Opinion issued July 28, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-14-00160-CR
                            ———————————
                      ANTONIO BERMUDEZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Case No. 1370940


                                   OPINION

      A jury found Antonio Bermudez guilty of aggravated assault.1 He filed a

motion for new trial complaining of his trial counsel’s inability to hear unspecified

portions of the trial. He further asserted that his attorney’s inability to hear


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      TEX. PENAL CODE ANN. § 22.02 (West 2011).
effectively deprived him of his sixth amendment right to counsel. The trial court

denied the motion without a hearing. On appeal, he argues that the trial court

abused its discretion by not holding a hearing. We hold that (1) Bermudez

preserved this issue for appellate review but (2) his motion does not present

reasonable grounds to assert a violation of the sixth amendment right to counsel.

Accordingly, we affirm.

                                   Background

      Bermudez hired two attorneys to represent him at trial. One of those

attorneys, who served as lead trial counsel, has poor hearing. Bermudez’s other

defense attorney, who second-chaired the trial, has no hearing loss.

      Approximately six times during the four-day trial, the lead defense attorney

asked either the trial judge or a witness to speak up or repeat a phrase. When the

attorney complained of difficulty hearing bench conferences, the trial court agreed

to simply dismiss the jury during the conferences so that the parties could talk at a

normal volume. The attorney also had trouble hearing several witnesses, especially

one witness who spoke so softly that the trial court paused the testimony to make

sure the jury could hear what the witness was saying.

      Bermudez timely filed a motion for new trial, contending that his lead

attorney could not hear unspecified portions of the trial but, he alleges, did not

always alert the trial court to that fact. Bermudez filed a second, identical motion


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ten days later. The motion explicitly requests a hearing, outlines evidence to be

adduced at that hearing, and includes a proposed order to set a date for a hearing on

the motion. The trial court denied the motion on the same day without a hearing.

      Bermudez timely appealed. In his sole issue, he contends that the trial court

abused its discretion by denying his motion without granting him a hearing to fully

develop evidence in support of the motion.

                                  Preservation of Error

      The State contends that Bermudez waived any error from the failure to hold

a hearing on the motion. To preserve error, an appealing party must present a

timely, specific complaint to the trial court and obtain a ruling or refusal to rule.

TEX. R. APP. P. 33.1. In this case, the State concedes that Bermudez timely filed his

motion for new trial and presented it to the trial court. But it argues that Bermudez

failed to specifically request a hearing on his motion or, alternatively, failed to

obtain a ruling on the request.

      Bermudez’s motion begins: “Defendant . . . requests a hearing.” The motion

relies on facts “that the evidence at a hearing on this motion for new trial will

show . . . .” It concludes: “Mr. Bermudez respectfully requests this Court to set a

hearing on his motion . . . .” It includes two proposed orders. The first, which the

trial court did not sign or mark in any way, is an order to set a hearing on the




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motion. The second, which the trial court signed, disposes of the motion “[u]pon

consideration of the motion and argument of counsel . . . .” (emphasis added).

      The State, citing Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App.

2009), contends that merely attaching an order to set a hearing, without something

more, fails to preserve error. The State also cites Perez v. State, 429 S.W.3d 639,

644 (Tex. Crim. App. 2014), to contend that “[b]oiler plate language in the prayer

is not sufficient to put the court on notice that the appellant wants a hearing.” But

Bermudez’s motion requests a hearing twice. It is predicated on facts to be

established at a hearing. Bermudez attached a proposed order to set a hearing and

another to dispose of the motion based on “argument” at that hearing. This is more

than mere boilerplate language—it is an attempt to obtain a hearing.

      Moreover, the motions in both Gardner and Perez were never presented to a

trial court and were overruled by operation of law. Gardner, 306 S.W.3d at 305;

Perez v. State, No. 10-11-00253-CR, 2013 WL 3770953, at *5 (Tex. App.—Waco

July 18, 2013) (mem. op., not designated for publication), aff’d, 429 S.W.3d 639

(Tex. Crim. App. 2014). In contrast, the motion for new trial in this case was

presented to and denied by the trial court. In Reyes v. State, 82 S.W.3d 351, 353

(Tex. App.—Houston [1st Dist.] 2001, no pet.), the defendant filed a motion for

new trial with an attached order to set a hearing. We held that the defendant in

Reyes preserved the issue of whether he should have received a hearing on his


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motion for new trial, even though the trial court never marked the proposed order

to set a hearing, because the defendant presented his written motion and obtained a

ruling on it. Id. This case presents the same situation.

      Finally, the State, relying on Oestrick v. State, 939 S.W.2d 232, 235 (Tex.

App.—Austin 1997, pet. ref’d), argues that Bermudez never obtained a ruling on

the proposed order to set a hearing because the court did not mark it. In Oestrick,

the Austin Court of Appeals held that a trial court does not rule on an unmarked

proposed order to set a hearing when the related motion for new trial is overruled

by operation of law. Id. But we have held that Oestrick does not apply when, as in

this case, “the trial court explicitly ruled on the motion for new trial by a signed

order.” Torres v. State, 4 S.W.3d 295, 297 (Tex. App.—Houston [1st Dist.] 1999,

no pet.); see Reyes, 82 S.W.3d at 353.

      Accordingly, by signing the order denying Bermudez’s motion for new trial,

the trial court ruled on his attached request for a hearing. Thus we conclude that

Bermudez preserved the issue of whether the trial court abused its discretion by

failing to hold a hearing on his motion.

                                 Hearing on Motion

A.    Standard of review

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

abuse of discretion. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).


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To establish an abuse of discretion, “a defendant need not establish a prima facie

case for a single cognizable ground raised in his motion for new trial.” Jordan v.

