Order issued May 8, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-01115-CR
                           ———————————
                        JESUS GONZALEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1307888


                                   ORDER

      A jury found appellant, Jesus Gonzalez, guilty of the offense of murder,1 and

the trial court assessed his punishment at confinement for fifty years. Appellant

has moved this Court to abate his appeal and remand the case to the trial court for

1
      See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).
an evidentiary hearing on his new-trial motion, contending that the trial court

abused its discretion in not holding a hearing on his motion.

      We abate the appeal and remand the case for additional proceedings.



                                   Background

      On January 4, 2013, appellant filed a new-trial motion, contending that his

trial counsel provided him ineffective assistance in not calling any witnesses on his

behalf in the punishment stage of trial. Appellant notes that he “readily admitted

his responsibility and confessed his guilt,” yet his trial counsel presented “no

mitigation case.” After the jury returned its guilty verdict against appellant, the

State called three witnesses during the punishment phase of trial, and, “[r]ather

than counter” the testimony, appellant’s trial counsel, “simply rested and presented

no witnesses . . . .” Appellant timely presented his new-trial motion to the trial

court, which denied the motion without an evidentiary hearing on January 9, 2013.



                               Standard of Review

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

abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009);

Washington v. State, No. 01-11-00692-CR, 2012 WL 2512717, at *3 (Tex. App.—

Houston [1st Dist.] June 28, 2012, order). The purposes of a new-trial hearing are

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(1) to determine whether the case should be retried or (2) to complete the record

for presenting issues on appeal. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim.

App. 2009). There is not an absolute right to such a hearing. Id. However, a trial

court abuses its discretion in not holding a hearing if the new-trial motion and

accompanying affidavits (1) raise matters that are not determinable from the record

and (2) establish reasonable grounds showing that the defendant could potentially

be entitled to relief. Id. A new-trial motion must be supported by an affidavit

specifically setting out the factual basis for the claim. Id. “If the affidavit is

conclusory, is unsupported by facts, or fails to provide requisite notice of the basis

for the relief claimed, no hearing is required.” Id. But a supporting affidavit “need

not establish a prima facie case, or even reflect every component legally required

to establish relief.” Smith, 286 S.W.3d at 339 (citation omitted). Rather, it “is

sufficient if a fair reading” of the affidavit “gives rise to reasonable grounds in

support of the claim.” Id.



                             Hearing on New-Trial Motion

      In his motion to abate, appellant argues that the trial court erred in denying

his request for an evidentiary hearing on his new-trial motion because “the reasons

for trial counsel’s decision not to present a mitigation case remain unclear, thus

necessitating a hearing on the issue.” The State argues that this Court may not

                                          3
abate the appeal for the trial court to conduct an “out-of-time” evidentiary hearing

on appellant’s motion because we would have to suspend the Texas Rules of

Appellate Procedure to do so and “[t]he traditional method for bringing an

ineffective claim before this Court is to brief the merits of the issue in a direct

appeal.”

      Here, the State does not challenge the fact that it cannot be determined from

the record whether appellant’s trial counsel had any particular strategy in mind in

not presenting the jury with any mitigation evidence in the punishment phase of

trial. Thus, in determining whether the trial court abused its discretion in denying

appellant a hearing on his new-trial motion, we need only consider whether

appellant’s new-trial motion and accompanying affidavits establish reasonable

grounds demonstrating that he could potentially be entitled to relief on his

ineffective-assistance claim. Id.; see also Washington, 2012 WL 2512717, at *4.

      In order to prove an ineffective-assistance claim, a defendant must show that

his trial counsel’s performance fell below an objective standard of reasonableness

and, but for his counsel’s unprofessional error, there is a reasonable probability

that the result of the proceeding would have been different.          Strickland v.

Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984);

Smith, 286 S.W.3d at 340. “Reasonable probability” is a “probability sufficient to

undermine confidence in the outcome,” meaning “counsel’s errors were so serious

                                         4
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Smith,

286 S.W.3d at 340. Thus, before a defendant will be entitled to a hearing on a

new-trial motion alleging ineffective assistance, 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.” Id.

at 340–41.

      In his new-trial motion, appellant asserted that his trial counsel failed to

interview or call numerous witnesses who were available and willing to testify on

his behalf in regard to his punishment.2 He attached 12 affidavits to his motion for

new trial.3 According to the translations of the affidavits, one affiant testified that


