Affirmed in Part and Reversed and Remanded in Part and Memorandum
Opinion filed March 26, 2015.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00395-CR


                     ALEXI DOMINICK HEMPHILL, Appellant

                                              V.

                          THE STATE OF TEXAS, Appellee


                        On Appeal from the 339th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1327402


                     MEMORANDUM OPINION

      Appellant Alexi Dominick Hemphill was convicted by a jury of aggravated
robbery1 and sentenced by the trial court to 30 years’ confinement. On appeal,
appellant argued in two issues that the trial court abused its discretion by (1)
admitting evidence of an extraneous offense during the guilt-innocence stage of the

      1
          See Tex. Penal Code Ann. § 29.03(a)(3) (Vernon 2011).
trial; and (2) refusing to hold a hearing on his motion for new trial, in which he
asserted that he received ineffective assistance of counsel during the guilt-
innocence and punishment phase of the trial.

      We agree that the trial court abused its discretion in failing to hold a hearing
on appellant’s motion for new trial regarding whether appellant received
ineffective assistance of counsel during the punishment phase of the trial. We
abated the appeal and remanded the case to the trial court to conduct a hearing on
appellant’s motion for new trial regarding appellant’s contention that he was
denied effective assistance of counsel during the punishment phase of the trial.

      The trial court conducted a hearing, concluded that appellant met his burden
of proving that he received ineffective assistance of counsel, and recommended
that appellant receive a new punishment hearing.           We ordered the appeal
reinstated.   We provided an opportunity for appellant and the State to file
supplemental briefing in light of the trial court’s recommendation after abatement;
no supplemental briefs were filed.

      We affirm the trial court’s judgment as to appellant’s conviction, we reverse
the trial court’s judgment as to appellant’s punishment, and we remand the case to
the trial court for a new punishment hearing.

                                     BACKGROUND

      Appellant was charged with aggravated robbery, and a jury trial was held on
guilt-innocence from April 25, 2013 to April 29, 2013. At trial, the 83-year-old
complainant, Jose Valdez, testified that he was walking toward a bus stop after
shopping at a Fiesta grocery store on Lyons Street between 2:30 p.m. and 3:00
p.m. on October 5, 2011, when a man came from behind, covered the
complainant’s mouth, and threw the complainant on his back. The complainant


                                          2
testified that the man hit him twice in the mouth and then continued hitting his
arms. The man then pulled the complainant’s wallet out of his pants pocket and ran
away. The complainant testified that he saw his attacker when he was “on top of”
him. He testified that he rode the bus home after the robbery and was contacted
about an hour later by a police officer who told him that his wallet had been found
in a ditch. The police officer returned the wallet to the complainant later in the
day.

       The complainant testified that he circled his attacker’s photo on a photo
array he was shown by police on November 10, 2011. The circled photo depicted
appellant, and the complainant signed his name next to the photo. When asked
whether the photo he had circled depicted the man who had robbed him on October
5, 2011, he replied “[W]ell, it looks like him. You cannot be for sure, but it looks
like him.” Thereafter, the complainant testified that he signed his name next to
appellant’s photo because he “circled who[m] he believed attacked” him.

       The complainant acknowledged he was not wearing glasses at the time of
the robbery and that, without his glasses, he can see “fine” with his right eye but
the vision in his left eye is blurry. The complainant testified that the attack lasted
approximately five minutes and that he was “directly looking at his [attacker’s]
face” when his attacker was on top of him. The complainant testified that he
“wasn’t guessing” when he circled appellant’s photo identifying him as his
attacker.

       Over defense counsel’s objection, the trial court allowed the State to offer
extraneous offense testimony from a 68-year-old robbery victim whose first name
is Concepcion.2 Concepcion testified that he was robbed on September 24, 2011,
as he was coming from the Fiesta grocery store on Lyons Street and walking
       2
           Concepcion did not want to state his last name on the record because he was fearful of revenge.

                                                     3
toward a bus stop. A man hit him in the mouth, knocking out four of his teeth, and
Concepcion fell backwards on the ground. The man then pulled Concepcion’s
wallet out of his pants pocket and ran away. Concepcion testified that the police
showed him a photo array and that he identified appellant as his robber.
Concepcion acknowledged that he needed prescription glasses and that he did not
wear glasses when he was robbed on September 24, 2011.

      Houston Police Officer Juan Olivarez testified that his investigation of the
complainant’s robbery led him to an apartment complex and a suspect with the
nickname “PP” or “PeePee.” The apartment complex was within walking distance
of the robbery location. Officer Olivarez spoke to employees at the apartment
complex and learned that appellant was the person known by that nickname.
Officer Olivarez testified that he compiled a photo array containing photos of six
black males, including a photo of appellant. Officer Olivarez showed the photo
array to the complainant on November 10, 2011, after admonishing the
complainant that the “person that committed the crime may or may not be present
in the photo array. . . [and] that he’s not required to make any selection and that
items such as head hair, facial hair are subject to change.” Officer Olivarez
testified that the complainant positively identified appellant as the robber. Officer
Olivarez testified that he also investigated the robbery of Concepcion. He testified
that he showed Concepcion a photo array containing photos of six black males,
including a photo of appellant; Concepcion positively identified appellant as his
robber.

