                                   HHH-IS
                          NO. 11-14-00341-CR                           ... Irvp J?LEC£IVED IN
                                                                       COURT OF CRIMINAL APPEALS

ORIGINAL                                                                     NOV 2020.5
                                    IN   THE
                                                                         Abel Acosta, Clerk
                      COURT   OF   CRIMINAL          APPEALS


                              AUSTIN,        TEXAS




ANTHONY DON JACKSON                      §

VS.                                      §      TRIAL COURT NO.          CR42226

THE STATE OF TEXAS                       §



               PETITION    FOR     DISCRETIONARY            REVIEW

                                                                              FILED
                                                                    COURT OF CRIMINAL APPEALS
                                                                                   £ 0 Lit id


                                                                        Abel Acosta, Clerk




                                             Anthony Don Jackson            #1955206
                                             Dalhart       Unit
                                             11950    FM    998
                                             Dalhart,       Texas   79022
                                  TABLE   OF   CONTENTS


Table    of   Contents                                                       i

Table    of   Authorities                                                   ii

Statement of Oral          Aurgument                                    iii

Statement of the Case                                                       iv

Statement of Procedural History                                             iv

Grounds       for   Review:


   Ground No. 1: The trial court erred in failing to conduct a
                 hearing on Appellant's Motion for New trial....1

   Ground No.         2: Defendant was not afforded the right to a
                          fair trial                                        ,3

   Ground No. 3: Ineffective assistance of counsel during
                          trial and on appeal                                3

   Ground No.        4:   The evidence is legally insufficient to
                          support the Appellant's conviction                 7

Statement of Facts                                                           y

Arguments and Authorities:

   Ground No.        1: The trial court erred in failing to conduct
                        a hearing on Appellant's Motion for New Tv.' -. ±
                          Trial                                         2,3:

   Ground No. 2: Appellant was not afforded the right to a              .:
                 fair trial                                                  3

   Ground No. 3: Ineffective assistance of counsel at trial
                 and on appeal                              ..4,7

   Ground No. 4: The evidence is legally insufficient to
                 support the Appellant's conviction                  7„8,9
Prayer                                                                       q

Certificate ofrService




                                           -l-
                                  TABLE    OF   AUTHORITIES




Adames    v.    State                                                                                7

Brady v. United States,             357 U.S.,       90 S.Ct.       1463                              5

Brooks v. State,          323 S.W.3d 893,          899 (Tex. Crim.          App.    2010)

                          (pularity op.)                                                       .. .8

Chambers v. State,          805 S.W.2d 459,            461 (Tex. Crim.           App.    1991)..8

Evans,    690 S.W.2d'276-277                                                                         5

Hobbs v. State,          298 S.W.3d 193, 199 (Tex.                Crim. App.       2009)             1

Hooper v. State,          214 S.W.3d 9, 13 (Tex. Crim App.                   2007)                   8

Jackson v. Virginia,          443 U.S.          307 (1979)                                      7,8

Jonhson v. State,          712 S.W.3d 6 (Tex.             Crim.    App.-Austin 2005)

                           pet.    ref'd                                                             5

King v. State,          29 S.W.3d 556,          562 (Tex. Crim. App.             2000)..             8

Matlock v. State,          392 S.W.3d 662,          667 (Tex. Crim.          App.       2013)...7

Mooney,    817 S.W.2d at 693,             697 (Tex.       Crim.    App.)                             3

Perez v. State, 310 S.W.3d 890,                   893,    893 (Tex.       Crim. App.       2010)4

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2010)...4

Smith v.       State,    286 S.W.3d 333,         339 (Tex.        Crim.    App.    2009)             1

Strickland v.       Washington,       466 U.S.         668,   687,   688,    689,       694;   104

                                      S.Ct.       2052,    80 L.Ed.2d 674 (1984)..3,4

Exl.parte Walker,         794 S.W.2d 36          (Tex.    Crim.    App.    1990)                     5

Wise v. State,          364 S.W.3d 900,         903 (Tex. Crim.           App.    2012)              8

                                           STATUTES


Texas Penal Code, §22.01 (a )(1) (b) (2 )(A) (West 2014)                                             v




                                                -li-
                   STATEMENT   OF    ORAL   ARGUMENT




Oral argument waived.




         uted on this the   \j^     day of November,   2015.


