                                                                        ACCEPTED
                                                   04-14-00878-CR & 04-14-00879-CR
                                                       FOURTH COURT OF APPEALS
                                                             SAN ANTONIO, TEXAS
                                                              3/20/2015 5:01:42 PM
                                                                     KEITH HOTTLE
                                                                            CLERK

        No. 04-14-00878-CR
        No. 04-14-00879-CR
                                                FILED IN
                                         4th COURT OF APPEALS
                  In the                  SAN ANTONIO, TEXAS
          Court of Appeals               3/20/2015 5:01:42 PM
                  for the                  KEITH E. HOTTLE
                                                 Clerk
       Fourth District of Texas
             at San Antonio

        

        No. 2013CR10841W
        No. 2013CR10842W
        In the 437th District Court
           Bexar County, Texas

        

  MATTHEW DOUGLAS HAYES
                 Appellant
                   V.
     THE STATE OF TEXAS
            Appellee
        

       APPELLANT’S BRIEF

        


                 MANDY MILLER
                 Attorney for Matthew Douglas Hayes
                 State Bar No: 24055561
                 2910 Commercial Ctr. Blvd., Ste. 103-201
                 Katy, TX 77494
                 (832) 900-9884
                 Fax: (877) 904-6846
                 mandy@mandymillerlegal.com



APPELLANT REQUESTS ORAL ARGUMENT
                     IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Counsel for the State:

             Nicholas LaHood  District Attorney of Bexar County

             Rico Valdez  Assistant District Attorney on appeal

             Miguel Najera  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Matthew Douglas Hayes

      Counsel for Appellant:

             L. Michael Cohen  Counsel at trial

             Mandy Miller  Counsel on appeal

      Trial Judge:

             Hon. Lori Valenzuela
                                                   TABLE OF CONTENTS


IDENTIFICATION OF THE PARTIES ............................................................................1

INDEX OF AUTHORITIES.............................................................................................................4
STATEMENT OF THE CASE............................................................................................6

STATEMENT OF FACTS...................................................................................................6

SUMMARY OF THE ARGUMENT ...................................................................................9

APPELLANT’S FIRST POINT OF ERROR.......................................................................9

 PRESERVATION ..................................................................................................................................10

 THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON APPELLANT’S MOTION FOR
NEW TRIAL ............................................................................................................................................ 11

APPELLANT’S SECOND POINT OF ERROR...............................................................12

 THERE WAS NO EVIDENCE TO SUBSTANTIATE APPELLANT’S GUILTY PLEA TO
AGGRAVATED ROBBERY, AS REQUIRED BY ARTICLE 1.15 OF THE TEXAS PENAL CODE .......13

 THERE IS NO EVIDENCE TO SUPPORT THE TRIAL COURT’S AFFIRMATIVE FINDING THAT A
DEADLY WEAPON WAS USED TO COMMIT THE OFFENSE .............................................................18

 APPELLANT IS ENTITLED TO A NEW TRIAL IN THE INTEREST OF JUSTICE..............................19

CONCLUSION..................................................................................................................25

CERTIFICATE OF COMPLIANCE.................................................................................26

CERTIFICATE OF SERVICE ..........................................................................................26




                                                                           2
                                           INDEX OF AUTHORITIES


CASES

Appleman v. State,
 531 S.W.2d 806 (Tex. Crim. App. 1976) .........................................................................12
Carranza v. State,
  960 S.W.2d 76 (Tex. Crim. App. 1998)..............................................................................9
Ex parte Martin,
 747 S.W.2d 789 (Tex. Crim. App. 1988) .........................................................................13
Ex parte Williams,
 703 S.W.2d 674 (Tex. Crim. App. 1986) .........................................................................12
Keeter v. State,
  74 S.W.3d 31 (Tex. Crim. App. 2002)..............................................................................22
King v. State,
  29 S.W.3d 556 (Tex. Crim. App. 2000)..............................................................................8
McGill v. State,
 200 S.W.3d 325 (Tex. App.--Dallas 2006, no pet.) ........................................................13
Menefee v. State,
 287 S.W.3d 9 (Tex. Crim. App. 2009) .......................................................................12, 13
Mullins v. State,
 37 Tex. 337 (1872) ..............................................................................................................18
Plummer v. State,
  410 S.W.3d 855 (Tex. Crim. App. 2013) .........................................................................17
Reyes v. State,
  849 S.W.2d 812 (Tex. Crim. App. 1993)............................................................................9
Rozell v. State,
  176 S.W.3d 228 (Tex. Crim. App. 2005)............................................................................9
Smith v. State,
  286 S.W.3d 333 (Tex. Crim. App. 2009)............................................................................8
State v. Dixon,
  893 S.W.2d 286 (Tex. App.--Texarkana 1995, no pet.).................................................19




