
 
 
 



NUMBER 13-08-00021-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

REGINALD GUILLORY,	 				                   Appellant,

v.


THE STATE OF TEXAS,						           Appellee.
 

On appeal from the County Court at Law 
of Liberty County, Texas.
 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela


 Appellant, Reginald Guillory, was charged by information with assault-family
violence, a class A misdemeanor.  See Tex. Penal Code Ann. § 22.01(a)(1), (b) (Vernon
Supp. 2008).  After a bench trial, the trial court found Guillory guilty and assessed
punishment at 180 days in jail.  In four issues, Guillory argues:  (1) he received ineffective
assistance of counsel; (2) the evidence was legally and factually insufficient to support his
conviction; and (3) the trial court abused its discretion in denying him a meaningful hearing
on his pro se motion for new trial.  We affirm.
I. Factual Background

A. State's Evidence
	Reginald Guillory lived with his mother, Jackie Simon, in Ames, Texas.  On July 25,
2007, while Simon was at work, Guillory put boxes in Simon's house, moved her furniture
around, and took things off of the walls.  He was trying to "move things out" so his son
could move into the house.  When Simon came home, she found her house in a "mess,"
and she and Guillory began to argue.  When she turned around to hang a picture, she felt
something hit the back of her head.  She felt pain and heard her head "crack."  She fell
onto a table and hit her head.  Shaking her head, she tried to get up and saw a candle on
the living room floor.  She did not see what had hit her; however, she testified that she was
struck on her head by the candle.  She asked Guillory why he had hit her with the candle,
but he did not answer.  She got an icepick from her bedroom, and when she left her
bedroom, she saw Guillory sitting in a chair.  She told him to get out of the house and that
if he hit her again, she was going to give him "some bodily injury."  After telling him this, she
stuck the icepick into the chair.  When he still refused to leave, she went to the parole
office and told her son's parole officer about the assault.
	Simon sought medical attention for her injury and testified that she had a
concussion to the left side of her head and a hematoma to the back of her head.  When
the prosecutor asked her, "Now have you suffered any type of symptoms since being
struck with [the candle] that you were not suffering prior to being hit?", she said she had
headaches, swelling to her head, and pressure to the back of her head that "falls on my
shoulder. . . ."  She takes migraine headache pills four times a day and additional pain pills
for her headaches as necessary.  She testified that at the time of the assault, she and
Guillory were the only people in the house.
	On cross-examination, Simon testified that the injuries to her head were not caused
by a prior assault perpetrated by her husband.  When asked how she knew Guillory threw
the candle at her, she said, "There wasn't nobody else in there but Reginald [appellant]." 
When asked "[h]ow do you know he threw the candle?", she responded:  "Because it was
right in front where I had it on my bar like I have all my other candles up there and that is
the candle that he picked up to strike me with" and that "[i]t fell to the floor when he hit me,
I caught my head and I heard it crack.  I saw the candle on the floor and I fell."  Defense
counsel questioned her further by asking, "How do you know he hit you with that candle? 
You did not see it coming.  How do you know it wasn't one of the cups or plates on the
floor?  You don't."  She replied, "It wasn't any cups or plates sir in the living room on the
floor.  They were in the kitchen area. . . ."  Picking up the candle, defense counsel asked
her, "Can you say with absolute certainty that this thing was thrown at you?"  She
answered affirmatively.
B. Defense Evidence
	Officer Tommy Koen with the Liberty County Sheriff's Department spoke to Simon
about the assault on the date it occurred.  He testified that Simon told him her son had
assaulted her.  Officer Koen saw no injury to her head; however, when he touched the area
where she said she had been hit, she "hollered" and said it hurt.  Officer Koen testified that
he saw what "appeared to be wax off a candle" in Simon's hair.  When defense counsel
asked him, "You said there was . . . a white waxy substance in her hair?", he replied:   "Yes
sir, there was a substance there in the area that she showed me that she had been hit with
the candle . . . .  There was some white flaky stuff substance there."  Defense counsel
showed him the candle that was allegedly used to hit Simon and asked him, "See that dent
in the candle right there? . . . You think that would be made from a skull?  To this, Officer
Koen replied:  there "is a tall statue there [in the house].  It had a small round, I don't know
if it was a head or what on the statue, that the candle hit and there seemed to be some
white waxy substance on top of it that seemed to fit the gouge in the candle."
	On cross-examination, the prosecutor asked officer Koen:  "The material that you
found, you noticed in the hair of Ms. Simon, was that consistent with the color and texture
of State's Exhibit 2?" (1)  He replied, "Yes it was."
	Guillory denied hitting his mother on her head with a candle and said he did not
know how the candle became dented.  He said the candle was on the counter in the
house.  Guillory testified that when he refused to leave the house, Simon "picked the
phone out of the thing and threw it, through where the bar part is.  So I don't know if the
candle fell cause I didn't pay attention to the candle."  He further testified she swung the
icepick at him four or five times, put it to his throat, and threatened to kill him.  Then, she
started sticking the icepick into the chair.  When she backed up, he got out of the chair and
tried to pull the icepick out of her hand.  According to Guillory, she pulled back on the
icepick, she slipped and hit her head on the table.
 II. Discussion

