                                                                                         ACCEPTED
                                                                                    13-14-00044-CR
                                                                      THIRTEENTH COURT OF APPEALS
                                                                            CORPUS CHRISTI, TEXAS
                                                                              1/12/2015 11:41:03 AM
                                                                                   DORIAN RAMIREZ
                                                                                             CLERK

                              NO. 13-14-00044-CR

                     IN THE COURT OF APPEALS FILED IN
                                     13th COURT OF APPEALS
                                  CORPUS CHRISTI/EDINBURG, TEXAS
          THIRTEENTH COURT OF APPEALS    DISTRICT
                                     1/12/2015 11:41:03 AM
                                       DORIAN E. RAMIREZ
                 CORPUS CHRISTI, TEXAS        Clerk
            _________________________________________________

                                 JOHN HALL
                                              Appellant,
                                     vs.

                          THE STATE OF TEXAS,

                                              Appellee,
            _________________________________________________

                 ON APPEAL FROM CAUSE NO. 36772 IN
                 THE 66TH JUDICIAL DISTRICT COURT
                      OF HILL COUNTY, TEXAS
________________________________________________________________________

              BRIEF FOR THE STATE OF TEXAS
_______________________________________________________________________


                                              Mark F. Pratt
                                              District Attorney
                                              Hill County, Texas
Oral Argument is requested.
                                              Nicole M. Crain
                                              Assistant District Attorney
                                              State Bar No. 24034548
                                              Post Office Box 400
                                              Hillsboro, Texas 76645
                                              (254) 582-4070
                                              FAX (254) 582-4036
                                               ncrain@co.hill.tx.us




                                      i
                  TABLE OF CONTENTS
                                                 Page

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

Statement of the Case…………………………………………………………........2

Issue Presented…………………………………………………………….……….2

Statement of Facts…………………………………………………………….....…2

Summary of Argument………………………………………………..……………2

Argument and Authorities……………………………………………………….…3

Conclusions and Prayer…………………………………………….…….….……..6

Certificate of Compliance……………………………………………………..……6

Certification of Service……………………………………………………..……....7




                          ii
                      INDEX OF AUTHORITIES

STATUTES:                                                       PAGE

Tex. R. App. Pro 21.4 (Vernon 2009)……………………………………………...5

Tex. R. App. Pro. 33.1 (Vernon 2009)………………………………………….4, 5

CASES

Bumpus v. State, 509 S.W.2d 359 (Tex. Crim. App. 1974)………………………...3

Cabala v. State, 6 S.W.3d 543 (Tex. Crim. App. 1999)……………………………5

Powell v. State, 304 S.W.3d 630 (Tex. App. - Beaumont 2010)…………………...3

Reyes. v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993)………………………….3

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




                                  iii
                                NO. 13-14-00044-CR

                       IN THE COURT OF APPEALS
          THIRTEENTH COURT OF APPEALS DISTRICT
                         CORPUS CHRISTI, TEXAS
              _________________________________________________


                                    JOHN HALL
                                                      Appellant,
                                          vs.

                               THE STATE OF TEXAS,

                                                      Appellee,
              _________________________________________________

               ON APPEAL FROM CAUSE NO. 36772 IN
               THE 66TH JUDICIAL DISTRICT COURT
                     OF HILL COUNTY, TEXAS
 _________________________________________________________________

                 BRIEF FOR THE STATE OF TEXAS
 _________________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF

APPEALS:

      COMES NOW the State of Texas, in the above referenced matter and files

this it’s brief in response to the brief filed by John Hall seeking reversal of the

judgment of the trial court.




                                           1
                          STATEMENT OF THE CASE

      The State is not dissatisfied with the Appellant’s Statement of the Case.

                               ISSUE PRESENTED

      The State is not dissatisfied with the recitation of the Issue Presented.

                            STATEMENT OF FACTS

      The State is not dissatisfied with the Appellant’s Statement of Facts.

                          SUMMARY OF ARGUMENT

      Evidence of bankruptcy was not presented to the trial court, and therefore

the trial court was not given the opportunity to rule on its admissibility, which can

be determined from the record. Therefore the trial court did not abuse its

discretion by denying a hearing on the motion for new trial.

      The appellant raises for the first time on appeal the issue of whether the trial

court should have granted a hearing on the motion for new trial to determine the

principal motivation of the prosecutor in prosecuting the case. The issue was not

timely filed for consideration by the court, nor is the principal motivation test one

that has been found to be applicable in the State of Texas. Therefore the trial court

did not abuse its discretion in denying a hearing on the motion for new trail.




                                          2
                       ARGUMENT AND AUTHORITIES

                                        Issue

      Did the trial court abuse its discretion by failing to hold an evidentiary

hearing on the appellant’s motion for new trial?