                                            Respectfully submitted,



                                      Anthony Don Jackson #1955206
                                      Dalhart Unit
                                      11950 FM 998
                                      Dalhart, Texas   79022




                                  -in-
                       STATEMENT      OF   THE   CASE


     The Appellant was      indicted for the offense of assault

family violence with a prior.        After he was convicted,        the State

filed a Notice of Enhancement alleging 3 prior felony convictions

and he was sentenced to twnety-five years in the institutional

Division of the Texas Department of Crimnal Justice.



                  STATEMENT    OF   PROCEDURAL     HISTORY

     The Eveventh Court of Appeals reviewed Defendant's appeal

from the 441st   District   Court.   On October 15,       2015   the Court of

Appeals affirmed the trial courts decision.             There was no motion

for rehearing filed.




                                                                                "7

                                      -IV-
                          STATEMENT   OF   FACTS


     Anthony Don jackson was indicted for the felony offense of

assault family violence with a prior conviction. Tex.       Pen. Code

§22.01(a)(b)(2)(A)(West 2014.)     [CR-7]. On April 22, 2014 a jury

returned a guilty verdict.    [CR-25]. The Appellant requested his

attorney file the papers so the punishment would be assessed by

jury. Trial counsel failed to file a timely motion for the

sentencing phase of the trial,    prior to punishment phase of          r:.

trail,    the State filed a Notice of Emhancemerit.   [CR-40].   As a

result,   Appellant was facing a sentence of 25 years to life.

Before trial Appellany expressed his dissatisfaction with the way

his court appointed counsel was handling his case,       ans asked that

new counsel be appointed.    After several failed attempts to get

new counsel for trial purposes,       one was finally appointed for the

sentencing phase of trial.    After the sentencing hearing,      the

Appellant:.filed a Motion for New Trial and requested a hearing.

[CR-83]. The trial court set the Motion for hearing, but instead

of conducting the hearing,    the court denied by written order the

Motion for New Trial.    [CR-87-88]. Appellant filed his Notice of

Appeal.    [CR-83].




                                   -v-
                             ARGUMENTS    AND    AUTHORITIES




GROUNDS    FOR   REVIEW:


       GROUND NO.      1: The trial court erred in failing to conduct

                             a hearing on Appellnat's Motion            for New

                             Trial.




                                STANDARD OF REVIEW

       A trial    court's denial         of a   Motion    for New    trial    is reviewed

for abuse of discretion;              a reversal    is   required only if the

decision to deny the hearing was so clearly wrong as to lie

outside the zone within which reasonable persons might disagree.

Smith v. State,        286 S.W.3d 333,          339 (Tex. Crim.      App.    2009).      The

purpose of a hearing on a Motion for New trial are (1) to J-                               v•i

determine whether the case should be retried and (2) to prepare

a record for presenting issues on appeal if the motion id denied.

Id.   at 388.    A hearing on a Motion for New Trial is not an:ui

absolute right.        Id.   A hearing on a Motion for New Trial is not

required when the matters raised in the Motion for New Trial are

subject to being determined from the record.                   Id.    However,     a trial

court abuses its discretion in failing to hold a hearing if the

Motion    :(1<) - raises   matters     that are not      determinable       from   the

record,    and (2) establish reasonable grounds showing the                         -. .;.ir.

Defendant could potentially be entitled to relief.                      Hobbs v.

