Affirmed and Opinion filed August 20, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00152-CR
DAVID DEAN HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1340544
OPINION
Appellant David Dean Harris appeals his conviction for aggravated sexual assault
of a child. The jury found appellant guilty and assessed his punishment at fifty years in
prison. In three issues, appellant asserts that (1) Article 38.37, Section 2 of the Texas
Code of Criminal Procedure is unconstitutional; (2) the trial court erred by permitting
three witnesses to testify on extraneous offense evidence; and (3) the trial court erred by
denying his request for a hearing on his motion for new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2014, appellant was tried for the first degree felony offense of
aggravated sexual assault of a child. Prior to trial, the State provided appellant with
notice of its intention to use evidence of prior extraneous offenses pursuant to Article
38.37 of the Texas Code of Criminal Procedure. Article 38.37, Section 2 provides that
notwithstanding Texas Rules of Evidence 404 and 405, evidence that the defendant has
committed a separate sexual offense may be admitted in the trial of certain alleged
sexual offenses for any bearing the evidence has on relevant matters, including the
character of the defendant and acts performed in conformity with the character of the
defendant. Tex. Code Crim. Proc. art. 38.37, § 2(b). When Article 38.37, Section 2 is
invoked, the trial court must conduct a hearing outside the presence of the jury to
“determine that the evidence likely to be admitted at trial will be adequate to support a
finding by the jury that the defendant committed the separate offense beyond a
reasonable doubt.” Id. § 2−a.
Before the guilt-innocence phase of trial began, the trial court conducted a
hearing in which five witnesses testified as to extraneous incidents that occurred
between them and appellant. After each witness testified, the trial court ruled on
whether the witness could testify at the guilt-innocence phase of trial. The trial court
found that the testimony of three witnesses was adequate to support a finding by the jury
that appellant committed the offenses beyond a reasonable doubt and allowed them to
testify. The trial court excluded testimony from the other two witnesses. The three
witnesses testified about the extraneous offenses during the guilt-innocence phase.
The jury found appellant guilty of aggravated sexual assault of a child. The jury
assessed punishment at fifty years in prison. Appellant moved for a new trial, which the
trial court denied.
ISSUES AND ANALYSIS
In three issues, appellant contends that (1) Article 38.37, Section 2 of the Texas
Code of Criminal Procedure is unconstitutional because it violates the due process
2
guarantees of the United States Constitution, the Texas Constitution, and the Texas
Code of Criminal Procedure; (2) the trial court abused its discretion by allowing three
witnesses to testify as to extraneous offense evidence; and (3) the trial court abused its
discretion by denying appellant’s request for a hearing on his motion for new trial.
I. Constitutionality of Article 38.37, Section 2
In his first issue, appellant asserts that Article 38.37, Section 2 of the Texas Code
of Criminal Procedure is unconstitutional because it violates the due process guarantees
of the United States Constitution, Texas Constitution,1 and Texas Code of Criminal
Procedure. Appellant argues that the statute renders the trial so fundamentally unfair
that it denies an accused citizen a fair and impartial trial.
We review the constitutionality of a statute in light of the presumption of the
statute’s validity. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978);
Morris v. State, 833 S.W.2d 624, 627 (Tex. App—Houston [14th Dist.] 1992, pet.
ref’d). We must presume that the Legislature did not act unreasonably or arbitrarily in
enacting the statute. Ex parte Granviel, 561 S.W.2d at 511. Appellant has the burden to
establish that the statute is unconstitutional. Id.
The Fifth Amendment to the United States Constitution provides that no person
shall be deprived of life, liberty, or property, without due process of law. U.S. Const.
1
Although appellant asserts that Section 2(b) of Article 38.37 violates the due process
guarantees of the Texas Constitution, he concedes in his brief that “the State’s due course of law
provision provides the same protections as the federal Due Process Clause” and that the “two clauses
are nearly identical and contain no meaningful distinctions in their respective clauses.” Because
appellant has failed to show why the state constitution offers greater due process protection than the
federal constitution, appellant has waived his state constitutional due process claim. Muniz v. State,
851 S.W.2d 238, 251 (Tex. Crim. App. 1993) (declining to address defendant’s Texas constitutional
claims because he “proffered no argument or authority concerning the protection provided by the
Texas Constitution or how that protection differs from the protection provided by the United States
Constitution”); Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.—Houston [14th Dist.] 2001, no pet.)
(“Because [appellant] has not separately briefed his state and federal constitutional claims, we assume
that he claims no greater protection under the state constitution than that provided by the federal
constitution.”).
