Order issued May 8, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-01115-CR
———————————
JESUS GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1307888
ORDER
A jury found appellant, Jesus Gonzalez, guilty of the offense of murder,1 and
the trial court assessed his punishment at confinement for fifty years. Appellant
has moved this Court to abate his appeal and remand the case to the trial court for
1
See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).
an evidentiary hearing on his new-trial motion, contending that the trial court
abused its discretion in not holding a hearing on his motion.
We abate the appeal and remand the case for additional proceedings.
Background
On January 4, 2013, appellant filed a new-trial motion, contending that his
trial counsel provided him ineffective assistance in not calling any witnesses on his
behalf in the punishment stage of trial. Appellant notes that he “readily admitted
his responsibility and confessed his guilt,” yet his trial counsel presented “no
mitigation case.” After the jury returned its guilty verdict against appellant, the
State called three witnesses during the punishment phase of trial, and, “[r]ather
than counter” the testimony, appellant’s trial counsel, “simply rested and presented
no witnesses . . . .” Appellant timely presented his new-trial motion to the trial
court, which denied the motion without an evidentiary hearing on January 9, 2013.
Standard of Review
We review a trial court’s denial of a hearing on a new-trial motion for an
abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009);
Washington v. State, No. 01-11-00692-CR, 2012 WL 2512717, at *3 (Tex. App.—
Houston [1st Dist.] June 28, 2012, order). The purposes of a new-trial hearing are
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(1) to determine whether the case should be retried or (2) to complete the record
for presenting issues on appeal. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim.
App. 2009). There is not an absolute right to such a hearing. Id. However, a trial
court abuses its discretion in not holding a hearing if the new-trial motion and
accompanying affidavits (1) raise matters that are not determinable from the record
and (2) establish reasonable grounds showing that the defendant could potentially
be entitled to relief. Id. A new-trial motion must be supported by an affidavit
specifically setting out the factual basis for the claim. Id. “If the affidavit is
conclusory, is unsupported by facts, or fails to provide requisite notice of the basis
for the relief claimed, no hearing is required.” Id. But a supporting affidavit “need
not establish a prima facie case, or even reflect every component legally required
to establish relief.” Smith, 286 S.W.3d at 339 (citation omitted). Rather, it “is
sufficient if a fair reading” of the affidavit “gives rise to reasonable grounds in
support of the claim.” Id.
Hearing on New-Trial Motion
In his motion to abate, appellant argues that the trial court erred in denying
his request for an evidentiary hearing on his new-trial motion because “the reasons
for trial counsel’s decision not to present a mitigation case remain unclear, thus
necessitating a hearing on the issue.” The State argues that this Court may not
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abate the appeal for the trial court to conduct an “out-of-time” evidentiary hearing
on appellant’s motion because we would have to suspend the Texas Rules of
Appellate Procedure to do so and “[t]he traditional method for bringing an
ineffective claim before this Court is to brief the merits of the issue in a direct
appeal.”
Here, the State does not challenge the fact that it cannot be determined from
the record whether appellant’s trial counsel had any particular strategy in mind in
not presenting the jury with any mitigation evidence in the punishment phase of
trial. Thus, in determining whether the trial court abused its discretion in denying
appellant a hearing on his new-trial motion, we need only consider whether
appellant’s new-trial motion and accompanying affidavits establish reasonable
grounds demonstrating that he could potentially be entitled to relief on his
ineffective-assistance claim. Id.; see also Washington, 2012 WL 2512717, at *4.
In order to prove an ineffective-assistance claim, a defendant must show that
his trial counsel’s performance fell below an objective standard of reasonableness
and, but for his counsel’s unprofessional error, there is a reasonable probability
that the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984);
Smith, 286 S.W.3d at 340. “Reasonable probability” is a “probability sufficient to
undermine confidence in the outcome,” meaning “counsel’s errors were so serious
4
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Smith,
286 S.W.3d at 340. Thus, before a defendant will be entitled to a hearing on a
new-trial motion alleging ineffective assistance, he must allege “sufficient facts
from which a trial court could reasonably conclude both that counsel failed to act
as a reasonably competent attorney and that, but for counsel’s failure, there is a
reasonable likelihood that the outcome of his trial would have been different.” Id.
at 340–41.
In his new-trial motion, appellant asserted that his trial counsel failed to
interview or call numerous witnesses who were available and willing to testify on
his behalf in regard to his punishment.2 He attached 12 affidavits to his motion for
new trial.3 According to the translations of the affidavits, one affiant testified that
2
Appellant further contended in his new-trial motion that the trial court erred in not
instructing the jury on the issue of “sudden passion” and a new trial is warranted
in “the interest of justice.” He does not assert either of these grounds as a basis for
remanding the case for an evidentiary hearing.
3
The affidavits, which are all in Spanish, are accompanied by uncertified
translations, apparently by staff members of the Harris County Public Defender’s
Office. These translations would not be sufficient to establish the admissibility of
the affidavits into evidence. See TEX. R. EVID. 1009(a), (f). Nevertheless,
appellant would have been entitled to the appointment of an interpreter to assist
with providing live testimony to the trial court at a hearing on his motion, and the
affidavits, coupled with the translations, were sufficient to inform the trial court
that appellant had evidence to support his motion. See TEX. CODE CRIM. PROC.