State,    298 S.W.3d 193, 199 (Tex. Crim. App. 2009)




                                           -1-
                              ARGUMENT

        On October 17, 2015 the Appellant filed a Motion for New

Trial. He claimed ineffective assistance of counsel. He alleged he
was denied effective assistance of counsel both pre-trial and during
trial. Counsel failed to advise him of the proper punishment range,
prior to trial.Counsel informed Appellant prior to trial of a punish
ment range of 25-99 years, not the 2-20 he told the jury of. Counsel
failed to inform him of his right to be sentenced by the jury. Counsel
failed to inform the judge that Appellant requested to be sentenced
by the jury.

        On October 18, 2014 the trial court signed an order setting
the Motion for a hearing on November 21,2014 at 1:30 PM.. On October
23, 2014 the trial court signed an order denying the Motion for a new
trial. This trial court never held or conducted a hearing.
        This court erred in not conducting the hearing and in denying
the Motion for a New Trial. A hearing was necessary to prepare a
record for the issue of ineffective assistance of counsel.And additional

evidence was necessary to prepare the record if the court were to deny
the claim of ineffective assistance of counsel. The trial court abused

it s discretion because the claim of ineffective assistance of counsel

was not determinable from the record, and the hearing was necessary
in order for the Appellant fcp- establish reasonable grounds showing
that he could be potentially entitled to relief.

        A Motion for New Trial is pre-requisite to presenting a

point of error on appeal only when necessary to adduce facts not

in the record. When a material witness has been kept from court




                               -2-
by force,   threats, or fraud or when evidence tending to establish

the Defendant's innocence has been intentionally destroyed or

withheld,   thus preventing its production at trial.



     GORUND NO.   2: Appellant was not afforded the right to a fair

                     trial .




                               ARGUMENT


     Appellant's witnesses,    Norman Banks, Fredrick Henry, and

Nancy the defense counsel's private investigator,         was never ..

called to testify on Appellant's behalf. Trial attorney failed to

inform them that they would be needed to testify in Appellant's

behalf. Trial attorney failed to cross-examine the arresting

officer.

     During the instruction to the jury,         the District Attorney

informed the jury of prior convictions of Appellant.         Thorough

investigation was detrimental    in proving Appellant's innocence,

with the video survelance from the store where alleged incident

occurred. See Mooney, S.W.2d at 693, 697 (Tex. Crim. App.).


     GROUND NO. 3: Ineffective assistance of counsel during trial
                    and on appeal.




                        STANDARD   OF   REVIEW

     Strickland v. Washington, defines the components required
show ineffective assistance of counsel 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two required components




                                   -3-
are a performance conponent and a prejudice component.                    Id.   First

the Defendant    must      show that counsel's performance was deficient,

which requires a showing that counsel made errors so serious- that

counsel was not functioning at               the counsel guaranteed by the 6th

Amendment.    Perez   v.    State,    310 S.W.3d 890,     892,   93   (Tex.   Crim.

App. 2010). To satisfy this prong of the analysis,                    the Defendant

"must show that counsel's representation fell below an objective
standard of reasonableness" based upon "professional norms".

Strickland, 466 U.S. at 688. For this performance inquiry, we

consider all circumstances with "a strong presumption that

counsel's conduct fell within the wide range of reasonable

professional assistance."            Id.   at 688-89.

     Second,    the Defendant         must   show that counsel's      deficient

performance prejudiced the defense.              Perez,   310 S.W.3d at 893.

This requires the Defendant to show that counsel's errors "were

so serious as to deprive the Defendant of a fair trial, a trial

whose result is reliable." Id. (Strickland, 466 U.S. at 687). To

satisfy this element, the "Defendant must show that there was a

reasonable probably that, but for the counsel's unprofessional
errors,   the result of the proceeding would have been different."

Id. (Strickland, 466 U.S. at 694). The Defendant has the burden
of proving ineffectiveness by a preponrdeance of the evidence. Id.
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).