      After the State rested its case, defense counsel did not call any witnesses or
present evidence. The jury found appellant guilty of aggravated robbery. During
the punishment phase, defense counsel did not call any witnesses or present any
evidence. The trial court sentenced appellant to 30 years’ confinement. Appellant

                                         4
filed a motion for new trial on May 29, 2013, and the trial court denied the motion
on June 5, 2013. Appellant filed a timely appeal.

                                      ANALYSIS

I.    Admission of Extraneous Offense Evidence

      We begin by addressing appellant’s first issue, in which he argues that the
trial court abused its discretion by admitting evidence of the extraneous aggravated
robbery of Concepcion during the guilt-innocence phase of the trial in violation of
Texas Rules of Evidence 404(b) and 403 because the charged offense and the
extraneous offense were not similar enough and the probative value of the
evidence was substantially outweighed by the danger of unfair prejudice. The
State argues that the extraneous offense evidence was admissible to prove
appellant’s identity and the probative value of the evidence outweighed any danger
of unfair prejudice.

      We review a trial court’s ruling on the admissibility of extraneous offenses
under an abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343
(Tex. Crim. App. 2009). As long as the trial court’s ruling is within the zone of
reasonable disagreement, there is no abuse of discretion, and we will uphold the
trial court’s ruling. Id. at 343-44. A trial court’s ruling generally is within this
zone if the evidence shows that (1) an extraneous transaction is relevant to a
material, non-propensity issue; and (2) the probative value of that evidence is not
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading of the jury. Id. at 344. Furthermore, if the trial court’s evidentiary
ruling is correct on any theory of law applicable to that ruling, it will not be
disturbed even if the trial court gave the wrong reason for its right ruling. Id.




                                           5
      1.     Rule 404(b)

      Texas Rule of Evidence 404(b) prohibits admission of extraneous offenses
to prove a person’s character or to show that the person acted in conformity with
that character. See Tex. R. Evid. 404(b). Extraneous offenses may be admissible
to show motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.       See id.    This list is illustrative, rather than
exhaustive, and extraneous offense evidence may be admissible when a defendant
raises a defensive issue that negates one of the elements of the offense. Martin v.
State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005).

      An extraneous offense may be admissible to prove identity only if identity is
at issue in the case. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006).
“The trial judge has considerable latitude in determining that identity is, in fact,
disputed.” Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008). Identity
may be placed in dispute by the defendant’s opening statement or cross-
examination as well as by affirmative evidence offered by the defense. Id. Cross-
examination places identity at issue if it implies the witness’s identification of the
defendant is not trustworthy. Mason v. State, 416 S.W.3d 720, 740 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d) (citing Page v. State, 137 S.W.3d 75, 78
(Tex. Crim. App. 2004). “That the impeachment was not particularly damaging or
effective in light of all of the evidence presented is not the question.” Segundo,
270 S.W.3d at 86. “The question is whether impeachment occurred that raised the
issue of identity.” Id. “If so, Rule 404(b) permits the introduction of extraneous
offenses that are relevant to the issue of identity.” Id.

      Appellant’s identity as the robber in this case was contested. Appellant
raised the issue of identity as a defense by vigorously cross-examining the
complainant regarding the reliability of his identification of appellant as the robber.

                                           6
He cross-examined the complainant regarding (1) the robber’s height; (2) the
complainant’s vision and whether he needed and, if so, wore glasses at the time of
the robbery; (3) whether he guessed that appellant was the robber at the time he
identified appellant on the photo array; (4) whether he “really did not get a very
good look” at the robber; (5) whether he saw appellant’s tattoo; and (6) whether he
gave the police a description of the robber’s height. Additionally, appellant does
not dispute on appeal that identity was at issue in this case; instead, he only argues
that evidence of the Concepcion robbery was not “probative on the issue of identity
because it did not have any unique traits to distinguish it from any other armed
robbery.”

      Raising the issue of identity does not automatically render evidence of an
extraneous offence admissible. Page, 213 S.W.3d at 336. “When the extraneous
offense is introduced to prove identity by comparing common characteristics, it
must be so similar to the charged offense that the offenses illustrate the defendant’s
‘distinctive and idiosyncratic manner of committing criminal acts.’” Id. (quoting
Martin, 173 S.W.3d at 468). “[T]he theory of relevancy is usually that of modus
operandi in which the pattern and characteristics of the charged crime and the
uncharged misconduct are so distinctively similar that they constitute a
‘signature.’” Segundo, 270 S.W.3d at 88. “No rigid rules dictate what constitutes
sufficient similarities; rather, the common characteristics may be proximity in time
and place, mode of commission of the crimes, the person’s dress, or any other
elements which mark both crimes as having been committed by the same person.”
Id. “Usually, it is the accretion of small, sometimes individually insignificant,
details that marks each crime as the handiwork or modus operandi of a single
individual.” Id. The extraneous offense and the charged offense can be different
offenses, so long as the similarities between the two offenses are such that the


                                          7
evidence is relevant. Mason, 416 S.W.3d at 740-41.