2
      Appellant further contended in his new-trial motion that the trial court erred in not
      instructing the jury on the issue of “sudden passion” and a new trial is warranted
      in “the interest of justice.” He does not assert either of these grounds as a basis for
      remanding the case for an evidentiary hearing.
3
      The affidavits, which are all in Spanish, are accompanied by uncertified
      translations, apparently by staff members of the Harris County Public Defender’s
      Office. These translations would not be sufficient to establish the admissibility of
      the affidavits into evidence. See TEX. R. EVID. 1009(a), (f). Nevertheless,
      appellant would have been entitled to the appointment of an interpreter to assist
      with providing live testimony to the trial court at a hearing on his motion, and the
      affidavits, coupled with the translations, were sufficient to inform the trial court
      that appellant had evidence to support his motion. See TEX. CODE CRIM. PROC.
      ANN. art. 38.30(a) (Vernon Supp. 2012); Leal v. State, 782 S.W.2d 844, 849 (Tex.
      Crim. App. 1989); Rodriguez v. State, No. 05-10-00142-CR, 2011 WL 1744410,
      at *3–4 (Tex. App.—Dallas May 9, 2011, no pet.) (mem. op., not designated for
      publication); Peralta v. State, 338 S.W.3d 598, 606 (Tex. App.—El Paso 2010, no
      pet.); Chia-Ochoa v. State, No. 14-02-00857-CR, 2003 WL 21710444, at *2 (Tex.
                                             5
he spoke with appellant’s trial counsel and expected to be called to testify that

appellant was a good father, son, uncle, brother, and husband. However, he was

not called to testify. Eight other affiants testified that although they were not

contacted by trial counsel or by an investigator, they would have been willing to

testify that appellant was a peaceful, hard-working, and good family man; a good

father, husband, brother, son, and friend; and he was nice to his children, calm, not

aggressive or violent, and responsible. Another affiant echoed these sentiments,

but did not specifically state that he was willing and available to testify. An

additional affiant testified that no one contacted him regarding any possible

testimony; appellant wanted to give his family, to whom he was dedicated, a good

future; he was not violent or a drunk; and he wanted to foster a child from

“Children International.” Finally, two affiants, both of whom reside in Mexico,

testified that appellant completed elementary and middle school, he studied to

become a mechanic and received good grades, he was dedicated to his wife, and he

had not had problems with anyone.

      In his motion and supporting affidavits, appellant alleged facts which, if

established at a hearing, would show that his trial counsel’s representation was



      App.—Houston [14th Dist.] July 24, 2003, pet. ref’d) (mem. op., not designated
      for publication); Villarreal v. State, 853 S.W.2d 170, 172 (Tex. App.—Corpus
      Christi 1993, no pet.); see also TEX. R. EVID. 1009(e) (authorizing admission of
      translation of foreign language document at trial by live testimony of qualified
      expert translator).
                                          6
deficient and the deficient performance prejudiced appellant. First, the “failure to

investigate and call any punishment witnesses amounts to deficient performance.”

Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d); see also Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d) (holding that failure to investigate and evaluate available

punishment evidence amounts to deficient performance). Second, the failure to

present any evidence of mitigating factors for the jury to consider to balance

against the State’s punishment evidence, including evidence of good character

traits, such as taking care of a child, helping friends and relatives, being a good

father, and being a hard worker, demonstrates prejudice.            See Shanklin, 190

S.W.3d at 165; Milburn, 15 S.W.3d at 270–71. Thus, by presenting evidence to

the trial court that his trial counsel failed to interview any of the available

witnesses and the witnesses would have testified to positive character traits,

appellant alleged sufficient facts to entitle him to an evidentiary hearing on his

new-trial motion.4 See Smith, 286 S.W.3d at 340–41.


4
      Of course, appellant’s trial counsel would be entitled to testify at the hearing to
      explain what investigation, if any, he conducted and any trial strategy he may have
      employed in not calling the witnesses. See, e.g., Hobbs v. State, 298 S.W.3d 193,
      202 (Tex. Crim. App. 2009) (stating defense counsel entitled to present his
      strategy on record); see also Dillon v. State, No. 12-06-00135-CR, 2007 WL
      4216253, at *3–7 (Tex. App.—Tyler Nov. 30, 2007, pet. ref’d) (mem. op., not
      designated for publication) (concluding that trial counsel not ineffective based on
      decision not to call character witnesses other than defendant and defendant’s wife
      because counsel made reasonable decision that character witnesses would not be
      effective in case involving child sexual assault and counsel did not ignore any
                                           7
      Accordingly, we hold that the trial court abused its discretion in not holding

a hearing on appellant’s new-trial motion. See id. at 340.

      In regard to the State’s argument that this Court may not abate the appeal for

the trial court to conduct an evidentiary hearing on appellant’s new-trial motion,

we note that ample authority actually compels such an abatement of the appeal.

Indeed, we “must not affirm or reverse a judgment or dismiss an appeal if: (1) the

trial court’s erroneous action or failure or refusal to act prevents the proper

presentation of a case to the court of appeals; and (2) the trial court can correct its

action or failure to act.” TEX. R. APP. P. 44.4(a). In such a circumstance, we must

direct the trial court to correct the error and then proceed as if the error had not

occurred. See id. 44.4(b).

      Here, the trial court’s error prevents appellant from properly presenting his

claim for ineffective assistance of counsel in his direct appeal to this court. See

TEX. R. APP. P. 21.2; Washington, 2012 WL 2512717 at *5; McCain v. State, 995

S.W.2d 229, 245 n.9 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); Toney v.

