Opinion issued December 20, 2012




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-11-00500-CR
                           ———————————
                     THE STATE OF TEXAS, Appellant
                                       V.
                        JEREMY THOMAS, Appellee



                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Case No. 1284896



                                 OPINION

      A jury convicted appellee, Jeremy Thomas, of the first-degree felony offense

of murder, and the trial court assessed his punishment at confinement for life.1


1
      See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).
Thomas moved for a new trial “in the interest of justice” because the jury did not

hear exculpatory testimony from an alleged eyewitness. The trial court granted his

motion for new trial. In two issues, the State contends that (1) the trial court erred

in granting a new trial because there was no legal basis for a new trial and Thomas

failed to establish that his trial was not held in accordance with the law, and (2) if

we determine that the trial court erroneously granted a new trial on guilt-

innocence, Thomas is not entitled to a new trial solely on punishment.

      We reverse and remand.

                                    Background

      On August 3, 2006, Houston Police Department (“HPD”) officers responded

to a 9-1-1 call at the Court Glen Apartments in southwest Houston. Officers

discovered the body of the complainant, Vernon Keith Moses, lying on his side in

the doorway of his apartment, Apartment 1601. Moses had three gunshot wounds

to his back and the back of his head. Officers recovered four .40 caliber fired

cartridge casings from the scene.

      At the time of the shooting, Brandon Lusk lived in Apartment 2205, which

was located further inside the apartment complex from Building 16. Lusk arrived

home around 11:10 p.m. and walked past Moses’ apartment to get to his own. He

saw Moses, whom he did not know very well, standing outside with an

unidentified man. Lusk testified that Moses was pacing and appeared agitated.

                                          2
Lusk briefly engaged Moses in conversation, and he then continued walking to his

apartment. Three or four minutes after Lusk arrived at his apartment, he heard

three gunshots. Lusk turned the lights off in his apartment, opened his front door

slightly, and looked outside. Lusk saw a young man walking quickly past his

apartment. This man was holding his shorts up with his right hand and was

holding a pistol in his left hand. Lusk did not see this man’s face, and he could not

identify this man.   Lusk waited about five to ten minutes before leaving his

apartment to attempt to aid Moses.

      Maria Coronado lived in Apartment 2306, which was next door to Thomas’s

apartment, 2308, and was located in the building perpendicular to Building 16. On

the night of the shooting, Coronado heard arguing coming from outside and looked

out her window to investigate. Coronado could clearly see Thomas and one of his

friends arguing with Moses at Moses’ apartment. After two or three minutes,

Thomas and his friend, whom Coronado did not identify, walked upstairs to

Thomas’s apartment. Coronado saw them go “right back downstairs,” and she

then heard four or five gunshots. Coronado was still looking out of her window

when she heard the gunshots, but she did not see who fired the shots. She saw

Thomas and his friend run away after the gunshots, but she could not remember the

direction in which they ran.




                                         3
      Trancquena Johnson testified that she was at the Court Glen Apartments on

the night of the shooting to visit her friend Ochelata Reliford and his roommate,

who lived in Apartment 2311. Johnson recognized Thomas as one of the men she

had seen at Apartment 2308 on previous occasions, but she did not know him by

name. At one point in the evening, Johnson saw Thomas, a man later identified as

Carnell Meredith, a woman, and Moses arguing in front of Moses’ apartment.

Johnson went back inside her friends’ apartment, but she then decided to go home

about five minutes later. As she walked out to her car with her daughter, her

godson, and Reliford, Johnson had a “clear view” of Moses’ apartment, and she

saw the group still arguing. Johnson then saw Thomas raise a gun and start firing

at Moses. When she heard the gunshots, Johnson ran to get her daughter and

godson out of her car. As she was doing this, Thomas ran past her, and she saw

what appeared to be a gun in his hand. Johnson testified that she got a “good look”

at Thomas as he ran past her and that she recognized him from having seen him

around the apartment complex on previous occasions.

      Reliford was at home throughout the day on August 3, 2006. He first saw

Thomas, whom he called “Red,” hanging out with some other men that morning.

