                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-13-00147-CR


                             THE STATE OF TEXAS, APPELLANT

                                                  V.

                                GERALD BARROW, APPELLEE

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

                                             July 16, 2014

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


       The issue to be decided in this case is whether the trial court acted without

reference to any guiding rules and principles and thereby abused its discretion when it

granted the Defendant, Gerald Barrow, a new trial.                By two separate opinions, my

colleagues both say the trial judge abused his discretion in doing so. Accordingly, they

reverse the trial court’s order granting Barrow’s motion for new trial.1 Because I believe


       1
           While Chief Justice Quinn’s opinion merely reverses the order granting new trial, Justice
Campbell’s opinion reverses and renders an order denying the motion for new trial. Ultimately, however,
the result is the same—Burrow’s motion for new trial is not granted. Prior to the trial court originally
granting Barrow’s motion for new trial, this Court docketed his direct appeal on the merits as Cause No.
the decision of the trial court should be accorded greater deference, I respectfully

disagree with that result and would affirm the order of the trial court. Accordingly, I

dissent from the plurality decision of this Court.


       In this case, the State appeals an order granting Barrow a new trial “in the

interest of justice.” The appropriate standard of review when a trial court grants a

motion for new trial is the same standard of review we apply when reviewing the denial

of a motion for new trial and that standard is an abuse of discretion. State v. Herndon,

215 S.W.3d 901, 906 (Tex. Crim. App. 2007); State v. Gonzalez, 855 S.W.2d 692, 696

(Tex. Crim. App. 1993). In applying that standard this Court must decide whether the

decision of the trial court was arbitrary or unreasonable. Gonzalez, 855 S.W.2d at 695,

n.4. The test for an abuse of discretion is not whether, in the opinion of the appellate

court, the facts present an appropriate case for the trial court’s action, but rather

“whether the trial court acted without reference to any guiding rules or principles.” State

v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014) (citing Herndon, 215 S.W.3d at

907) (emphasis added).        The mere fact that the trial court has decided a matter

differently from what the appellate court deems appropriate does not demonstrate an

abuse of discretion. Id. at 103-04. In conducting a review of the trial court’s decision,

an appellate court should view the evidence in the light most favorable to that decision,

defer to the trial court’s credibility determinations, and presume that all reasonable fact

findings in support of the ruling have been made. Id. at 104. A trial court is given wide

latitude in deciding whether to grant or deny a motion for new trial. State v. Boyd, 202
______________________
07-13-00046-CR. That cause was abated pending further order of the Court. See Barrow v. State, No.
07-13-00046-CR, slip. op. at 2 (Tex. App.—Amarillo, May 14, 2013, no pet. h.) (per curiam order).
available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=28e459f9-51da-4d7c-
8e62-45ca08bdb417&coa=coa07&DT=Opinion&MediaID=556140bb-3c28-4d6b-bce1-f03181d09580.

                                                2
S.W.3d 393, 401 (Tex. App.—Dallas 2005, pet. ref’d). A trial court’s ruling granting a

motion for new trial is presumed to be correct, and the burden rests on the State to

establish the contrary. Id. at 401-02.


       Furthermore, a trial court’s discretion to grant a motion for new trial is not limited

to those matters listed in Rule 21.3 of the Texas Rules of Appellate Procedure.

Thomas, 428 S.W.3d at 104. That said, a trial court’s decision to grant a new trial “in

the interest of justice” is not “unbounded or unfettered,” id. at 105 (quoting State v.

Herndon, 215 S.W.3d at 907), but must be based on some sort of valid legal basis.

Although there is no bright-line rule concerning appellate review of a trial court’s

decision in this area, a trial court would not generally abuse its discretion in granting a

new trial if the defendant: (1) articulates a valid legal claim in his motion for new trial, (2)

produces some evidence or references evidence in the trial record that substantiates

that claim, and (3) shows prejudice to his substantial rights under the harmless-error

standards set forth in Rule 44.2 of the Texas Rules of Appellate Procedure. Herndon,

215 S.W.3d at 909.


       Here, Barrow has articulated at least two legal claims in support of his motion for

new trial: (1) ineffective assistance of counsel and (2) newly-discovered evidence. The

issue I have with the opinions of Chief Justice Quinn and Justice Campbell is that they

place the burden of proof on Barrow, the Appellee, to show that these claims would be

ultimately sustainable under applicable appellate standards of review. Chief Justice

Quinn states that “[Barrow] must show that he is entitled to a new trial under the law,”

and that his defense counsel was somehow “entitled” to appear and explain his legal

strategy before being “denounced” as ineffective.          Likewise, in evaluating whether

                                               3
Barrow’s claims of ineffective assistance of counsel were supported by the record,

Justice Campbell states, “[i]n sum, the trial court did not have before it evidence of

conduct by [defense counsel] so outrageous that no competent attorney would have

engaged in it.”


       This is not, however, the standard by which we must evaluate the trial court’s

decision in this situation.            The question is not whether Barrow has established

ineffective assistance of counsel under the standards of Strickland,2 the question is

whether there was any evidence of conduct by his trial counsel upon which the trial

court could have reasonably made that determination. Both opinions ignore the fact

that, irrespective of the ultimate legal validity of these claims, the claims themselves

were supported by some evidence in the record. The trial judge was in the unique

position of observing trial counsel’s performance throughout the entire trial and to

evaluate the arguments and evidence presented at the hearing on Barrow’s motion for

new trial. As such, the trial court was in the best position to judge Barrow’s claims of

ineffective assistance of counsel based upon a lack of appropriate preparation and the

discovery of evidence previously unknown to trial counsel.3




       2
           Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
       3
           The trial court’s conclusions of law specifically state:

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

       It was my finding that [Barrow’s] attorney, . . . failed to adequately prepare for trial. His
       failure to investigate the alleged victim’s criminal history prevented the jury from having
       pertinent and important information necessary to reach a fair verdict. In light of these
       findings, I granted [Barrow’s] Motion for New Trial in the interest of justice.

                                                        4
       By applying the standard that they do, Chief Justice Quinn and Justice Campbell

substitute their judgment for that of the trial court and impermissibly raise the standard

of persuasion on a motion for new trial to that of appellate certainty. Such a standard

defers to nothing, affords the trial court absolutely no discretion, and renders

meaningless the right of a trial court to exercise its discretion to grant a new trial in the

interest of justice.

       Deferring to the trial court’s determination that Barrow did not have the effective

assistance of counsel necessary to protect his rights, I would further find that there was

sufficient evidence to support the trial court’s implicit finding that the deficiency was

sufficiently serious to affect Barrow’s substantial rights. Because I do not agree with the

conclusion of this Court that the trial court acted without reference to any guiding rules

or principles, I would affirm the decision of the trial court.




                                                           Patrick A. Pirtle
                                                               Justice


Do not publish.




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