus triggering

counsel’s obligation to request the instruction.

Appellant argues that the voluntariness issue was properly raised when the tape-

recorded interview and the transcript of the interview were admitted into evidence. He then relies

on his counsel’s closing argument and the State’s rebuttal argument to support the requirement of

an instruction on voluntariness. But a review of the evidence admitted does not reveal any evidence

that appellant’s statement was involuntary. Appellant neither testified at trial nor called any

witnesses on the issue of the voluntariness of his statement. Hughey testified that there was no

coercive conduct to induce the statement, that he did not make the defendant any promises to get him

to give or write a statement, and that the statement was a product of the defendant’s free will. On

cross-examination, Hughey testified that appellant’s demeanor changed during the interview. He

was calm at the beginning, but appellant was crying and upset by the end of the interview. Hughey

testified that the office was small and that at one point he moved closer to the defendant and “patted

him, held onto his arm.” Hughey explained that he was “trying to make him understand and feel

comfortable” because he was “sitting there crying, sobbing.” Hughey testified, “That’s when I

moved in and patted him, ‘It’s okay.’” And the appellant appeared to accept the comforting.

22
 No evidence was presented that raised an issue as to whether appellant’s statement

was involuntary. As we have already discussed, it was not error to deny appellant’s motion to

suppress the statement because he was not in custody. Having reviewed the record, we find nothing

showing that the issue of the statement’s voluntariness was raised before the jury, and the requested

jury instruction was therefore not required. See Butler, 872 S.W.2d at 236-37; Miniel, 831 S.W.2d

at 317. Accordingly, because the issue was not raised by the evidence, counsel was not deficient in

failing to request the jury instruction. See Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App.

1993) (finding counsel’s failure to request jury instruction was not deficient where defendant was

not entitled to instruction).

Appellant also argues that his counsel failed to conduct an independent factual

investigation. When addressing the specific question of counsel’s duty to investigate the facts and

interview or call potential witnesses, the Supreme Court advises that courts must “conduct an

objective review of [counsel’s] performance, measured for ‘reasonableness under prevailing

professional norms,’ which includes a context-dependent consideration of the challenged conduct

as seen ‘from counsel’s perspective at the time.’” Wiggins, 539 U.S. at 523 (quoting Strickland,

466 U.S. at 689). In other words, the reasonableness of an attorney’s pretrial investigation into

possible exculpatory evidence and witnesses depends upon the facts known by or available to

counsel at the time he made the decision whether to conduct further investigation, interview potential

witnesses, or call them to testify. See Strickland, 466 U.S. at 689-90.

In this case, the issue that counsel failed to conduct an adequate and independent

factual investigation was raised in appellant’s motion for new trial. Specifically, appellant urges that

23
his counsel failed to investigate the presence of Alex Stone at the Hodgeses’ residence on the night

of the offense. An investigator for appellant’s appellate counsel searched court records and found

an indictment that charged Stone with sexual assault of a child in May 2004. The indictment was

filed in August 2004, and Stone was placed on deferred adjudication and community supervision on

June 2, 2005. Stone’s name was included on the State’s witness list on December 1, 2004, along

with twenty-five other witnesses.

Stone was known to appellant. In his audiotaped statement to Hughey, appellant

described arriving at the Hodgeses’ house late on Halloween night. The Hodgeses were playing

volleyball with another couple. Another individual, Michelle, left when appellant arrived. Appellant

then told Hughey that “another kid showed up,” who “has a lot of drug problems, causes a lot of

mischief.” The following exchange occurred between appellant and the detective:

A [Appellant]: The only thing after now thinking about it that Alex came
over, which I don’t even want to go down that route. I mean
that’s—I mean, I know he’s not a great kid, he’s had a lot of
problems, but—but maybe Alex because he was in the house,
and we didn’t think about this last night about Alex being
there. We totally forgot because he showed up late in the
day—or in the evening.

Q [Detective]: And this is this other guy you’re talking about?

A [Appellant]: Yes.

Q [Detective]: Alex?

A [Appellant]: That’s his name, Alex. I don’t know what his last name is.

Q [Detective]: She’s not saying Alex, Kyle. She’s saying your name. She is
saying the whole entire story matching identical to yours.
Identical to your story about going in and giving her a hug and

24
 all the things, you know, and all that stuff. All but right to the
point about the touching.

