Hall, John

PD-1341-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/2/2015 1:25:19 PM
Accepted 12/4/2015 11:55:19 AM
NO. PD-1341-15 ABEL ACOSTA
CLERK
COURT OF APPEALS NO. 13-14-00044-CR

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS

JOHN HALL,
Appellant

vs.
THE STATE OF TEXAS,
Appellee.

PETITION FOR DISCRETIONARY REVIEW
OF THE JUDGMENT OF THE THIRTEENTH COURT OF APPEALS
FOR THE STATE OF TEXAS

On Appeal from the 66™ District Court of Hill County, Texas
in Cause No. 36,772
Hon. A. Lee Harris, Presiding

PETITION FOR DISCRETIONARY REVIEW

L. PATRICK DAVIS
SBN 00795775
115 N. Henderson Street
Fort Worth, Texas 76102
(817)870-1544
(817)870-1589 fax
December 4, 2015 lpatdavis@aol.com

ATTORNEY FOR AP·PELLANT

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, _____
 LIST OF INTERESTED PARTIES

DEFENDANT/APPELLANT

John Hall

Represented by:

Trial:

Hon. Bill Mason
SBN 13158975
P.O. Box 767
Cleburne, Texas 76033
(817)556-3223

Appeal:

Hon. L. Patrick Davis
SBN 00795775
115 N. Henderson Street
Fort Worth, Texas 76102
(817)870-1544
(817)870-1589 fax

COMPLAINANT Represented by: Trial/Appeal

The State of Texas Hon. Mark Pratt
Hill County District Attorney
P.O. Box 400
Hillsboro, Texas 76645
(254)582-4070

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 TABLE OF CONTENTS
List of Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Did the Court of Appeals err in failing to abate Appellant's appeal
for an evidentiary hearing on his timely filed motion for new trial
to determine the prosecutor's subjective intent in pursuing a theft
conviction against Appellant under the "principle motivation" test
in accord with the Court of Criminal Appeals' opinion in Cabla v.
State, 6 S.W.3d 543, 550 (Tex. Crim. App. 1999) (Meyers, J.,
concurring)?

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Appendix:

Memorandum Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

ii
 INDEX OF AUTHORITIES

State Cases
Cabla v. State, 6 S.W.3d 543 (Tex. Crim. App. 1999) ............ .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3' 5
\

Ex parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005) ........ .
. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .6

Hernandez v. State, 952 S.W.2d 59 (Tex. App.-Austin), vacated on
other grounds, 957 S.W.2d 851 (Tex. Crim. App. 1998) ............ 3

Jacobson v. State, 398 S.W.3d 195 (Tex. Crim. App. 2013) ........ .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Martinez v. State, 212 S.W.3d 411 (Tex. App.-Austin 2006, pet.
ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mcintire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1986) ........ .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .3

Texas Codes, Statutes, and Rules
TEX. R. EVID. 103(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. CODE CRIM. PROC. ANN. art. 11.072 (Vernon 2012) ............ .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

TEX. R. APP. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Cases
Kelly v. Robinson, 479 U.S. 36 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4' 5

iii
 STATEMENT REGARDING ORAL ARGUMENT

Appellant believes oral argument would assist this Honorable

Court in reaching a decision in what appears to be a case of first

impression. The State of Texas has been using these theft

prosecutions to collect debts for a long time now in cases that are

essentially civil in nature. In essence, the State has become a

collection agency in doing so. This Honorable Court has an

opportunity to send the message that this practice by the State

will no longer be condoned. Accordingly, this case deserves the

give and take of oral argument.

iv
TO THE JUDGES OF THE HONORABLE COURT OF CRIMINAL APPEALS:

NOW COMES JOHN HALL, Appellant herein, and files this his Petition

for Discretionary Review of the judgment of the Thirteenth Court of

Appeals for the State of Texas.

