                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00147-CR


                         THE STATE OF TEXAS, APPELLANT

                                           V.

                         GERALD RAY BARROW, APPELLEE

                             On Appeal from the County Court
                                   Hale County, Texas
               Trial Court No. 2012C-427, Honorable Bill Coleman, Presiding

                                      July 16, 2014

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      The State appeals an order granting appellee Gerald Barrow a new trial “in the

interest of justice.” Based on the record presented, we find the trial court abused its

discretion, reverse its order and render an order denying Barrow’s motion for new trial.
                                        Background


       An information of June 4, 2012, charged Barrow with assaulting Shirley White by

striking her with his fist, causing bodily injury. 1 At the time of the misdemeanor assault,

Barrow and White were living together.2 In July 2012 they married.


       Their altercation occurred at an unlicensed establishment in Plainview known as

the Working Man’s Club. Shirley Barrow testified she was intoxicated, became angry

with Barrow because of something she thought he said, and started their fight by hitting

Barrow with a chair. She also testified she had a knife and at one point turned out the

lights. Barrow, she said, “had to defend his way up out of there . . . .”


       On cross-examination, Barrow’s counsel Chris Pollard led Shirley Barrow through

testimony reiterating that she was “drunk that night,” had been drinking “basically

straight alcohol,” hit Barrow with a chair and had a knife. Pollard’s cross-examination

also elicited the fact Shirley Barrow was scheduled to be in court “on a possession

charge” the day after the incident.      Pollard next elicited testimony she had “some

criminal history out of New Jersey,” and had “done time in the pen.”


       Shirley Barrow’s testimony also made clear she did not want Barrow prosecuted

for the offense. Cross-examining a police officer, Pollard had the officer read for the

jury a written statement she gave the officer. The entire statement read, “I had been

drinking on May 1st. One thing led to another. I ended up in the hospital. I don’t want

       1
         TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2013). As charged the
offense is a Class A misdemeanor punishable by confinement in jail for not more than
one year and a fine not exceeding $4,000. TEX. PENAL CODE ANN. § 12.21 (West 2011).
       2
        The information alleged Barrow and White had a dating relationship as defined
by Family Code section 71.0021. TEX. FAMILY CODE ANN. § 71.0021 (West 2014).

                                              2
to press charges on anyone. Thank you.”3 When Pollard asked Shirley Barrow what

she wanted to happen to her husband at trial, she responded, “For him to be let go, . . .

so we can go home.” Barrow did not testify at the guilt stage of trial.


       The jury charge contained an abstract instruction on self-defense, but no

application paragraph related to that defense. The jury found Barrow guilty. In the

punishment phase, the State introduced evidence of Barrow’s four prior convictions.

Barrow took the stand. He gave a description of the altercation very similar to that his

wife gave during her testimony. He acknowledged his prior convictions. He told the jury

he had a job, had been employed there a year, and was “a good employee, punctual.”

He said he had talked with his boss and “[h]e said he would work with me on work

release.” He asked the jury to give him the chance to continue his work, telling them,

“That job is my life line. I have to take care of my wife.”


       Based on the verdict of the jury, the trial court imposed a sentence of a $1,200

fine and no term of confinement.


       Barrow filed a notice of appeal which this court docketed as case number 07-13-

00046-CR.4 The trial court appointed attorney Troy Bollinger to represent Barrow on

appeal. Bollinger filed a motion for new trial on Barrow’s behalf and the trial court

conducted an evidentiary hearing, at which Barrow and Shirley Barrow were the only

witnesses.
       3
            Other evidence showed her injuries as a black eye and a cut that required
suturing.
       4
         This appeal is 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, per curiam
order), available at: http://www.search.txcourts.gov/Case.aspx?cn=07-13-00046-CR.


                                              3
       The theme of Barrow’s presentation at the new trial hearing was that his claim of

self-defense would have been accepted by jurors if they had known more details of

Shirley Barrow’s criminal history, which included assaultive offenses.           During the

hearing, Bollinger told the trial court, “Additionally, the only defense in this case is self-

defense. It’s the only thing that was raised.”


