Affirmed and Opinion Filed April 20, 2015




                                             Court of Appeals
                                                              S     In The


                                      Fifth District of Texas at Dallas
                                                         No. 05-13-01260-CR

                                        NATHANIEL SCOTT ALLAN, Appellant
                                                      V.
                                          THE STATE OF TEXAS, Appellee

                                   On Appeal from the County Court at Law No. 6
                                               Collin County, Texas
                                       Trial Court Cause No. 006-84804-2011

                                            MEMORANDUM OPINION
                  Before Justices Fillmore and Schenck,1 and Chief Justice Thomas, Retired2
                                  Opinion by Chief Justice Thomas, Retired
            A jury convicted appellant Nathaniel Scott Allan of driving while intoxicated, second

offense. The trial court assessed punishment at 365 days confinement in the Collin County jail,

probated for eighteen months, and assessed a $1,000 fine. Allan raises two issues on appeal.

First, Allan contends the trial court erred by not conducting a hearing on his motion for new trial.

Second, Allan complains he received ineffective assistance of counsel because his attorney did

not timely communicate the State’s plea offer to him.

            Because all dispositive issues are settled in law, we issue this memorandum opinion.

TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.

1
  Justice David Schenck succeeds Justice Michael O’Neill, a member of the original panel. Justice Schenck has reviewed the briefs and record in
this case. See TEX. R. APP. P. 41(a).
2
    The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment.
                    I. FACTUAL AND PROCEDURAL BACKGROUND

       On November 2, 2010, Allan was arrested for driving while intoxicated (DWI). Due to

Allan’s prior conviction for DWI, the case was filed as driving while intoxicated, second offense.

On Thursday, August 1, 2013, the trial judge conducted a pretrial arraignment and reminded the

parties that the case was set for a jury trial the following Monday. Allan’s counsel of record was

not present, but he sent another attorney in his place. The State informed the court that it had a

new plea bargain offer. The trial court told the parties that it would accept a plea “right now,”

but otherwise, the case would be going to trial on Monday. The trial court noted that the trial

had been reset many times and the trial on Monday was specially set. The trial court then gave

the State time to convey the new offer to Allan and his substitute counsel. After a brief recess,

the State announced that the parties would be proceeding to trial.

       The case proceeded to jury trial on August 5, 2013, and the jury returned a verdict of

guilty. Following the verdict, the parties reached an agreed punishment of 45 days in jail.

However, the trial court sent Allan for a drug test, and rejected the agreed punishment after he

tested positive for opiates and amphetamines. The trial court sentenced Allan to 365 days in

county jail, probated for 18 months, and assessed a fine of $1,000.

       On September 5, 2013, Allan filed a notice of appeal and a motion for new trial. The trial

court denied Allan’s motion for new trial on September 9, 2013. This appeal followed.

                                         II. DISCUSSION

A. Motion For New Trial Hearing

       Allan first complains that the trial court erred by failing to conduct a hearing on his

motion for new trial. The State responds the trial court did not abuse its discretion because Allan

failed to properly present his request for a hearing.




                                                 –2–
Standard of Review and Applicable Law

       We review a trial court’s denial of a hearing on a motion for new trial for an abuse of

discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). A trial court abuses its

discretion when the ruling “was so clearly wrong as to lie outside that zone within which

reasonable persons might disagree.” Id.

       A defendant does not have an absolute right to a hearing on his motion for new trial.

Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). Instead, he is entitled to a hearing

when he (1) raises matters which are not determinable from the record, and (2) establishes

reasonable grounds showing that he could potentially be entitled to relief. Id. “In addition to

timely filing the motion with supporting affidavits that demonstrate reasonable grounds for

believing that some error has occurred, the defendant must present the motion to the trial court.”

Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). Presentment of a motion for new

trial requires a defendant to do more than simply file the motion for new trial with the court

clerk. Bearnth v. State, 361 S.W.3d 135, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

To present a motion, the defendant must give the trial court actual notice that he timely filed a

motion for new trial and requests a hearing on the motion for new trial. See id.; see also

Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).