      A comparison between the charged offense and the extraneous offense
shows a sufficient degree of similarity. The record reveals that both offenses
occurred within only eleven days of each other and had the following similarities:
(1) both offenses were aggravated robberies; (2) both robberies were committed
against elderly Hispanic males who had left the Fiesta grocery store on Lyons
Street after shopping there; (3) both victims carried groceries they had bought at
the store and were walking toward the nearby bus stop; (4) both victims were
robbed by a single black male; (5) the victims were both forced to the ground and
then hit several times on the mouth; and (6) while on the ground, the robber took
both victims’ wallets from the back pocket of their pants and then escaped on foot.

      We conclude that the trial court acted within its discretion in determining
that the similarities between the charged offense and the extraneous offense are
sufficient to show appellant’s idiosyncratic or signature style of robbery; the trial
court acted within its discretion in admitting the extraneous offense to prove
identity. See Page, 213 S.W.3d at 338 (stating that Texas law “does not require
extraneous-offense evidence to be completely identical to the charged offense to be
admissible to prove identity” and noting that, despite some differences, the
similarities there showed a distinctive manner of committing a crime); Burton v.
State, 230 S.W.3d 846, 850-51 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(holding that charged bank robbery and extraneous bank robberies were
sufficiently similar when banks all had no onsite security, the robbed tellers were
young, and the robber made the robbery demand initially with a note).

      2.     Rule 403

      We next address whether the trial court abused its discretion in failing to
exclude the extraneous offense evidence under Rule 403, even if the evidence was
                                         8
relevant and admissible under rule 404(b).

      Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403. But
“Rule 403 favors the admission of relevant evidence and carries a presumption that
relevant evidence will be more probative than prejudicial.” Young v. State, 283
S.W.3d 854, 876 (Tex. Crim. App. 2009). Evidence should be excluded under
Rule 403 only when there exists “‘a clear disparity between the degree of prejudice
of the offered evidence and its probative value.’” Hammer v. State, 296 S.W.3d
555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202
(Tex. Crim. App. 2001)).

      In evaluating a trial court’s ruling under Rule 403, “a reviewing court is to
reverse the trial court’s judgment ‘rarely and only after a clear abuse of
discretion.’”   Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)
(quoting Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op.
on reh’g)). When undertaking a Rule 403 analysis, we must balance (1) how
compellingly evidence of the extraneous offense serves to make a fact of
consequence more or less probable; (2) the potential that the extraneous offense
will impress the jury in some irrational but indelible way; (3) the trial time needed
to develop the evidence; and (4) the proponent’s need for the extraneous offense
evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002); Checo v.
State, 402 S.W.3d 440, 452 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

      The first factor requires us to consider the strength of the extraneous offense
evidence to make a fact of consequence more or less probable. During cross-
examination, appellant questioned, among others, the complainant’s description of

                                         9
his attacker and the complainant’s ability to see his attacker during the robbery.
Appellant also questioned the reliability of the complainant’s identification of
appellant on a photo array. Further, appellant stated during closing argument: “In
my opinion, there is really one issue here. Identity. Who committed this offense?”
Given the similarity of the characteristics of the charged offense and the
extraneous offense, the near identical location where the two offenses were
committed, and the close time interval between the two offenses, the extraneous
offense evidence is compelling as to the issue of identity. This factor weighs in
favor of admissibility. See Mason, 416 S.W.3d at 741; Burton, 230 S.W.3d at 851.

      The second factor requires us to consider the extraneous offense evidence
for its potential to impress the jury in some irrational but indelible way. When the
extraneous offense is no more heinous than the charged offense, evidence
concerning the extraneous offense is unlikely to cause unfair prejudice. See Taylor
v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996).                Moreover, any
impermissible inference of character conformity can be minimized by the use of a
limiting instruction. Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996).
Here, the trial court gave the jury a limiting instruction before it allowed the State
to present evidence of the aggravated robbery of Concepcion, and also gave a
limiting instruction in the jury charge regarding this extraneous offense. This factor
weighs in favor of admissibility. See Jabari v. State, 273 S.W.3d 745, 753 (Tex.
App.—Houston [1st Dist.] 2008, no pet.).

      The third factor requires us to examine the trial time needed to develop the
extraneous offense evidence.        The evidentiary portion of the trial lasted
approximately a day and a half. Concepcion and Officer Juan Olivarez were the
only two witnesses who testified at trial about the extraneous offense. Their
testimony did not take up a significant portion of the trial, and the amount of time

                                         10
used for their testimony was reasonable and not excessive. This factor weighs in
favor of admissibility. See id.