       At the new trial hearing, Barrow testified he was aware of his wife’s previous

assault charge, and agreed with Bollinger that knowledge of the previous assault “would

have been in your head when you see her coming at you with a knife.”


       The trial court granted Barrow a new trial, “in the interest of justice.” The court’s

written order does not specify the ground for the court’s ruling. Findings of fact and

conclusions of law were prepared at the State’s request.


       Among other things, the trial court found that Shirley Barrow testified at the

motion for new trial hearing that she had:


       [B]een convicted of numerous criminal offenses having been incarcerated
       in prison on several occasions. She testified to having been convicted for
       drug charges and on two occasions for assault. In one felony assault
       case she was sentenced to three years in the New Jersey State
       Penitentiary for stabbing her former husband.
       In another finding of fact, the court found Pollard “did not request the criminal

history of [Shirley Barrow]. Had he obtained her criminal history he could have shown

to the jury that [she] had an extensive criminal history including a felony assault of a

former husband with a knife.”




                                              4
                                           Analysis


Sufficiency of the State’s Briefing


         Initially we take up Barrow’s first cross-issue. In his argument in support of the

cross-issue, Barrow asserts the State’s brief is insufficient because its analysis does not

contain citation to the reporter’s record of the jury trial.     The State’s brief contains

citations to the reporter’s record of the motion for new trial hearing. At that hearing, it

was Barrow’s burden to prove a meritorious ground for a new trial. See TEX. R. APP. P.

21.9(a). And the outcome of that hearing is the subject of the State’s appeal.


         Barrow’s argument also contains language asserting the State failed to preserve

error.    He argues the State limited its appellate challenge to the effectiveness of

Pollard’s representation, omitting argument of “the multiple grounds that the Trial Court

used in its ruling.” This is not a preservation issue but is more akin to a complaint

regarding the manner in which the State has assigned error.


         Barrow does not indicate what relief or penalty he seeks for the inadequacies he

sees in the State’s briefing. We have considered his arguments in our review of the

appeal, but to the degree Barrow’s first cross-issue requires disposition, it is overruled.


The State’s Issue and Barrow’s Second Cross-Issue


         We turn to the State’s single issue, in which it contends the trial court abused its

discretion by granting Barrow’s motion for new trial. Our discussion of this issue also

will resolve Barrow’s second cross-issue in which he argues the contrary.




                                               5
       We review a trial court’s ruling on a motion for new trial for an abuse of

discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). The test for

abuse of discretion is “whether the trial court acted without reference to any guiding

rules or principles.” Id. at 907 (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex.

Crim. App. 2005)). While a trial court has discretion to grant a new trial “in the interest

of justice” that discretion is not unfettered because “justice” means “in accordance with

the law.” Id. A trial court generally does not abuse its discretion by granting a new trial

if the defendant (1) sets forth a specific and valid legal ground for relief in his motion, (2)

points to evidence in the record (or sets forth evidence) that substantiates the same

legal claim, and (3) shows prejudice under the harmless-error standards of the Rules of

Appellate Procedure. State v. Zalman, 400 S.W.3d 590, 591 (Tex. Crim. App. 2013)

(emphases omitted).


       While the defendant need not establish reversible error as a matter of law, trial

courts do not have the discretion to grant a new trial unless the defendant demonstrates

that his first trial was seriously flawed and that the flaws adversely affected his

substantial rights to a fair trial. Herndon, 215 S.W.3d at 909. A trial court has no

authority to grant a new trial unless the first proceeding was not in accordance with the

law. Id. at 907. And it is an abuse of discretion to grant a new trial for a non-legal or

legally invalid reason. Id. “A judge may not grant a new trial on mere sympathy, an

inarticulate hunch, or simply because he believes the defendant received a raw deal or

is innocent.” Zalman, 400 S.W.3d at 593 (citing Herndon, 215 S.W.3d at 907). As the

Court of Criminal Appeals recently reiterated, “There must be some legal basis

underpinning the grant of a new trial, even if it is granted in the interest of justice.” State



                                              6
v. Thomas, No. PD-0121-13, 2014 Tex. Crim. App. LEXIS 591, at *11 (Tex. Crim. App.