Application of Law to Facts

       On September 5, 2013, Allan filed a motion for new trial. The motion contained a

paragraph entitled “Certificate of Presentment,” stating that a copy of the motion had been hand-

delivered to the trial court. Attached to the motion was a sworn affidavit from Allan detailing his

reasons for believing he received ineffective assistance of trial counsel. Also attached was a fiat

containing blank spaces for the date on which the motion was filed, whether the moving party




                                               –3–
was entitled to a hearing, the date of any such hearing, and the signature of the presiding judge.

On September 9, 2013, the trial court denied Allan’s motion for new trial without a hearing.

        The record does not indicate whether the motion for new trial was, in fact, hand-delivered

to the trial judge. We assume the trial judge had actual notice of the motion because the trial

judge denied the motion four days after it was filed. However, Allan was required to put the trial

judge on actual notice that he desired the judge to hold a hearing on his motion for new trial.

Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). “‛Presentment’ must be

apparent from the record, and it may be shown by such proof as the judge’s signature or notation

on the motion or proposed order, or an entry on the docket sheet showing presentment or setting

a hearing date.” Id. In this case, there are no handwritten notations on the motion, none of the

blanks on the fiat have been filled in, and there are no entries on the docket sheet showing

presentment or a scheduled hearing date. See id. The record contains no evidence that Allan or

his attorney took steps to obtain a setting, or attempted to get a ruling on a request for a hearing.

See Perez v. State, 429 S.W.3d 639, 644 (Tex. Crim. App. 2014).

        Based on this record, we conclude that Allan failed to put the trial court on notice that he

desired a hearing on his motion for new trial. See Gardner, 306 S.W.3d at 305. We overrule

Allan’s first issue.

B. Ineffective Assistance Of Counsel

        Allan next contends he was denied effective assistance of counsel because his trial

counsel failed to timely communicate the State’s plea bargain offer to him. Allan argues that

because his trial counsel did not timely communicate the plea offer to him, he was “forced to go

to trial when he wanted to resolve his case more favorably with a plea bargain.” In response, the

State argues the record is inadequate to support Allan’s contention.




                                                –4–
Standard of Review and Applicable Law

       To prevail on a claim of ineffective assistance of counsel, an appellant must meet the

two-pronged test established by the United States Supreme Court in Strickland v. Washington,

466 U.S. 668 (1984), and adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53

(Tex. Crim. App. 1986). Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Allan

must show that (1) trial counsel’s representation fell below an objective standard of

reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability

that the result of the proceeding would have been different but for trial counsel’s deficient

performance. Strickland, 466 U.S. at 688–92; Villa v. State, 417 S.W.3d 455, 462–63 (Tex.

Crim. App. 2013). Allan bears the burden of proving his claims by a preponderance of the

evidence. Lopez, 343 S.W.3d at 142. It is not enough to merely show, through the benefit of

hindsight, that trial counsel’s actions were questionable. Id. at 142–43.

       Review of counsel’s representation is highly deferential, and we indulge a strong

presumption that counsel’s conduct fell within a wide range of reasonable representation. Villa,

417 S.W.3d at 463; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). In order for

an appellate court to find that counsel was ineffective, counsel’s alleged deficiency must be

affirmatively demonstrated in the record. Lopez, 343 S.W.3d at 142; Brennan v. State, 334

S.W.3d 64, 71 (Tex. App.—Dallas 2009, no pet.). The defendant must produce record evidence

sufficient to overcome the presumption that, under the circumstances, the challenged action was

sound trial strategy. Strickland, 466 U.S. at 689; Villa, 417 S.W.3d at 463.

Application of Law to Facts

       Allan argues that his trial counsel was ineffective because he failed to timely

communicate the State’s plea offer to him. According to the record, the State told the trial court

that it had e-mailed a new plea offer to Allan’s actual trial counsel the morning of August 1,

                                                –5–
2013. The record also indicates that Allan learned of the plea offer the same day, during the

pretrial arraignment hearing. Relying on contentions raised in his affidavit attached to his

motion for new trial, Allan contends, among other things, that his substitute counsel informed

him of the State’s offer and told him to consult with his actual trial counsel, but Allan was not

given time to consult with his actual trial counsel before being required to make a decision

whether to go to trial on Monday. However, Allan’s affidavit is not evidence. Because the

affidavit was not introduced as evidence at a hearing on Allan’s motion for new trial, it is merely

“a pleading that authorizes the introduction of supporting evidence,” and is not evidence itself.