      The fourth factor requires us to determine the need for the extraneous
offense evidence in this case. The extraneous offense evidence was significant to
the State’s case. There was no other witness who could have identified appellant
as the robber, and there was no physical evidence linking appellant to the robbery
of the complainant. During cross-examination, appellant vigorously attacked the
reliability of the complainant’s identification of appellant on the photo array as
well as the complainant’s ability to see appellant during the robbery because he
was not wearing glasses. The need for the extraneous evidence was strong. This
factor also weighs in favor of admissibility.

      We conclude that the trial court acted within its discretion when it
determined that the probative value of the extraneous offense evidence was not
substantially outweighed by the danger of unfair prejudice, and admitted the
evidence under Rule 403. Accordingly, we overrule appellant’s first issue.

II.   Ineffective Assistance of Counsel

      A.     Hearing on Motion for New Trial

      Appellant originally argued in his second issue that the trial court abused its
discretion by failing to hold an evidentiary hearing on his motion for new trial, in
which he alleged ineffective assistance of counsel. Appellant argued that he timely
filed and presented his motion for new trial, and he was entitled to a hearing
because his motion “raised matters, upon which relief could be granted, that are not
determinable from the record.” The State responded that the trial court properly
denied appellant an evidentiary hearing because appellant “never requested a
hearing on his motion for new trial and never secured a ruling on any such


                                          11
request.”

       The State did not challenge appellant’s contention that he timely filed and
presented his motion for new trial. We agreed that appellant timely filed and
presented his motion for new trial. The trial court imposed appellant’s sentence on
April 29, 2013, and appellant filed his motion on May 29, 2013. See Tex. R. App.
P. 21.4.(a) (“The defendant may file a motion for new trial before, but no later than
30 days after, the date when the trial court imposes or suspends sentence in open
court.”); Daniels v. State, 63 S.W.3d 67, 69 (Tex. App.—Houston [14th Dist.]
2001, pet. ref’d). The record also established that appellant presented his motion
to the trial court, as required by Texas Rule of Appellate Procedure 21.6,3 by
obtaining the trial court’s ruling on his motion. See Carranza v. State, 960 S.W.2d
76, 79 (Tex. Crim. App. 1998) (presentment can be shown by obtaining the trial
court’s ruling on a motion for new trial); Bearnth v. State, 361 S.W.3d 135, 146
(Tex. App.—Houston [1st Dist.] pet. ref’d); see also Reyes v. State, 82 S.W.3d
351, 353 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The trial court denied
appellant’s motion for new trial on June 5, 2013.

       The State asserted that “appellant cannot complain on appeal about the
alleged lack of a hearing on his motion for new trial because he never requested
such a hearing and never secured a ruling on any such request.” The State claimed
that, “[w]hile the appellant did secure a ruling on his motion for new trial, which
was denied by the trial court, he failed to explicitly request a hearing on the motion
or to secure a ruling on any such motion for a hearing.” In our abatement order,
we disagreed with the State’s assertion.

       3
         Texas Rule of Appellate Procedure 21.6. provides: “The defendant must present the
motion for new trial to the trial court within 10 days of filing it, unless the trial court in its
discretion permits it to be presented and heard within 75 days from the date when the court
imposes or suspends sentence in open court.”

                                               12
      A reviewing court does not reach the question of whether a trial court abused
its discretion in failing to hold a hearing if (1) no request for a hearing is presented
to it; and (2) no ruling on the request or motion is obtained. Garcia v. State, 291
S.W.3d 1, 8 (Tex. App.—Corpus Christi 2008, no pet.); see Oestrick v. State, 939
S.W.2d 232, 235 (Tex. App.—Austin 1997, pet. ref’d).

      In support of its argument that appellant failed to request a hearing, the State
cited Rozell v. State, 176 S.W.3d 228, 229 (Tex. Crim. App. 2005), and Brooks v.
State, 894 S.W.2d 843, 847 (Tex. App.—Tyler 1995, no writ).

      In Brooks, the motion for new trial did not include a request for a hearing,
and the court held that the “trial court is not required to convene a hearing on a
motion for new trial absent a request by the movant for such hearing.” 894 S.W.2d
at 847.

      In Rozell, the defendant made no request for a hearing in his motion for new
trial. 176 S.W.3d at 229. He attached two proposed orders to his motion. Id. The
first proposed order gave the trial court the option to set a hearing within ten days
of filing, set a hearing within 75 days of filing, grant the motion without a hearing,
or deny the motion without a hearing. Id. The second proposed order gave the
trial court the option to deny or grant the motion. Id. The trial court did not hold a
hearing on the motion; and the motion was overruled by operation of law. Id.

      The court held that the defendant “did not adequately advise the trial court of
his desire to have a hearing” because (1) “[n]owhere in the motion did the
[defendant] request a hearing;” and (2) the order attached to the motion “included
the options of having a hearing or ruling on the motion without a hearing, which,
without a more specific request, left to the trial court’s discretion whether a hearing
should be held.” Id. at 231.