Although the State listed Stone as a possible witness, it did not call him as a witness. That Stone

was on deferred adjudication was not admissible evidence generally and could not have been used

to impeach Stone if he had testified. See Tex. R. Evid. 404(b). Even if the evidence was relevant

or admissible, appellant does not show that the result of his trial would have been different. C.W.,

who knew appellant, testified that appellant was the one who entered her room on the night in

question and touched her genitals. As Hughey observed in the transcript excerpt, appellant admitted

to Hughey that he entered C.W.’s room and touched her on “her private part” with his finger.

Appellant’s identity as the perpetrator of the assault was not in question; at issue was his intent.

Likewise, appellant’s claim that his counsel was deficient in failing to seek the

services of an expert witness to examine the report prepared by Nurse Jaffers documenting her

examination of C.W. is without merit. Because the diagram of the injury depicted a red linear

abrasion and the narrative portion of the report described the injury as an abrasion, an injury

consistent with rubbing, appellant urged in his motion for new trial that the diagram was inconsistent

with the narrative portion. At trial, Jaffers testified that she documented a linear abrasion, which is

a scratch or a scrape, on C.W.’s labia minora “at the 12:00 position which would be the top.” She

described “where trauma broke the tissue apart with pressure, and it split.” She also found

“generalized redness and irritation to the labia minora” from “1:00 to 11:00.” The testimony

established that there were abrasions and also “the cut” inside the female sexual organ. Appellant

has not shown that there is any inconsistency or “discrepancy” or that trial counsel’s failure to obtain

25
an expert prejudiced him in any way. Even apart from Nurse Jaffers’s testimony, C.W. described

the assault and identified appellant, and appellant’s statement to Hughey tracked C.W.’s description

of the assault, except as to duration and intensity.

A review of the record shows that counsel’s performance was reasonable under

prevailing professional norms, and he adhered to a sound strategy that any touching was accidental

and that appellant lacked intent. Counsel on appeal does not urge that there was an absence of a

sound trial strategy. See, e.g., Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002) (refusing

to reverse on appellant’s claim of ineffective assistance of counsel in the absence of evidence

explaining counsel’s decisions). From this record, it is reasonable to conclude that there were

legitimate and professionally sound reasons for trial counsel’s conduct. Appellant has failed to

present any evidence to rebut the presumption that his counsel’s actions conformed with sound trial

strategy. See Strickland, 466 U.S. at 689. If counsel’s conduct was deficient in any respect,

appellant has not stated how any deficiency prejudiced his defense. See id. at 691-92. We overrule

appellant’s first point of error.

Motion for New Trial

In his second and third points of error, appellant contends that the trial court abused

its discretion in denying appellant’s motion for new trial and doing so without a hearing. As grounds

for the motion, appellant claimed that he was deprived of the effective assistance of counsel because

(i) his trial counsel did not conduct an adequate independent pretrial investigation and the State

failed to disclose exculpatory information to appellant and (ii) trial counsel did not consult with

independent expert witnesses necessary to provide an effective defense, including a mental health

26
professional to prepare evidence of temporary insanity or a medical professional to review the report

prepared by the nurse who examined C.W.

As a preliminary matter, we first discuss whether appellant’s motion for new trial was

properly before the trial court. Appellant filed his first motion for new trial on July 22, 2005. The

record does not reflect that appellant ever presented that motion to the trial court. A second motion

was timely filed on August 22, 2005, and was overruled by operation of law. Appellant attached to

this second motion for new trial a “certificate of presentation” stating that “On this 22nd day of

August, 2005, the Defendant’s Motion for New Trial was presented to the trial court within ten (10)

days of filing.” Under counsel’s unverified signature on the page is a handwritten notation of a name

with the following identifying information under the name: “court administrator, 368th District

Court, August 22, 2005.” The court’s docket sheet does not reflect the filing of either motion for

new trial or that either motion was brought to the attention of the trial court after filing. Because the

motions were evidently overruled by operation of law, there is no order denying either motion.