                                                                 3
State v. Gonzalez,
  820 S.W.2d 9 (Tex. App.--Dallas 1991), aff’d,
  855 S.W.2d 692 (Tex. Crim. App. 1993) .........................................................................18
State v. Lyons,
  820 S.W.2d 46 (Tex. App.--Fort Worth 1991, no pet.).................................................19
Waller v. State,
 931 S.W.2d 640 (Tex. App.--Dallas 1996, no pet) .........................................................12


STATUTES

TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005) ........................................................12
TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2010)....................................................22
TEX. PEN. CODE ANN. § 1.07(a)(46) (West 2011)..............................................................15
TEX. PEN. CODE ANN. § 29.02 (West 2005) .......................................................................13
TEX. PEN. CODE ANN. § 29.03 (West 2005).................................................................13, 14


RULES

TEX. R. APP. P. 21.6...................................................................................................................9
TEX. R. APP. P. 21.2 ................................................................................................................10
TEX. R. APP. P. 38.2(a)(1)(A)....................................................................................................1




                                                                   4
TO THE HONORABLE COURT OF APPEALS:


                                STATEMENT OF THE CASE

        Appellant was charged with four counts of aggravated robbery, all arising out

of one criminal transaction. (RR I1 5, 6). On December 4, 2013, appellant pled guilty

to two charges of aggravated robbery and submitted to a pre-sentence investigation

(PSI). (RR I 5, 6, 8). A hearing was held on January 28, 2014. (RR II). On

September 9, 2014, appellant was sentenced to seven years confinement in the

Institutional Division of the Texas Department of Criminal Justice. (RR III 8).


                                   STATEMENT OF FACTS

        Nathan Lawson, Nicholas Raden, Roxanne Cunningham, and Sabriya

Goldstone were drinking beer at Lawson and Raden’s apartment when someone

knocked on the door. (CR 32, 46; Appendix A). When Lawson answered the door,

Rakeem Boyd grabbed Lawson by the shirt and pushed him back into the apartment.

(CR 46). Boyd was followed by Jerrod Lanier and appellant. (CR 32, 46; Appendix

A). Lawson placed Boyd into a headlock until Boyd punched him in the face several

times. (CR 32). Boyd claimed he had a gun and threatened to kill everyone if Lawson

continued to fight. (CR 32, 46; Appendix A).




1 There are three reporter’s records. The record from the plea proceeding will be referred to as RR I. The
record from the pre-sentence investigation hearing will be referred to as RR II. Finally, the record from the
sentencing hearing will be referred to as RR III.


                                                     5
      During this time, appellant was struggling with Raden. (CR 46, 49; Appendices

A, B). Lawson thought he saw the outline of a gun in appellant’s sweatshirt pocket.

(CR 46; Appendix A). Raden claims that appellant placed a hand to his side and

threatened to “blow him away.” (CR 49; Appendix B). Raden responded that he

knew what knuckles felt like and that it was not a gun. (CR 49; Appendix B).

Appellant then loosened his grip on Raden to allow him to breathe more easily. (CR

49; Appendix B).

      After taking several items, appellant and the co-defendants ran from the

apartment. (CR 46, 49; Appendices A, B). Lawson grabbed his gun and chased the

perpetrators.   (CR 47; Appendix A).         Just a short while later, appellant was

apprehended .2 miles from the scene and Boyd and Lanier were located .3 miles away.

(CR 18). Despite a search by a law enforcement canine unit, no weapon was ever

found. (CR 19). Boyd and Lanier refused to cooperate with law enforcement and

immediately requested the assistance of counsel. (CR 19). Appellant fully cooperated

with the police and provided a statement regarding his involvement in the robbery.

(CR 20).