                                          13
      We concluded that Rozell and Brooks both were distinguishable from the
case before us. Even though the prayer in appellant’s motion did not specifically
request a hearing, he requested a hearing in the body of his motion. Appellant
stated in his motion: “Because this motion raises matters outside the trial record, is
properly verified, and is timely filed and presented, denying [appellant] an
evidentiary hearing would be an abuse of discretion.” Further, appellant attached
to his motion an order giving the trial court the option to set a hearing and an order
giving the trial court the option to grant or deny the motion.            This record
established that appellant requested a hearing. See Rozell, 176 S.W.3d at 229;
Garcia, 291 S.W.3d at 8 (defendant requested a hearing on his motion for new trial
when he asked for a hearing in the motion, attached two orders giving the trial
court the sole option of setting a hearing, and attached two orders giving the trial
court the option to deny or grant the motion).

      The State also argued that, “[e]ven if the appellant had properly requested a
hearing on his motion for new trial, he still would not be entitled to raise the issue
on appeal because he failed to obtain a ruling on that nonexistent request.” The
State asserted that the trial court did not implicitly deny appellant a hearing when it
denied the motion itself.

      We concluded that, contrary to the State’s assertion, a trial court’s denial of
a defendant’s motion for new trial is an implicit denial of the defendant’s request
for a hearing.    See Garcia, 291 S.W.3d at 9 (“[B]ased on the trial court’s
overruling of appellant’s motion for new trial . . . [,] we find the trial court
implicitly overruled appellant’s request for a hearing.”); cf. Oestrick, 939 S.W.2d
at 235 (“Having failed to obtain a ruling on his request for a hearing—or at least a
written order overruling his motion for new trial—and having failed to object to
the lack of a ruling, appellant has not preserved this complaint for appellate

                                          14
review.”). Here, the trial court signed an order denying appellant’s motion for new
trial and, thus, implicitly denied appellant’s request for a hearing. See Garcia, 291
S.W.3d at 9.

      We then analyzed appellant’s argument that he was entitled to a hearing on
his motion for new trial because his trial counsel failed to speak to (1) a witness
who could have provided an alibi for the time the complainant’s robbery occurred;
and (2) several witnesses who could have provided testimony regarding his
troubled childhood and mental health history.

      A trial court’s denial of a hearing on a motion for new trial is reviewed for
an abuse of discretion. Hobbs v. State, 298 S.W.3d 193, 200 (Tex. Crim. App.
2009). The trial court’s decision is reversed only if it was outside the zone of
reasonable disagreement. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App.
2009).

      The purposes of a new trial hearing are to (1) determine whether the case
should be retried; or (2) complete the record for presenting issues on appeal.
Hobbs, 298 S.W.3d at 199. Such a hearing is not an absolute right. Id. A trial
court abuses its discretion in 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 that the defendant could
potentially be entitled to relief. Id. “This second requirement limits and prevents
‘fishing expeditions.’” Id. “[A] movant 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 test for ineffective assistance of counsel
under Strickland.”4 Smith, 286 S.W.3d at 338. A motion for new trial must be
supported by an affidavit specifically setting out the factual basis for the claim.
      4
          Strickland v. Washington, 466 U.S. 668 (1984).

                                               15
Hobbs, 298 S.W.3d at 199. 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.

       Whether trial counsel’s alleged omissions show a deficiency in performance
that prejudiced appellant was not readily determinable from the record in this case.
See Smith, 286 S.W.3d at 341.          Therefore, we examined whether appellant’s
motion for new trial and the supporting affidavit established reasonable grounds
showing that appellant potentially could be entitled to relief on his ineffective
assistance claim by “alleg[ing] facts that would reasonably show that his counsel’s
representation fell below the standard of professional norms and that there is a
reasonable probability that, but for his counsel’s conduct, the result of the
proceeding would have been different.” Id.

       Under Strickland, a defendant seeking to challenge his trial counsel’s
representation must establish that his counsel’s performance (1) was deficient, and
(2) prejudiced his defense. Id. at 340. To show deficiency, a defendant must prove
by a preponderance of the evidence that his counsel’s representation objectively
fell below the standard of professional norms. Id. And to show prejudice, a
defendant must show there is a reasonable probability that, but for his counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
“‘Reasonable probability’ is a ‘probability sufficient to undermine confidence in
the outcome,’ meaning ‘counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.’” Id.

       Appellant contended on appeal that he “requested a new trial because a
witness was available who would have testified that [appellant] was caring for his
young children during the time these crimes occurred; coupled with the unreliable
nature of the eyewitnesses who were without their necessary eyeglasses, this

                                            16
testimony could have swayed the jury’s verdict.” With respect to this ground, we
concluded that appellant’s motion for new trial and supporting affidavit did not
establish a reasonable ground showing that appellant could potentially be entitled
to relief. Even if the facts alleged in appellant’s motion and stated in the affidavit
reasonably would show that his counsel’s representation fell below the standard of
professional norms because counsel failed to speak to an alleged alibi witness, we
could not conclude that there is a reasonable probability that, but for his counsel’s
conduct, the result of the proceeding would have been different.