ANN. art. 38.30(a) (Vernon Supp. 2012); Leal v. State, 782 S.W.2d 844, 849 (Tex.
Crim. App. 1989); Rodriguez v. State, No. 05-10-00142-CR, 2011 WL 1744410,
at *3–4 (Tex. App.—Dallas May 9, 2011, no pet.) (mem. op., not designated for
publication); Peralta v. State, 338 S.W.3d 598, 606 (Tex. App.—El Paso 2010, no
pet.); Chia-Ochoa v. State, No. 14-02-00857-CR, 2003 WL 21710444, at *2 (Tex.
5
he spoke with appellant’s trial counsel and expected to be called to testify that
appellant was a good father, son, uncle, brother, and husband. However, he was
not called to testify. Eight other affiants testified that although they were not
contacted by trial counsel or by an investigator, they would have been willing to
testify that appellant was a peaceful, hard-working, and good family man; a good
father, husband, brother, son, and friend; and he was nice to his children, calm, not
aggressive or violent, and responsible. Another affiant echoed these sentiments,
but did not specifically state that he was willing and available to testify. An
additional affiant testified that no one contacted him regarding any possible
testimony; appellant wanted to give his family, to whom he was dedicated, a good
future; he was not violent or a drunk; and he wanted to foster a child from
“Children International.” Finally, two affiants, both of whom reside in Mexico,
testified that appellant completed elementary and middle school, he studied to
become a mechanic and received good grades, he was dedicated to his wife, and he
had not had problems with anyone.
In his motion and supporting affidavits, appellant alleged facts which, if
established at a hearing, would show that his trial counsel’s representation was
App.—Houston [14th Dist.] July 24, 2003, pet. ref’d) (mem. op., not designated
for publication); Villarreal v. State, 853 S.W.2d 170, 172 (Tex. App.—Corpus
Christi 1993, no pet.); see also TEX. R. EVID. 1009(e) (authorizing admission of
translation of foreign language document at trial by live testimony of qualified
expert translator).
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deficient and the deficient performance prejudiced appellant. First, the “failure to
investigate and call any punishment witnesses amounts to deficient performance.”
Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d); see also Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d) (holding that failure to investigate and evaluate available
punishment evidence amounts to deficient performance). Second, the failure to
present any evidence of mitigating factors for the jury to consider to balance
against the State’s punishment evidence, including evidence of good character
traits, such as taking care of a child, helping friends and relatives, being a good
father, and being a hard worker, demonstrates prejudice. See Shanklin, 190
S.W.3d at 165; Milburn, 15 S.W.3d at 270–71. Thus, by presenting evidence to
the trial court that his trial counsel failed to interview any of the available
witnesses and the witnesses would have testified to positive character traits,
appellant alleged sufficient facts to entitle him to an evidentiary hearing on his
new-trial motion.4 See Smith, 286 S.W.3d at 340–41.
4
Of course, appellant’s trial counsel would be entitled to testify at the hearing to
explain what investigation, if any, he conducted and any trial strategy he may have
employed in not calling the witnesses. See, e.g., Hobbs v. State, 298 S.W.3d 193,
202 (Tex. Crim. App. 2009) (stating defense counsel entitled to present his
strategy on record); see also Dillon v. State, No. 12-06-00135-CR, 2007 WL
4216253, at *3–7 (Tex. App.—Tyler Nov. 30, 2007, pet. ref’d) (mem. op., not
designated for publication) (concluding that trial counsel not ineffective based on
decision not to call character witnesses other than defendant and defendant’s wife
because counsel made reasonable decision that character witnesses would not be
effective in case involving child sexual assault and counsel did not ignore any
7
Accordingly, we hold that the trial court abused its discretion in not holding
a hearing on appellant’s new-trial motion. See id. at 340.
In regard to the State’s argument that this Court may not abate the appeal for
the trial court to conduct an evidentiary hearing on appellant’s new-trial motion,
we note that ample authority actually compels such an abatement of the appeal.
Indeed, we “must not affirm or reverse a judgment or dismiss an appeal if: (1) the
trial court’s erroneous action or failure or refusal to act prevents the proper
presentation of a case to the court of appeals; and (2) the trial court can correct its
action or failure to act.” TEX. R. APP. P. 44.4(a). In such a circumstance, we must
direct the trial court to correct the error and then proceed as if the error had not
occurred. See id. 44.4(b).
Here, the trial court’s error prevents appellant from properly presenting his
claim for ineffective assistance of counsel in his direct appeal to this court. See
TEX. R. APP. P. 21.2; Washington, 2012 WL 2512717 at *5; McCain v. State, 995
S.W.2d 229, 245 n.9 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); Toney v.