                                      ARGUMENT


             Trial counsel informed Appellant that he had arranged a
     6 year plea bargain during the lunch break on the day of



                                                -4-
trial.    Defendant also was misled by trial counsel             into believing

that he was facing a punishment range of 25-99 years until one of

the jurors asked the punishment range for that type of offense.

Counsel failed to inform him that he had a right to be sentenced

by a jury. Trial attorney failed to inform the judge of his

request of being sentenced by a jury,              because he never intended

for the jury to impose a sentence. He had a 6 year plea bargain
already in place with the District Attorney without Appellant's
knowledge. Trial counsel failed to call witnesses, Norman Banks,
Fredrick Henry, store clerk at the time of the Incident, and the
investigator for the defense who informed the Defendant of a

video    that   would   show   this   incident   never   occurred.


        Trial counsel failed to file a timely motion for the jury to

assess punishment.        (Ex parte Walker,       794 S.W.2d 36,     (Tex. Crim.

App. 1990), Johnson v. State, 172 S.W.3d 6 (Tex. Crim. App.-
Austin 2005) pet.        ref'd.

        Jackson responds that the statute should apply retroactively
because he entered his refusal to take the stand on his behalf,
without being informed of the devastating consequences of his
refusal. His contention is that because he was not informed of
the relevant refusal. consequences before his refusal, and his
refusal was involutary. See Brady v. United States, 397 u.S. 742,
90 S.Ct. 1463. Erroneous advise of an attorney and/or judge.
Evans,    690 S.W.2d,     276-277.

        Trial counsel did not subpeona any medical records/of
alleged victims injuries. Trial counsel did not get the phone
records from the jail where Mr. Jackson was held, where she'



                                          -5-
threatened to pay him back.              Alleged victim had existing knee

injury with same leg. It was even admited during trial.

     Trial     counsel     did   not   ask,    under   cross-examination,          of   the

arresting officer and the alleged victim any questions provided

by Appellant.

     Defense counsel has a duty to conduct a thorough independent
investigation of the facts of the crime alleged against his
client. Regardless of the clients representations. The express
purpose of the required investigation is to enable defense

counsel   to   have   a   firm   command      of   the facts   of   the    case   and

governing law. By not producing the video from the store where

the incident occurred,           he did not provide a thorough

investigation.

     Effective    assistance        of   counsel     is   essential       to   assure

defendants fundamental rights to a fair trial,                      because it's

through counsel that a defendant's other rights are secured and

the prosecutions case is subjected to meanful adversarial testing.




     Appellate counsel filed a Motion for New Trial on October 17,

2014. This Motion was notarized on October 17, 2014. Appellant ••:
was not aware of the contents of this Motion, and was not present
when this Motion was notarized because he was already in TDCJ,
but he does acknowledge signing                a paper without any Motion
attached, and without any notary present. Records will show that
he was already incarcerated in TDCJ.

     Appellate counsel was informed of trial counsel refusal to
bring to light evidence and/or witnesses which may have proven

his innocence beyond a reasonable doubt.           Evidence such as video

of the incident,    defense investigator's report,        medical records,

phone records,    trial records showing where trial attorney :•.'..-

admitted to judge of him not informing Appellant of his right to

have punishment assessed by the jury. Witness not called were

Norman Banks,    Fredrick Henry,   the store clerk at the time of the

incident, and the defense attorney's investigator.



     GROUND 4: The evidence is legally insufficient to support

                 the Appellant's conviction.



                          STANDARD   OF   REVIEW


     The court reviews sufficiency of the evidence under the

standard set out in Jackson v. Virginia,           443 U.S.   307 (1979).

Matlock v. State,    392 S.W.3d 662,      667 (Tex.   Crim. App.   2013).

The court examines all the evidence in the light most favorable

to the verdict and determine whether any rational trier of fact

could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d

at 667. This standard recognizes "the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319; See also Adames v.
State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011. The jury, as
the fact finder, is entitles to judge the credibility of the
witnesses, and can choose to believe all, some, or none of the



                                     -7-
testimony presented by the parties.             Chambers v. State,   805 S.W.