Apr. 16, 2014).


      On appeal, Barrow argues the trial court’s order was justified on two grounds, 5

“the failures of trial counsel”6 and newly-discovered evidence.7         Barrow asserts the

record shows Pollard was ineffective in his representation of Barrow and evidence of

Shirley Barrow’s conviction for stabbing a former husband was not discovered until

      5
        The State objected at the new trial hearing, arguing that ineffective assistance
of counsel was not a ground stated in Barrow’s motion. The objection was overruled,
and the State does not raise it on appeal.
      6
          The trial court’s conclusions of law included those stating:

      Mr. Pollard was not adequately prepared to defend the accused against
      the charges. Therefore, [Barrow] did not have the effective assistance of
      counsel necessary to protect his rights under the Sixth and Fourteenth
      Amendment to the Constitution.

      It was my finding that [Barrow’s] attorney, Mr. CHRISTIAN POLLARD,
      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.
      7
          The trial court’s conclusions of law also included this conclusion:

      Article 40.001 Texas Code of Criminal Procedure directs, “A new trial shall
      be granted an accused where material evidence favorable to the accused
      has been discovered since trial.” Mr. BOLLINGER’S investigation into Ms.
      WHITE BARROW’S criminal history revealed that she had been convicted
      and sentenced to prison for stabbing her former husband. Had this
      significant evidence been introduced at trial it could have added credibility
      to the Defendant’s claim of self defense. This evidence would tend to
      support Mr. BARROW’S claim that he feared for his safety when
      confronted by Ms. WHITE BARROW with a knife. Introduction of this
      evidence could certainly have had an impact on the Jury's deliberation and
      their resulting verdict.



                                              7
Bollinger assumed appellate representation and therefore constitutes newly-discovered

evidence. Evaluating the trial court’s exercise of its discretion, we consider whether the

court could have seen the evidence Barrow produced or pointed to as substantiating his

claims of ineffective assistance and newly-discovered evidence. Zalman, 400 S.W.3d

at 595.


      Ineffective Assistance of Counsel


      Strickland v. Washington presents the standard for ineffective assistance of

counsel claims under the United States Constitution. 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).     The Court in Strickland established a two-pronged test for

analyzing a claim of ineffective assistance of counsel.      The first prong requires a

defendant to prove counsel made such serious errors that he did not function as the

“counsel” guaranteed by the Sixth Amendment.         Strickland, 466 U.S. at 687.     The

defendant must show that counsel’s performance was unreasonable under prevailing

professional norms and that the challenged action was not sound trial strategy. Id. at

689-90.


      Under the second prong, an appellant must show that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687. The standard for judging prejudice

requires the defendant “show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.




                                            8
         A strong presumption exists that counsel’s conduct fell within a wide range of

reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001).       To overcome the presumption of reasonable professional assistance, any

allegation of ineffectiveness must be firmly rooted in the record. Thompson v. State, 9

S.W.3d 808, 813-14 (Tex. Crim. App. 1999).


         Absent evidence of counsel’s reasons for the challenged conduct, a reviewing

court will not conclude the challenged conduct constituted deficient performance unless

the conduct was so outrageous that no competent attorney would have engaged in it.

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (applying same rule).


         In his brief, Barrow argues Pollard committed various professional errors which

may be summed up as failing to investigate the case adequately.              He urges an

investigation would have revealed Shirley Barrow’s convictions for assaultive conduct,

including one for stabbing a former husband, and would have revealed Barrow’s sister-

in-law as a witness to the fight at the Working Man’s Club.8


         The trial court did not hear an explanation by Pollard of his trial strategy. 9 See

Sanders v. State, Nos. 01-03-00866-CR, 01-03-00867-CR, 2004 Tex. App. LEXIS 9965,


         8
         Barrow’s sister-in-law did not testify at the motion for new trial hearing. And the
substance of her probable testimony does not otherwise appear in the record. Thus the
trial court was not shown how she might have contributed to Barrow’s defense.
         9
        The trial court admitted an affidavit of Bollinger to which was attached an
unsworn memorandum from Pollard. The entire substance of Pollard’s memorandum
stated:

         1. I was appointed to represent Gerald Barrow. I met him once at my
            office and once at the courthouse in Tulia.