State, 783 S.W.2d 740, 742 (Tex. App.—El Paso 1990, pet. ref’d); see also Cooks

v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007) (“Sometimes a motion for


      promising leads after conferring with defendant); Hills v. State, No. 14-02-00379-
      CR, 2003 WL 21402606, at *2 (Tex. App.—Houston [14th Dist.] June 19, 2003,
      pet. ref’d) (mem. op., not designated for publication) (concluding that defendant
      failed to demonstrate ineffective assistance after trial counsel swore, in affidavit,
      that appellant refused to provide counsel with names of any witnesses who might
      be of assistance).
                                            8
new trial is a necessary step to adduce facts not otherwise in the record, in order to

be able to present these points of error based on those facts in the appeal.”).

Because the trial court can correct its error by holding an evidentiary hearing on

appellant’s motion, we may not reverse or affirm the judgment or dismiss the

appeal until the trial court has corrected the error. See TEX. R. APP. P. 44.4.

Therefore, we must direct the trial court to remedy the error, by holding an

evidentiary hearing on appellant’s new-trial motion before we issue a judgment

and mandate in this case. See TEX. R. APP. P. 18.1 (requiring clerk of court to

issue mandate in accordance with judgment), 43.2 (authorizing types of judgments

by appellate courts), 44.4 (requiring appellate court to direct trial court to correct

remediable error that prevents proper presentation of appeal and to proceed as if

error had not occurred); see also TEX. R. APP. P. 43.6 (authorizing appellate court

to “make any other appropriate order that the law and the nature of the case

require.”).

      The cases relied upon by the State in support of its argument are not on

point. All but one of the cases cited by the State involved a situation in which the

appellate court rejected an appellant’s request, based on Texas Rule of Appellate

Procedure 2, to file an out-of-time motion for new trial. See Oldham v. State, 977

S.W.2d 354, 359–60 (Tex. Crim. App. 1998); Benson v. State, 224 S.W.3d 485,

488, 493–95 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Bowler v. State, 822

                                          9
S.W.2d 334, 335 & n.2 (Tex. App.—San Antonio 1992, pet. ref’d); Torres v. State,

804 S.W.2d 918, 920 (Tex. App.—El Paso 1990, pet. ref’d), overruled on other

grounds, M.B. v. State, 905 S.W.2d 344 (Tex. App.—El Paso 1995, no writ). In

the other case, the appellate court declined to use rule 2 to abate the case for a

hearing on a new-trial motion after the appellant had waived any complaint

regarding the trial court’s failure to hold such a hearing. See Crowell v. State, 949

S.W.2d 37, 38 (Tex. App.—San Antonio 1997, no pet.).              Here, in contrast,

appellant timely filed and presented his new-trial motion and the trial court erred in

not holding an evidentiary hearing on the motion.

      Accordingly, we must abate this appeal and remand the case to the trial court

to conduct an evidentiary hearing. See TEX. R. APP. P. 44.4; see also TEX. R. APP.

P. 43.6 (authorizing appellate courts to “make any other appropriate order that the

law and the nature of the case require”); Martinez v. State, 74 S.W.3d 19, 22 (Tex.

Crim. App. 2002) (concluding that trial court abused its discretion in failing to

conduct hearing on new-trial motion, reversing court of appeals, and remanding

with instructions to abate appeal and remand cause to trial court to conduct hearing

on new-trial motion); Taylor v. State, 163 S.W.3d 277, 284 (Tex. App.—Austin

2005, pet. dism’d) (concluding that Texas Rule of Appellate Procedure 25.2(g) did

not prohibit trial court from holding hearing on timely-filed new-trial motion,

abating appeal, and remanding for evidentiary hearing); Reyes v. State, 82 S.W.3d

                                         10
351, 353 (Tex. App.—Houston [1st Dist.] 2001, order) (“We agree that an

abatement is proper to conduct a hearing to present the evidence that would have

been introduced had a hearing on the motion for new trial been held.”).

                                      Conclusion

      We grant appellant’s motion, abate this appeal, and remand the case to the

trial court. On remand, the trial court shall conduct an evidentiary hearing on

appellant’s new-trial motion within thirty days of the date of this order and at

which a representative of the Harris County District Attorney’s Office and

appellant’s counsel on appeal, Mark C. Kratovil, shall be present. Appellant shall

also be present for the hearing in person or, if he is incarcerated, at the trial court’s

discretion, he may participate in the hearing by the use of a closed-circuit video

teleconferencing system that provides for a simultaneous compressed full motion

video and interactive communication of image and sound.5

      If the trial court grants the motion, appellant’s appeal will be dismissed. If

the motion is overruled, the reporter’s record is to be supplemented, and the parties

will be permitted to brief any issues relating to the overruling of the motion that

have not already been addressed in this opinion. Any ruling is to be included in a

supplemental clerk’s record and transmitted to this Court within thirty-one days

5
      On request of appellant, he and his counsel shall be able to communicate privately
      without being recorded or heard by the trial court or the attorney representing the
      State.

                                           11
from the date of this order. This appeal is abated, treated as a closed case, and

removed from this Court’s active docket. The appeal will be reinstated on this

Court’s active docket when the supplemental clerk’s record and the reporter’s

record of the hearing on the new-trial motion are filed with the Clerk of this Court.

      It is so ORDERED.

                                       Per Curiam

Panel consists of Justices Jennings, Bland, and Massengale.

Date: May 8, 2013




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