2d 459,   461   (Tex.   Crim.   App.   1991);   See also Wise v. State,   364

S.W.3d 900,     903 (Tex. Crim. App.       2012)   ("the factfinder ca ;....

exclusively determines the weight and credibility of the ^v:l.o'•-• j; ;:

evidence."). The court defers to the jury's determinations of

credibility, and may not substitute our judgment for that of the
jury. Jackson.,    443 U.S. at 319;      Brooks v. State,    323 S.W.3d 893

,899 (Tex. Crim. App. 2010)9plurality op.); King v. State, 29

S.W.3d 556,     562 (Tex. Crim. App.      2000).   "Circumstantial evidence

is as probative as direct evidence in establishing the guilt of

an actor,   and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State,          214 S.W.3d 9, 13 (Tex.     Crim.

App. 2007). Evidence is sufficient if "the inferences necessary
to establish guilt are reasonable based upon the cumulative force

of all the evidence when considered in the light most favorable

to   the verdict."   Wise,   364,   S.W.3d at    903.




                                    ARGUMENT


       The evidence was legally insufficient due to the fact no

medical records were entered into evidence to show that the

injuries were consistent with Mrs. Hoyles testimony. The pictures
which were entered into evidence by the District Attorney were
blurry and inconclusive as to the injury, and the date in which

it may have occurred. Mrs. Hoyle has a mentally disabled son who
has a pattern of acting out physically violent when trying to
perform day to day activities, such as getting him dressed. Mrs.
Hotle has admitted to having problems with her leg prior to this
incident.

     Because officer Robert's failure to do a thorough

investigation he was unable to obtain evidence of a video from

the store where the incident ocurred.      The evidence is        insufficient

to sustain a guilty verdict. The Appellant requests this.court

reverse the jury's decision and render a judgment of acquittal.


                              PRAYER


     As Appellant is not a legal expert, and does not have legal
knoledge, he prays that the court reverse the decision made by ;
the Court of Appeals,   and remand this case for a New Trial.

Appellant prays for such other and further relief to which he may

be entitled to at   law and equity.




     Executed on this the   \ j   day of November,        2015.



                                        Respectfully submitted,




                                   Anthony Don Jackson           #1955206
                                   Dalhart      Unit
                                   11950   FM    998
                                   Dalhart,      Texas   79022




                                  -9-
Opinion filed October 15, 2015




                                       In The



        eietoentj) Court of Appeals!
                                 No. 11-14-00341-CR



                  ANTHONY DON JACKSON, Appellant
                                          V.

                     THE STATE OF TEXAS, Appellee



                     On Appeal from the 441st District Court
                                 Midland County, Texas
                          Trial Court Cause No. CR42226



                      MEMORANDUM                OPINION

       The jury convicted Anthony Don Jackson of felony assault of a member of his
household (assault-family violence) with a prior conviction of felony assault of a
member of his household. The State alleged three enhancement paragraphs that it
intended to prove during the punishment phase of trial; Appellant pleaded "not true"
to all of them. The trial court found that all enhancement allegations were "true,"
andit assessed punishment at confinement fortwenty-five years anda fine of $5,000.
The trial court then sentenced Appellant.              Appellant asserts a challenge to the
sufficiency of the evidence. Appellant also complains that the trial court erred when
it did not hold a hearing on his motion for new trial and when it denied that motion.
We affirm.