STATEMENT OF THE CASE
On September 11, 2013, Appellant was found guilty of Theft

$1500-$20,000, a State Jail Felony. (R.R., Vol. 3, p. 239). The

jury sentenced Appellant to 180 days in the State Jail Division of

the Texas Department of Criminal Justice, imposed a fine of

$2500.00 and further recommended probation/suspension of the State

Jail sentence. (C.R., Vol. 1, pp. 23,29). On October 2, 2013, the

trial court judge formally sentenced Appellant to probation for

five (5) years and assessed restitution in the amount of

$19,900.00. (R.R., Vol. 4, p. 13). On November 1, 2013, Appellant

timely filed a Motion for New Trial and requested an evidentiary

hearing. (C.R., Vo. 1, pp. 40-58). On November 5, 2013, the trial

court judge denied the motion without an evidentiary hearing, but

did provide a written opinion. (C.R., Vol. 1, p. 59). Appellant

timely gave his Notice of Appeal. (C.R., Vol. 1, p. 63).

--Factual Statement--

John Hall, a home contractor, contracted to build a home for

Mike Carmen in the fall of 2010. (C.R., Vol. 1, p. 4) (R.R., Vol. 2,

p. 112). Carmen agreed to finance the deal and agreed to pay Hall

twelve percent ( 12%) over what was paid to the subcontractors.

1

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(R.R., Vol. 2, p. 112). Hall went to Somervell Floors, owned by

Shirley Williamson, to get the materials needed for the flooring.

Somervell Floors provided the materials and the installation to

Hall. (R.R., Vol. 2, p. 113). Carmen paid Hall $21,000.00 for both

the installation and material. (R.R., Vol. 2, p. 115). Hall never

paid Somervell Floors. Hall was indicted for Theft $20,000-

$100,000. (C.R., Vol. 1, p. 4). Hall was found guilty of the

lesser included State Jail offense of Theft $1500-$20,000. This

appeal resulted.

PROCEDURAL HISTORY
The Court of Appeals affirmed the trial court's judgment and

delivered a memorandum opinion on July 16, 2 015. Appellant's

timely filed motion for rehearing was denied on September 2, 2015.

On November 2, 2015, this Honorable Court granted Appellant's

second timely motion for extension of time to file his petition for

discretionary review and ordered the petition to be filed on or

before December 2, 2015.

GROUND FOR REVIEW

Did the Court of Appeals err in failing to abate Appellant's appeal
for an evidentiary hearing on his timely filed motion for new trial
to determine the prosecutor's subjective intent in pursuing a theft
conviction against Appellant under the "principle motivation" test
in accord with the Court of Criminal Appeals' opinion in Cabla v.
State, 6 S.W.3d 543, 550 (Tex. Crim. App. 1999) (Meyers, J.,
concurring)?

2

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 ARGUMENT

On July 16, 2015, the Corpus Christi Court affirmed the

judgment of the trial court in a memorandum opinion holding, inter
l

alia, that the issue of bankruptcy was determinable from the record

and that Appellant raised the "principle motivation" test for the

first time on appeal and, therefore, Appellant was not entitled to

a hearing on his timely filed motion for new trial. The authority

cited by the Corpus Christi Court is inapposite in the case at bar

to support its position in rejecting Appellant's right to an

evidentiary hearing based on the substance of Appellant's motion.

The Corpus Christi Court concedes in its opinion that the

trial court rejected Appellant's argument (objection) that the

bankruptcy evidence was probative of his lack of intent to commit

theft when the State's motion in limine was ruled upon before

trial. TEX. R. EVID. 103(a) (1); TEX. R. APP. P. 33.1. A trial

court abuses its discretion in overruling a motion for new trial

without a hearing if the motion and supporting affidavits, if true,

would entitle the defendant to a new trial. Hernandez v. State, 952

S.W.2d 59, 74(Tex. App.-Austin), vacated on other grounds, 957

S.W.2d 851 (Tex. Crim. App. 1998) It is well founded that the

affidavit is not required to "reflect every component legally

required to establish" relief. Mcintire v. State, 698 S.W.2d 652,

658 (Tex. Crim. App. 1985) (emphasis added).

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 In the instant case, Appellant put the trial court on notice

that it erred in sustaining the State's motion in limine regarding

exclusion of bankruptcy testimony which was an evidentiary ruling
I

based on concession of same from the Corpus Christi Court in its

opinion. Appellant even stated in his motion that he would show

"further whyu at his evidentiary hearing relief should be granted.