      In his motion, appellant alleged that Rodreika McDonald never was
contacted by his trial counsel and would have been willing to testify on appellant’s
behalf that (1) she was with appellant and their daughter every day until 5:00 p.m.
from September 2011 to October 31, 2011; (2) appellant was the primary caregiver
of his two and five-year-old daughters; and (3) appellant “walked the five-year-old
and her ten-year-old brother to and from school each day, and stayed with the two-
year-old while the other children were in school.” According to appellant, “[t]his
information would have been especially critical because eyewitness identifications
are notoriously unreliable and if the complainant had trouble identifying
[appellant], either during the investigation or during trial, could have swayed the
jury’s verdict of guilt.”

      The attached affidavit stated that McDonald never was asked by trial counsel
to provide information regarding appellant and would have testified at trial that (1)
“early morning through late afternoon, Monday through Friday, [appellant] was
responsible for the care of his two year old daughter and five year old step
daughter;” (2) appellant was “responsible for walking the five year old and his 10
year old brother to and from school each day;” and (3) she was at home with
appellant and their daughter every day until 5:00 p.m. between the middle of

                                         17
September 2011 to October 31, 2011.

      We concluded that, contrary to appellant’s assertion, the attached affidavit
did not support his claim that McDonald would have provided him with an alibi for
the time the complainant’s robbery occurred. Nothing in the affidavit established
that appellant could not have robbed the complainant between 2:30 and 3:00 p.m.
on October 5, 2011. The affidavit provided that appellant was responsible for
caring for his young children during the day and walking two children to and from
school. The affidavit did not specify what time appellant would walk the children
to and from school or where he was during the day when he would not walk them
to school. Nor did the affidavit negate the possibility that appellant could have
robbed the complainant before picking the children up from school. The affidavit
stated that McDonald would have testified that she was at home with appellant
until 5:00 p.m. every day; however, it did not state from what time in the day until
5:00 p.m. she was at home with appellant.

      We thus concluded that appellant’s motion for new trial and supporting
affidavit did not establish reasonable grounds showing that appellant could
potentially be entitled to relief insofar as the purported alibi witness is concerned.
Therefore, we concluded that the trial court did not abuse its discretion in failing to
hold a hearing on appellant’s motion for new trial with regard to this contention.

      We also considered appellant’s argument that he was entitled to a hearing on
his motion for new trial because his trial counsel “failed to speak with crucial
punishment phase witnesses who would have testified as to his troubled childhood
with a drug abusing mother, his mental health history, the murder of his sixteen
year old sister and the behavioral changes he expressed after, and his reputation for
being helpful to the elderly people in his neighborhood.”

      In his motion for new trial, appellant alleged that his trial counsel failed to
                                          18
contact and call several available witnesses to testify on his behalf to attempt to
mitigate his punishment. According to appellant, these witnesses would have
testified that (1) he was the primary caregiver for his small children; (2) his mother
abused drugs and was “‘in the streets’” for much of his childhood; (3) his “mental
stability changed drastically after his sixteen-year-old sister was found brutally
murdered;” (4) “he has mental health history and treatment;” and (5) he was
“helpful to older people and was someone these witnesses trusted and loved.”
Appellant argued that calling these available witnesses would have been beneficial,
and trial counsel’s failure to interview and call these witnesses cannot be
sanctioned as strategic because counsel can only make a reasonable decision to
forego calling such witnesses after evaluating their testimony and then determining
it would not be helpful.

      Appellant’s supporting affidavit stated as follows:

            Darius Dugas and Shawn Dugas would have provided
      testimony pertaining to [appellant]’s childhood and that his mother
      was abusing drugs and ‘in the streets’ while [appellant] was growing
      up.
             Cornelia Hemphill, Rodreika McDonald and Alisia Hemphill
      would have provided testimony regarding [appellant]’s mental health
      history and the treatment he received at MHMRA. Cornelia Hemphill
      would have provided information regarding the impact of the murder
      of his sixteen year old sister on [appellant] and the resulting changes
      in his behavior.
            Brenetta Francis would have described [appellant] as not
      aggressive or violent and someone she trusted to take care of and keep
      her children safe.
            Bianca Dugas would have explained that [appellant] was
      always helpful to older people in the neighborhood, carried their
      groceries and mowed their lawns. [Appellant] watched after her
      grandmother, making sure she got on the bus safely each day and
      walking her home when she returned.

                                         19
Appellant’s motion and affidavit support an assertion that trial counsel generally
failed to investigate the possibility of mitigating evidence, including appellant’s
mental health, reputation, and difficult childhood, and failed to interview and call
several potential witnesses despite their availability and willingness to testify in his
behalf.

      “The sentencing stage of any case, regardless of the potential punishment, is
‘the time at which for many defendants the most important services of the entire
proceeding can be performed.’” Milburn v. State, 15 S.W.3d 267, 269 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d) (quoting Vela v. Estelle, 708 F.2d
954, 964 (5th Cir. 1983)). Where the potential punishment is life imprisonment, as
in this case, the sentencing proceeding takes on added importance. Id.