                                     I. The Charged Offense
       The grand jury indicted Appellant for the third-degree felony of assault of a
family or household member, Evelyn Hoyle. The grand jury alleged that Appellant
struck her with his hands, that he slammed a car door on her leg or legs, and that he
hada priorconviction of felony assault against a family or household member.1 Tex.
Penal Code Ann. § 22.01(a)(1), (b)(2)(A) (West Supp. 2014); Tex. Fam. Code
Ann. § 71.005 (West 2014). "Household" means a unit composed of persons living
together in the same dwelling, without regard to whether they are related to each
other. Fam. § 71.005. The range of punishment for felony assault of a member of
a household, where the defendant has two prior felony convictions, is confinement
for a term of life or a term of not more than ninety-nine years or less than twenty-
five years. Penal § 12.42(d).
                                       II. Evidence at Trial

       Hoyle, who lives in Midland, testified that she and Appellant were in a dating
relationship and that she lived with Appellant at the time of the incident. She said
that she had thought about ending her relationship with Appellant. One August
evening, Hoyle drove Appellant to a Stripes convenience store in Midland County.2
While in the parking lot of that store, Hoyle told Appellant that she wanted to end
their relationship. Hoyle explained that Appellant did not say anything and that he

      'The grand jury also alleged in an additional enhancement paragraph that Appellant had a prior
DWI conviction. Additionally, the State filed a notice of its intent to enhance Appellant's punishment
pursuant to Section 12.42(d)of the Penal Code.

         2Hoyle testified that she had driven Appellant around town for several hours so he could visit
friends. During this time, Appellant drank alcohol in the car all day and into the evening.
                                                   2
looked like he was in deep thought. When she asked him to get out of her car, he
just sat there. She got out of her car and went to the passenger side, opened the front
passenger door, and told Appellant to get out. Appellant got out of the car and then
assumed what Hoyle described as a "boxing stance"; he raised up his clenched fists
toward her.

      Hoyle asked Appellant if he was going to fight her, but he never responded.
Hoyle said that she never hit Appellant. Hoyle walked back around the car to the
driver's side and sat in the driver's seat. Although Hoyle sat down in the driver's
seat of her car, she did not shut the door, and her left leg was in between the car door
and car frame. At that time, Appellant walked around the car and slammed the door
into her leg; he slammed it three times into her leg. During this time, Appellant
never said a word; Hoyle said that Appellant was not mistaken as to whether Hoyle's
left leg was outside her car.
       Hoyle knew that she needed to leave because her mentally handicapped adult
child was in her car. Hoyle had the driver's side window rolled down, and Appellant
punched her on the left temple of her head with his closed fist. Hoyle testified that
her leg swelled and hurt after Appellant slammed the door on her leg. She also
testified that her head hurt after he hit her on the head. At the time of trial, it was

still necessary for Hoyle to wear compression socks and to use a cane. Hoyle
continued to have trouble with her left knee, and she continued to suffer from
headaches.

       Hoyle said that a man walked past her car as the altercation occurred at the
store and that he stood between Appellant and the car. The man told her to leave.
Hoyle drove away from the parking lot, and she went to her daughter's place of
employment to tell her daughter about what Appellant had done. Hoyle then went
home and called the police. The police went to Hoyle's home and interviewed her;
the police also took photographs of her injuries. The photographs showed some
                                            3
bruises on her leg and a faint red spot on her head. Hoyle later went to the emergency
room.


        Bradley Randall Robertson is a certified peace officer with the Midland Police
Department. He responded to Hoyle's residence after she called the police. When
he arrived, Officer Robertson saw Appellant in the front yard on a swing. Appellant
was unconscious. He was "disheveled"; his clothes were "messed up"; and he had
a strong odor of alcohol. When Officer Robertson awakened him, Appellant did not
speak to Officer Robertson. Officer Robertson asked Appellant to remove his hands
from his pockets so that the officer could determine whether Appellant had a
weapon. Appellant refused several verbal commands, but eventually showed Officer
Robertson his hands. A backup officer arrived on scene, and Officer Robertson
handcuffed Appellant. After Officer Robertson spoke with Hoyle, he determined
that Appellant had committed an assault on Hoyle and that Hoyle was a member of
Appellant's household. Officer Robertson referred to the offense as assault-family
violence.