                                 Standard of Review

      When a trial court denies a hearing on a motion for new trial, the decision is

reviewed under an abuse of discretion standard. Powell v. State, 304 S.W.3d 630,

634 (Tex. App. - Beaumont 2010); Reyes. v. State, 849 S.W.2d 812, 815 ( Tex.

Crim. App. 1993).

                               Response to Argument

      As there was not any evidence that the defendant filed for bankruptcy

offered before the trial court at the trial on the merits, no error was committed by

the trial court, which can be determined from the record. Therefore, it was not an

abuse of discretion to deny a hearing on the motion for new trial. A hearing on a

motion for new trial is not an absolute right. Bumpus v. State, 509 S.W.2d 359,

363 (Tex. Crim. App. 1974); Reyes. v. State, 849 S.W.2d 812, 815 (Tex. Crim.

App. 1993). While a hearing is critical if matters cannot be determined from the

record, when they can be determined from the record or the defendant does not

establish the existence of reasonable grounds for relief, a hearing is not required.

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


                                          3
trial in this case complains that the trial court erred in excluding evidence that the

debt in question had been discharged in bankruptcy. (C.R. at 40). To preserve a

complaint for appellate review the record must show that a complaint was made to

the trial court by timely request, objection, or motion that stated the grounds for the

ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, that the complaint

complied with the rules, and that the court ruled on the objection or motion

expressly or implicitly or refused to rule, and the complaining party objected to the

refusal to rule. Tex. R. App. Pro. 33.1 (2013). In this case, the state filed a motion

in limine requesting that the defense approach the bench prior to offering any

testimony regarding bankruptcy. (C.R. at 12). The court held a hearing on the

state’s motion in limine, ultimately granting the motion in limine, stating: “From a

motion in limine standpoint, I’ll grant it. As the evidence comes out, I’m certainly

willing to revisit with you.” (II R.R. at 103-108). When the appellant was

testifying, he began to state that he was in the process of.., at which time the state

objected. (III R.R. at 185). Counsel approached the bench, and appellant’s

counsel agreed to rephrase the question, without interaction from the court. The

court asked whether counsel required the court, to which the defense again

responded that they would rephrase the question. (III R.R. at 185-186). Therefore,

no request was made to the trial court to offer the bankruptcy testimony, nor was


                                           4
the trial court requested to make a ruling, therefore there was no error shown in the

record. Tex. R. App. Pro. 33.1. As the issue raised in the motion for new trial

was determinable from the record, and the motion for new trial did not establish

reasonable grounds for relief as no complaint was preserved for appeal, the trial

court did not abuse its discretion in denying a hearing on the motion for new trial.

      The appellant states that a hearing on the motion for new trial should have

been granted to determine the state’s principal motivation for filing the case, be it

to collect a debt or prosecute a crime. Motions for new trial and amendments to

those motions must be presented within 30 days after the trial court imposes or

suspends sentence in open court. Tex. R. App. Pro. 21.4. The appellant raises the

principal motivation issue as a ground for hearing on the motion for new trial for

the first time on appeal to which the State objects.

      In addition, the principal motivation test is part of the concurring opinion in

Cabala v. State to which the majority responds in footnote 5 that the principal

motivation test has little if any value in deciding whether bankruptcy has an effect

on restitution in a proven criminal case, and that determining the subjective

motivations of the prosecutor, defense attorney, victim, or trial court would be

extremely difficult if not impossible to carry out. Cabala v. State, 6 S.W.3d 543,

549, fn5 (Tex. Crim. App. 1999). Therefore the principal motivation test is not an




                                          5
issue timely filed for hearing on the motion for new trial, nor is it a test given

application by the Court of Criminal Appeals in Texas.

                          CONCLUSION AND PRAYER

      For the reasons herein alleged, the State prays that this Court uphold the

judgment of the trial court.

                                               Respectfully Submitted,

                                               /s/ Nicole M. Crain

                                               Nicole M. Crain
                                               State Bar No. 24034548
                                               Assistant District Attorney,
                                               Hill County, Texas
                                               Post Office Box 400
                                               Hillsboro, Texas 76645
                                               (254) 582-4070
                                               Fax: (254) 582-4036
                                               ncrain@co.hill.tx.us
                                               Attorney for Appellee


                       CERTIFICATE OF COMPLIANCE

      I certify that the word count on the computer shows the number of words
included in the brief to be 804, excluding the parts of the brief exempted by
Tex.R.App.P. 9.4(e).


                                               /s/ Nicole M. Crain
                                               Nicole M. Crain




                                           6
                         CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief for the State was served on John
Hall by and through his attorney of record, Patrick Davis by electronic
transmission to lpatdavis@aol.com on January12 , 2015

                                             /s/ Nicole M. Crain

                                             Nicole M. Crain




                                         7