He later saw Thomas “having a confrontation” with his girlfriend, Ciarra Vallery,

who also lived in Apartment 2308. He also periodically saw Moses, who was

arguing with Thomas off and on that day. Later that evening, when Johnson was

                                        4
leaving, Reliford saw Ciarra sitting on the steps of her apartment, crying, and

telling Thomas, “Don’t do this.” According to Reliford, Thomas then walked

downstairs and over to Moses’ apartment. Thomas knocked on Moses’ door,

started to open the door himself, and shot Moses in the head. Thomas and three or

four other men then ran past Reliford and Johnson. Reliford did not lose sight of

Thomas after the gunshots, and he saw Thomas run by with a gun in his hand.

      Ciarra Vallery, who testified on Thomas’s behalf, acknowledged that she

had a “disagreement” with Thomas on the day of the shooting, but she also

testified that she spent the night at a friend’s apartment and therefore was not at

home at the time of the shooting. Ciarra stated that her sister, Shelita Vallery, was

at Apartment 2308 on the night of the shooting. She said that, at one point that

night, she received a phone call from Shelita, who was very excited and upset,

telling her about what happened. Ciarra stayed at her friend’s house, but she spoke

with Thomas, who told her that he was at home and was “all right.” Ciarra spoke

with Shelita “probably once” about the incident, and she testified that Shelita told

her that she “didn’t see too much of it.”

      During a bench conference after Ciarra’s testimony, the prosecutor asked

defense counsel, “Are you going to put on [Shelita]?” Defense counsel responded,

“No.” In her subsequent questioning of HPD Detective J. Brooks, the prosecutor

asked Brooks whether, during his interrogation of Thomas, he let Thomas read any

                                            5
written statements before he began the recorded interview.          Detective Brooks

responded that he let Thomas read Shelita’s statement.2

      The jury convicted Thomas of murder, and the trial court assessed

punishment at confinement for life.

      Thomas then moved for a new trial. In this motion, Thomas argued that he

“obtained compelling evidence that was not presented at trial,” namely, the

affidavit of Shelita Vallery, in which she averred that she witnessed Carnell

Meredith shoot Moses. She averred that Thomas had his back to Moses and was

walking up the stairs to his apartment when Meredith shot Moses. This sworn

testimony corresponds with the contents of Shelita’s written statement. Thomas

also argued in his motion for new trial that Meredith had pleaded guilty to Moses’

murder and had received a ten-year sentence.3 Thomas argued that the State’s case

depended on “reluctant witnesses who gave muddied statements,” and he argued

that both the guilty verdict and the punishment verdict were “against the interest of

justice.”   He further argued that his trial was seriously flawed and that his

substantial rights were affected “because compelling evidence that shows his

actual innocence and mitigates punishment was not admitted at trial.” He did not

2
      Thomas’s appellate counsel acknowledges that trial counsel was aware of Shelita’s
      statement, which was exculpatory, several months before appellee’s trial.
3
      Evidence to this effect was presented to the jury. Detective Brooks testified that
      Meredith was charged with Moses’ murder, and he acknowledged that Meredith
      had ultimately pleaded guilty to this charge.
                                          6
argue either ineffective assistance of counsel or newly-discovered evidence as

grounds for granting a new trial.

      During the motion for new trial hearing, Thomas argued:

      [The motion for new trial is] not based on newly discovered evidence.
      It’s not based on ineffective assistance of counsel. We have a witness
      that was not presented at trial that was an eyewitness to the murder
      that [she] saw someone else do; and in the interest of justice, we ask
      that the Court either order a new trial or [a] new punishment hearing
      in light of this woman’s testimony.

Throughout the hearing, Thomas’s appellate counsel repeatedly stated that she was

not arguing that his trial counsel was ineffective for failing to call Shelita Vallery

to testify. Thomas’s trial counsel testified at the hearing and agreed with the State

that the prosecutor had provided a copy of Shelita’s written statement to Thomas

prior to trial. He also testified that he had contacted Shelita and that she “was

present to be a witness” during the trial. During this hearing, Thomas repeatedly

objected and asserted attorney-client privilege whenever the prosecutor attempted

to ask trial counsel whether he had a strategy for not calling Shelita to testify.