A. Ineffective Assistance of Counsel 
 	In issues one and two, Guillory argues he received ineffective assistance of counsel. 
See U.S. Const. amend. VI.  In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court established a two-prong test for evaluating ineffective assistance of
counsel claims.  Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).  To obtain
a reversal of a conviction under the Strickland test, an accused "must show that: (1)
counsel's performance fell below an objective standard of reasonableness; and (2)
counsel's deficient performance prejudiced the defense, resulting in an unreliable or
fundamentally unfair outcome of the proceeding."  Id. (citing Strickland, 466 U.S. at 687). 
The second prong of the Strickland test is generally met by showing there is a reasonable
probability that, but for counsel's deficient performance, the result of the proceeding would
have been different.  Id. (citing Strickland, 466 U.S. at 692); Thompson v. State, 9 S.W.3d
808, 812 (Tex. Crim. App. 1999).  "A reasonable probability is a probability sufficient to
undermine confidence in the outcome."  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.
App. 2001).
1. Failure to Timely Amend Motion for New Trial
	Guillory argues his trial counsel was ineffective for failing to timely amend his pro
se motion for new trial.  A defendant may amend his or her motion for new trial before it
is acted upon so long as it is amended within thirty days of the sentencing date.  Tex. R.
App. P. 21.4(b); Klapesky v. State, 256 S.W.3d 442, 454 (Tex. App.-Austin 2008, pet.
ref'd).  Here, assuming counsel's performance was deficient for failing to amend Guillory's
pro se motion for new trial, Guillory has failed to demonstrate a reasonable probability that
the result of the proceeding would have been different if counsel had acted professionally
by timely amending the motion for new trial.  See Thompson, 9 S.W.3d at 812.




2. Counsel's Failure to Assert Ineffective Assistance of Counsel Claims at the Hearing on
the Motion for New Trial
	On November 26, 2007, Guillory filed a timely pro se motion for new trial, alleging: 
(1) the trial court abused its discretion in refusing to grant his pro se motion to dismiss (2) his
attorney of record, and (2) he received ineffective assistance of trial counsel.  Guillory
argues that the attorney who represented him at the hearing on his pro se motion for new
trial was ineffective for failing to assert that his trial counsel was ineffective.  Even if we
assume the attorney who represented Guillory at the new-trial hearing was deficient on this
basis, Guillory has failed to demonstrate a reasonable probability that the result of the
proceeding would have been different if counsel had acted professionally by asserting this
claim at the new-trial hearing.  See Thompson, 9 S.W.3d at 812.
3. Failure to Request a Hearing on the Discovery Motion

	Guillory argues trial counsel was ineffective for failing to request a hearing on his
discovery motion.  After Guillory was charged with Simon's assault, his trial counsel filed
a discovery motion; however, no hearing was ever held on the motion.  On appeal, Guillory
argues that because potentially exculpatory material "was hidden by the State," trial
counsel's failure to "press for a hearing" on the discovery motion constituted ineffective
assistance of counsel.  To protect an accused's "right to a fair trial, the Due Process
Clause of the Fourteenth Amendment to the United States Constitution requires the
prosecution to disclose exculpatory and impeachment evidence to the defense that is
material to either guilt or punishment."  Ex parte Reed, 271 S.W.3d 698, 726 (Tex. Crim.
App. 2008) (citing Strickler v. Greene, 527 U.S. 263, 280 (1999)).  The Supreme Court has
held that this rule encompasses evidence unknown to the prosecution but known to law-enforcement officials and others working on their behalf.  Kyles v. Whitley, 514 U.S. 419,
438 (1995).  To succeed in showing a violation, an accused must show:  (1) the evidence
is favorable to him because it is exculpatory or impeaching; (2) the evidence was
suppressed by the government or persons acting on its behalf, either inadvertently or
willfully; and (3) the suppression of the evidence resulted in prejudice (i.e., materiality).  Ex
parte Reed, 271 S.W.3d at 726-27 (citing Strickler, 527 U.S. at 281-82); see Brady v.
Maryland, 373 U.S. 83, 87-88 (1963).  "Evidence is material to guilt or punishment 'only if
there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.'"  Id. at 727 (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)).  "'A 'reasonable probability' is a probability sufficient
to undermine confidence in the outcome.'"  Id. (quoting Bagley, 473 U.S. at 682).  Here,
Guillory complains the prosecution withheld:  (1) the offense report relating to an incident
when Simon's husband assaulted her; (2) the details relating to the extent of the injuries
Simon suffered when she was assaulted by her husband; (3) Simon's prior criminal history;
and (4) photographs, which showed a waxy substance in Simon's hair.
a. The Offense Report and Details About the Injuries Simon Suffered After Her Husband
Assaulted Her

