                                                                   ACCEPTED
                                                               01-15-00472-CR
                                                    FIRST COURT OF APPEALS
                                                            HOUSTON, TEXAS
                                                          9/24/2015 4:41:06 PM
                                                         CHRISTOPHER PRINE
                                                                        CLERK
   No. 01-15-00472-CR
            In the
     Court of Appeals
           For the                        FILED IN
                                   1st COURT OF APPEALS
  First District of Texas              HOUSTON, TEXAS
         At Houston                9/24/2015 4:41:06 PM
                        CHRISTOPHER A. PRINE
                                           Clerk
        No. 1414552
 In the 184th District Court
  Of Harris County, Texas
 
     ALFREDO LARA
          Appellant
              V.
 THE STATE OF TEXAS
           Appellee
 

STATE’S APPELLATE BRIEF

 

                      DEVON ANDERSON
                      District Attorney
                      Harris County, Texas

                      KATIE DAVIS
                      Assistant District Attorney
                      Harris County, Texas
                      State Bar Number: 24070242
                      davis_katie@dao.hctx.net

                      FARNAZ FAIAZ
                      Assistant District Attorney
                      Harris County, Texas

                      1201 Franklin Street, Suite 600
                      Houston, Texas 77002
                      Telephone: (713) 755-5826
                      Fax Number: (713) 755-5809

ORAL ARGUMENT WAIVED
                 STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives

oral argument since the issues appear well-settled in Texas jurisprudence. But the

State will present argument if this Court deems it necessary.


                         IDENTIFICATION OF THE PARTIES

Counsel for the State:

       Devon AndersonDistrict Attorney of Harris County

       Katie DavisAssistant District Attorney on appeal

       Farnaz Faiaz  Assistant District Attorney at trial

Appellant or Criminal Defendant:

       Alfredo Lara

Counsel for Appellant:

       Colin B. Amann—Counsel on Appeal

       Kenneth Junck —Counsel at trial


Trial Judge:

       Honorable Jan KrockerPresiding Judge of 184th District Court




                                         i
                                              TABLE OF CONTENTS
                                                                                                                            Page
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES ................................................................................ i

TABLE OF CONTENTS........................................................................................................... ii

INDEX OF AUTHORITIES ................................................................................................... iii

STATEMENT OF THE CASE ................................................................................................. 1

STATEMENT OF FACTS ........................................................................................................ 1

SUMMARY OF THE ARGUMENT ..................................................................................... 3

REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR .................. 3
   I.     The appellant waived any error regarding a denial of a hearing on his motion
          for new trial because he failed to object to the hearing date set by the trial
          court, a date the appellant himself had requested, which was outside of the
          period to rule on his motion. ....................................................................................... 5

   II. The appellant was not entitled to a hearing based on the allegations that
       trial counsel failed to investigate and present mitigating evidence during the
       punishment hearing in his motion for new trial. ................................................... 9
CONCLUSION ......................................................................................................................... 15

CERTIFICATE OF SERVICE AND COMPLIANCE ......................................................16




                                                                  ii
                                         INDEX OF AUTHORITIES


CASES

Baker v. State,
  956 S.W.2d 19 (Tex. Crim. App. 1997) ......................................................................... 6, 7
Butler v. State,
  6 S.W.3d 636 (Tex. App.—
  Houston [1st Dist.] 1999, pet. ref’d) .................................................................................. 6
Crowell v. State,
  949 S.W.2d 37 (Tex. App.—
  San Antonio 1997, no pet.) ............................................................................................... 5, 7
Johnson v. State,
  925 S.W.2d 745 (Tex. App.—
  Fort Worth 1996, pet. ref’d) ................................................................................................ 5
Jordan v. State,
   883 S.W.2d 664 (Tex. Crim. App. 1994) ..............................................................11, 12, 13
King v. State,
  29 S.W.3d 556 (Tex. Crim. App. 2000) ..................................................................... 9, 14
Mallet v. State,
 65 S.W.3d 59 (Tex. Crim. App. 2001)............................................................................. 14
Miniel v. State,
  831 S.W.2d 310 (Tex. Crim. App. 1992).......................................................................... 10
Mitchell v. State,
  68 S.W.3d 640 (Tex. Crim. App. 2002) ......................................................................... 10
Oldham v. State,
  977 S.W.2d 354 (Tex. Crim. App. 1998) .......................................................................... 8
Prystash v. State,
  3 S.W.3d 522 (Tex. Crim. App. 1999) ............................................................................... 8
Reyes v. State,
  849 S.W.3d 812 (Tex. Crim. App. 1993) ........................................................................... 9
Rodriguez v. State,
  899 S.W.2d 658 (Tex. Crim. App. 1995) ......................................................................... 11


