Affirmed and Memorandum Opinion filed July 9, 2015




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00498-CR

                           MARK SOLIZ, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 230th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1392000

                 MEMORANDUM                      OPINION


      Appellant Mark Soliz appeals his conviction for aggravated robbery.
Following a jury trial, appellant pleaded “true” to an enhancement allegation and
the trial court assessed punishment at thirty years in prison. In a single issue,
appellant contends that the trial court erred by denying his motion for new trial on
the basis of newly discovered alibi evidence.
                                   BACKGROUND

      On June 4, 2013, the complainant Esperanza Tabares was working the front
entrance at a game room when a male wearing a hat and sunglasses and an
unknown female approached her under the pretense of picking up a game room
member’s card. Once the complainant let them inside the building, appellant hit the
complainant in the head with a gun, causing her to fall to the ground. While the
complainant was lying on the ground, appellant stole her purse and a pouch full of
money that she was carrying to provide money to game room patrons. Appellant
then broke the office window with a hammer and the female suspect unlocked the
office door from the outside. Appellant stole more money from the office and also
removed security equipment. The complainant saw the man who robbed her and
described him to the police. A few hours after the robbery, the complainant
realized that she recognized the man as the game room security guard whom she
had previously met. The complainant identified appellant from a photo array and in
court as the man who robbed her.

      Appellant was indicted for the felony offense of aggravated robbery with a
deadly weapon. See Tex. Penal Code § 29.03(a)(2). Appellant pleaded not guilty to
the indictment. On June 4, 2014, a jury found appellant guilty as charged in the
indictment. Appellant pleaded “true” to the State’s enhancement allegation and the
trial court sentenced appellant to thirty years in prison. Appellant timely filed a
motion for new trial with supporting affidavits from two alibi witnesses. The trial
court held a hearing on appellant’s motion for new trial on August 7, 2014.

      At the hearing on the motion for new trial, appellant testified first. Appellant
stated that during the time of the offense, he was attending a picnic with his family
at Texas Battleship Park from approximately 12:00 p.m. to 5:00 p.m. Appellant
claimed that he provided his trial counsel with multiple alibi witnesses, including

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his brother, brother’s girlfriend, and two sisters, who were with him at the park that
day. He stated that his trial counsel informed him that his brother Ruben could not
testify because he was not a citizen and that his younger sister, Julie, could not
testify because she had a criminal record. Appellant stated that trial counsel refused
to allow his older sister Dolores to testify because she had not been subpoenaed.

      Appellant stated that he wanted to testify during the guilt-innocence phase of
trial but he was unaware that he had the right to testify and was scared to inform
the trial judge that he wanted to testify. Appellant stated that his trial counsel did
not explain to him that he had the right to testify and did not explain how trial
worked. He stated that he told his trial counsel that he wanted to testify but his
counsel said he refused. Appellant did, however, testify during the punishment
phase of trial. Appellant claimed that he did not recall the moment in which his
trial counsel turned to him at trial and appellant shook his head, indicating that he
did not want to testify.

      Dolores also testified at the hearing and provided an affidavit. In her
affidavit, Dolores stated that appellant’s trial counsel asked her to assist with
appellant’s case, but she did not expect appellant to lose and “did not take [her]
alibi testimony as seriously as [she] should have.” At the hearing, she explained
that she was present at the trial, but appellant’s counsel refused to let her testify.
She also stated that appellant’s trial counsel asked her about alibi witnesses and she
provided herself and her brother and sister. Dolores corroborated appellant’s
testimony and stated that on the date of the offense, they had a picnic at Texas
Battleship Park along with other family members.

      Julie testified at the hearing and also explained that she, appellant, and their
family were at a picnic at Texas Battleship Park during the time of the offense.
Julie similarly stated in her affidavit that appellant’s trial lawyer asked her to assist

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but she did not expect appellant to lose and did not take her alibi testimony
seriously. She further stated that she was not present at trial, but if appellant’s trial
counsel had asked her to testify, she would have testified. At the hearing, she stated
that she never had a conversation with appellant’s trial counsel.