The Corpus Christi Court instead denied Appellant that right in

holding that everything was determinable from the record and

Appellant did not specifically mention the "principle motivationu

test. Cabla v. State, 6 S.W.3d 543, 550 (Tex. Crim. App.

1999) (Meyers, J., concurring) (advocating for the adoption of the

"principle motivationu test in which the subjective motivation of

the prosecutor determines the validity of an order requiring the

debtor-defendant to pay restitution on a debt that was previously

discharged in bankruptcy) .

Under the "principal moti vationu test, Appellant has the

burden of proving by a preponderance of the evidence that the

State's principal motivation in pursuing a theft conviction was to

collect the debt discharged in bankruptcy and not to enforce the

State's criminal statutes. Cabla, 6 S. W. 3d at 550 (Meyers, J.,

concurring); Kelly v. Robinson, 479 U.S. 36, 52-53 (1986). A trial

court judge has no input as to whether to initiate criminal

proceedings against the accused. That decision lies exclusively

with the State.

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 The prosecutor definitely had subjective motivations for

bringing the prosecution. The obvious implication of Appellant's

allegation
I
was that the State in prosecuting Defendant was

motivated by the desire to circumvent the Bankruptcy Code, collect

a debt for complainant and not enforce the criminal statutes of the

State of Texas. But without the prosecutor's testimony, the record

is devoid of those reasons. One can only speculate from the record

the prosecutor's reasons in pursuing the prosecution. But in the

interest of justice, a hearing on the matter should have been held

to obtain the prosecutor's strategy and motivation in the case at

bar. Cabla, 6 S.W.3d at 550 (Meyers, J., concurring); Kelly, 479

U.S. at 52-53. The motion raised reasonable grounds for relief

that are not determinable from the record upon which Appellant

could be entitled to relief if the trial court judge does not

believe the testimony of the prosecutor at a hearing on his motion

for new trial as to her reasons for pursuing the prosecution

against Appellant knowing the debt had been discharged in

bankruptcy on May 3, 2 011, and never as king the jury to impose

incarceration. (C.R., Vol. 1, p. 44) (R.R., Vol. 3, pp. 254-59).

Obviously, if Appellant had received incarceration as opposed to

probation from the jury, Appellant could not have been made to pay

restitution to the complainant.

The documents attached to the motion for new trial show that

the debt had been lawfully discharged to the complainant. Without

5
the bankruptcy testimony, Appellant's defense that he simply could

not pay and never had the intent to deprive the complainant of said

debt was severely compromised and left the jury with no other

option based on the evidence but to convict. That in itself

undermines the confidence in the conviction sufficiently to

convince this Honorable Court that the result of the trial might

have been different had the bankruptcy testimony been allowed. By

preventing Appellant from presenting this evidence, the trial court

infringed on his right to mount a meaningful defense. Martinez v.

State, 212 S.W.3d 411, 423 n. 4 (Tex. App.-Austin 2006, pet.

ref'd). Accordingly, the trial court abused its discretion by

denying Appellant an evidentiary hearing on the motion.

"Our criminal justice system makes two promises to its

citizens: a fundamentally fair trial and an accurate result. If

either of those two promises are not met, the criminal justice

system itself falls into disrepute and will eventually be

disregarded." Jacobson v. State, 398 S.W.3d 195, 200 (Tex. Crim.

App. 2013), quoting, Ex parte Thompson, 153 S.W.3d 416, 421 (Tex.

Crim. App. 2005) (Cochran, J., concurring). To deny Appellant an

evidentiary hearing at this point in the proceedings and relegate

him to litigate this matter in an Article 11.072 writ of habeas

corpus is just simply unconscionable and a waste of judicial

resources. TEX. CODE CRIM. PROC. ANN. art. 11.072 (Vernon 2012).

The issue is black and white and properly before the Corpus Christi

6

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Court and the trial court.

PRAYER

WHJ;:REFORE, PREMISES CONSIDERED, Appellant prays this Honorable

Court grant this Petition for Discretionary Review and after a full

review hereon reverse the judgment of the Court of Appeals and for

any other relief Appellant may be justly entitled.