                                                               iii
Ryan v. State,
  937 S.W.2d 93 (Tex. App.—
  Beaumont 1996, pet. ref’d) ............................................................................................... 5, 7
Smith v. State,
  286 S.W.3d 333 (Tex. Crim. App. 2009)......................................................... 9, 10, 11, 13
State ex rel. Cobb v. Godfrey,
  739 S.W.2d 47 (Tex. Crim. App. 1987) ............................................................................. 8
State v. Zavala,
  28 S.W.3d 658 (Tex. App.—
  Corpus Christi 2000, pet. ref’d) ......................................................................................... 8
Stogiera v. State,
  191 S.W.3d 194 (Tex. App.—
  San Antonio 2005, no pet.) .................................................................................................13
Strickland v. Washington,
  466 U.S. 668 (1984) ............................................................................................................. 10
Wilkerson v. State,
  726 S.W.2d 542 (Tex. Crim. App. 1986),
  cert. denied, 480 U.S. 940 (1987) ..................................................................................... 10


STATUTES

TEX. CODE CRIM. PROC. ANN
  art. 57.02(h) (West Supp. 2014) .......................................................................................... 1
TEX. CODE CRIM. PROC. ANN.
  art. 57.03 (West 2013) ........................................................................................................... 2
TEX. CODE CRIM. PROC. ANN.
  art. 57B.01 (4)(A) (West 2013)............................................................................................ 2
TEX. CODE CRIM. PROC. ANN
  art. 57B.02(h) (West Supp. 2014) ....................................................................................... 1
TEX. CODE CRIM. PROC. ANN.
  art. 57B.03(d) (West 2013)................................................................................................... 2
TEX. CODE CRIM. PROC. ANN
  art. 57D.02(h) (West Supp. 2014) ...................................................................................... 2



                                                                 iv
TEX. CODE CRIM. PROC. ANN.
  art. 57D.03(d) (West 2013) ................................................................................................. 2
TEX. FAM. CODE ANN. § 71.004 (West 2013) ......................................................................... 2


RULES

TEX. R. APP. P. 4.1(a) .................................................................................................................. 4
TEX. R. APP. P. 4.1(b) ..............................................................................................................4, 5
TEX. R. APP. P. 9.4(g) .................................................................................................................. i
TEX. R. APP. P. 21.4(a) ................................................................................................................ 4
TEX. R. APP. P. 21.8 ...................................................................................................................... 5
TEX. R. APP. P. 21.8(a) ................................................................................................................ 6
TEX. R. APP. P. 21.8(c) ................................................................................................................ 6
TEX. R. APP. P. 33.1(a) ................................................................................................................ 7
TEX. R. APP. P. 38.1(i) ............................................................................................................... 14
TEX. R. APP. P. 39.1 ....................................................................................................................... i


OTHER AUTHORITIES

Harris County Holidays,
  HARRISCOUNTYTX.GOV (Sept. 19, 2015),
  http://www.harriscountytx.gov/holidays.aspx ............................................................. 5
Thanksgiving Day in United States,
  TIMEANDDATE.COM (Sept. 18, 2015),
  http://www.timeanddate.com/holidays/us/thanksgiving-day .................................. 4




                                                                      v
TO THE HONORABLE COURT OF APPEALS:


                              STATEMENT OF THE CASE

       The State charged the appellant with serious bodily injury to a child, and

alleged two deadly weapon paragraphs (CR – 13).1 The appellant pled guilty as

charged in the indictment without a plea bargain, and he pled true to the deadly

weapon paragraphs (CR – 19-31, 34-35; 2 RR 7). After a pre-sentence investigation

(PSI) and punishment hearing on October 29, 2014, the trial court found the

appellant guilty, found the deadly weapon paragraphs true, and sentenced the

appellant to 40 years confinement in the Institutional Division of the Texas

Department of Criminal Justice (CR – 34-35; 2 RR 73). The appellant filed a timely

notice of appeal, and the trial court certified that he had the right to appeal (CR –

30, 53-55).