      In ruling on the motion, the trial court stated:

      First, I do believe that testimony of [Shelita] could have made a
      difference in the outcome of the trial during the guilt/innocence phase
      and if not during the guilt/innocence phase, certainly during the
      punishment phase. I’m the one that assessed punishment. I was not
      privy to this information.
      Secondly, immediately upon sentencing and leaving the bench, I
      seriously questioned whether or not and still believe that my
      punishment in this case was excessive given the facts and

                                           7
      circumstances or given the evidence that I heard from the witness
      stand and the questions that remain.
      I understand the jury returned a verdict of guilty of murder against this
      defendant. However, if I’m to assess punishment, I must consider all
      facts and circumstances. All facts and circumstances and the evidence
      as I saw it.
      I believe there was a question as to the actual gunman. I believe there
      could have been another gunman, and I believe that the sentence I
      assessed was excessive.

The court also stated that a “major factor” in its decision was that it “was not aware

of this witness, [her] ability to contradict, directly contradict and [who] was

probably in a better position to see what actually occurred . . . .” The trial court

ultimately granted Thomas’s motion for new trial, and the State appealed this

order. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(3) (Vernon Supp. 2012)

(providing State opportunity to appeal order granting new trial in criminal case).

                                Motion for New Trial

      In its first issue, the State contends that the trial court erroneously granted

Thomas’s motion for new trial in the interest of justice because Thomas did not

establish that his trial was not conducted in accordance with the law or that a valid

legal basis existed for granting a new trial.

      A.     Standard of Review

      The Court of Criminal Appeals has held that a trial court has the authority to

grant a new trial “in the interest of justice” and that a court’s ruling on a motion for

new trial is reviewed only for an abuse of discretion. State v. Herndon, 215
                                           8
S.W.3d 901, 906 (Tex. Crim. App. 2007). The test for abuse of discretion is not

whether, in the opinion of the appellate court, the facts present an appropriate case

for the trial court’s action, but rather, “it is a question of whether the trial court

acted without reference to any guiding rules or principles.” Id. at 907 (quoting

Howell v. State, 175 S.W.3d 786, 796 (Tex. Crim. App. 2005)); State v. Hart, 342

S.W.3d 659, 664 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). The mere

fact that the trial court may decide a matter within its discretionary authority

differently from an appellate court does not demonstrate an abuse of discretion.

Herndon, 215 S.W.3d at 907–08 (quoting Howell, 175 S.W.3d at 792); Hart, 342

S.W.3d at 664. We view the evidence in the light most favorable to the trial

court’s ruling, defer to the court’s credibility determinations, and presume all

reasonable fact findings that could have been made in support of the ruling. Hart,

342 S.W.3d at 664 (citing Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App.

2004)). A trial court is given wide latitude in deciding whether to grant or deny a

motion for new trial. State v. Boyd, 202 S.W.3d 393, 401 (Tex. App.—Dallas

2006, pet. ref’d). A trial court’s ruling granting a motion for new trial is presumed

to be correct, and the burden rests on the State to establish the contrary. Id. at 401–

02.

      Nevertheless, the trial court’s discretion to grant a motion for new trial “in

the interest of justice” is not “unbounded or unfettered.” Herndon, 215 S.W.3d at

                                          9
907. Instead, “justice” means “in accordance with the law.” Id.; Hart, 342 S.W.3d

at 663. The trial court cannot grant a new trial based on mere sympathy, an

inarticulate hunch, “or simply because he personally believes that the defendant is

innocent or ‘received a raw deal.’” Herndon, 215 S.W.3d at 907; Hart, 342

S.W.3d at 663. Texas Rule of Appellate Procedure 21.3 lists the legal grounds for

which the trial court must grant a new trial, but that list “is illustrative, not

exclusive.” Herndon, 215 S.W.3d at 907; TEX. R. APP. P. 21.3. Although the trial

court may grant a motion for new trial on a basis not listed in a statute or in a rule,

the court does not have discretion to grant a new trial “unless the defendant shows

that he is entitled to one under the law.” Herndon, 215 S.W.3d at 907 (citing State

v. Hight, 907 S.W.2d 845, 847 (Tex. Crim. App. 1995)); Hart, 342 S.W.3d at 664.