Rule 21 of the Texas Rules of Appellate Procedure governs new trials in criminal

cases. Tex. R. App. P. 21. Rule 21.4(a) provides that a defendant may file a motion for new trial

“before, but no later than 30 days after, the date when the trial court imposes or suspends sentence

in open court.” Id. 21.4(a). The record in this case reflects a timely filing which is not disputed by

the State.

It is not sufficient that a motion for new trial was filed in a timely fashion with the

clerk of the trial court. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). It must also

be presented or brought to the trial judge’s attention in a timely way. Carranza v. State, 960 S.W.2d

27
76, 78 (Tex. Crim. App. 1998). Rule 21.6 requires that a motion for new trial be presented to the

trial court within ten days after it is filed, unless the trial court grants permission for late

presentation. Tex. R. App. P. 21.6. Failure to present the motion to the judge within the time limits

results in the motion being overruled by operation of law 75 days after sentencing. Carranza,

960 S.W.2d at 79.

Finding the word “present” to be “somewhat ambiguous” and resorting to extra-

textual sources, the court of criminal appeals determined that the purpose or object sought to be

obtained by this requirement “is to put the trial court on actual notice that a defendant desires the trial

court to take some action on the motion for new trial such as a ruling or a hearing on it.” Carranza,

960 S.W.2d at 78. The record must show the movant for a new trial sustained the burden of actually

delivering the motion to the trial court or otherwise brought the motion to the attention or actual

notice of the trial court. Id. at 79. The presentment must result in actual notice to the court and may

be evidenced by the judge’s signature or notation on a proposed order or by a hearing date set on the

docket. Id. at 79-80.

Texas courts have generally held that the mere filing of a motion for new trial is not

sufficient to show “presentment” as required by the rule; the record must show the movant actually

delivered the motion to the trial court or otherwise brought it to the attention or actual notice of the

trial court. See, e.g., Longoria v. State, 154 S.W.3d 747, 762 (Tex. App.—Houston [14th Dist.]

2004, pet. ref’d); Hernandez v. State, 84 S.W.3d 26, 31 (Tex. App.—Texarkana 2002, pet. ref’d);

Gumpert v. State, 48 S.W.3d 450, 458-59 (Tex. App.—Texarkana 2001, pet. ref’d). In Hernandez,

the Texarkana court held that a notation by defense counsel on the motion that he had discussed the

28
motion with court personnel was not sufficient proof of presentation. The Texarkana court

distinguished Daniels v. State, 63 S.W.3d 67 (Tex. App.—Houston [14th Dist.] 2001, no pet.), which

addressed the issue of sufficient “presentment,” and held it sufficient when the record contained a

docket entry reflecting “Motion for New Trial was presented to the Court.” Based on this docket

entry, the Fourteenth Court of Appeals in Daniels held that the trial court had the required actual

notice of the motion and the defendant had fulfilled his obligation under rule 21.6. Daniels,

63 S.W.3d at 69. But the same court concluded that a docket entry stating “Mo. for New Trial filed”

was not sufficient to show presentment. Longoria, 154 S.W.3d at 762. The court observed that the

key difference between the Longoria and Daniels cases was that in Longoria the docket statement

reflected that the motion was “filed,” while the docket entry in Daniels stated that the motion “was

presented to the Court.” Id. In both cases, unlike the instant case, docket entries existed that

referenced the motion for new trial.

Two courts of appeals have held that the presentment requirement can be met by

presentment to the court coordinator who acts as an “agent for the trial court”5 in the pursuit of

judicial economy and efficiency. Butler v. State, 6 S.W.3d 636, 641 (Tex. App.—Houston [1st Dist.]

1999, pet. ref’d); Estrella v. State, 82 S.W.3d 483, 485-86 (Tex. App.—San Antonio 2002, pet.

dism’d) (following Butler). In Butler, the court abated the appeal and remanded the cause to the trial

court for the limited purpose of holding an evidentiary hearing to determine the facts surrounding

the presentment. Butler, 6 S.W.3d at 638. On remand, the trial court entered findings of fact that