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amend. V. The Due Process Clause requires that the State prove, beyond a reasonable
doubt, every element of the crime charged. Byrd v. State, 336 S.W.3d 242, 246 (Tex.
Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 316 (1979)). Generally, an
accused must be tried only for the offense with which he is charged and may not be tried
for a collateral crime or being a criminal generally. Stafford v. State, 813 S.W.2d 503,
506 (Tex. Crim. App. 1991). The essential guarantee of the Due Process Clause is that
the government may not imprison or otherwise physically restrain a person except in
accordance with fair procedures. Long v. State, 742 S.W.2d 302, 320 (Tex. Crim. App.
1987), overruled on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim.
App. 1990).
Section 2(b) of Article 38.37 applies to criminal prosecutions for offenses under
certain Penal Code sections2 and provides that:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject
to Section 2−a, evidence that the defendant has committed a separate
offense described by Subsection (a)(1) or (2) may be admitted in the trial of
an alleged offense described by Subsection (a)(1) or (2) for any bearing the
evidence has on relevant matters, including the character of the defendant
and acts performed in conformity with the character of the defendant.
Tex. Code Crim. Proc. art. 38.37, § 2(b).
A. Appellant Preserved His Constitutional Complaint for Review
The State contends that appellant failed to preserve his constitutional complaint
for review and thus has waived this argument on appeal. The State argues that appellant
2
This section applies only to the trial of a defendant for: (1) an offense of the following
provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under
Section 20A.02(b)(1) (Sex Trafficking of a Child); (B) Section 21.02 (Continuous Sexual Abuse of
Young Child or Children); (C) Section 21.11 (Indecency With a Child); (D) Section 22.011(a)(2)
(Sexual Assault of a Child); (E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a
Child); (F) Section 33.021 (Online Solicitation of a Minor); (G) Section 43.25 (Sexual Performance by
a Child); (H) Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or (2) an
attempt or conspiracy to commit an offense described by Subdivision (1). Tex. Code Crim. Proc. art.
38.37, § 2(a).
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objected to the hearing itself, not the constitutionality of the statute on substantive due
process grounds.
To preserve a complaint for appellate review, the complaining party must make a
timely objection to the trial court that states the grounds with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds are apparent
from the context. Tex. R. App. P. 33.1(a)(1). The complaining party must let the trial
judge know what he wants and why he thinks he is entitled to it, and do so clearly
enough for the judge to understand and at a time when the trial court is in a position to
do something about it. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App.
2014). Although we are not hyper-technical in examination of whether error was
preserved, the error on appeal must comport with the objection made at trial. Id.
At the beginning of the hearing conducted pursuant to Section 2−a of the Texas
Code of Criminal Procedure and before any witness testified, defense counsel stated the
following objection:
At this time for record purposes the Defense would like to lodge an
objection to the hearing under the due process clause of the Fifth and
Fourteenth Amendment to the U.S. Constitution, Article I, Section 19 of
the Texas Constitution, and Article I, Section 1.04 of the Texas Code of
Criminal Procedure.
The trial court overruled the objection. Defense counsel then requested a running
objection for purposes of the hearing, which the trial court granted.
The State argues that appellant stated an objection only “to the hearing,” rather
than making a constitutional challenge to the statute. We disagree.
Although appellant stated that he was objecting to “the hearing under the due
process clause,” it is apparent from the context of the objection that defense counsel was
objecting to the unconstitutionality of the statute. This is also apparent from the guilt-
innocence phase of trial, in which defense counsel reiterated the same constitutional
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objection. At the beginning of the guilt-innocence phase of trial, defense counsel again
requested to have his running objections regarding the extraneous offenses, which the
trial court granted. Specifically, defense counsel stated “[m]ay I continue to have my
running objections to this sort of extraneous offense in the main part of the trial just as I
did during the extraneous hearing?” When viewing the context of the objections at both
the hearing and guilt-innocence phase of trial, it appears that appellant objected to the
constitutionality of the statute with sufficient specificity.
Because appellant raised a timely and specific objection as to the constitutionality
of the statute, appellant has preserved this error for review.