                                 STATEMENT OF FACTS

       On June 2, 2012, the appellant called Amanda Hurt and told her that her six-

month-old son, John,2 fell out of the bed and was injured (2 RR 18). Hurt rushed to


1
  “CR” will be used to refer to the Clerk’s Record and “RR” will be used to reference the
reporter’s record.
2
  A person who has access to or obtains the name, address, telephone number, or other identifying
information of a victim younger than 17 years of age may not release or disclose the identifying
information to any person who is not assisting in the investigation, prosecution, or defense of the
case. TEX. CODE CRIM. PROC. ANN art. 57B.02(h) (West Supp. 2014) (requiring confidentiality of
identifying information of family violence victims); TEX. CODE CRIM. PROC. ANN art. 57.02(h)
(West Supp. 2014) (requiring confidentiality of identifying information of sexual assault victims);
the hospital to care for him (2 RR 11, 18). She and the appellant shared custody of

John, and John had been in the appellant’s care that day (2 RR 11-13, 17).

       At the hospital, Hurt learned that John had suffered a brain injury (2 RR 19).

She also learned that John had both recent and older injuries (2 RR 20). The

doctors stated that John’s injuries could not be explained by rolling off the bed,

but the appellant stuck to his story (2 RR 20-23). Hurt learned that the doctors

believed John could have been shaken (2 RR 21-22). The appellant eventually

admitted that he had been frustrated and thrown John into his car seat four to five

times (2 RR 24, 40, 45-46).

       John stayed in the hospital for three weeks (2 RR 23). Because of his injuries

John is developmentally behind other children his age, and he walks with a limp (2

RR 26, 33-34). Hurt takes John to the hospital every six months to drain a shunt

that was placed in his brain (2 RR 25-26). She also takes John to physical and

speech therapy once a week (2 RR 26).




TEX. CODE CRIM. PROC. ANN art. 57D.02(h) (West Supp. 2014) (requiring confidentiality of
identifying information of human trafficking victims). The release or disclosure of such
information to any person is a class C misdemeanor. TEX. CODE CRIM. PROC. ANN. art. 57.03 (West
2013); TEX. CODE CRIM. PROC. ANN. art. 57B.03(d) (West 2013); TEX. CODE CRIM. PROC. ANN. art.
57D.03(d) (West 2013). Under Article 57B.01, the term “victim” means a person who was the
subject of an offense that allegedly constitutes family violence, as defined by Section 71.004 of the
Texas Family Code. TEX. CODE CRIM. PROC. ANN. art. 57B.01 (4)(A) (West 2013); TEX. FAM. CODE
ANN. § 71.004 (West 2013) (defining family violence as an act by a member of a family against
another member of the family that is intended to result in physical harm, bodily injury, assault, or
sexual assault). Therefore, the pseudonym “John” will be used for the victim in this case.


                                                 2
                         SUMMARY OF THE ARGUMENT

      The appellant challenges the trial court’s failure to hold a hearing on his

motion for new trial. But the appellant failed to preserve error by not objecting to

the hearing date set by the trial court, a date the appellant himself had requested.

Moreover, the appellant’s motion was insufficient to grant relief based on his claim

of trial counsel’s ineffective investigation and presentation of mitigating evidence

during the punishment hearing.


   REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR

      In the appellant’s first point of error, he argues that the appeal should be

abated for the trial court to conduct a hearing on his motion for new trial. (App’nt

Brf. ii, 2). In the appellant’s second point of error, he argues that the appellant was

entitled to an evidentiary hearing regarding the allegation of trial counsel’s failure

to investigate and present mitigating evidence at the punishment hearing (App’nt

Brf. ii, 2). Because these points of error address the same legal concepts, they will

be addressed together.