R~C~F~ ~0'-----------
L. Patrick DaviS
SBN 00795775
115 N. Henderson Street
Fort Worth, Texas 76102
(817)870-1544
(817)870-1589 fax
lpatdavis@aol.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

As Attorney of Record for Appellant, I do hereby Certify that

a true and correct copy of the above and foregoing document was

provided to the Attorney for the State, Hon. Mark Pratt, P.O. Box

400, Hillsboro, Texas 76645 and Hon. Matthew Paul, State

Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711 ,via U.S.

Mail on December 2, 2015.

7

2
 CERTIFICATE OF COMPLIANCE

Pursuant t'o Rule 9. 4 ( i) ( 3) of the Texas Rules of Appellate

Procedure, I, L. Patrick Davis, hereby state that this document

contains approximately 1,544 words exclusive of that contained in

the Appendix and those sections excluded by said rule.

8

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A
 NUMBER 13-14-00044-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTl - EDINBURG

JOHN HALL, Appellant,

v.
THE STATE OF TEXAS, Appellee.

On appeal from the 66th District Court
of Hill County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Chief Justice Valdez

A jury found appellant, John Hall, guilty of the offense of state-jail-felony

theft. See TEX. PENAL CODE ANN. § 31.03(e)(4) (West, Westlaw through Ch. 46

2015 R.S.). The trial court sentenced Hall to five years' probation and ordered him

to pay restitution in the amount of $19,900 as a condition of his probation. Hall

filed a motion for new trial alleging that the trial court improperly excluded evidence

that was relevant and favorable to his defense; he also requested a hearing on the
motion. The trial court denied Hall's motion for a new trial without a hearing. By

one issue, Hall contends that the trial court erred in not holding a hearing before

denying his motion for new trial. We affirm.

I. Background 1

Hall, a home contractor, contracted to build a home for Mike Carmen in the

fall of 2010. Carmen gave Hall $21 ,000, which was supposed to be paid to

Somervell Floors to buy building materials for the project. Shortly thereafter,

Somervell Floors delivered the materials to Carmen, but Hall never paid Somervell

Floors for the materials. Somervell Floors filed a complaint with the police. After

investigating the matter, the State charged Hall with theft.

Prior to trial, the State presented a motion in limine to the trial court. This

motion in limine sought to prevent Hall from introducing evidence that he filed for

bankruptcy after becoming indebted to Somervell Floors. The State argued that

Hall's subsequent bankruptcy was irrelevant to any issue in the case. Hall

responded that this evidence was probative of his lack of intent to commit theft.

After hearing the arguments of the parties, the trial court granted the State's motion

in limine but advised Hall that "[a]s the evidence comes out [at trial], I'm certainly

willing to revisit with you [.]"

Hall testified in his defense at trial. When Hall's testimony broached the

subject of his bankruptcy, the following exchange occurred:

State: Your Honor, may we approach please?

(At the Bench; on the record)

Defense counsel: Is it the bankruptcy?

1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. Gov'T
CODE ANN. § 73.001 (West, Westlaw through Ch. 46 2015 R.S.)
2

;
 State: That's what he was about to say.

Defense counsel: Okay. Let me just rephrase that.

Trial Court: You all need me?

Defense counsel: Your Honor, I'll rephrase that question.

Hall resumed his testimony on a matter unrelated to bankruptcy. He never

obtained a ruling from the trial court on whether evidence of his bankruptcy would

have been admissible. At the close of the evidence, the jury found Hall guilty of

state-jail-felony theft.

Thereafter, Hall filed a motion for new trial alleging that the trial court erred

in excluding evidence of his bankruptcy, which affected his substantial rights.

Attached to Hall's motion for new trial is his affidavit, in which he states:

[T]he trial court judge would not allow me to testify [about my
bankruptcy] nor would he let my trial attorney refer to that fact. If the
jury would have heard this defense, I would have been acquitted. 2

By way of a written letter to the parties, the trial court denied Hall's motion

for new trial without a hearing. Specifically, the trial court found that Hall was

"factually incorrect" in asserting that he was not allowed to put on evidence of his

bankruptcy. This appeal followed.