State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (citing McIntire v. State, 698

S.W.2d 652, 658 (Tex. Crim. App. 1985)). Instead, “a defendant need only assert

reasonable grounds for relief which are not determinable from the record in order

to be entitled to a hearing.” Id. If a defendant meets this burden, a hearing on the

motion is mandatory. Torres, 4 S.W.3d at 296.

      To determine whether Bermudez asserted reasonable grounds for a new trial,

we must consider the ultimate question before the trial court: Did Bermudez’s

attorney’s hearing impairment cause him to render ineffective assistance of

counsel? Courts evaluate claims of ineffective assistance of counsel under the

standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984). Under Strickland, a defendant must show that (1) counsel’s

performance fell below an objective standard of reasonableness and (2) but for

counsel’s unprofessional error there is a reasonable probability that the result of the

proceedings would have been different. Id. at 687–94, 104 S. Ct. at 2064–68;

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      Ineffective assistance will be presumed if counsel is actually or

constructively absent. United States v. Cronic, 466 U.S. 648, 658–59, 104 S. Ct.

2039, 2046–47 (1984). “Cronic held that a Sixth Amendment violation may be


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found ‘without inquiring into counsel’s actual performance or requiring the

defendant to show the effect it had on the trial.’” Wright v. Van Patten, 552 U.S.

120, 124, 128 S. Ct. 743, 746 (2008) (quoting Bell v. Cone, 535 U.S. 685, 695, 122

S. Ct. 1843, 1850 (2002)).

B.    Reasonable grounds not determinable from the record

      To demonstrate on appeal that the trial court erred by not granting him a

hearing on his ineffective assistance of counsel claim, Bermudez must show that

his attorney’s inability to hear is a reasonable ground—not determinable from the

record—to assert a claim of ineffective assistance of counsel. Wallace v. State, 106

S.W.3d 103, 108 (Tex. Crim. App. 2003).

      Bermudez’s motion presents one ground for a new trial: a contention that an

attorney who cannot hear is analogous to a sleeping attorney. In Burdine v.

Johnson, 262 F.3d 336, 349 (5th Cir. 2001), the Fifth Circuit concluded that

“[u]nconscious counsel equates to no counsel at all.” Thus, unconscious counsel is

constructively absent and cannot satisfy the Sixth Amendment’s right to counsel.

“Unconscious counsel does not analyze, object, listen or in any way exercise

judgment on behalf of a client.” Id.

      Bermudez’s analogy to Burdine is inapposite. First, it ignores the fact that

Bermudez’s second-chair attorney has no hearing loss. In Ex parte McFarland, 163

S.W.3d 743, 760 (Tex. Crim. App. 2005), the Court of Criminal Appeals held that


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the rule in Burdine does not apply when one attorney is sleeping but another is

awake. Even if hearing loss were analogous to unconsciousness, the presence of

co-counsel requires the rejection of Bermudez’s argument.

      Second, we disagree with Bermudez’s contention that an attorney who

cannot hear is indistinguishable from an unconscious attorney. As the Burdine

court noted, “An unconscious attorney does not, indeed cannot, perform at all. . . .

[T]he attorney that is unconscious . . . is simply not capable of exercising

judgment.” 262 F.3d at 349. In contrast, an attorney with hearing loss is still

capable of exercising judgment. And part of his professional judgment is to discern

the appropriate method, if any, to compensate for his hearing loss—whether to

seek assistance from the trial court, utilize electronic aids, lip read, rely on his co-

counsel, or use any other compensation technique.

      This case is similar to Dent v. State, No. 01-12-01043-CR, 2014 WL

346728, at *4 (Tex. App.—Houston [1st Dist.] Jan. 30, 2014, no pet.) (mem. op.,

not designated for publication). In Dent, the appellant raised a number of

arguments for ineffective assistance of counsel, including “that trial counsel’s

hearing impairment made him unable to follow the proceedings, thereby making

his representation inadequate.” Id. This Court found no error sufficient to satisfy

the first prong of Strickland.

      Trial counsel and the court in this case were proactive in resolving any
      problems arising from counsel’s hearing impairment. Co-counsel
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      assisted in pointing out when trial counsel was having trouble hearing,
      and the trial court gave co-counsel opportunities to relay the court’s
      communications to trial counsel. Instead of holding whispered bench
      conferences, which trial counsel had difficulty hearing, the trial court
      excused the jury from the courtroom when lengthy issues arose so that
      discussions could take place at a normal speaking volume.

Id. This case presents nearly identical facts. Bermudez’s lead attorney proactively

sought assistance when necessary, the trial court made identical modifications to

the standard bench-conference procedure, and co-counsel provided support by

relaying information to the lead attorney. All of this information is discernable

from the record, without the need for an evidentiary hearing.

      Bermudez’s motion claims that his lead attorney did not always alert the trial

court that he could not hear. But even if that is true, it does not change our

analysis. The record shows that the trial court was generally able to recognize

when the lead attorney had trouble hearing. Regardless, we have already concluded

that Bermudez’s lead attorney was not constructively absent. Therefore, the issue is

not the attorney’s hearing, but rather the attorney’s performance. In this case, the

trial court saw the attorney’s performance throughout the entire course of the trial.

The trial court saw, and the record reflects, that the attorney proactively sought to

compensate for his hearing loss just like the attorney in Dent. Therefore,

Bermudez’s motion fails to assert any reasonable grounds for relief not

determinable from the record.



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      The trial court did not abuse its discretion by denying a hearing on the

motion for new trial. Accordingly, we overrule Bermudez’s sole point of error.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Keyes, Higley, and Brown.

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




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