      In the punishment hearing, the State presented testimony from Hurt

regarding John’s injuries and prognosis (2 RR 10-30, 35-37). Both the State and the

appellant admitted the PSI report into evidence that included information about

the appellant’s background, employment, his request for probation, and character

reference letters on the appellant’s behalf. See (Joint Ex. #1). Trial counsel for the


                                          3
appellant cross-examined Hurt, specifically emphasizing to the court that Hurt

would like the appellant to be placed on probation to be able to continue making

child support payments (2 RR 30-37). Additionally, trial counsel presented the

appellant’s testimony and reference letters for the court’s consideration (2 RR 7-8,

37-44). The appellant requested probation (2 RR 44, 61-62, 68-69). Although the

trial court sympathized with Hurt’s need for child support, she sentenced the

appellant to 40 years in prison (2 RR 73).

       After his conviction, the appellant filed a motion for a new trial, alleging

that his trial counsel was ineffective for his failure to properly advise him about

the consequences of his plea, failure to communicate any plea-bargains, and failure

to conduct a thorough investigation into mitigating factors (CR – 37-39). The

appellant timely presented his motion and further requested an evidentiary

hearing on his motion (CR – 39).3 The record indicates that the court did not


3
  It appears that the appellant timely filed his motion for new trial on December 1, 2014 (CR –
48-49). The appellant’s sentence was imposed on October 29, 2014, which made any motion for
new trial due on November 28, 2014 (CR – 34-35). See TEX. R. APP. P. 21.4(a). The appellant
explained to the trial court that the courts were closed that day, the Friday after Thanksgiving
(CR – 48). See Thanksgiving Day in United States, TIMEANDDATE.COM (Sept. 18, 2015),
http://www.timeanddate.com/holidays/us/thanksgiving-day (noting that Thanksgiving 2014 fell
on November 27). Thus, the appellant filed his motion for new trial on the following business
day, December 1 (CR – 27, 48-49). See TEX. R. APP. P. 4.1(a) (noting that if the last day of a
designated period falls on a legal holiday the period extends to the end of the next day that is not
a Saturday, Sunday, or legal holiday); see also TEX. R. APP. P. 4.1(b)(noting that if the clerk’s office
is closed or inaccessible on the last day of a filing period, the period for filing is extended to the
next day it is open and accessible). Although the appellant failed to provide any evidence that
the courts were closed on November 28, based on the current list of holidays on the Harris
County Clerk’s website, it is likely that the courts were inaccessible on the Friday following
Thanksgiving in 2014. See Harris County Holidays, HARRISCOUNTYTX.GOV (Sept. 19, 2015),


                                                   4
affirmatively overrule the motion for new trial, and it was overruled by operation

of law (CR – 49). See TEX. R. APP. P. 21.8.

       I.      The appellant waived any error regarding a denial of a hearing on
               his motion for new trial because he failed to object to the hearing
               date set by the trial court, a date the appellant himself had
               requested, which was outside of the period to rule on his motion.
       The appellant requests that this Court abate the appeal for the trial court to

conduct a hearing on his motion for new trial. (App’nt Brf. ii, 5, 19-20). But the

appellant waived any error because he failed to object to the hearing date set by

the trial court. “When a motion for new trial is presented to the trial court, the

burden of ensuring that the hearing thereon is set for a date within the trial court's

jurisdiction is properly placed on the party presenting the motion.” Crowell v. State,

949 S.W.2d 37, 38 (Tex. App.—San Antonio 1997, no pet.); see also Ryan v. State, 937

S.W.2d 93, 97 (Tex. App.—Beaumont 1996, pet. ref’d) (holding it was incumbent

upon the appellant to obtain a hearing prior to the 75-day deadline; noting that

there was nothing in the record to indicate any efforts by the appellant to obtain a

hearing prior to the deadline); Johnson v. State, 925 S.W.2d 745, 748 (Tex. App.—

Fort Worth 1996, pet. ref’d) (holding that it was incumbent upon the appellant to

develop some record before the expiration of the trial court’s jurisdiction which

demonstrated his efforts to reschedule a hearing on his motion for new trial).

http://www.harriscountytx.gov/holidays.aspx; see also TEX. R. APP. P. 4.1(b) (noting that the
closing or inaccessibility of the clerk’s office may be proved by certificate of the clerk or counsel,
an affidavit or other satisfactory proof).