      Just six weeks later, appellant pled guilty to two counts of aggravated robbery

and submitted to a PSI. (RR I 7, 8). The State agreed to a recommendation that

appellant would receive no more than ten years confinement in the Institutional

Division of the Texas Department of Criminal Justice. (RR I 5). In exchange,



                                         6
appellant agreed to cooperate with the Bexar County District Attorney and testify

against his co-defendants. (CR 10).

      On January 28, 2014, a brief punishment hearing was conducted. In addition

to the evidence contained in the PSI report, appellant presented testimony from

appellant’s family and a forensic psychologist, Dr. Ferrell. (RR II 23-28). Dr. Ferrell

met with appellant twice in the county jail, shortly before the hearing. (RR II 24).

The doctor testified briefly that appellant’s tests scores reflected features of PTSD and

depression. (RR II 25, 26).

      After the hearing, the trial court postponed sentencing in the event appellant

had to testify against his co-defendants. (RR II 6, 34). The court also allowed

appellant to travel to his home state of Atlanta until he could be sentenced in

September. (RR II 32, 33).

      On September 9, 2014, the court sentenced appellant to seven years

confinement in the Institutional Division of the Texas Department of Criminal Justice

on two counts of aggravated robbery. (RR III 8). Rakeen Boyd and Jerrod Lanier

were charged with aggravated robbery. (Appendix C). But, despite their failure to

cooperate with law enforcement, they both pled to robbery. (Appendix C). The same

judge who presided over appellant’s case sentenced Boyd to eight years confinement

and Lanier to six years confinement. (Appendix C).




                                           7
                       SUMMARY OF THE ARGUMENT

      The trial court abused its discretion in failing to conduct a hearing on

appellant’s motion for new trial. The motion raises issues not determinable simply by

examining the record; and those issues could have entitled appellant to relief.


      The trial court abused its discretion in overruling appellant’s motion for new

trial by operation of law because appellant has established, by a preponderance of the

evidence, appellant’s plea of guilty to aggravated robbery was not substantiated by the

evidence, as required by Texas Code of Criminal Procedure article 1.15. The motion

also established that the evidence was insufficient to support the trial court’s

affirmative finding that a deadly weapon was used during the course of the robbery.

Finally, appellant established that a new trial should be granted in the interest of

justice due to newly discovered evidence regarding appellant’s s diagnosed post-

traumatic stress disorder (PTSD).


                   APPELLANT’S FIRST POINT OF ERROR

      The trial court abused its discretion in failing to conduct a hearing on

appellant’s motion for new trial. A hearing on a motion for new trial serves a two-

fold purpose. It permits the trial court to decide whether the cause shall be retried;

and it prepares a record for presenting issues on appeal in the event the motion is

denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009).




                                           8
       A trial court’s decision not to hold a hearing on a motion for new trial is

reviewed for an abuse of discretion. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim.

App. 1993). To be entitled to a hearing on a motion for new trial, the defendant must

present a motion for new trial “raising matters [that are] not determinable from the

record, which could entitle him to relief[.]” King v. State, 29 S.W.3d 556, 569 (Tex.

Crim. App. 2000). The motion must “be supported by [an] affidavit specifically

showing the truth of the grounds” asserted in the motion. Id.; Reyes, 849 S.W.2d at

815.

PRESERVATION
       In order to preserve error for appellate review, the defendant “must present the

motion for new trial to the trial court within 10 days of filing it.” TEX. R. APP. P. 21.6;

see also Id. To “present” the motion means to do something to bring it directly to the

attention of the trial court or someone authorized to act on the court’s behalf.

Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). The presentation can be

signified by a ruling on the motion, a signature or notation on the proposed order, a

hearing date, or some other indication that the movant actually notified the trial court

of the existence of the motion and did not simply file the motion with the clerk. Id.

“[A] reviewing court does not reach the question of whether a trial court abused its

discretion in failing to hold a hearing if no request for a hearing was presented to it.”

Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).




                                            9
       The clerk’s record contains a version of appellant’s motion for new trial that

does not show that the page indicating presentment was signed by the trial court. (CR

82).   Appellant has filed a motion to supplement the record with a supporting

affidavit evidencing that appellant’s motion for new trial was properly preserved.

(Appendix D).

THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON APPELLANT’S MOTION
FOR NEW TRIAL

       In his motion for new trial, appellant alleged that there was no evidence to

substantiate appellant’s guilty plea to aggravated robbery, as required by article 1.15 of

the Texas Penal Code, to support the trial court’s affirmative finding of a deadly

weapon. (CR 67-74). Appellant also alleged that a new trial should be granted in the

interest of justice. (CR 74-79). As previously noted, a trial court should hold a

hearing on a motion for new trial if the motion and attached affidavit raise matters

not determinable from the record and when such matters could entitle the movant to

relief. Id.; see also TEX. R. APP. P. 21.2.

       A hearing was necessary to determine whether the State had met its statutory

burden to substantiate appellant’s pleas to aggravated robbery. There is a significant

factual question as to whether a deadly weapon, namely a firearm, was used or

exhibited during the course of the robbery.         This issue is crucial in order to

substantiate not only appellant’s pleas, but the court’s affirmative finding of a deadly

weapon. Should the court find that the State did not meet its burden to substantiating


                                              10
appellant’s pleas to aggravated robbery, or the court’s deadly weapon finding,

appellant’s convictions could be conformed to robbery. This would allow appellant

to apply for shock probation under article 42.12 § 15(f)(3) of the Texas Code of

Criminal Procedure. It would also greatly impact appellant’s parole eligibility.

           A hearing was also necessary to develop appellant’s experiences in the military

that led to his PTSD and how that manifested into his daily life. A hearing would

have further developed evidence regarding appellant’s PTSD diagnosis, his treatment

plan, and prognosis. While the trial court had some information regarding appellant’s

PTSD, it was limited to the very brief testimony of Dr. Ferrell. The doctor had only

limited interaction with appellant prior to the pleas. However, upon returning home

after the PSI hearing, appellant began receiving extensive treatment through the

Veterans Affairs hospital in Atlanta. (CR 115-118; Appendix H). Appellant’s treating

physician in Atlanta is now able to present a more thorough explanation of appellant’s

illness.

           Because there were issues raised in appellant’s motion for new trial that

contained matters not determinable from the record that could have entitled appellant

to relief, the trial court abused its discretion in failing to conduct a hearing.

Accordingly, this cause should be remanded to the trial court in order to conduct a

hearing to further develop the issues raised in the motion for new trial.




                                              11
                 APPELLANT’S SECOND POINT OF ERROR


      The trial court abused its discretion in overruling appellant’s motion for new

trial by operation of law because appellant has established, by a preponderance of the

evidence, that his plea of guilty to aggravated robbery was not substantiated by the

evidence, as required by Texas Code of Criminal Procedure article 1.15. The motion

also established that the evidence was insufficient to support the trial court’s

affirmative finding that a deadly weapon was used during the course of the robbery.

Finally, appellant established that a new trial should be granted in the interest of

justice due to newly discovered evidence regarding his diagnosed PTSD.


      It is within the trial court’s sound discretion to grant or deny a motion for new

trial. Waller v. State, 931 S.W.2d 640, 644 (Tex. App.--Dallas 1996, no pet). Therefore,

a trial court’s denial of a motion for new trial is reviewed for an abuse of discretion.

Id.; Appleman v. State, 531 S.W.2d 806, 810 (Tex. Crim. App. 1976).

THERE WAS NO EVIDENCE TO SUBSTANTIATE APPELLANT’S GUILTY PLEA TO
AGGRAVATED ROBBERY, AS REQUIRED BY ARTICLE 1.15 OF THE TEXAS PENAL CODE

      When a defendant enters a plea of guilty to a non-capital felony offense, article

1.15 of the Texas Code of Criminal Procedure requires the State to offer evidence of

guilt in support of the plea. TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005).

And, according to article 1.15, a trial court is not permitted to render a conviction

without evidence establishing a defendant’s guilt even if he has entered a plea of guilty



                                           12
or no contest. Id.; Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). This

statute is an additional procedural safeguard afforded those charged with crimes in the

State of Texas. Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986);

Menefee, 287 S.W.3d at 13.

       After appellant pled guilty to aggravated robbery, the State was no longer

required to prove every element of the offenses beyond a reasonable doubt. Ex parte

Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988); McGill v. State, 200 S.W.3d

325, 330 (Tex. App.--Dallas 2006, no pet.).            But article 1.15 does require

substantiation of the pleas. Menefee, 287 S.W.3d at 14. “By its plain terms [1.15]

requires evidence in addition to, and independent of, the plea itself to establish the

defendant’s guilt.” Id. If the State fails to introduce sufficient evidence under the

standard set forth in article 1.15, the trial court is not authorized to convict. Id. And

a conviction rendered without sufficient evidence to support the no contest or guilty

plea constitutes error. Id.