	During the State's case-in-chief, Simon testified that on July 19, 2007 (six days
before Guillory allegedly assaulted Simon), she and her husband "had gotten into a
confrontation" during which he hit her with an open door on his truck, causing her to fall
and hit her head on concrete.  She did not know she suffered any injury to her head "until
later because . . . . [she] started having headaches."  When the prosecutor asked her,
"Okay so you didn't go see a doctor right away?", she said, "No I didn't."
	Guillory does not state how either the offense report or the details of Simon's prior
head injury constituted exculpatory or impeaching evidence.  We note defense counsel's
strategy was to show, in part, the injuries Simon testified that she received from Guillory's
assault upon her were actually caused by the prior assault.  Assuming arguendo that the
complained-of evidence was either exculpatory or impeaching, Guillory still has the burden
to show that the suppression of this evidence resulted in prejudice.  See Ex parte Reed,
271 S.W.3d at 726-27 (stating that to succeed in showing a Brady violation, an accused
must show the suppression of the evidence resulted in prejudice (i.e., materiality)).  Guillory
has not shown that there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.  See id. at 727.
b. Simon's Criminal History
	On appeal, Guillory states that Simon's criminal history does not appear in the
record, and he does not state the nature of her criminal history.  Nevertheless, assuming
arguendo that the State withheld evidence of Simon's criminal history, Guillory still has the
burden to show that the suppression of the criminal history resulted in prejudice to him. 
See Ex parte Reed, 271 S.W.3d at 726-27.  Guillory has not shown that there is a
reasonable probability that, had the criminal history been disclosed to the defense, the
result of the proceeding would have been different.  See id. at 727.   
c. Photographs of Simon's Hair
	Shortly after Guillory assaulted Simon, Officer Koen saw what "appeared to be wax
off a candle" in Simon's hair.  He used a digital camera to photograph the substance and
then transferred the photographs onto a disc, which was submitted along with his report
to the sheriff's office.  During trial, defense counsel asked Officer Koen, "Did you put that
fact in your report?  The fact that you believe that there was some wax in her [Simon's]
hair?"  To this, he replied, "It should . . . show up in the pictures that I took at the incident." 
Officer Koen did not bring these photographs to trial with him, and defense counsel had
not seen them.  After defense counsel passed Officer Koen as a witness, the trial court
asked Officer Koen to retrieve the photographs.  Officer Koen told the court the
photographs "would have to be developed" unless there was another way to show them. 
When the trial court asked the prosecutor if he had a digital printer, he said that he did. 
After a recess, the prosecutor told the trial court he had given the photographs to defense
counsel.  At this point, the following exchange occurred between the court and defense
counsel:
	Court:	And do you desire a recess, continuance for a day or so while
you examine those photographs?

	Counsel:	No Judge, I've examined them.  Our problem is more so that
we prepared defenses in a certain way and those pictures kind
of put a bit of a cramp in our procedure.

	Court: 	Well I will recess the trial while you re-examine it if you want to.

			* * * *

	Court:  	I have indicated to . . . [defense counsel] that I am willing to
give him any time, reasonable time that he needs as a result
of [the] State's inability to comply with the [discovery]
agreement. . . .

After another recess, defense counsel told the trial court:
	Counsel:  	There are a couple of pictures that I am going to object to
coming in.  Most of them are okay.  There are a couple of them
that kind of hurts the Defense strategy that we have built up
during trial.

	Court:  	[D]o I need to wait and to hear those at the time that they might
be introduced?

	Counsel:  	I can make the appropriate objections at the time.