B. Appellant Has Failed to Show That Section 2 of Article 38.37 is
Unconstitutional
Appellant contends that Article 38.37, Section 2(b) is unconstitutional because it
renders an accused’s trial so fundamentally unfair that he will no longer enjoy the
presumption of innocence. Appellant asserts that allowing the extraneous offense
evidence violates the Due Process Clause because it (1) lessens his presumption of
innocence; (2) violates the general prohibition against admitting evidence of extraneous
offenses; (3) does not require a link between the extraneous offenses and the charged
offense; (4) allows evidence from a witness other than the complainant; (5) does not
provide a limit on the amount of extraneous offenses that may be introduced; (6) does
not limit how the jury can use the extraneous offense; and (7) allows jurors to convict
the defendant because he is a bad person.
In enacting Section 2(b) of the Texas Code of Criminal Procedure, the Legislature
recognized that the rule would “bring the Texas Rules of Evidence closer to the Federal
Rules of Evidence, specifically Federal Rule 413(a), which allows evidence of previous
sexual assault cases to be admitted at trial.” Senate Comm. on Criminal Justice, Bill
Analysis, Tex. S.B. 12, 83d Leg., R.S. (2013); see also Fed. R. Evid. 413(a) (“In a
criminal case in which a defendant is accused of a sexual assault, the court may admit
6
evidence that the defendant committed any other sexual assault.”). Federal courts have
determined that Rule 413 does not violate the Due Process Clause because it does not
implicate a fundamental right. See United States v. Mound, 149 F.3d 799, 801 (8th Cir.
1998) (providing that Rule 413 does not violate Due Process Clause because “it was
within Congress’s power to create exceptions to the longstanding practice of excluding
prior-bad-acts evidence”); United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir.
1998) (“Considering the safeguards of Rule 403, we conclude that Rule 413 is not
unconstitutional on its face as a violation of the Due Process Clause.”). The federal
courts emphasized “[t]hat the practice [of excluding prior bad acts evidence] is ancient
does not mean it is embodied in the Constitution.” Mound, 149 F.3d at 801 (quoting
Enjady, 134 F.3d at 1432). Appellant has failed to cite to any controlling authority
providing that he has a fundamental right to a trial free from the introduction of
extraneous offense evidence.
Although the general rule provides that evidence of extraneous offenses may not
be used against the accused in a criminal trial, the Legislature has chosen to make
specific and limited exceptions to this prohibition. Daggett v. State, 187 S.W.3d 444,
450−51 (Tex. Crim. App. 2005). For example, “Rule 404(b) sets out an illustrative, not
exhaustive, list of exceptions to the prohibition against admitting evidence of extraneous
offenses including ‘proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.’” Id. at 451 n.13. Section 1 of Article 38.37
also provides an exception to the general rule by allowing “evidence of other crimes,
wrongs, or acts committed by the defendant against the child who is the victim of the
alleged offense” for its bearing on relevant matters, including the state of mind of the
defendant and the child and the previous and subsequent relationship between the
defendant and the child. Tex. Code Crim. Proc. art. 38.37, § 1(b). This exception has
been held to be constitutional by several Texas courts of appeals. See Martin v. State,
176 S.W.3d 887, 902 (Tex. App.—Fort Worth 2005, no pet.) (holding that Article
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38.37, Section 1 did not deny appellant constitutional right to due process); Brantley v.
State, 48 S.W.3d 318, 329−30 (Tex. App.—Waco 2001, pet. ref’d) (rejecting appellant’s
argument that article 38.37 was unconstitutional “because it permits a blanket
introduction of propensity evidence”); Jenkins v. State, 993 S.W.2d 133, 136 (Tex.
App.—Tyler 1999, pet. ref’d) (holding appellant was not denied fair trial guaranteed by
Due Process Clause by admission of evidence of extraneous bad acts).
It is clear that the Legislature chose to carve out another exception to the
prohibition on evidence of extraneous offenses when it enacted Article 38.37, Section 2
of the Texas Code of Criminal Procedure. The statute recognizes that evidence of this
type is, by definition, propensity or character evidence and that it is admissible
notwithstanding those characteristics. Bradshaw v. State, —— S.W.3d ——, No. 06-14-
00165-CR, 2015 WL 2091376, at *7 (Tex. App.—Texarkana May 5, 2015, pet. filed).
The legislative history behind Section 2(b) reflects that it was enacted to “give
prosecutors additional resources to prosecute sex crimes committed against children”
due to the “nature of these heinous crimes and the importance of protecting children
from sexual predators.” Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12,
83d Leg. R.S. (2013). The Legislature acknowledged that:
Prosecuting sex crimes committed against children can be difficult due to
the physical and emotional trauma suffered by the victims. This can result
in long delays in reporting these crimes during which physical evidence
can deteriorate or be destroyed. Often the only evidence at a trial may be
the testimony of the traumatized child. Children often are targeted for these
crimes, in part because they tend to make poor witnesses.