A trial court abuses its discretion if it grants a new trial for non-legal or a legally

invalid reason. See Herndon, 215 S.W.3d at 907; Hart, 342 S.W.3d at 664.

      Although a trial court has “wide discretion” in ruling on a motion for new

trial that sets out a valid legal claim, the court should exercise its discretion by

balancing the defendant’s “interest of justice” claim against both the interest of the

public in finality and the harmless-error standards of Texas Rule of Appellate

Procedure 44.2. See Herndon, 215 S.W.3d at 908; Hart, 342 S.W.3d at 664; see

also TEX. R. APP. P. 44.2(a)–(b) (providing that court must reverse on basis of

constitutional error “unless the court determines beyond a reasonable doubt that the

                                          10
error did not contribute to the conviction or punishment” and providing that

appellate court must disregard all other errors that do not “affect substantial

rights”). The trial court should not grant a new trial if the defendant’s substantial

rights were not affected; otherwise, “the phrase ‘interest of justice’ would have no

substantive legal content, but [would] constitute a mere platitude covering a

multitude of unreviewable rulings.” Herndon, 215 S.W.3d at 908.

      The Court of Criminal Appeals expressly stated in Herndon that it was not

setting out a bright-line rule concerning appellate review of a trial court’s

discretion in granting a new trial in the interest of justice, but it concluded that a

trial court “would not generally abuse its discretion in granting a motion for new

trial” if the defendant: (1) articulated a valid legal claim in his motion for new

trial; (2) produced evidence or pointed to evidence in the trial record that

substantiated his legal claim; and (3) showed prejudice to his substantial rights

under the standards of Rule 44.2. Id. at 909; Hart, 342 S.W.3d at 664. The

defendant is not required to establish reversible error as a matter of law before the

trial court may exercise its discretion to grant a new trial. Herndon, 215 S.W.3d at

909. Trial courts do not, however, have the discretion to grant a new trial unless

the defendant demonstrates that his first trial was seriously flawed and that the

flaws adversely affected his substantial rights to a fair trial. Id.; Hart, 342 S.W.3d

at 664–65.

                                         11
      B.     Basis for Granting New Trial “In the Interest of Justice”

      Under Herndon, the trial court generally does not abuse its discretion in

granting a new trial in the interest of justice if the defendant articulates a “valid

legal claim” in his motion for new trial. 215 S.W.3d at 909. Thomas contends that

he was “deprived of direct exculpatory evidence that would have worked to show

his innocence,” and that this is a “valid legal error.” The State argues that Thomas

has shown no legal error in this case because trial counsel was aware of Shelita

Vallery’s statement months before trial and affirmatively stated on the record at the

trial that he would not be calling her as a witness, even though she was present and

available to testify, and appellate counsel repeatedly stated at the motion for new

trial hearing that she was not raising an ineffective assistance claim as a result of

trial counsel’s failure to call Shelita. We agree with the State and conclude that

Thomas failed to articulate a valid legal claim for granting his motion for new trial.

      It is undisputed that defense counsel was aware of Shelita’s written

statement to police several months before the trial.       Defense counsel himself

testified at the motion for new trial hearing that he knew of this statement and that,

during the course of preparing for trial, he contacted Shelita to discuss her

statement. Defense counsel also acknowledged that Shelita was present at trial and

was available to testify. Cf. State v. Gonzalez, 855 S.W.2d 692, 695 (Tex. Crim.

App. 1993) (affirming trial court’s decision to grant new trial in interest of justice

                                         12
when witness was not available to testify at sentencing hearing, but asked trial

court to grant new trial so his testimony in favor of defendant could be considered).