State, 783 S.W.2d 740, 742 (Tex. App.—El Paso 1990, pet. ref’d); see also Cooks
v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007) (“Sometimes a motion for
promising leads after conferring with defendant); Hills v. State, No. 14-02-00379-
CR, 2003 WL 21402606, at *2 (Tex. App.—Houston [14th Dist.] June 19, 2003,
pet. ref’d) (mem. op., not designated for publication) (concluding that defendant
failed to demonstrate ineffective assistance after trial counsel swore, in affidavit,
that appellant refused to provide counsel with names of any witnesses who might
be of assistance).
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new trial is a necessary step to adduce facts not otherwise in the record, in order to
be able to present these points of error based on those facts in the appeal.”).
Because the trial court can correct its error by holding an evidentiary hearing on
appellant’s motion, we may not reverse or affirm the judgment or dismiss the
appeal until the trial court has corrected the error. See TEX. R. APP. P. 44.4.
Therefore, we must direct the trial court to remedy the error, by holding an
evidentiary hearing on appellant’s new-trial motion before we issue a judgment
and mandate in this case. See TEX. R. APP. P. 18.1 (requiring clerk of court to
issue mandate in accordance with judgment), 43.2 (authorizing types of judgments
by appellate courts), 44.4 (requiring appellate court to direct trial court to correct
remediable error that prevents proper presentation of appeal and to proceed as if
error had not occurred); see also TEX. R. APP. P. 43.6 (authorizing appellate court
to “make any other appropriate order that the law and the nature of the case
require.”).
The cases relied upon by the State in support of its argument are not on
point. All but one of the cases cited by the State involved a situation in which the
appellate court rejected an appellant’s request, based on Texas Rule of Appellate
Procedure 2, to file an out-of-time motion for new trial. See Oldham v. State, 977
S.W.2d 354, 359–60 (Tex. Crim. App. 1998); Benson v. State, 224 S.W.3d 485,
488, 493–95 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Bowler v. State, 822
9
S.W.2d 334, 335 & n.2 (Tex. App.—San Antonio 1992, pet. ref’d); Torres v. State,
804 S.W.2d 918, 920 (Tex. App.—El Paso 1990, pet. ref’d), overruled on other
grounds, M.B. v. State, 905 S.W.2d 344 (Tex. App.—El Paso 1995, no writ). In
the other case, the appellate court declined to use rule 2 to abate the case for a
hearing on a new-trial motion after the appellant had waived any complaint
regarding the trial court’s failure to hold such a hearing. See Crowell v. State, 949
S.W.2d 37, 38 (Tex. App.—San Antonio 1997, no pet.). Here, in contrast,
appellant timely filed and presented his new-trial motion and the trial court erred in
not holding an evidentiary hearing on the motion.
Accordingly, we must abate this appeal and remand the case to the trial court
to conduct an evidentiary hearing. See TEX. R. APP. P. 44.4; see also TEX. R. APP.
P. 43.6 (authorizing appellate courts to “make any other appropriate order that the
law and the nature of the case require”); Martinez v. State, 74 S.W.3d 19, 22 (Tex.
Crim. App. 2002) (concluding that trial court abused its discretion in failing to
conduct hearing on new-trial motion, reversing court of appeals, and remanding
with instructions to abate appeal and remand cause to trial court to conduct hearing
on new-trial motion); Taylor v. State, 163 S.W.3d 277, 284 (Tex. App.—Austin
2005, pet. dism’d) (concluding that Texas Rule of Appellate Procedure 25.2(g) did
not prohibit trial court from holding hearing on timely-filed new-trial motion,
abating appeal, and remanding for evidentiary hearing); Reyes v. State, 82 S.W.3d
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351, 353 (Tex. App.—Houston [1st Dist.] 2001, order) (“We agree that an
abatement is proper to conduct a hearing to present the evidence that would have
been introduced had a hearing on the motion for new trial been held.”).
Conclusion
We grant appellant’s motion, abate this appeal, and remand the case to the
trial court. On remand, the trial court shall conduct an evidentiary hearing on
appellant’s new-trial motion within thirty days of the date of this order and at
which a representative of the Harris County District Attorney’s Office and
appellant’s counsel on appeal, Mark C. Kratovil, shall be present. Appellant shall
also be present for the hearing in person or, if he is incarcerated, at the trial court’s
discretion, he may participate in the hearing by the use of a closed-circuit video
teleconferencing system that provides for a simultaneous compressed full motion
video and interactive communication of image and sound.5
If the trial court grants the motion, appellant’s appeal will be dismissed. If
the motion is overruled, the reporter’s record is to be supplemented, and the parties
will be permitted to brief any issues relating to the overruling of the motion that
have not already been addressed in this opinion. Any ruling is to be included in a
supplemental clerk’s record and transmitted to this Court within thirty-one days
5
On request of appellant, he and his counsel shall be able to communicate privately
without being recorded or heard by the trial court or the attorney representing the
State.
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from the date of this order. This appeal is abated, treated as a closed case, and
removed from this Court’s active docket. The appeal will be reinstated on this
Court’s active docket when the supplemental clerk’s record and the reporter’s
record of the hearing on the new-trial motion are filed with the Clerk of this Court.
It is so ORDERED.
Per Curiam
Panel consists of Justices Jennings, Bland, and Massengale.
Date: May 8, 2013
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