	During Officer Koen's cross-examination, the prosecutor offered into evidence a
photograph showing the waxy substance in Simon's hair.  Defense counsel objected that
the photograph was "extremely prejudicial to the way that we built our defense. . . ."  The
trial court sustained the objection.
	On appeal, Guillory argues that "[h]ad the defense known of the pictures and the
evidence of wax in the hair, it would have presented a different defense which explained
the existence of the wax."  However, we note that the trial court asked Guillory's counsel
if he "desire[d] a recess, continuance for a day or so while you examine those
photographs[?]"  However, counsel told the court he did not need a continuance. 
Afterwards, the trial court stated it was "willing to give him [defense counsel] any time,
reasonable time that he needs as a result of [the] State's inability to comply with the
[discovery] agreement."  Rather than request additional time to prepare a defense to
explain the existence of the wax in Simon's hair, defense counsel told the court he would
object to the photographs as they were introduced.  The record does not show what
defense, if any, defense counsel would have prepared had he known about the
photographs before trial.  Thus, Guillory has not shown that there is a reasonable
probability that, had the photographs been disclosed to the defense before trial, the result
of the proceeding would have been different.  See Ex parte Reed, 271 S.W.3d at 727.
	Therefore, even assuming counsel was deficient for failing to have a hearing on the
discovery motion, Guillory has failed to demonstrate a reasonable probability that the result
of the proceeding would have been different if counsel had obtained a hearing on the
discovery motion.  See Thompson, 9 S.W.3d at 812.  Issues one and two are overruled.
B. Sufficiency of the Evidence
	In issue three, Guillory argues the evidence is legally and factually insufficient to
support his conviction.
1. Standard of Review-Legal Sufficiency
	In reviewing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in the light most favorable to the verdict in order to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanchez v. State, 275
S.W.3d 901, 902 n.2 (Tex. Crim. App. 2009).  This "standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts."  Jackson, 443 U.S.
at 319.  The trier of fact is the sole judge of the weight and credibility of the evidence.  Tex.
Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000).  Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of
the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We must
resolve any inconsistencies in the evidence in favor of the judgment.  Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000).
a. Applicable Law
	We review the sufficiency of the evidence by the elements of the offense as defined
by the hypothetically correct jury charge for the case.  Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997); State v. Blankenship, 170 S.W.3d 676, 682 (Tex. App.-Austin
2005, pet. ref'd).  The Malik test applies to non-jury or bench trials.  Malik, 953 S.W.2d at
240; Blankenship, 170 S.W.3d at 682.
	Section 22.01(a)(1) of the Texas Penal Code entitled "Assault" provides that "[a]
person commits an offense if the person . . . intentionally, knowingly, or recklessly causes
bodily injury to another, . . . ."  Tex. Penal Code Ann. § 22.01(a)(1).  "Bodily injury" is
defined as "physical pain, illness, or any impairment of physical condition."  Id. § 1.07(a)(8)
(Vernon Supp. 2008).
	Here, the information alleged the offense in the following manner:  "REGINALD
GUILLORY heretofore on or about the 25th Day of July A.D., 2007, . . . did then and there
intentionally, knowingly, or recklessly cause[d] bodily injury to JACKIE SIMON, a member
of the defendant's family or household, to-wit:  BY STRIKING HER WITH A CANDLE
AND/OR A CANDLE HOLDER; . . . ."  The family code states that "'Family' includes
individuals related by consanguinity . . . ."  Tex. Fam. Code Ann. § 71.003 (Vernon 2008). 
Section 573.022(a) of the government code provides, in relevant part, that "Two individuals
are related to each other by consanguinity if:  (1) one is a descendant of the other; . . . ." 
Tex. Gov't Code Ann. § 573.022(a)(1) (Vernon 2004).  "Household" means a unit
composed of persons living together in the same dwelling, without regard to whether they
are related to each other."  Tex. Fam. Code Ann. § 71.005.
b. Analysis
	In this case, a rational fact finder could have determined the following from the
evidence:  (1) Simon is Guillory's mother, and both lived in the same household; (2) while
they were having an argument, Simon turned around and felt something hit the back of her
head; (3) she felt pain and heard her head "crack"; (4) when she tried to get up, she saw
a candle on the living room floor; (5) she did not see what had hit her, but testified that the
candle had hit her on the head; (6) when she asked Guillory why he had hit her with the
candle, he did not answer; (7) she testified she knew the object that hit her on the head
was a candle because prior to getting hit, the candle was on the bar; after she was hit, she