Id. The Court of Criminal Appeals has also recognized that “[s]exual assault cases are
frequently ‘he said, she said’ trials in which the jury must reach a unanimous verdict
based solely upon two diametrically different versions of an event, unaided by any
physical, scientific, or other corroborative evidence.” Hammer v. State, 296 S.W.3d 555,
561−62 (Tex. Crim. App. 2009). “The special circumstances surrounding the sexual
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assault of a child victim outweigh normal concerns associated with evidence of
extraneous acts.” Jenkins, 993 S.W.2d at 136.
Appellant’s right to a fair trial is protected by the numerous procedural safeguards
provided in the statute. Before the evidence may be introduced, the trial judge must
determine that the evidence likely to be admitted at trial will be adequate to support a
finding by the jury that the defendant committed the separate offense beyond a
reasonable doubt and conduct a hearing outside the presence of the jury for that purpose.
Tex. Code Crim. Proc. art. 38.37, § 2−a(1), (2). Defense counsel has the right to
challenge any witness’s testimony by cross-examination at the hearing. Further, the
State must give the defendant notice of its intent to introduce this evidence in its case-
in-chief not later than the thirtieth day before the date of the defendant’s trial. Id. § 3.
The statute does not lessen appellant’s presumption of innocence. The statute
does not alter the State’s burden of proof because the State is still required to prove
every element of the charged offense beyond a reasonable doubt. The trial court charged
the jury on appellant’s presumption of innocence and the State’s burden of proof by
stating the following:
All persons are presumed to be innocent and no person may be convicted
of an offense unless each element of the offense is proved beyond a
reasonable doubt.
…
The prosecution has the burden of proving the defendant guilty and it must
do so by proving each and every element of the offense beyond a
reasonable doubt and if it fails to do so, you must acquit the defendant.
Article 38.37, Section 2 does not “impermissibly lessen the State’s burden of proof in
this case.”3 Jenkins, 993 S.W.2d at 136. The State was required to prove every element
3
We recognize that Jenkins addressed the constitutionality of Article 38.37 prior to its
amendment in 2013. See Jenkins, 993 S.W.2d at 136. However, like the previous version of the statute,
Section 2(b) does not alter the State’s burden of proof. See Tex. Code Crim. Proc. art. 38.37, § 2(b).
9
of the offense beyond a reasonable doubt. Id.
The trial court also charged the jury with the following instruction regarding its
ability to consider the extraneous offenses:
You are further instructed that if there is any evidence before you
concerning alleged offenses against a child under seventeen years of age,
other than the complainant alleged in the indictment, such offense or
offenses, if any, may only be considered if you believe beyond a reasonable
doubt that the defendant committed such other offense or offenses, if any,
then you may consider said evidence for bearing the evidence has on
relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant.
In addition to including this instruction in the charge, the trial court went one step
further to admonish the jury with this instruction before each witness testified about
extraneous offense evidence at trial. “Although [Article 38.37] may allow evidence that
assists the State in proving its case beyond a reasonable doubt, we find no constitutional
impediment to the statute.” Id.
We conclude that Section 2 of Article 38.37 of the Texas Code of Criminal
Procedure is constitutional and does not violate appellant’s constitutional right to due
process.
We overrule appellant’s first issue.
II. Admission of Extraneous Offense Evidence
In his second issue, appellant asserts that the trial court abused its discretion by
permitting the three witnesses to testify about extraneous offenses that occurred between
them and appellant. Appellant argues that the trial court failed to conduct the necessary
balancing test under Rule 403 and that even if it conducted the test, the prejudicial effect
of the extraneous offense evidence substantially outweighed any probative value. In
response, the State argues that appellant failed to preserve error on this ground at trial.
Before the hearing, appellant’s defense counsel objected to the witnesses’
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testimony regarding the extraneous offenses, arguing that it violated the United States
Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure.
Defense counsel renewed this objection prior to the three witnesses testifying at trial.
Appellant never, however, objected to the extraneous offense evidence as unfairly
prejudicial under Rule 403. Although appellant did object to one witness’s testimony at
the hearing as unfairly prejudicial under Rule 403, this witness did not testify during the
guilt-innocence stage of trial.