                                                  5
      The record indicates that the appellant’s sentence was imposed on October

29, 2014, which made any ruling on a motion for new trial due on or before January

12, 2015 (CR – 34-35). See TEX. R. APP. P. 21.8(a) (“The court must rule on a motion

for new trial within 75 days after imposing or suspending sentence in open

court.”). The appellant presented his motion for new trial to the court coordinator

on December 11, 2014 (CR – 51). See Butler v. State, 6 S.W.3d 636, 641 (Tex. App.—

Houston [1st Dist.] 1999, pet. ref’d) (holding that presentation to the court

coordinator satisfies the presentment requirement of giving actual notice to the

trial court). The appellant requested a hearing date, and one was set for January

20, 2015 (CR – 45, 49).

      The record reflects that the first time the trial court heard anything on the

appellant’s motion was on January 20, outside of the 75 days (CR – 46-52). See

TEX. R. APP. P. 21.8(a). Therefore, the appellant’s motion for new trial was

overruled by operation of law (CR – 46-52, 57). See TEX. R. APP. P. 21.8(c) (“A

motion not timely ruled on by written order will be deemed denied when the

period prescribed in (a) expires.”); see also Baker v. State, 956 S.W.2d 19, 25 (Tex.

Crim. App. 1997) (noting that after the 75 days have passed after the sentence was

imposed, the trial court lacked any authority to grant the motion).

      The appellant argues that the January 20 hearing date was a “clerical error”

or “an unfortunate error in the scheduling.” (App’nt Brf. ii, 5, 19). But the appellant


                                          6
failed to present any evidence to support this contention. Instead, the record

reflects that the appellant admitted that scheduling the hearing outside of the

allotted 75 days was his own error when he requested the hearing date from the

court coordinator (CR – 45, 49). When explaining why the hearing date was set

outside of the 75 days, he stated:

      As to – I – have the hearing must be conducted within 75 days and I
      have in my motion January 12. When I was reading that, discussing
      the hearing, I was – I was a little bit dyslexic. I read 21st. So when I
      read on the 20th, I figured that would be okay because it was within
      75 days. So that’s why it was set for the 20th, today, but that is not
      the case. So the time has expired. (CR – 49).

      The appellant neither objected to the January 20 date nor tried to request an

earlier date within the appropriate time period. There is no evidence that the date

was input incorrectly. There is no evidence that he had in fact requested a date

prior to January 12 and had been denied. There are no docket notations, motions,

writs, hearing transcripts, or any other written indication that the appellant made

any attempt before January 20 to hold the hearing within the required time period.

      But whether it was a clerical or scheduling error, it was the appellant’s

responsibility as the proponent of the motion for new trial to schedule a hearing

within the allotted time period. See Crowell, 949 S.W.2d at 38; Ryan, 937 S.W.2d at

97. Thus, any error is not preserved. See Baker, 956 S.W.2d at 24-25 (holding that

by failing to object to the untimely setting, the appellant failed to preserve his

complaint that the trial judge should have held a hearing); TEX. R. APP. P. 33.1(a)


                                         7
(requiring a complaint be made to the trial court by timely request, objection, or

motion in order to preserve a complaint for appellate review); see also Prystash v.

State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (noting that under the “invited

error” doctrine an appellant is estopped from complaining of the trial court’s

actions when he invited the error).

      The appellant fails to provide any authority for why abatement would be

required. The trial court lost its plenary power to act on the appellant’s motion for

new trial when it was overruled by operation of law. State v. Zavala, 28 S.W.3d 658,

659 (Tex. App.—Corpus Christi 2000, pet. ref’d) (citing State ex rel. Cobb v. Godfrey,

739 S.W.2d 47, 49 (Tex. Crim. App. 1987)). This is not a situation in which this

Court can suspend the rules. See Zavala, 28 S.W.3d at 659 (holding that an

appellate court may not suspend the rule that a motion for new trial be heard

within 75 days, even when the court orally granted the new trial within the period

but failed to sign the motion until two days outside of that period) (citing Oldham

v. State, 977 S.W.2d 354, 358 (Tex. Crim. App. 1998)). Thus, because the appellant

failed schedule a hearing on his motion for new trial within the 75 day period, any

error is waived and the appellant’s request for abatement should be denied. The

appellant’s first issue should be overruled.