       There is no evidence to substantiate appellant’s pleas to aggravated robbery. A

person commits robbery if, in the course of committing theft and with the intent to

obtain or maintain control of the property, he intentionally, knowingly, or recklessly

causes bodily injury to another or intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death. TEX. PEN. CODE ANN. § 29.02

(West 2005). On the other hand, a person commits aggravated robbery if he commits


                                           13
robbery and he causes serious bodily injury to another, uses or exhibits a deadly

weapon, or causes bodily injury to another person or threatens or places another

person in fear of imminent bodily injury or death, if the other person is 65 years of

age or older, or a disabled person. TEX. PEN. CODE ANN. § 29.03 (West 2005).

      The complainants’ statements indicate that Boyd announced that he had a gun

and threatened to kill everyone if Lawson continued to fight him. (CR 46; Appendix

A). The complainants also claimed that appellant stated “Don’t fight or I’ll put holes

in all of you.” (CR 46; Appendix A). Lawson thought that he saw the outline of a

gun in appellant’s sweatshirt pocket. (CR 46; Appendix A).

      But Raden stated that appellant placed a hand to his side and threatened to

“blow him away.” (CR 49; Appendix B). Raden responded that he knew what

knuckles felt like and that it was not a gun. (CR 49; Appendix B). Raden never saw a

gun and was never in fear for his life. (CR 50; Appendix B).

      Lawson and Raden reported that they suffered bruising on their faces as a

result of the attack. (CR 90, 91; Appendix F). Cunningham sustained a cut on her lip.

(CR 92; Appendix F). None of the complainants required medical treatment. (CR

90-93; Appendix F).

      Because none of the complainants were over 65, appellant could have only

committed aggravated robbery if he, or a co-defendant, caused serious bodily injury to

the complainants or used or exhibited a deadly weapon during the course of the robbery.

                                          14
See TEX. PEN. CODE ANN. § 29.03 (West 2005).              Despite appellant’s pleas to

aggravated robbery, the evidence only supports a finding that he is guilty of robbery.

       “Serious bodily injury” is “bodily injury that creates a substantial risk of death

or that causes death, serious permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.” TEX. PEN. CODE ANN.

§ 1.07(a)(46) (West 2011). As evidenced by the PSI, the complainants reported their

injuries as bruising and a cut. Therefore, none of the complainants suffered serious

bodily injury.

       The only evidence establishing that any of the perpetrators possessed a gun

during the robbery was from Boyd’s words that he had a gun and Lawson’s statement

that he thought he saw the outline of a weapon in appellant’s sweatshirt. But the

complainant who was nearest appellant established that appellant did not have a gun

and only used his knuckles to force Raden into compliance.

       Appellant immediately admitted his role in the offenses, cooperated with law

enforcement, agreed to testify against the co-defendants, and has accepted

responsibility for his actions. However, he has consistently denied that anyone used a

weapon during the course of the robbery. (CR 98-100; Appendix E). And although

law enforcement responded to the scene shortly after the offense, and the suspects

were apprehended quickly, no weapon was ever found.




                                           15
      But even assuming that appellant or the co-defendants were carrying a weapon,

there is no evidence that the weapon was used or exhibited during the course of the

robbery. In Patterson v. State, the Court of Criminal Appeals decided that the term

“exhibited a deadly weapon” used in Texas Code of Criminal Procedure 42.12 § 3g

means that the weapon was consciously shown or displayed during the commission of

the offense. [Emphasis added] 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). And the

term “used a deadly weapon” means that “the deadly weapon was employed or

utilized in order to achieve its purpose.” Id. Therefore, the actor must use the object

as a deadly weapon, and not for some other purpose. The Court then explained that

“one can ‘use’ a deadly weapon without exhibiting it, but it is doubtful one can exhibit

a deadly weapon during the commission of a felony without using it.” Id.

      In McCain v. State, the Court also found that a person “uses or exhibits a deadly

weapon” under the aggravated robbery statute if he employs the weapon in any

manner that “facilitates the associated felony.” 22 S.W.3d 497 (Tex. Crim. App.