                              III. Discussion and Analysis
        Appellant asserts that the evidence was insufficient to convict him of assault
of a member of his household because Hoyle's testimony was not credible.
Appellant also asserts that the trial court erred when it did not hold a hearing on his
motion for new trial and then denied that motion for new trial.

        A. Issue One: Sufficiency ofthe Evidence
        We review the sufficiency of the evidence under the standard of review set
out in Jackson v. Virginia, AA3 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—
Eastland 2010, pet. ref d). Under the Jackson standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
                                           4
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). The trier of fact is the sole judge ofthe weight and credibility ofthe evidence.
Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319, 326). A reviewing
court may not reevaluate the weight and credibility of the evidence and substitute its
own judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). The reviewing court must presume that the factfinder resolved
any conflicting inferences in favor of the prosecution and defer to that resolution.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      Hoyle testified that she lived with Appellant. She also testified that Appellant
struck her on the left temple of her head and that he slammed the car door on her left
leg three times. Police took photographs of her injuries, and the photographs were
in evidence at trial. Further, Officer Roberston described the injuries that were
depicted in the photographs. Hoyle went to the emergency room and medical staff
there treated her for bruises. As we have noted, Hoyle suffered bruises and, since
the assault, has also suffered from recurrent headaches. She also has had to wear
compression socks on her left leg and has had to use a cane. Appellant argues that
Hoyle was not a credible witness. However, the jury was the arbiter of the disputed
facts and was free to believe Hoyle's testimony. Appellant did not testify, but he
stipulated that he had a prior conviction for felony assault of a family member or
member of his household. We hold that there was sufficient evidence for the jury to
find beyond a reasonable doubt that Appellant had committed the offense of felony
assault of a member of his household with one prior felony conviction for the same
offense. We overrule Appellant's first issue.
      B. Issue Two: Denial ofHearing on Motion for New Trial and Denial
          ofMotion for New Trial

      We note at the outset that Appellant's second complaint on appeal is not one
in which he argues that his counsel was ineffective. Ineffective assistance was the
subject of his motion for new trial. Appellant's second complaint, nonetheless, has
two parts. He complains in the first part that the trial court failed to hold a hearing
on the motion for new trial. The second part of Appellant's complaint is that the
trial court denied his motion for new trial.

             1. Appellant 's Motionfor New Trial
      Appellant asserted in his motion for new trial that he received ineffective
assistance of counsel prior to trial and at trial. Appellant was to receive a six-year
sentence from the court, as part of an agreement not to appeal, if the jury found
Appellant guilty. But after trial, Appellant rejected the agreement because he wanted
to appeal his conviction. Appellant was represented by counsel prior to trial as well
as during trial and after trial. After Appellant filed his motion for new trial, the trial
court denied Appellant's request for a hearing and also denied Appellant's motion
for new trial.