5
Higginbotham v. Collateral Protection, Inc., 859 S.W.2d 487, 490 (Tex. App.—Houston
[1st Dist.] 1993, writ denied).

29
(i) counsel timely filed the motion, (ii) counsel informed the court coordinator of the filing of the

motion and asked that it be set for hearing, (iii) the motion was set for a hearing on a date certain and

was then rescheduled as “approved by Court,” and (iv) a hearing was held on whether there had been

a timely presentment. Id. Based on these facts, the court of appeals held that appellant satisfied the

presentment requirement by presenting the motion to the court coordinator. Id. at 641. Likewise,

in Estrella, the defendant filed a motion and presented it to the court coordinator, who then filled out

the “case setting form” and set a hearing date. The court of appeals concluded that the trial court

erred in finding that Estrella failed to satisfy the presentment requirement. Estrella, 82 S.W.3d at

486. In the absence of a record showing that the motion was presented to the trial court, the court’s

order denying the motion for a new trial is sufficient to presume that the motion was presented to

the trial court. Musgrove v. State, 960 S.W.2d 74, 76 (Tex. Crim. App. 1998); Scaggs v. State,

18 S.W.3d 277, 282 (Tex. App.—Austin 2000, pet. ref’d).

Here, there is nothing in the record to substantiate that the trial court had “actual

notice” of appellant’s motions for new trial. The handwritten notation by court personnel on the

Certificate of Presentation, even if it was intended to be a signature, is unverified and contains no

indication of the action taken. The certificate contains only the unilateral assertion by counsel that

on the same date the motion was filed, August 22, 2005, the motion was “presented to the trial court

within ten days of filing.” The certificate was attached to the motion, and the handwritten notation

is also dated August 22. It does not contain an acknowledgment of presentment to the judge—or the

30
court coordinator—and neither the filing nor the presentment is referenced on the docket sheet.6

Because the record does not contain an acknowledgment of presentment to the trial court and

the docket sheet does not show the filing of the motion or presentment, we hold that

appellant did not timely “present” the motion for new trial to the trial court as required under rule 21.

See Tex. R. App. P. 21; Hernandez, 84 S.W.3d at 31.

But even assuming appellant’s motion for new trial was properly presented to the trial

court, we hold that the motion and affidavits, even if assumed to be true, were not sufficient to entitle

appellant to a hearing or to grant appellant a new trial.

The right to a hearing on a motion for new trial is not an absolute right. See, e.g.,

Reyes, 849 S.W.2d at 815; Moore v. State, 4 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.]

1999, no pet.). We review a trial court’s refusal to hold an evidentiary hearing on a motion for new

trial under an abuse-of-discretion standard. Reyes, 849 S.W.2d at 816. A trial court abuses its

discretion in failing to hold a hearing when a defendant presents a motion for new trial

raising matters not determinable from the record. Holden v. State, No. PD-1699-05, 2006 Tex. Crim.

App. LEXIS 1817, at *4 (Tex. Crim. App. Sept. 20, 2006); King v. State, 29 S.W.3d 556, 569

(Tex. Crim. App. 2000); Reyes, 849 S.W.2d at 815-16. We do not substitute our judgment for that

of the trial court; rather, we decide whether the trial court’s decision was arbitrary or unreasonable.

A trial court abuses its discretion in denying a motion for new trial only when no reasonable view

6
Generally, docket sheets are not evidence. Rodriguez v. State, 834 S.W.2d 592, 595
(Tex. App.—Houston [1st Dist.]), pet. granted in part & ref’d in part; remanded in part on other
grounds, 844 S.W.2d 744 (Tex. Crim. App. 1992). However, “[a] docket entry may supply facts in
certain situations, but it cannot be used to contradict or prevail over a final judicial order.” N-S-W
Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977) (internal citation omitted).

31
of the record could support the trial court’s ruling. Holden, 2006 Tex. Crim. App. LEXIS 1817, at

*5 n.6 (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)).

The motion must be accompanied by affidavits specifically showing the grounds for

relief. King, 29 S.W.3d at 569; Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). But

a trial court may rule based on sworn pleadings and affidavits without oral testimony; live testimony

is not required. Holden, 2006 Tex. Crim. App. LEXIS 1817, at *8-9; Rivera v. State, 89 S.W.3d 55,

58 n.9 (Tex. Crim. App. 2002). While the affidavits are not required to reflect every argument

legally required to establish relief, the motion or affidavits must show reasonable grounds exist for

holding that such relief could be granted. Jordan, 883 S.W.2d at 665. An affidavit that is

conclusory or that is unsupported by facts is not sufficient to put the trial court on notice that

reasonable grounds for relief exist. Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d). The purpose of the hearing is for a defendant to fully develop the

issues raised in a motion for new trial. Jordan, 883 S.W.2d at 665.