      Ciarra Vallery, Thomas’s girlfriend and Shelita’s sister, testified on

Thomas’s behalf that she was not at home during the evening of the shooting and

that she received a phone call from Shelita, who was at the apartment and who

seemed very excited and upset, during which Shelita informed Ciarra of the

shooting. However, during a bench conference shortly after Ciarra testified, the

prosecutor asked defense counsel, “Are you going to put on [Shelita]?” Defense

counsel explicitly responded, “No.” Thus, defense counsel made a conscious

choice to not call Shelita as a witness, documented on the record at trial, despite

the facts that Shelita was present and available to testify, that counsel knew that

she had previously given an exculpatory statement to police, and that Ciarra’s

testimony implied that Shelita was an eyewitness who might have relevant

information about the shooting.

      In his motion for new trial and at the motion for new trial hearing, Thomas

argued that he “has obtained compelling evidence that was not presented at trial”

and that his trial was “seriously flawed” because “compelling evidence that shows

his actual innocence and mitigates punishment was not admitted at trial.”

Appellate counsel repeatedly stated, however, that she was not arguing that trial




                                         13
counsel was ineffective for failing to call Shelita to testify.4         Thomas thus

contended that it was error for defense counsel not to call Shelita to testify and that

this error supported the granting of a new trial in the interest of justice, but he

simultaneously refused to pursue the avenue that could potentially provide relief

for this failure: an ineffective assistance claim.

      Although the Court of Criminal Appeals recognized in Herndon that the

defendant need not establish reversible error as a matter of law to be entitled to a

new trial in the interest of justice, it held that, for the trial court not to abuse its

discretion in granting a new trial on this basis, the defendant did need to articulate

a “valid legal claim.” 215 S.W.3d at 909. Thomas thus had to show that some

specific error occurred during the trial, regardless of whether that error rose to the

level of reversible error pursuant to Rule 44.2, justifying a new trial. We conclude

that, under the facts of this case—in which defense counsel acknowledged that he

was aware of Shelita Vallery’s written exculpatory statement several months

before trial; Shelita was present and available to testify at trial; counsel

affirmatively stated on the record at the trial that he was not going to call Shelita as

a witness; and appellate counsel refused to raise an ineffective assistance claim

based on this failure—Thomas did not demonstrate a valid legal reason for


4
      Indeed, appellate counsel stated: “If we were saying, Judge, you know, the lawyer
      screwed up, then you would need to hear a strategic reason from him, but we’re
      not saying that.”
                                          14
granting a new trial “in the interest of justice.” See id. at 907 (“To grant a new trial

for a non-legal or legally invalid reason is an abuse of discretion.”); State v. Saylor,

319 S.W.3d 704, 710–11 (Tex. App.—Dallas 2009, pet. ref’d) (“Accordingly,

appellee failed to demonstrate the Rule was violated or that her trial was not in

accordance with the law.       We therefore conclude the trial court abused its

discretion by granting appellee’s motion for new trial.”).

      Thomas cites the Fourteenth Court of Appeals’ decision in State v. Moreno,

297 S.W.3d 512 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d), for the

proposition that defense counsel’s failure to call Shelita Vallery justifies the

granting of a new trial in the interest of justice. In Moreno, an aggravated sexual

assault case, the credibility of the complainant, the defendant’s half-sister, was a

major issue. Twelve to fourteen days before trial, the State informed defense

counsel via fax that the complainant’s records from a mental-health treatment

center were available with the clerk of the court for inspection and copying. Id. at

519. These records, which implicated the complainant’s credibility, were not

admitted until the punishment phase of the trial. Id. at 518. Moreno argued that a

new trial was required in the interest of justice because “if the counseling records

had been admitted during the guilt-innocence phase of trial, the evidence would

have been legally and factually insufficient to support a conviction.” Id. at 519.

The trial court granted the motion, stating, “The [jurors] obviously, as I told you

                                          15
back there, were telling us that if they had known at the [guilt-innocence] phase

what they know now, they would have found him not guilty.” Id. Our sister court

rejected the State’s contention that these records would not have been admissible at

the guilt-innocence phase of the trial. Id. at 523–24. The court noted that the

records “raise the issue of the complainant’s credibility, which the jury was entitled

to hear at guilt-innocence.” Id. at 525. The court ultimately concluded that

Moreno’s trial was seriously flawed and his substantial rights were affected

“because evidence that directly questioned the credibility of the complaining

witness was not admitted during guilt-innocence.” Id.