II. Discussion

By his sole issue, Hall contends that the trial court erred in not conducting

a hearing on his motion for new trial to determine whether evidence of his

bankruptcy was properly excluded. A defendant's right to an evidentiary hearing

on a motion for new trial is not an absolute right, and we will not reverse a trial

2 Also attached to Hall's motion for new trial is the order from the bankruptcy court

discharging him from bankruptcy.
3

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court's failure to hold a hearing unless the court abused its discretion. Wallace v.

State, 106 S.W.3d 103, 108 (Tex. Grim. App. 2003). A trial court abuses its

discretion in failing to hold a hearing when the motion for new trial 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. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Grim. App. 2009).

In this case, Hall requested a hearing to determine whether the trial court

erred in excluding evidence of his bankruptcy. However, the record reflects that

the trial court never had an opportunity to rule on the admissibility of Hall's

bankruptcy because Hall never sought to introduce this evidence at trial; nor did

he request a ruling from the trial court when his testimony broached the subject.

As such, the trial court found that Hall's motion raised a matter that was premised

on a "factually incorrect" statement of the record-i.e., that the trial court actually

made a ruling. The incorrectness of Hall's factual assertion was determinable from

the record and therefore did not entitle him to a hearing. 3 /d. Moreover, the record

reflects that the relevance of Hall's bankruptcy was the subject of the State's

pretrial motion in limine, during which the trial court heard and rejected Hall's

argument that this evidence was probative of his lack of intent to commit theft.

3 We note that the trial court did grant the State's pretrial motion in limine. However, this
ruling was not a ruling on the admissibility of bankruptcy evidence at trial. "A motion in limine is
defined as a procedural device that permits a party to identify, before trial, certain evidentiary rulings
that the court may be asked to make so as to prevent the asking of prejudicial questions and the
making of prejudicial statements in the presence of the jury." See Onstad v. Wright, 54 S.W.3d
799, 805 (Tex. App.-Texarkana 2001, pet. denied) (emphasis added). A ruling on a motion in
limine "does not purport to be one on the merits but one regarding the administration of the trial."
See Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.-Austin 2000, pet. refd). The trial court's
pretrial ruling on the State's motion in limine did not exclude evidence of Hall's bankruptcy, but
merely required Hall to approach the bench and obtain a ruling on the admissibility of that evidence
at trial; the record reflects that Hall approached the bench but did not obtain a ruling. Thus, no
hearing was required because Hall's failure to obtain this ruling was determinable from the record,
regardless of the trial court's previous ruling on the State's motion in limine.

4

3
Without providing anything new for the trial court to review, Hall's motion for new

trial requested a hearing to revisit this issue-an issue which the parties already

addressed prior to trial and which was determinable from the record. 4 Therefore,

we cannot conclude that the trial court abused its discretion in denying Hall's

motion for new trial without a hearing. See Lempar v. State, 191 S.W.3d 230, 235

(Tex. App.-San Antonio 2005, pet. refd) (holding that the trial court's evidentiary

ruling was determinable from the record and therefore did not entitle the defendant

to a hearing on his motion for new trial to determine whether the ruling was proper);

see also Hobbs, 298 S.W.3d at 199.

Ill. Conclusion

We affirm the judgment of the trial court.

/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of July, 2015.

4 For the first time on appeal, Hall challenges the trial court's failure to hold a hearing on
the ground that the prosecutor might have been improperly motivated by a desire to aid the theft
victim in collecting a debt that had already been discharged in bankruptcy. See Cab/a v. State, 6
S.W.3d 543, 550 (Tex. Grim. App. 1999) (Meyers, J., concurring) (advocating for the adoption of
the "principal motivation test," in which the subjective motivation of the prosecutor determines the
validity of an order requiring a debtor-defendant to pay restitution on a debt that was previously
discharged in bankruptcy). We need not address whether Hall was entitled to a hearing on this
ground because the record reflects that he made no mention of it in his motion for new trial or
accompanying affidavit, and therefore, the trial court was never presented with the issue. See
Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Grim. App. 2009) (observing that no hearing on a new-
trial motion is required if the accompanying affidavit fails to set out the factual basis for the claim,
or fails to provide notice of the basis for the relief sought).
5