COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00431-CR
RAUL RESENDEZ HERRERA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1322964D
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ABATEMENT ORDER AND OPINION
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I. INTRODUCTION
Appellant Raul Resendez Herrera appeals the trial court’s sentence of
twenty-five years’ incarceration based on his open plea of guilty to the charged
offense of aggravated sexual assault of a child under fourteen years of age. In
two points, Herrera argues that the trial court abused its discretion by not
conducting a hearing on his motion for new trial and by denying his motion for
new trial through the operation of law. Because we conclude that the trial court
should have conducted an evidentiary hearing on his motion for new trial on
punishment, we will abate the appeal and remand the case back to the trial court
for proceedings consistent with this opinion.
II. DISCUSSION
“When an accused presents a motion for new trial raising matters not
determinable from the record, which could entitle him to relief, the trial judge
abuses his discretion in failing to hold a hearing.” King v. State, 29 S.W.3d 556,
569 (Tex. Crim. App. 2000). The purpose of the hearing is to fully develop the
issues raised in the motion. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim.
App. 1994). As a prerequisite to obtaining a hearing, the motion must be
supported by an affidavit specifically showing the truth of the grounds for attack.
King, 29 S.W.3d at 569; Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App.
1993). The affidavit need not reflect each and every component legally required
to establish relief but rather must merely reflect that reasonable grounds exist for
holding that such relief could be granted. Jordan, 883 S.W.2d at 665; Reyes,
849 S.W.2d at 816.
Here, the State’s principal witness at the punishment hearing, the
complainant’s father (Father), testified that the complainant felt “betrayed by the
system” when Herrera made bail after being arrested. Father further testified that
the complainant was anxious about Herrera’s possibly being placed on
community supervision in lieu of incarceration and that it was her desire that
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Herrera be imprisoned. Father also testified that the complainant had sent a
letter to the district attorney which she had written “herself.”
In the presentence investigation report, which the trial court took judicial
notice of at the beginning of the sentencing hearing, there is a well-written,
compelling “Victim Impact Statement” allegedly written by the complainant which
states that not just on her behalf, “but on [behalf of] others who may be a victim
of abuse by [] Herrera,” he should go to prison. Further, the statement reads that
Herrera’s punishment should be that he “go to prison, not just for [her] but for the
safety of other girls it could possibly happen to.” Moreover, the statement also
reads that in addition to the count to which Herrera pleaded guilty, Herrera
subjected her to sexual assault for “8 years of [her] life.”
In stark contrast, the new-trial affidavits of complainant and of two other
family members tell of a scenario in which the complainant did not write the
Victim Impact Statement, instead attempted to have the charge dismissed, and
did not feel that Herrera should be imprisoned. The dates within the affidavits
suggest that the complainant herself was unaware of the Victim Impact
Statement until after Herrera’s punishment hearing.
Being able to cross-examine and question the author of a Victim Impact
Statement is statutorily provided for. See Tex. Code Crim. Proc. Ann. art.
56.03(e) (West Supp. 2015). Herrera specifically claimed in his motion for new
trial that the complainant did not author the statement and that contrary to the
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contents of the statement, she did not wish Herrera to be in prison. The
particulars of precisely when Herrera learned that the complainant did not write
the statement, whether she desired to have the charge dropped, and the
assertion that she did not wish Herrera to serve time in prison are among the
factual matters that should be fully developed at a hearing. We conclude that
Herrera’s motion for new trial and accompanying affidavits were sufficient to put
the trial judge on notice that reasonable grounds existed to believe that the
complainant did not author or endorse the statement found in the PSI.
Therefore, the trial court abused its discretion by failing to conduct a hearing on
Herrera’s motion for new trial. We sustain Herrera’s first point, that the trial court
erred by not conducting a hearing on his new-trial motion.
III. CONCLUSION
Because Herrera was entitled to a hearing on his new-trial motion, we
order that this case is abated to the trial court to conduct an evidentiary hearing
on Herrera’s motion for new trial. See Carroll v. State, 418 S.W.3d 681, 684
(Tex. App.—Texarkana 2012, no pet.) (citing Martinez v. State, 74 S.W.3d 19, 22
(Tex. Crim. App. 2002) (“The proper remedy . . . is to abate the appeal and
remand to the trial court to conduct the required hearing.”).
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
WALKER, J., filed a dissenting opinion.
PUBLISH
DELIVERED: February 18, 2016
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