In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00147-CR
THE STATE OF TEXAS, APPELLANT
V.
GERALD BARROW, APPELLEE
On Appeal from the County Court
Hale County, Texas
Trial Court No. 2012C-427, Honorable Bill Coleman, Presiding
July 16, 2014
DISSENTING OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
The issue to be decided in this case is whether the trial court acted without
reference to any guiding rules and principles and thereby abused its discretion when it
granted the Defendant, Gerald Barrow, a new trial. By two separate opinions, my
colleagues both say the trial judge abused his discretion in doing so. Accordingly, they
reverse the trial court’s order granting Barrow’s motion for new trial.1 Because I believe
1
While Chief Justice Quinn’s opinion merely reverses the order granting new trial, Justice
Campbell’s opinion reverses and renders an order denying the motion for new trial. Ultimately, however,
the result is the same—Burrow’s motion for new trial is not granted. Prior to the trial court originally
granting Barrow’s motion for new trial, this Court docketed his direct appeal on the merits as Cause No.
the decision of the trial court should be accorded greater deference, I respectfully
disagree with that result and would affirm the order of the trial court. Accordingly, I
dissent from the plurality decision of this Court.
In this case, the State appeals an order granting Barrow a new trial “in the
interest of justice.” The appropriate standard of review when a trial court grants a
motion for new trial is the same standard of review we apply when reviewing the denial
of a motion for new trial and that standard is an abuse of discretion. State v. Herndon,
215 S.W.3d 901, 906 (Tex. Crim. App. 2007); State v. Gonzalez, 855 S.W.2d 692, 696
(Tex. Crim. App. 1993). In applying that standard this Court must decide whether the
decision of the trial court was arbitrary or unreasonable. Gonzalez, 855 S.W.2d at 695,
n.4. The test for an abuse of discretion is not whether, in the opinion of the appellate
court, the facts present an appropriate case for the trial court’s action, but rather
“whether the trial court acted without reference to any guiding rules or principles.” State
v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014) (citing Herndon, 215 S.W.3d at
907) (emphasis added). The mere fact that the trial court has decided a matter
differently from what the appellate court deems appropriate does not demonstrate an
abuse of discretion. Id. at 103-04. In conducting a review of the trial court’s decision,
an appellate court should view the evidence in the light most favorable to that decision,
defer to the trial court’s credibility determinations, and presume that all reasonable fact
findings in support of the ruling have been made. Id. at 104. A trial court is given wide
latitude in deciding whether to grant or deny a motion for new trial. State v. Boyd, 202
______________________
07-13-00046-CR. That cause was abated pending further order of the Court. See Barrow v. State, No.
07-13-00046-CR, slip. op. at 2 (Tex. App.—Amarillo, May 14, 2013, no pet. h.) (per curiam order).
available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=28e459f9-51da-4d7c-
8e62-45ca08bdb417&coa=coa07&DT=Opinion&MediaID=556140bb-3c28-4d6b-bce1-f03181d09580.
2
S.W.3d 393, 401 (Tex. App.—Dallas 2005, pet. ref’d). A trial court’s ruling granting a
motion for new trial is presumed to be correct, and the burden rests on the State to
establish the contrary. Id. at 401-02.
Furthermore, a trial court’s discretion to grant a motion for new trial is not limited
to those matters listed in Rule 21.3 of the Texas Rules of Appellate Procedure.
Thomas, 428 S.W.3d at 104. That said, a trial court’s decision to grant a new trial “in
the interest of justice” is not “unbounded or unfettered,” id. at 105 (quoting State v.
Herndon, 215 S.W.3d at 907), but must be based on some sort of valid legal basis.
Although there is no bright-line rule concerning appellate review of a trial court’s
decision in this area, a trial court would not generally abuse its discretion in granting a
new trial if the defendant: (1) articulates a valid legal claim in his motion for new trial, (2)
produces some evidence or references evidence in the trial record that substantiates
that claim, and (3) shows prejudice to his substantial rights under the harmless-error
standards set forth in Rule 44.2 of the Texas Rules of Appellate Procedure. Herndon,
215 S.W.3d at 909.
Here, Barrow has articulated at least two legal claims in support of his motion for
new trial: (1) ineffective assistance of counsel and (2) newly-discovered evidence. The
issue I have with the opinions of Chief Justice Quinn and Justice Campbell is that they
place the burden of proof on Barrow, the Appellee, to show that these claims would be
ultimately sustainable under applicable appellate standards of review. Chief Justice
Quinn states that “[Barrow] must show that he is entitled to a new trial under the law,”
and that his defense counsel was somehow “entitled” to appear and explain his legal
strategy before being “denounced” as ineffective. Likewise, in evaluating whether
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Barrow’s claims of ineffective assistance of counsel were supported by the record,
Justice Campbell states, “[i]n sum, the trial court did not have before it evidence of
conduct by [defense counsel] so outrageous that no competent attorney would have
engaged in it.”
This is not, however, the standard by which we must evaluate the trial court’s
decision in this situation. The question is not whether Barrow has established
ineffective assistance of counsel under the standards of Strickland,2 the question is
whether there was any evidence of conduct by his trial counsel upon which the trial
court could have reasonably made that determination. Both opinions ignore the fact
that, irrespective of the ultimate legal validity of these claims, the claims themselves
were supported by some evidence in the record. The trial judge was in the unique
position of observing trial counsel’s performance throughout the entire trial and to
evaluate the arguments and evidence presented at the hearing on Barrow’s motion for
new trial. As such, the trial court was in the best position to judge Barrow’s claims of
ineffective assistance of counsel based upon a lack of appropriate preparation and the
discovery of evidence previously unknown to trial counsel.3
2
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
3
The trial court’s conclusions of law specifically state:
[Defense counsel] was not adequately prepared to defend the accused against the
charges. Therefore, [the defendant] did not have the effective assistance of counsel
necessary to protect his rights under the Sixth and Fourteenth Amendments to the
Constitution.
It was my finding that [Barrow’s] attorney, . . . failed to adequately prepare for trial. His
failure to investigate the alleged victim’s criminal history prevented the jury from having
pertinent and important information necessary to reach a fair verdict. In light of these
findings, I granted [Barrow’s] Motion for New Trial in the interest of justice.
4
By applying the standard that they do, Chief Justice Quinn and Justice Campbell
substitute their judgment for that of the trial court and impermissibly raise the standard
of persuasion on a motion for new trial to that of appellate certainty. Such a standard
defers to nothing, affords the trial court absolutely no discretion, and renders
meaningless the right of a trial court to exercise its discretion to grant a new trial in the
interest of justice.
Deferring to the trial court’s determination that Barrow did not have the effective
assistance of counsel necessary to protect his rights, I would further find that there was
sufficient evidence to support the trial court’s implicit finding that the deficiency was
sufficiently serious to affect Barrow’s substantial rights. Because I do not agree with the
conclusion of this Court that the trial court acted without reference to any guiding rules
or principles, I would affirm the decision of the trial court.
Patrick A. Pirtle
Justice
Do not publish.
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