Opinion filed October 15, 2015




                                       In The


        Eleventh 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,”
and it assessed punishment at confinement for twenty-five years and a 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
had a prior conviction 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

       1
         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.
       2
         Hoyle 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.

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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
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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 of the Evidence
        We review the sufficiency of the evidence under the standard of review set
out in Jackson v. Virginia, 443 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
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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 of the weight and credibility of the 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.




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      B. Issue Two: Denial of Hearing on Motion for New Trial and Denial
         of Motion 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 Motion for 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 of Request for Hearing on Motion for 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

                                            6
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, including Appellant. 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 of the 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 of the motion by a review of the 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 of Motion for 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
of trial, and asserted that the range of punishment was incorrect. Appellant also does
not explain how his failure to file an election for the jury to assess punishment would
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


                                           8
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.




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