2000). In McCain, the Court was asked to determine whether the evidence was

sufficient to support a jury’s finding that the defendant committed aggravated

robbery. The complainant was physically attacked and robbed by the defendant. Id.

at 499. The complainant testified that she saw a knife in the defendant’s back pocket

during the offense. Id. There was no evidence that McCain touched, brandished, or




                                           16
referred to the knife during the robbery. Id. After the robbery, a butcher knife was

found on the defendant. Id.

           Considering the standard set for determining the sufficiency of the evidence in

Jackson v. Virginia2, the Court found that any rational trier of fact could have found

that the knife was exhibited during the criminal transaction because the knife was

exposed and visible during the crime. Id. at 503. But the court was careful to point

out that it was not “equating mere possession with ‘use or exhibit.’” Id. And it

acknowledged that its decision may have differed if the knife had been completely

covered. Id. at 503 (“Had the knife been completely concealed by appellant’s clothing,

additional facts would have been needed to establish that the butcher knife was

used.”).

           Lawson told law enforcement that he thought he saw the outline of a gun

under appellant’s sweatshirt. (CR 46; Appendix A). His own statement evidences his

uncertainty of its presence. Unlike in McCain, no weapon was found. And even if

there is sufficient evidence to believe that one of the suspects was carrying a gun,

there is no evidence that it was exposed or used to facilitate the commission of the

robbery. There is no evidence that the supposed gun was consciously exposed. And

none of the perpetrators touched or displayed a weapon.




2   Cite


                                              17
THERE IS NO EVIDENCE TO SUPPORT THE TRIAL COURT’S AFFIRMATIVE FINDING THAT
A DEADLY WEAPON WAS USED TO COMMIT THE OFFENSE

      The purpose of the deadly weapon provision is to discourage and deter felons

from taking and using deadly weapons with them as they commit their crimes.

Plummer v. State, 410 S.W.3d 855, 864 (Tex. Crim. App. 2013). But this deterrence

rationale works only if the actor makes a conscious decision to “use” or “exhibit” the

weapon to assist in committing the felony. Id. Thus, the mere possession of a deadly

weapon during a felony offense is not covered by the statute. Id. Had the Legislature

intended that mere possession could trigger a deadly-weapon finding, it could easily

have said so. Id. Because the Legislature did not do so, it is only when the possession

of the deadly weapon “facilitates the associated felony” that the factfinder may make

an affirmative finding. Id. at 864-65.

      The evidence establishes Lawson believed that he observed the outline of a gun

in appellant’s sweatshirt. (CR 46; Appendix A). No description of the alleged gun

was given. (CR 46; Appendix A). None of the suspects pulled out a gun, or

consciously exposed a gun. (CR 46; Appendix A). And Raden stated that he was

never in fear for his life. (CR 50; Appendix B). Despite being apprehended shortly

after the robbery, no weapon was ever found. (CR 19).

      When interviewed about the offense prior to sentencing, none of the

complainants alleged that a weapon was used or exhibited during the offense.      (CR

86-96; Appendix F). The defendant has continually maintained that, although he


                                          18
participated in the robbery, no one had a weapon during the offense. (Appendix E).

Thus, the evidence is insufficient to support the court’s affirmative finding of a deadly

weapon despite appellant’s plea to the charge set forth in the information.

APPELLANT IS ENTITLED TO A NEW TRIAL IN THE INTEREST OF JUSTICE
       Trial courts have the authority to grant new trials in the interest of justice.

“The discretion of the Court, in granting new trials, is almost the only protection to

the citizen against illegal or oppressive verdicts of prejudiced, careless, or ignorant

juries, and we think the [trial] Court should never hesitate to use that discretion

whenever the ends of justice have not been attained by those verdicts.” Mullins v.

State, 37 Tex. 337, 339-340 (1872); see State v. Gonzalez, 820 S.W.2d 9, 12 (Tex. App.--

Dallas 1991), aff’d, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993) (trial judges have had

discretion to grant new trials in interest of justice for more than 120 years); see also

State v. Dixon, 893 S.W.2d 286, 288 (Tex. App.--Texarkana 1995, no pet.) (trial court

did not abuse its discretion in granting new trial in interest of justice); State v. Lyons,

820 S.W.2d 46, 48 (Tex. App.--Fort Worth 1991, no pet.) (trial court retains discretion

to grant new trial in the interest of justice, apparently on any ground justice requires).