                                              9
at *6 (Tex. App.—Houston [1st Dist.] Nov. 10, 2004, no pet.) (mem. op., not designated

for publication) (also finding record silent as to counsel’s trial strategy despite affidavit

addressing other subjects). However, a review of the reporter’s record indicates from

opening statement through closing argument Pollard attempted to emphasize Shirley

Barrow’s desire that her husband not be prosecuted.


       Neither side mentioned self-defense during voir dire or opening statement. With

regard to the merits of the State’s case, Pollard’s brief opening statement contains only

the following:


       Yeah, right. She did not want to prosecute this case. The reason we’re
       here is because the prosecutor’s office has decided to take up this case
       with an unwilling victim, and please keep that in mind.
       As noted, throughout the State’s case, Pollard highlighted that Shirley Barrow,

shortly after the incident, decided she no longer desired to prosecute her initial

complaint. She told the jury she wanted her husband “let go . . . so we can go home.”


       The charge was proposed by the State and contained an abstract self-defense

instruction. But, as noted, it did not contain an application paragraph on self-defense

and Barrow made no objection.

__________________________

       2. On both occasions he was not forthcoming in providing any information
          as to what happened in the alleged incident.

       3. Gerald was congenial thoughout (sic). But gave me no information
          about what happened in the alleged assault.

       4. I do believe that I did question the alleged victim about her criminal
          history. I cannot be sure about this. I think I remember her saying that
          she had been in the penitentiary in New Jersey.



                                             10
      Pollard presented the following closing argument:


             May it please the Court, Counsel.
             Ladies and Gentlemen, why are we here today? We have an
      alleged victim that does not want to prosecute. It’s—it’s her head or body,
      whatever happened. She wants to go home today with [Barrow]. And she
      got up here and testified under oath that she’s not scared of him; he’s not
      forcing her to do anything; she’s sitting here willingly in the courtroom.
              I’m sorry that you-guys had to get dragged into court today on this
      kind of a case. She admits she was drunk. She admits she started it.
      She had a knife. She hit him with a chair. She went out the window. And
      I don’t know, those injuries could have been caused by that.
            Anyway, please give Shirley what she wants, and she does not
      want him prosecuted. She wants to go home with him today.
             Thank you.
      On the evidence, Barrow might have argued self-defense, but nothing in the

record supports a conclusion that the only constitutionally reasonable trial strategy

available was that Barrow acted in self-defense.      Counsel reasonably could have

considered that, despite Shirley Barrow’s testimony to her attack on her husband, a

successful assertion of self-defense might have required Barrow to testify. And opened

him to impeachment with his own considerable criminal history.


      The same is true of the extent of Pollard’s investigation of Shirley Barrow’s

criminal background.   Strickland involved a claim that counsel was ineffective with

regard to the investigation performed in preparation for the sentencing hearing in a

death penalty case. 466 U.S. at 672-73. Specifically addressing counsel’s duty to

investigate, the Supreme Court held that decisions regarding the extent of investigation

of a case are governed by the same standard of reasonableness that applies to other

aspects of counsel’s professional duty to the client. The Court stated, “In other words,

counsel has a duty to make reasonable investigations or to make a reasonable decision

                                          11
that makes particular investigations unnecessary.”         Id. at 691.    From his cross-

examination of Shirley Barrow at trial, it cannot be disputed that Pollard had made some

investigation of her criminal history.    In some manner, he acquired some level of

knowledge she had a criminal history in New Jersey, and had served time in the

penitentiary.10 If, as Barrow asserts, Pollard’s investigation of that matter ceased when

he acquired the information he elicited from Shirley Barrow on the stand, a court

evaluating his effectiveness regarding the investigation must determine whether his

decision not to investigate further was reasonable. And without evidence of Pollard’s

reasons for such a decision, it is not possible for Barrow to overcome the strong

presumption that counsel’s conduct fell within a wide range of reasonable professional

assistance. See Strickland, 466 U.S. at 689 (“There are countless ways to provide

effective assistance in any given case. Even the best criminal defense attorneys would

not defend a particular client in the same way”) (citation omitted).