                                          8
       II.     The appellant was not entitled to a hearing based on the
               allegations that trial counsel failed to investigate and present
               mitigating evidence during the punishment hearing in his motion
               for new trial.
       The purpose of a hearing on a motion for new trial is to (1) decide whether

the cause should be retried and (2) prepare 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); State v. Gonzalez, 855 S.W.2d 692, 695 (Tex. Crim. App. 1993) .

But the right to a hearing on a motion for new trial is not an absolute right. Reyes v.

State, 849 S.W.3d 812, 815-16 (Tex. Crim. App. 1993). A hearing is only required

when the appellant has raised matters that are not determinable from the record

and established the existence of reasonable grounds showing that he could be

entitled to relief. Smith, 286 S.W.3d at 339-40 (citing Reyes, 849 S.W.3d at 815-16).

But to prevent fishing expeditions, courts require that the motion “must be

supported by affidavit specifically showing the truth of the grounds of attack.” See

King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).

       The appellant argues that trial counsel was ineffective during his

punishment hearing for his failure to conduct a thorough investigation into

mitigating evidence. (App’nt Brf. 4-5, 16-19).4 A claim of ineffective assistance is


4
  Although the appellant provided other reasons that trial counsel was ineffective in his affidavit
and his motion for new trial, on appeal he only focuses on trial counsel’s failure to investigate
mitigating factors that could have been presented in the PSI. (Appn’t Brf. 16-19). The appellant’s
affidavit listed eight reasons why he believed his counsel was ineffective, and his motion for new


                                                9
governed by the two-prong test set out in Strickland v. Washington, 466 U.S. 668

(1984). In order to prove an ineffective assistance claim, the appellant must first

show that the trial counsel’s performance was deficient. Id. at 687; see Mitchell v.

State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). “Specifically [the appellant]

must prove by a preponderance of the evidence, that the trial counsel’s

representation fell below the objective standard of professional norms.” Mitchell, 68

S.W.3d at 642; Smith, 286 S.W.3d at 340. The appellant must also show that the

deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. Prejudice

is shown by the reasonable probability that but for his counsel’s unprofessional

errors, the result of the proceeding would have been different. Mitchell, 68 S.W.3d

at 642.

       In reviewing a claim of ineffective assistance, a reviewing court presumes

that trial counsel was competent, and the appellant has the burden to rebut this

presumption by proving that his attorney’s representation was not sound strategy.

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) (citing Strickland, 466

U.S. at 689). An appellate court looks to the totality of the representation, rather

than isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542,

548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987); Rodriguez v. State, 899


trial discussed six of those reasons (CR – 38, 41-42). And on appeal, the appellant only argues
that four of those eight reasons were sufficient to require a hearing. (Appn’t Brf. 16-19).


                                              10
S.W.2d 658, 665 (Tex. Crim. App. 1995). Therefore, before the appellant is entitled

to a hearing on his motion for new trial alleging ineffective assistance of counsel,

he must allege sufficient facts from which a trial court could reasonably conclude

both that counsel failed to act as a reasonably competent attorney and that, but for

counsel’s failure, there is a reasonable likelihood that the outcome of his trial

would have been different. Smith, 286 S.W.3d at 340-41; see also Jordan v. State, 883

S.W.2d 664, 664-65 (Tex. Crim. App. 1994) (finding that the appellant’s motion

for new trial did not show deficiency or prejudice, and therefore failed to give

notice that reasonable grounds existed to entitle him to relief).

      The appellant argues that he was entitled to a hearing based on his specific

complaints that: (1) trial counsel never reviewed the complainant’s medical or CPS

records with him, (2) trial counsel failed to advise him of his right to hire a medical

expert, (3) trial counsel failed to inform the trial court about his completed anger

management and parenting classes, and (4) trial counsel failed to inform the court

about the results from his psychological evaluation and negative drug tests.

(App’nt Brf. 16-18). But each of these allegations is either conclusory in nature or

determinable from the record. See Smith, 286 S.W.3d at 339 (requiring, as a

prerequisite to a hearing when the grounds in the motion for new trial are based

on matters not already in the record, that the motion be supported by an affidavit,

either of the defendant or someone else, specifically setting out the factual basis for



                                          11
the claim); Jordan, 883 S.W.2d at 665 (finding a hearing was not required when the

appellant’s affidavit was conclusory and failed to show why his counsel was

deficient or prejudiced him).