The point of error on appeal must correspond or comport with the objection made
at trial. Bekendam, 441 S.W.3d at 300. Where a trial objection does not comport with
the issue raised on appeal, appellant has preserved nothing for review. Ibarra v. State,
11 S.W.3d 189, 197 (Tex. Crim. App. 1999); Tex. R. App. P. 33.1. Because appellant
did not object to any of the three witnesses’ testimony under Rule 403, appellant has
failed to preserve this issue for appellate review.
We overrule appellant’s second issue.
III. Motion for New Trial
In his third issue, appellant argues that the trial court abused its discretion by
denying his motion for new trial alleging ineffective assistance of counsel without first
holding an evidentiary hearing.
We review the trial court’s denial of a hearing on a motion for new trial for an
abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). The
purpose of a hearing on a motion for new trial is to (1) decide whether the case shall be
retried; and (2) prepare a record for presenting issues on appeal in the event the motion
is denied. Id. at 338. The right to a hearing on a motion for new trial is not absolute.
Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). A trial court may rule
based on sworn pleadings and affidavits without oral testimony; live testimony is not
required. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
11
A hearing on a motion for new trial is required when the motion raises matters
which are not determinable from the record and the defendant establishes the existence
of reasonable grounds showing that he could be entitled to relief. Smith, 286 S.W.3d at
338−39. As a prerequisite to the hearing, the motion must be supported by an affidavit
specifically setting out a sufficient factual basis for the claims made. Id. at 339. The
affidavit need not establish a prima facie case, but it must at least contain facts showing
reasonable grounds to believe that the defendant could prevail under both prongs of the
test for ineffective assistance of counsel under Strickland v. Washington. Id. at 338
(citing Strickland v. Washington, 466 U.S. 668 (1984)).
To obtain a new trial based on ineffective assistance of counsel, a defendant must
establish that his counsel’s performance (1) was deficient; and (2) prejudiced his
defense. Id. at 340. To show deficiency, a defendant must prove by a preponderance of
the evidence that counsel’s representation fell below the standard of professional norms.
Id. To establish prejudice, the defendant must show there is a reasonable probability, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. Before a defendant is entitled to a hearing on his motion for new trial
alleging ineffective assistance of counsel, a defendant 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.
Appellant attached an affidavit to his motion for new trial in which he alleged that
his trial counsel was ineffective because he (1) failed to investigate appellant’s ex-wife
for possible motives and biases; (2) failed to call three witnesses for the defense at trial;
(3) failed to investigate whether there was a lock on the bathroom door at appellant’s
home; and (4) failed to visit appellant in jail before and during trial. Appellant also
attached affidavits from three other people. Sean James stated that he did not believe
appellant sexually assaulted the complainant. Jessica James stated that she lived with
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appellant and never saw any inappropriate behavior between appellant and the
complainant. Charles Hill stated that one of the witnesses who testified as to extraneous
offense evidence told him that nothing happened between her and appellant.
Pursuant to the trial court’s order, appellant’s trial counsel provided an affidavit.
The affidavit consists of six pages in which counsel addresses, in detail, each of
appellant’s specific complaints regarding his representation.
Although appellant claimed that counsel rendered ineffective assistance by failing
to investigate his ex-wife for possible motives and biases, counsel explained in his
affidavit that his trial strategy was to portray the ex-wife “as a vindictive cheating
spouse who emotionally and mentally manipulated and convinced her daughters and
family friends to make false sexual assault allegations against [appellant] so that he
would be effectively removed from their lives forever.” In support of this strategy,
counsel stated that appellant testified as to his ex-wife’s possible motive and bias. At
trial, appellant stated that he and his ex-wife divorced because she had an affair. He also
stated that he believed the complainant and other witnesses were lying because his ex-
wife told them to lie. Counsel stated that he cross-examined each of the State’s
witnesses as to bias and motive after speaking with appellant and reviewing information
provided by a private investigator. Although appellant complains that his trial counsel
should have investigated his ex-wife for the affair and getting the witnesses to lie, this
information was provided by appellant’s testimony at trial. The trial court could have
reasonably concluded from the record that appellant acted as a competent attorney
because he introduced evidence of the ex-wife’s bias at trial.
Appellant also contends that counsel was ineffective because he failed to call
Charles Hill, Jessica James, and Sean James as witnesses. First, the record reflects that
counsel had Jessica James and Charles Hill both testify at trial. Thus the trial court
could have reasonably concluded that counsel was not ineffective for failing to call two
witnesses who did testify. Counsel admitted that Sean did not testify at trial because he
13
chose not to testify. Counsel believed that if Sean testified, the jury would have heard
the basis of his knowledge of the state of affairs at appellant’s household and his
improper sexual relationship with a minor. Counsel opined that this could have
subjected Sean to criminal penalties and that he would not have been an effective
witness. Thus, counsel stated that he was relieved when Sean informed him that he
could not testify at trial due to “work and transportation” difficulties.