       In sum, the trial court did not have before it evidence of conduct by Pollard so

outrageous that no competent attorney would have engaged in it. Goodspeed, 187

S.W.3d at 392. And, despite a hearing on the motion for new trial, the court did not

have before it evidence of his reasons for focusing on urging the jury to honor Shirley

Barrow’s wishes rather than pursuing a claim of self-defense.          Having before it no

evidence of Pollard’s reasons for defending Barrow as he did, the trial court could not

properly have seen the record as demonstrating Pollard’s representation of Barrow fell


       10
          Barrow and his wife testified at the new trial hearing that they gave Pollard
some information about her criminal history on the morning of trial. It appears also that
Pollard acquired some information from the State’s file. But the extent of his
investigation cannot be ascertained from the record.


                                             12
below the Sixth Amendment’s reasonableness standard.11 To the extent the trial court

granted Barrow a new trial in the interest of justice on the claimed ineffective assistance

of Pollard, it abused its discretion.


        Newly Discovered Evidence


        Barrow argues evidence of Shirley Barrow stabbing her former husband and

being sentenced to prison was unknown by trial counsel but was discovered after trial

by Bollinger. Code of Criminal Procedure Article 40.001 provides, “A new trial shall be

granted an accused where material evidence favorable to the accused has been

discovered since trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2006). To meet

the statute’s materiality requirement, a defendant must show: (1) the evidence was

unknown or unavailable to him at the time of trial; (2) his failure to discover or to obtain

the evidence was not due to lack of diligence; (3) the new evidence is admissible and

not merely cumulative, corroborative, collateral, or impeaching; and (4) the new

evidence is probably true and will probably bring about a different result on another trial.

Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002). The requirement that the

evidence assertedly requiring a new trial be discovered since trial has been called “the

fundamental requirement” for granting a new trial on the ground of newly discovered

evidence. 43A George E. Dix & John M. Schmolesky, TEX. PRAC., CRIMINAL PRACTICE

AND   PROCEDURE § 50.23 (3d ed. 2011) (citing Tate v. State, 834 S.W.2d 566, 571 (Tex.


        11
        Because we find the trial court could not properly have concluded that Pollard’s
conduct of his defense of Barrow was unreasonable under prevailing professional
norms, and thus met the first prong of the Strickland analysis, we do not address the
evidence supporting a conclusion that but for Pollard’s failure to investigate the case
more thoroughly, the result of the proceeding would have been different. See Strickland,
466 U.S. at 694 (second prong of test for ineffective assistance of counsel).

                                            13
App.—Houston [14th Dist.] 1992, pet. refused)). For the purpose of this determination,

what is known to the defendant is known to his attorney and vice versa. Id. Barrow

states in his brief “when [Shirley Barrow] came at him with a knife on the date of the

offense,” he knew of her prior conviction and penitentiary sentence for stabbing her

former husband. Thus, the trial court could not have determined the Keeter standard

was met. To the extent the trial court granted Barrow a new trial based on the claimed

newly discovered evidence of Shirley Barrow’s conviction and sentence for stabbing her

former husband, it abused its discretion.


      Finding the record does not contain evidence sustaining Barrow’s legal claims of

ineffective assistance of counsel and newly discovered evidence, we find the trial court

abused its discretion in granting a new trial. We sustain the State’s issue on appeal and

overrule Barrow’s second cross-issue.


                                        Conclusion


      Having sustained the State’s issue and overruled Barrow’s two cross-issues we

render an order denying Barrow’s motion for new trial.




                                                         James T. Campbell
                                                            Justice

Do not publish.

Quinn, C.J., Concurring.
Pirtle, J., Dissenting.




                                            14