      The appellant’s assertion that trial counsel never advised him of his right to

hire a medical expert fails to establish why trial counsel’s investigation was

deficient, or what further investigation would have revealed. The appellant asserts

that a medical expert could have reviewed the complainant’s medical records and

presented a prognosis to the court. (App’nt Brf. 17). But no affidavit from a medical

expert is provided to show what further inquiry into the records would have

revealed, what an expert would have testified to, or how it may have contradicted

Hurt’s testimony. See Jordan, 883 S.W.2d at 665 (finding that a bare allegation that

trial counsel failed to subpoena two names witnesses without indicating what

they would have said to exculpate him was insufficient to require the court to have

a hearing). Similarly, the appellant failed to establish what a review of the

complainant’s medical or CPS records with the appellant would have revealed. See

id.

      Whether trial counsel admitted evidence that he completed a parenting or

anger management course, the results of his psychological evaluation, and

evidence that he passed drug and alcohol tests were determinable from the record.

See id. During the punishment hearing, trial counsel did not ask the appellant any


                                         12
questions or admit any evidence regarding these issues. See (2 RR 37-44).

Furthermore, the trial court indicated during the punishment hearing that she was

not interested in information regarding parenting classes because she would not

allow contact with children (2 RR 31). Regardless, the appellant failed to provide

the results of these courses or evaluations in his motion for new trial as proof of

their evidentiary value. See Jordan, 883 S.W.2d at 665; cf. Stogiera v. State, 191 S.W.3d

194, 198-201 (Tex. App.—San Antonio 2005, no pet.) (finding a hearing was

required to determine trial counsel’s effectiveness when the appellant presented

affidavits from licensed clinical social workers and psychologists about the need

for a psychological evaluation with his motion for new trial).

      Moreover, the appellant failed to explain how these deficiencies would have

changed the outcome of the case. See Smith, 286 S.W.3d at 345 (holding that trial

court did not abuse its discretion in refusing to hold a hearing on a motion for new

trial, where the appellant failed to explain how his counsel’s allegedly

unprofessional errors would have changed the outcome of the case). Although the

State requested a lower sentence based on the need for child support, the trial

court explained that she could not allow the appellant to “buy his way out” (2 RR

73). Therefore, the appellant’s bare assertions regarding his failure to conduct a

thorough investigation and present mitigating evidence fail to establish facts




                                           13
entitling him to a hearing. And, as previously stated, he failed to request a hearing

within the appropriate period. Thus, his second point of error should be overruled.

      Finally, in the alternative to abatement, the appellant contends that this

Court should remand the case to the trial court for a new punishment hearing.

(App’nt Brf. 3, 20). But the appellant fails to provide any argument or authority to

support this contention. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear

and concise argument for the contentions made, with appropriate citations to

authorities and to the record.”). Without more, the appellant’s bare assertions fail

to establish that trial counsel rendered a deficient performance that harmed the

appellant. See King, 29 S.W.3d at 569 (holding that trial court did not abuse its

discretion in refusing to hold a hearing on a motion for new trial, where the

affidavit, alleging ineffective assistance of counsel, was deficient for failing to

specify supporting facts); see also Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001) (noting a record on direct appeal cannot adequately reflect the motives

behind trial counsel’s actions). As previously stated, it was the appellant’s

responsibility to develop such a record. Thus, the appellant’s request should be

denied.




                                         14
                                CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas


                                                 /S/ Katie Davis
                                                 KATIE M. DAVIS
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin Street, Suite 600
                                                 Houston, Texas 77002
                                                 Telephone (713) 755-5826
                                                 Fax Number (713) 755-5809
                                                 Davis_Katie@dao.hctx.net
                                                 State Bar Number: 24070242




                                       15
              CERTIFICATE OF SERVICE AND COMPLIANCE

      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,744 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

Colin B. Amann
1004 Prairie, Suite 300
Houston, TX 77002
713-652-2003/p
713-652-2002/f
colin@khalawyers.com




                                                  /S/ _ Katie Davis
                                                  KATIE M. DAVIS
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin Street, Suite 600
                                                  Houston, Texas 77002
                                                  Telephone (713) 755-5826
                                                  Fax Number (713) 755-5809
                                                  Davis_Katie@dao.hctx.net
                                                  State Bar Number: 24070242

Date: September 24, 2015




                                       16