Burrus v. State, 266 S.W.3d 107, 112 (Tex. App.—Fort Worth 2008, no pet.) (quoting Jackson v.

State, 139 S.W.3d 7, 20 (Tex. App.—Fort Worth 2004, pet. ref’d); see also Rouse v. State, 300

S.W.3d 754, 762 (Tex. Crim. App. 2009) (“[P]ost-trial motions such as these are not self-proving

and any allegations made in support of them by way of affidavit or otherwise must be offered

into evidence at a hearing.”). Therefore, to the extent Allan relies on the affidavit attached to his

motion as evidence supporting his ineffective assistance claim, the affidavit is not evidence. Id.

The record is otherwise silent with respect to the nature of the discussions between Allan and

substitute counsel. And we are unable to determine from the record whether Allan attempted to

contact his actual trial counsel during the recess. In his appellate brief, Allan concedes that

without a hearing on his motion for new trial, it is difficult to determine from the record any of

the facts surrounding the plea offer.

       Allan also argues that if his trial counsel had timely conveyed the plea offer, the case

could have been resolved without a trial. Again relying on contentions raised in his affidavit

attached to his motion for new trial, Allan contends that “there seems to be a reasonable

probability that Appellant and the State would have been able to dispose of this case without a

trial had Appellant’s trial counsel timely conveyed any plea bargain offer.” However, Allan does

                                                –6–
not point to any evidence in support of this speculation, and does not detail how trial counsel’s

performance was deficient.     According to the record of the pretrial arraignment, the court

allowed a recess for the State to convey the new plea offer to Allan and his substitute counsel.

Following the recess, the State informed the trial court that it was ready to proceed with the trial

on Monday but asked the court’s permission to place the offer into the record. The trial court

agreed, and the State read the plea offer into the record. The record does not contain any

statements or objections by Allan or his substitute counsel when the State read the plea offer into

the record or when the State announced that the parties would proceed to trial. The record also

reflects that on Monday, the first day of trial, neither party mentioned the plea offer during

preliminary proceedings outside the presence of the jury. And finally, the record includes

Allan’s testimony during the punishment phase, stating that he fought this all the way because he

felt like he was innocent. To show prejudice from ineffective assistance of counsel where a plea

offer was rejected because of counsel’s deficient performance, appellant must demonstrate a

reasonable probability that he would have accepted the plea offer had he been afforded effective

assistance of counsel. See Armstead v. State, No. 05-11-00966-CR, 2013 WL 1281901, at *5

(Tex. App.—Dallas Mar. 19, 2013, no pet.) (mem. op., not designated for publication) (citing

Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012)). Allan has not met this burden.

       As discussed above, there was no hearing on the motion for new trial. Consequently,

there is no record of a hearing at which Allan’s trial counsel was afforded the opportunity to

explain his actions or trial strategy. When no evidentiary record is developed at a hearing on a

motion for new trial, it is extremely difficult to show that trial counsel’s performance was

deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Trial counsel should

ordinarily be given an opportunity to explain his actions before being denounced as ineffective.

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). “Generally, a silent record that

                                                –7–
provides no explanation for counsel’s actions will not overcome the strong presumption of

reasonable assistance.” Brennan, 334 S.W.3d at 71.

       We cannot speculate beyond the record provided. See id. at 74. Because the record fails

to demonstrate trial counsel’s alleged ineffectiveness for failing to timely convey the State’s plea

offer to Allan, we conclude that Allan has not shown that trial counsel’s performance fell below

an objective standard of reasonableness. See Lopez, 343 S.W.3d at 143. We overrule Allan’s

second issue.

                                      III. CONCLUSION

       Having overruled both of Allan’s issues, we affirm the trial court’s judgment.




Do Not Publish                                        /Linda Thomas/
TEX. R. APP. P. 47                                    LINDA THOMAS
131260F.U05                                           JUSTICE, ASSIGNED




                                                –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

NATHANIEL SCOTT ALLAN, Appellant                   On Appeal from the County Court at Law
                                                   No. 6, Collin County, Texas
No. 05-13-01260-CR        V.                       Trial Court Cause No. 006-84804-2011.
                                                   Opinion delivered by Justice Thomas.
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered April 20, 2015.




                                             –9–