      “Strickland does not require counsel to investigate every conceivable line of
mitigating evidence no matter how unlikely the effort would be to assist the
defendant at sentencing. Nor does Strickland require defense counsel to present
mitigating evidence at sentencing in every case.” Wiggins v. Smith, 539 U.S. 510,
533 (2003). But counsel can make a reasonable decision to forego presentation of
mitigating evidence only after evaluating available testimony and determining that
it would not be helpful. Milburn, 15 S.W.3d at 270. Counsel’s performance is
deficient when counsel fails to conduct an adequate investigation of a defendant’s
background for potential mitigating evidence. See id. at 269-70 (counsel failed to
investigate and interview potential punishment witnesses who would have testified
in defendant’s behalf); see also Wiggins, 539 U.S. at 533-35 (counsel’s limited
investigation failed to disclose evidence of severe physical and sexual abuse
defendant suffered at the hands of his mother and while he was in foster care);
Barnett v. State, 338 S.W.3d 680, 685-87 (Tex. App.—Texarkana 2011, no pet.)
(per curiam) (counsel failed to investigate the possibility of introducing mitigating

                                          20
evidence at the punishment stage).

      Here, appellant alleged in his motion for new trial that his trial counsel failed
to contact, interview, and call several available witnesses to testify on his behalf to
attempt to mitigate his punishment. The attached affidavit stated that witnesses
would have testified regarding appellant’s troubled childhood, his mental health
history and the treatment he received at MHMRA, and his reputation in the
community, but were never contacted by appellant’s counsel.            As a result of
counsel’s alleged inaction, the trial court had no mitigating evidence before it. We
concluded that appellant alleged facts that potentially could meet the first
Strickland prong. See Barnett, 338 S.W.3d at 686; Milburn, 15 S.W.3d at 269-70;
see also Lopez v. State, No. 01-13-01079, 2015 WL 832059 at *6 (Tex. App.—
Houston [1st Dist.] Feb. 26, 2015, no pet. h.) (Strickland’s first prong satisfied in
case in which trial counsel “did not participate in collecting mitigation evidence,
did not review the mitigating evidence his client collected without his assistance,
and did not present any mitigation evidence on his client’s behalf at the hearing.”).

      We also concluded that, if appellant’s counsel indeed failed to present
mitigating evidence based on a failure to investigate, appellant potentially could
meet the second prong of Strickland. See Barnett, 338 S.W.3d at 686; Milburn, 15
S.W.3d at 270-71.

      During the punishment phase of trial, the State called Trecie Baskin; she
identified appellant as the person who committed an extraneous robbery in the
evening of September 24, 2011. The State also presented evidence of several
misdemeanor and third degree felony convictions. Appellant’s trial counsel cross-
examined Baskin but did not call any witnesses or present any mitigating evidence
on behalf of appellant. Nor did counsel mention appellant’s childhood, mental
health history, or reputation in the community during his brief closing argument.

                                          21
The trial court heard no favorable character or otherwise mitigating evidence and
assessed appellant’s punishment at thirty years’ confinement as the State had
requested during its closing statement.

      “The sentencing process consists of weighing mitigating and aggravating
factors, and making adjustments in the severity of the sentence consistent with this
calculus.” Milburn, 15 S.W.3d at 270 (citing Vela, 708 F.2d at 965). Here, trial
counsel did not present any evidence of mitigating factors for the trial court to
weigh against the aggravating factors presented by the State, despite available
witnesses who were willing to provide mitigating evidence. See Lopez, 2015 WL
832059, at *8 (Prejudice established because, “[b]y neither investigating nor
presenting evidence for the trial court to consider in assessing punishment, trial
counsel deprived Lopez of even a possibility of developing a mitigating defense.”)

      As previously stated in Milburn, “even though it is sheer speculation that
character witnesses in mitigation would have in fact favorably influenced the [trial
court]’s assessment of punishment,” a defendant nonetheless demonstrates
prejudice when a counsel’s failure to investigate and lack of effort at the
punishment phase of trial deprives a defendant of the possibility of bringing out
even a single mitigating factor. Milburn, 15 S.W.3d at 271. Mitigating evidence
of (1) a troubled childhood; (2) mental health history and treatment; and (3) a good
reputation in the community “clearly would have been admissible” and “the [trial
court] would have considered it and possibly been influenced by it.” See id.; see
also Barnett, 338 S.W.3d at 687; Freeman v. State, 167 S.W.3d 114, 121 (Tex.
App.—Waco 2005, no pet.).

      Thus, we concluded that appellant’s motion for new trial and the
accompanying affidavit provided reasonable grounds to believe that appellant
potentially could satisfy both prongs of Strickland. We concluded that the trial

                                          22
court abused its discretion by not holding a hearing on the motion for new trial
because the motion and affidavit raised reasonable grounds for relief that are not
determinable from the record. Cf. Torres v. State, No. 01-95-00862-CR, 2000 WL
1877641, at *1 (Tex. App.—Houston [1st Dist.] Dec. 28, 2000, pet. ref’d) (not
designated for publication). We sustained appellant’s second issue in part. We
issued an order in which we abated the appeal and remanded the case to the trial
court to conduct a hearing on appellant’s motion for new trial regarding appellant’s
contention that he was denied effective assistance of counsel during the
punishment phase of the trial.