       Appellant joined the United States Air Force in March 2009 and was honorably

discharged in March 2013. (CR 98-100, 113; Appendix E, G). During his time in the

service, he trained as a military police officer and received several commendations,

including the Good Conduct Medal, the Global War on Terrorism Expeditionary




                                             19
Medal, the Longevity Service Award, and the Air Force Training Ribbon. (CR 98-

100, 113; Appendix E, G).

      In 2011, appellant was deployed to Iraq. (CR 98-100; Appendix E). Prior to

this, he had never traveled outside of the country. (CR 98-100; Appendix E). During

his nearly six months in Iraq, appellant worked security for a base in an extremely

dangerous and volatile region. (CR 98-100; Appendix E). He describes his time as on

a constant state of alert. (CR 98-100; Appendix E). The base was mortared, on

average, three times a week. (CR 98-100; Appendix E). Appellant saw people die and

feels that he had to “get used to it.” (CR 98-100; Appendix E). He returned to San

Antonio during the summer of 2011, and attempted to reintegrate himself back into

society. (CR 98-100; Appendix E).

      Shortly after returning home, appellant began experiencing severe anxiety and

anger. (CR 98-100; Appendix E). Not knowing why he was having these feelings,

appellant did not seek help. (CR 98-100; Appendix E). There is a stigma in the

military of weakness if you complain of service-related difficulties. (CR 98-100;

Appendix E). Appellant’s feelings of anxiety, anger, and depression progressed to the

point that he no longer enjoyed being in public or around other people. (CR 98-100;

Appendix E). He was honorably discharged from the service in March 2013. (CR 98-

100, 113; Appendix E, G).

      Appellant’s anxiety in public prevented him from holding down steady

employment.    (CR 98-100; Appendix E). When appellant would get in situations

                                         20
where several people would be present, he would experience sweating, tunnel vision,

locked joints, and shaking. (CR 98-100; Appendix E). He would then become angry

at himself for feeling this way. (CR 98-100; Appendix E). In order to cope, appellant

began self-medicating with alcohol and marijuana. (CR 98-100; Appendix E). Prior

to committing the offenses, appellant engaged in drinking alcohol and smoking

marijuana with the co-defendants. (CR 98-100; Appendix E).

      Immediately upon the appellant’s release on bond, he reported for treatment in

Atlanta, as directed by the trial court. (CR 98-100; Appendix E). On February 21,

2014, appellant was diagnosed with “sub-threshold Post Traumatic Stress Disorder

and PTSD.” (CR 115-118; Appendix H). Appellant was also referred to a counselor

for help with his depression and anxiety. (CR 115-118; Appendix H). Although

helpful, appellant’s symptoms continued to progress. (CR 115-118; Appendix H). As

a result, he was accepted into the Trauma Recovery Program on August 1, 2014. (CR

115-118; Appendix H). Appellant was scheduled to begin a psychoeducational and

treatment group on September 26, 2014. (CR 115-118; Appendix H).

      On September 2, 2014, Dr. Belinda McIntosh, a staff psychiatrist at the Atlanta

VA Medical Center, confirmed appellant’s PTSD and Major Depressive Disorder

diagnoses. (CR 115-118; Appendix H). The doctor adjusted appellant’s medication

and scheduled a follow-up appointment. (CR 115-118; Appendix H).

      The doctor confirms that studies establish that combat veterans with PTSD

“exhibit high rates of comorbidity with substance use disorders,” and that this “can

                                         21
exacerbate underlying symptoms.” (CR 115-118; Appendix H). Additionally, these

same veterans may also engage in impulsive and reckless behavior. (CR 115-118;

Appendix H).      The behavioral changes in appellant after his deployment are

consistent with the pattern of behavior exhibited by some veterans with PTSD. (CR

115-118; Appendix H).

       Dr. McIntosh, after close contact with appellant and his family, feels that

appellant’s mental illnesses are highly treatable. (CR 115-118; Appendix H). She feels

that appellant is highly motivated to get help and has the family support system to

ensure a good prognosis for recovery. (CR 115-118; Appendix H). However, should

he be prevented from receiving treatment and medications, his prognosis is “rather

grim.” (CR 115-118; Appendix H). The doctor also believes that “incarceration will

lead to a poor outcome” for appellant. (CR 115-118; Appendix H).