Further, Sean’s affidavit is conclusory and is not sufficient to put the trial court on
notice that reasonable grounds for appellant’s ineffective claim exist. James stated in his
affidavit that he lived with appellant and knew the complainant. He stated that he did
not think appellant committed the offense and that the case was about appellant’s ex-
wife trying to get him “gone for good.” Affidavits which are conclusory in nature and
unsupported by facts are not sufficient to put the trial court on notice that reasonable
grounds for relief exist. Smith v. State, 286 S.W.3d at 339; Buerger v. State, 60 S.W.3d
358, 362 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
Counsel’s affidavit also rebutted appellant’s allegation that he failed to
investigate whether the bathroom door had a lock. Counsel stated that he hired a private
investigator who reviewed the issue. Counsel also pointed out that whether the
bathroom door was locked did not relate to an element of the offense of aggravated
sexual assault and that it was related to extraneous offense evidence. Further, the jury
heard conflicting testimony from the witness and appellant as to whether there was a
lock on the bathroom door. Appellant testified that there was a working lock on the door
and another lock that was broken. Because counsel elicited evidence that there was a
lock on the door, the trial court could have reasonably concluded counsel was not
ineffective for an alleged failure to investigate the issue.
Counsel admitted that he only met with appellant in jail on one occasion, in which
they reviewed the facts of the case and prepared for trial. Counsel stated that he
communicated with appellant on four separate occasions with detailed letters in which
14
he responded to appellant’s concerns. Counsel claimed that appellant never informed
him of any unresolved trial issues and did not offer any new concerns or material for
consideration. Appellant’s affidavit on this issue is conclusory and does not state what
further communication between him and his counsel would have revealed. Because
appellant’s statements were conclusory and he failed to state what more visits from his
trial counsel would have revealed, the trial court could have reasonably concluded that
appellant was not prejudiced. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim.
App. 1994) (providing that defendant’s affidavit was deficient because it contained
conclusory statements and defendant failed to state what further investigation by
counsel would have revealed).
Further, because the trial judge who denied the motion for new trial presided over
appellant’s case, the court could have reasonably concluded that appellant’s trial
counsel was not deficient. The record reflects that appellant’s trial counsel was familiar
with relevant case law, made proper objections throughout trial, cross-examined
witnesses, and called several witnesses for the defense. Based on the trial judge’s
familiarity with the case, the trial court could have reasonably concluded from the
record that appellant did not render ineffective assistance of counsel by only visiting
appellant in jail once. See Holden, 201 S.W.3d at 764.
Here, the affiants in this case were appellant, two witnesses who testified,
appellant’s relative, and appellant’s trial counsel. Appellant, the two witnesses, and
appellant’s trial counsel all appeared before the trial judge in a trial that lasted several
days. Appellant testified in his defense at trial. The trial judge had an opportunity to
evaluate the credibility and demeanor of both appellant and his trial counsel throughout
the course of the trial. Further, the court was familiar with the history and facts of the
case.
The trial court could have reasonably concluded without conducting a hearing
that appellant’s affidavit did not establish the existence of reasonable grounds showing
15
that he could be entitled to relief. See id. (concluding that appellant was not entitled to a
hearing on his motion for new trial because trial court could resolve conflicts in
affidavits based on his familiarity with defendant’s case); see also Garza v. State, 261
S.W.3d 361, 366 (Tex. App.—Austin 2008, pet. ref’d) (“A trial court has discretion to
decide a motion for new trial based on affidavits alone, particularly where the affiants
have already appeared in the trial court, so that ‘the trial judge ha[s] already had an
opportunity to evaluate the affiants’ and is ‘familiar with the history and the facts of the
case.’”). The trial court’s determination is entitled to deference on appeal. See Holden,
201 S.W.3d at 764. Based on the information before the trial court, together with the
judge’s prior knowledge of the parties and the case, the trial court did not abuse its
discretion by ruling on appellant’s motion for new trial without a hearing. See id.
We overrule appellant’s third issue.
CONCLUSION
We overrule appellant’s issues and affirm the judgment of the trial court.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
Publish — TEX. R. APP. P. 47.2(b).
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