       B.      Post-Abatement

       The trial court conducted a hearing and concluded that appellant met his
burden of proving that he received ineffective assistance of counsel during the
punishment phase of the trial. On January 12, 2015, the trial court signed detailed
findings of fact and conclusions of law, and recommended that appellant’s motion
for new trial be granted and that appellant receive a new punishment hearing. In
its findings of fact, the trial court stated as follows.

             “[T]rial counsel did not investigate any of the relevant and crucial
               mitigating evidence that [appellant]’s MHMRA records could have
               provided.”

             Appellant had received treatment at MHMRA beginning in 2003.

             “[H]ad [trial counsel] requested [appellant]’s MHMRA records, which
               he could have learned about by asking [appellant] why he was taking
               Risperdal, Paxil, and Trazodone, or by asking any of the witnesses
               who attempted to contact [trial counsel], . . . [trial counsel] would
               have discovered a wealth of relevant mitigating information.”

                                            23
           Had trial counsel “contacted any of the above character witnesses,
             each would have been willing and available to testify as to”
             appellant’s mental health history, the effect that his mother’s drug-
             abusing and partying lifestyle had on his upbringing, the effect that
             the death of his great-great-aunt had on his life, the effect of the brutal
             murder of his sister had on his life, his general reputation for being
             helpful and respectful to the elderly, and his general reputation for
             being a good and caring father.

           Trial counsel failed to present any mitigating evidence during
             appellant’s trial.

           Trial counsel never mentioned appellant’s “troubled childhood, his
             mental health history, or his general character for being respectful to
             the elderly and being trustworthy with children during his trial, all of
             which the Court deems as relevant evidence.”

In its conclusions of law, the trial court stated as follows.

           Because “there was no investigation done [by trial counsel] into any
             potential mitigation evidence,” trial counsel cannot rely on “trial
             strategy” as a reason for not presenting mitigation evidence during
             trial; without conducting any investigation, trial counsel “could not
             possibly make a strategic decision about what information, if any, to
             present at the punishment phase of” appellant’s trial.

           Regardless of the potential punishment, the sentencing stage of any
             case is “the time at which for many defendants the most important
             services of the entire proceeding can be performed.”

           When the potential punishment is life imprisonment, as in this case,

                                           24
   the sentencing proceeding takes on added importance.

 Trial counsel’s lack of investigation and lack of presentation of
   “evidence of mitigating factors to balance against the aggravating
   factors presented by the State, despite the fact that several potential
   mitigation witnesses contacted [trial counsel] directly,” prejudiced
   appellant at trial because “[t]hese character witnesses would have
   ‘provided some counterweight to evidence of bad character.’”

 Appellant established by a preponderance of the evidence that
   witnesses, who could have presented mitigating evidence at
   punishment, were neither contacted nor interviewed by trial counsel,
   and “no character or mitigating witnesses were called during the
   punishment phase of trial.”

 Appellant established by a preponderance of the evidence that trial
   counsel did not present any evidence of appellant’s “documented and
   long standing mental health issues, which were easily discoverable,
   during the punishment phase of trial.”

 Appellant established by a preponderance of the evidence that trial
   counsel never visited appellant in jail to inquire about any potential
   mitigating evidence.

 Omission of mitigating evidence during the punishment phase of the
   trial “creates a lack of an adversarial process that should be afforded
   to every [d]efendant.”

 It is unreasonable in a case, in which a defendant is facing life
   imprisonment, not to present any mitigating evidence “or evidence to
   support the [d]efendant’s redeeming qualities during the punishment

                                 25
             phase at trial, especially when the [S]tate has offered a plethora of
             evidence to the contrary.”

          Appellant “met his burden in showing that counsel failed to
             investigate mitigating evidence and, but for counsel’s failure, there is
             a reasonable probability that the punishment in his case would have
             been significantly less harsh, thus the [appell]ant was prejudiced by
             the failure of defense counsel to investigate or introduce the
             mitigating evidence during the punishment phase of trial; this Court
             recommends relief.”

Following abatement and the signing of findings and conclusions, the State has not
challenged on appeal the trial court’s determination that a new trial is warranted as
to appellant’s punishment. Based on the trial court’s findings and conclusions, we
reverse the portion of the trial court’s judgment assessing appellant’s punishment,
and we remand the case to the trial court for a new punishment hearing.

                                    Conclusion

       We affirm the trial court’s judgment as to appellant’s conviction; we reverse
the trial court’s judgment as to appellant’s punishment, and we remand the case to
the trial court for a new punishment hearing.




                                       /s/      William J. Boyce
                                                Justice



Panel consists of Justices Boyce, Busby and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).


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