saw the candle on the floor; (8) when Officer Koen touched the area on Simon's head
where she said she had been hit, she "hollered" and said it hurt; and (9) Officer Koen saw
what "appeared to be wax off a candle" in Simon's hair in the area where she said she had
been hit with the candle.
	Controverting evidence showed that:  (1) Guillory denied that he had hit Simon; (2)
he said that Simon hit her head after she had fallen down when pulling on the icepick; (3)
Officer Koen saw no injury on Simon's head; (4) Officer Koen testified that the "flakes that
appeare[d] to . . . . be wax" "could have been anything[;]" (5) six days prior to this assault,
Simon had fallen and hit her head on concrete; and (6) the prior assault caused her to
have headaches.
	Given this evidence, we assume the trial court resolved conflicts, including
conflicting inferences in favor of the verdict.  Matchett v. State, 941 S.W.2d 922, 936 (Tex.
Crim. App. 1996).  In conducting our legal sufficiency review, we defer to that resolution
and also resolve any inconsistencies in favor of the verdict.  See id.; Matson v. State, 819
S.W.2d 839, 843 (Tex. Crim. App. 1991).  Viewing the evidence in the light most favorable
to the verdict, we hold the evidence is legally sufficient to sustain the conviction beyond a
reasonable doubt.
2. Standard of Review-Factual Sufficiency
	In a factual sufficiency review, the only question to be answered is:  "Considering
all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a
reasonable doubt?"  Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). 
Evidence can be deemed factually insufficient in two ways:  (1) "the evidence supporting
the conviction is 'too weak' to support the factfinder's verdict:" or (2) "considering conflicting
evidence, the factfinder's verdict is 'against the great weight and preponderance of the
evidence.'"  Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (quoting Watson
v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)).  "When a court of appeals
conducts a factual sufficiency review, [the court] must defer to the jury's findings."  Id.
(citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)).  The court of criminal
appeals has "set out three 'basic ground rules' implementing this standard."  Id. (quoting
Watson, 204 S.W.2d at 414).  First, the appellate court "must consider all of the evidence
in a neutral light, as opposed to in a light most favorable to the verdict."  Id. (citing Watson,
204 S.W.3d at 414).  Second, the appellate court "may only find the evidence factually
insufficient when necessary to 'prevent manifest injustice.'"  Id. (quoting Cain, 958 S.W.2d
at 407).  "Although the verdict is afforded less deference during a factual sufficiency
review," an appellate court is not free to "override the verdict simply because it disagrees
with it."  Id. (citing Cain, 958 S.W.2d at 407).  Third, the appellate court "must explain why
the evidence is too weak to support the verdict or why the conflicting evidence greatly
weighs against the verdict."  Id. (citing Watson, 204 S.W.3d at 414).
	Viewing the evidence neutrally, we conclude the evidence supporting the conviction
is not so weak that the fact finder's determination is clearly wrong and manifestly unjust,
or that the verdict is against the great weight and preponderance of the evidence.  We hold
the evidence is factually sufficient to support the conviction.  Issue three is overruled.
C. Hearing on Motion for New Trial
	In issue four, Guillory argues the trial court abused its discretion by denying him a
meaningful hearing on his pro se motion for new trial.  To preserve an issue for appellate
review, "[t]he brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record."  Tex. R. App. P. 38.1(i).  "An
argument that fails to cite supporting authority presents nothing for review."  Rocha v.
State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000) (citing McFarland v. State, 928 S.W.2d 482,
512 (Tex. Crim. App. 1996), see Dunklin v. State, 194 S.W.3d 14, 23 (Tex. App.-Tyler
2006, no pet.); Willis v. State, 192 S.W.3d 585, 597 (Tex. App.-Tyler 2006, pet. ref'd);
Dennis v. State, 151 S.W.3d 745, 752 (Tex. App.-Amarillo 2004, pet. ref'd); King v. State,
17 S.W.3d 7, 23 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (op. on reh'g).  Because
Guillory has failed to cite supporting authority for his argument, his issue is inadequately
briefed and presents nothing for review.  See Tex. R. App. P. 38.1(i); Rocha, 16 S.W.3d at
20 (argument that fails to cite to supporting authority in support of claim presents nothing
for review).  Issue four is overruled.
III. Conclusion

	We affirm the trial court's judgment.
 
 
							ROSE VELA	
							Justice


Do not publish.
Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and
filed this 2nd day of July, 2009.
1. State's exhibit 2 is the candle, which Guillory allegedly used to hit Simon.  The candle was recovered
from Simon's house and admitted into evidence during the State's case-in-chief.
2. We note that on September 13, 2007, Guillory's attorney of record filed a motion to withdraw as
counsel in this case.  That day, the trial court granted the motion to withdraw.