      Unlike this case, in which defense counsel acknowledged that he was aware

of Shelita’s exculpatory written statement but still affirmatively stated that he

would not be calling her as a witness for Thomas, the Fourteenth Court’s opinion

in Moreno provides no indication of whether defense counsel deliberately chose

not to introduce the complainant’s mental health records until the punishment

phase. See id. at 517 (“At the conclusion of the complainant’s testimony [at the

sentencing hearing], the State introduced a packet of documents, which contained

the complainant’s counseling records from the Devereux Texas Treatment

Network.”). In this case, it is clear from the records of both the trial and the

motion for new trial hearing that defense counsel was aware of Shelita’s

exculpatory statement but consciously decided not to call her as a witness.

                                         16
Additionally, Thomas’s appellate counsel repeatedly objected and asserted

attorney-client privilege when the State asked Thomas’s trial counsel at the motion

for new trial hearing whether he had a strategic reason for not calling Shelita as a

witness, thus preventing the development of this point for the record. We therefore

conclude that Moreno is distinguishable.

       We hold that because defense counsel was undisputedly aware of the

exculpatory evidence before trial but consciously decided, on the record, not to call

the witness at trial, the trial court erroneously granted Thomas’s motion for new

trial in the interest of justice.

       Because we hold that defense counsel’s failure to call Shelita Vallery as a

witness does not justify a new trial on guilt-innocence, we likewise hold that this

failure does not justify a new trial solely on punishment. Moreover, to the extent

Thomas argues that the trial court’s punishment decision was disproportionate

because Carnell Meredith had pleaded guilty to Moses’s murder and received a

ten-year sentence, the trial court affirmatively stated at the new trial hearing that he

was aware of this sentence when he assessed punishment in this case. Thomas has

never presented any argument or authorities that receiving a life sentence—which

is within the permissible statutory range for murder—is grossly disproportionate

when the State presented evidence that he was the principal actor who shot Moses.

See Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.)

                                           17
(holding that, generally, punishment assessed within statutory limits for particular

offense is not excessive, cruel, or unusual, unless sentence is “grossly

disproportionate” to offense); see also Arriaga v. State, 335 S.W.3d 331, 335 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (holding that, in analyzing whether

sentence is grossly disproportionate, courts consider (1) gravity of offense and

harshness of penalty; (2) sentences imposed on other criminals in same

jurisdiction; and (3) sentences imposed for commission of same offense in other

jurisdictions).

      Furthermore, to be entitled to a new trial on punishment, Thomas must

identify a “specific, identifiable, and quantifiable” error made by the trial court in

calculating his punishment. See State v. Stewart, 282 S.W.3d 729, 738 (Tex.

App.—Austin 2009, no pet.) (holding that trial court did not abuse its discretion in

granting new trial on punishment in interest of justice when record reflected that

trial court relied upon error in pre-sentence investigation report in calculating

punishment and noting that it was not holding that “a trial judge has the discretion

to grant a defendant a new trial merely because the judge has had second thoughts

about the punishment he assessed”). Thomas failed to do so. As the Court of

Criminal Appeals held in Herndon, a trial court abuses its discretion if the judge

grants a new trial on “mere sympathy, an inarticulate hunch, or simply because he

personally believes that the defendant is innocent or ‘received a raw deal.’” 215

                                         18
S.W.3d at 907; Stewart, 282 S.W.3d at 738 (“The record before us shows that the

trial judge did not grant Stewart a new trial out of mere sympathy or in the mere

belief that Stewart ‘received a raw deal.’”).

      We sustain the State’s first issue.

                                     Conclusion

      We reverse the order of the trial court granting a new trial in favor of

Thomas, and we remand with instructions to reinstate the judgment of conviction

and the sentence.




                                                 Evelyn V. Keyes
                                                 Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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