       Dr. McIntosh’s opinion is newly discovered evidence that likely would have

had an impact on appellant’s sentence.         To obtain a new trial based on newly

discovered evidence, appellant is required to show: (1) the evidence was unknown to

him at the time of trial; (2) his failure to discover the new evidence was not due to his

lack of due 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 in a new trial. Keeter v. State, 74 S.W.3d 31,

36-37 (Tex. Crim. App. 2002); TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2010).




                                            22
      Appellant did not know the source of his anger and depression prior to

committing the offense.     Appellant pled guilty to the two counts of aggravated

robbery within six weeks of the offense. Eight weeks later, the court conducted a

sentencing hearing. During the time between the pleas and the hearing, the court

appointed Dr. Ferrell to assist the defense. The doctor met briefly with appellant and

had him submit to testing. (RR II 24). The doctor’s testimony consisted of six pages

in the record. (RR II 23-28). He was not asked to detail the experiences appellant

endured in Iraq and how it affected his life back in the United States. The doctor

briefly discussed the symptoms associated with PTSD, but did not expound on

appellant’s specific symptoms and detail how long he had suffered from his affliction.

It was not until appellant received treatment from a hospital that specializes in issues

unique to veterans that it was learned the extent of appellant’s PTSD.

      Appellant’s failure to discover this new evidence was not due to a lack of

diligence, but by the mental illness itself. Appellant suffered from PTSD for months

prior to the offense but did not have the tools to understand why he was experiencing

this and seek treatment. This new evidence would have been admissible at appellant’s

sentencing hearing and was not cumulative of Dr. Ferrell’s testimony. The doctor was

unable to provide the court with a complete picture of appellant’s PTSD because he

was not appellant’s treating physician and he did not spend a meaningful amount of

time with appellant.

                               


                                           23
      The trial court abused its discretion in allowing appellant’s motion for new trial

to be overruled by operation of law. The record establishes that the State did not

substantiate appellant’s plea in accordance with article 1.15 of the Texas Penal Code.

Additionally, the evidence does not support the trial court’s affirmative finding of a

deadly weapon. Finally, appellant was entitled to a new trial on punishment due to

newly discovered evidence regarding his PTSD.            Appellant requests that his

conviction for aggravated robbery be reversed or reformed to robbery and his

sentence vacated. Appellant also requests that the cause be remanded and appellant

be granted a new punishment hearing.


                                  CONCLUSION

      Appellant respectfully urges this Court to sustain appellant’s points of error,

and reform appellant’s conviction to robbery and remand for a new trial as to

punishment.



                                        /S/MANDY MILLER
                                        Attorney for Matthew Douglas Hayes
                                        2910 Commercial Center Blvd., Ste. 103-201
                                        Katy, TX 77494
                                        SBN 24055561
                                        (832) 900-9884
                                        FAX (877) 904-6846
                                        mandy@mandymillerlegal.com




                                          24
                      CERTIFICATE OF COMPLIANCE

      In accordance with the Texas Rules of Appellate Procedure, I hereby certify

that appellant’s supplemental brief, filed on February 11, 2015, has 5,572 words based

upon a word count under MS Word.


                                       /S/MANDY MILLER
                                       Attorney for Matthew Douglas Hayes
                                       2910 Commercial Center Blvd., Ste. 103-201
                                       Katy, TX 77494
                                       SBN 24055561
                                       (832) 900-9884
                                       FAX (877) 904-6846
                                       mandy@mandymillerlegal.com




                                          25
                          CERTIFICATE OF SERVICE

      Appellant has mailed a copy of the foregoing instrument to counsel for the

State of Texas at the following address:

Rico Valdez
Bexar County District Attorney’s Office
101 W. Nueva, Fl. 4
San Antonio, Texas 78205
                                       /s/MANDY MILLER
                                       Attorney for Matthew Douglas Hayes
                                       2910 Commercial Center Blvd., Ste. 103-201
                                       Katy, TX 77494
                                       SBN 24055561
                                       (832) 900-9884
                                       FAX (877) 904-6846
                                       mandy@mandymillerlegal.com



Date: March 20, 2015




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