                 2. Denial ofRequestfor Hearing on Motionfor New Trial
       We review a trial court's denial of a hearing on a motion for new trial under
an abuse of discretion standard. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim.
App. 2009). We will only reverse if the decision to deny a hearing was so clearly
wrong as to lie outside the zone of reasonable disagreement. Id. The purposes of a
hearing on a motion for new trial are (1) to determine whether the case should be
retried and (2) to prepare a record for presenting issues on appeal if the trial court
denies the motion. Id. at 338. A hearing on a motion for new trial is not an absolute
right. Id. A hearing is not required when the matters raised in the motion for new
trial can be determined from the record. Id. However, a trial court abuses its
discretion by failing to hold a hearing if the motion and accompanying affidavits (1)
raise matters that are not determinable from the record and (2) establish reasonable
grounds showing the defendant could potentially be entitled to relief. Hobbs v. State,
298 S.W.3d 193, 199 (Tex. Crim. App. 2009).
      Appellant asserted in his motion for new trial that defense counsel failed to
inform him of "plea offers" and ranges of punishment. Appellant also claimed that
his counsel never told him that he could elect to have a jury assess his punishment.
Appellant further claimed that defense counsel erred when counsel failed to call
witnesses, includingAppellant. To be entitled to a hearing on a motion for new trial
with respect to an ineffective-assistance-of-counsel claim, a defendant "does not
have to plead a prima facie case, but he must at least allege facts that show
reasonable grounds to believe that he could prevail under both prongs" of the
Strickland test. Smith, 286 S.W.3d at 338; see Strickland v. Washington, 466 U.S.
668,686(1984).
      The Strickland test has two prongs: (1) a performance standard and (2) a
prejudice standard. Strickland, 466 U.S. at 687. For the performance standard, a
defendant must show that counsel's representation fell below an objective standard
of reasonableness. Id. at 688. For the prejudice standard, a defendant must show
that there is a reasonable probability that the outcome would have differed but for
counsel's errors. Wiggins v. Smith, 539 U.S. 510, 534 (2003); Strickland, 466 U.S.
at 693-94; Andrews v. State, 159 S.W.3d 98, 102(Tex. Crim. App. 2005). Appellant
did not attach an affidavit to his motion for new trial; instead, he attached a
verification to the motion. But the motion did not adduce evidentiary facts there
were outside the record. Appellant's arguments failed to demonstrate what outside
evidence indicated that defense counsel's performance was deficient; he also failed
to outline how any alleged deficiency prejudiced his defense. See Strickland, 466
U.S. at 689-92. Appellant did not adduce facts outside ofthe record that would have
                                           7
put the trial court on notice that a hearing on his alleged ineffective-assistance-of-
counsel claim was necessary. A trial court need not hold a hearing if the trial court
can determine the merits ofthe motion by a review ofthe record. Smith, 286 S.W.3d
at 338. Having reviewed the record, we hold that the trial court did not abuse its
discretion when it denied Appellant's request for a hearing on Appellant's motion
for new trial.

                 3. Denial ofMotionfor New Trial
       We review the trial court's denial of the motion for new trial under an abuse

of discretion standard. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App.
2007). Appellant never adduced any evidence that there were other plea offers by
the State, and he never stated that he would have accepted a plea offer had one been
communicated to him. As to punishment, Appellant was aware of the range of
punishment because Appellant wrote to the trial court, prior to the punishment phase
oftrial, and asserted that the range ofpunishment was incorrect. Appellant also does
not explainhow his failure to file an election for the jury to assess punishmentwould
have changed the outcome of the punishment phase. See Tex. Code Crim. Proc.
Ann. art. 37.07, § 2(b) (West Supp. 2014). Appellant received the lowest sentence
possible in the range of punishment. Appellant also does not identify which
witnesses should have been called or what they would have said that would have
been exculpatory. Appellant was advised at trial about the perils or danger that
would be involved if he testified in his own defense. Appellant chose not to testify
because of his prior criminal history, which would have been admissible as part of
any cross-examination in both the guilt and punishment phases.            Appellant's
assertions were nothing more than conclusory statements without explanation on
how evidence, not in the record, would have shown that he was potentially entitled
to relief. See Hobbs, 298 S.W.3d at 199. The trial court did not abuse its discretion
when it denied Appellant's motion for new trial without a hearing. We overrule
Appellant's second issue.
                                   IV. Conclusion

      We have reviewed the record, and there was sufficient evidence that Appellant
intentionally or knowingly caused bodily injury to a member of his household,
Evelyn Hoyle, when he struck her with his hand and slammed a car door on her left
leg. Accordingly, we hold that the evidence was sufficient for a rational jury to find
beyond a reasonable doubt that Appellant was guilty of the offense of felony assault
on a member of his household. We also hold that the trial court did not abuse its

discretion when it denied Appellant's request for a hearing on the motion for new
trial and ultimately denied the motion for new trial. As a result, we have overruled
both of Appellant's issues.
                                V. This Court's Ruling
      We affirm the judgment of the trial court.




                                               MIKE WILLSON

                                               JUSTICE




October 15,2015

Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