In support of his motion, appellant attached affidavits from Kip Farrar, appellant’s

brother, and Teresa Farrar, appellant’s mother. In their affidavits, they averred that appellant had

an “unusual style of communication” or a “communication disorder” that frequently caused people

to misunderstand what appellant told them. Another witness averred generally that she was a friend

of the family and that she was aware appellant had a learning disability. Appellant also attached his

own affidavit denying that he was guilty of the conduct of which he was accused, stating that he had

encountered Alex Stone at the county jail after his conviction and that Stone “started to act very

funny.” With respect to his statement, appellant claimed that he “really had no choice” but to talk

32
with Hughey because he felt that it was an order when Hughey told him, “I need to talk to you.” The

affidavits also set forth ill will between the families and prior contacts between appellant and Darla

Hodges, the general nature of which had been raised at trial. Appellant included the affidavits of an

investigator describing Alex Stone’s criminal background and a registered nurse describing a

purported discrepancy between Nurse Jaffers’s characterization of C.W.’s injuries and the depiction

of the injury on a diagram accompanying her report. Also appended to the motion were two

unexecuted drafts of affidavits submitted by appellate counsel on behalf of appellant’s trial counsel

showing that he refused to sign the affidavits.

Appellant argues that he was entitled to a hearing because the State failed to disclose

evidence that Alex Stone, who appeared on the State’s witness list, was on deferred adjudication for

the offense of sexual assault of a child and that this evidence was determinable from facts outside

the existing trial record. But Alex Stone was not called by the State to testify as a witness, and

appellant does not show how this testimony was relevant or that it was not known to him during his

trial. The record is clear that Stone was known to appellant. Appellant first mentioned Stone in his

interview with Hughey. In any event, identity was not at issue. C.W. testified that appellant

committed the offense, and appellant acknowledged some aspects of the conduct, even as he claimed

it was an accident. There was ample evidence that appellant was the perpetrator of the offense. The

admission of evidence showing that another person at the residence on the night of the offense was

on deferred adjudication for a similar type of offense would not have led to a different result at

appellant’s trial. In addition, for the reasons we have previously discussed, appellant has not

presented a threshold showing that his counsel provided ineffective assistance or that any alleged

33
deficiency prejudiced the defense sufficient to trigger the requirement for a hearing on that issue.

The affidavits do not rise to the threshold necessary to overcome the presumption of effective

assistance.

Appellant has not asserted a reasonable ground in his motion for new trial that cannot

be determined from the record. We conclude that the trial court did not abuse its discretion in failing

to hold a hearing.

Moreover, the motion and affidavits were not sufficient to grant appellant a new trial.

Appellant either complains about matters that he could—and did—object to at trial, or he suggests

that evidence was fabricated without explaining why he could not have known of these alleged

fabrications at trial. For example, an affidavit was submitted by a corrections officer who dated

Darla Hodges for about two years from 1996 to 1998. He averred that she was “bad news” and that

she was dating another police officer when she was dating him, and that, on one occasion, they both

showed up at her apartment at the same time. Darla Hodges accused the officer of hitting her and

causing a bruise to her eye. Although charges were filed against him, they were later dismissed. The

officer also averred that he knew that Darla Hodges had been molested by her stepfather. Although

he told appellant he would testify, he never heard from appellant’s attorney. Appellant’s brother

averred that appellant told him that a couple of months before Halloween, appellant had been at the

Hodgeses’ house taking a shower and Darla climbed into the shower with him. She “probably”

became mad when “they didn’t do anything and he got out.” The prior relationship between

appellant and Darla Hodges was the subject of ongoing discussions at trial, was determinable from

the record at trial, and did not provide sufficient grounds to grant appellant a new trial.

34
 We conclude that the trial court was not required to hold an evidentiary hearing on

appellant’s motion for new trial, and that the trial court did not abuse its discretion in denying the

motion.

CONCLUSION

Having overruled appellant’s points of error, we affirm the judgment of conviction.

__________________________________________

Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: November 10, 2006

Do Not Publish

35