      Appellant’s trial counsel testified that he spoke to appellant at every court
appearance, visited him in jail, and spoke to Dolores on at least eight different
occasions. He also spoke with appellant’s mother several times. Trial counsel
explained that he discussed appellant’s defense with appellant and his family and
informed them that alibi evidence was needed to “strengthen the case.” He stated
that when he started the case, appellant and Dolores informed him that they were at
a picnic near the San Jacinto Monument on the date of the offense. He asked them
for the names, telephone numbers, and addresses of people at the picnic so he
could develop them as alibi witnesses. He stated that every time he spoke with
Dolores, he asked for this information but she never provided it. Trial counsel
further admitted that even if Dolores volunteered to testify, he was leery of putting
her on the stand due to her continued failure to provide the alibi witness
information. Trial counsel testified that he advised appellant against testifying
because of his criminal history and that appellant chose not to testify after he
explained all of the options to him. He explained that if he had alibi witnesses that
he was confident in, he would have tried to get them to testify.

      The trial judge described his own recollections of the trial. He recalled
extensively explaining appellant’s right to testify during voir dire, in which he
noted that “if the defendant was paying attention at all during that, then he would
know that he has the right to testify.” The trial judge remembered stating that if
any witnesses in the courtroom would be testifying, they needed to wait outside the
courtroom. The trial judge recalled that Dolores remained in the courtroom after he

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made this statement. He remembered discussing appellant’s prior convictions and
appellant’s trial counsel looking at appellant asking him if he was going to testify
and appellant shaking his head, indicating “no.” The trial judge stated that he did
not believe that trial counsel went through the expense to provide expert testimony,
yet denied the alibi witnesses the ability to testify. Lastly, the trial judge found
appellant’s trial counsel credible in seeking the alibi witness information from
appellant and appellant’s family and that it was never given to him. At the
conclusion of the hearing, the trial court denied appellant’s motion for new trial.

                               STANDARD OF REVIEW

      We review a trial court’s denial of a motion for new trial for an abuse of
discretion. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). We
do not substitute our judgment for that of the trial court; rather, we decide whether
the trial court’s decision was arbitrary or unreasonable. Id. An appellate court
views the evidence in the light most favorable to the trial court’s ruling, defers to
the trial court regarding credibility determinations, and presumes that all
reasonable fact findings in support of the ruling have been made. State v. Thomas,
428 S.W.3d 99, 104 (Tex. Crim. App. 2014). A trial court abuses its discretion in
denying a motion for a new trial when no reasonable view of the record could
support the trial court’s ruling. McQuarrie, 380 S.W.3d at 150.

                          ANALYSIS OF APPELLANT’S ISSUE

      In a single issue, appellant contends that the trial court abused its discretion
by denying his motion for new trial. Appellant contends that his two alibi
witnesses constitute “newly discovered evidence.” Appellant asserts that the
witnesses did not understand the importance of asserting his alibi at trial and that
appellant’s trial counsel denied the witnesses the ability to testify.


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      Motions for new trial based on newly discovered evidence are not favored
by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207,
225 (Tex. Crim. App. 1987). Article 40.001 of the Texas Code of Criminal
Procedure provides that “[a] new trial shall be granted an accused where material
evidence favorable to the accused has been discovered since trial.” Tex. Code
Crim. Proc. art. 40.001. A defendant is entitled to have his motion for new trial
granted if (1) the newly discovered evidence was unknown to him at the time of
trial; (2) his failure to discover the new evidence was not due to his lack of due
diligence; (3) the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and (4) the new evidence is probably true
and will probably bring about a different result in a new trial. See Carsner v. State,
444 S.W.3d 1, 2−3 (Tex. Crim. App. 2014); Wallace v. State, 106 S.W.3d 103, 108
(Tex. Crim. App. 2003). If appellant fails to establish any one of the four required
elements, a trial court is justified in denying a motion for new trial. See Jones v.
State, 234 S.W.3d 151, 157 (Tex. App.—San Antonio 2007, no pet.).

      The requirement that appellant show the newly discovered evidence was
unknown to him at the time of trial is fundamental. Tate v. State, 834 S.W.2d 566,
571 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). A new trial is never allowed
for the purpose of obtaining evidence that was known and accessible to the
defendant at the time the cause was tried, even if the defendant had knowledge of
the evidence but failed to communicate it to his attorney. Drew, 743 S.W.2d at 227
n.14; Marines v. State, 292 S.W.3d 103, 110 (Tex. App.—Houston [14th Dist.]
2008, pet ref’d).

      It is evident from the record that appellant was aware of his alibi and the
potential alibi witnesses before trial. Appellant claimed that he informed his
counsel before trial that he did not commit the offense because he was at a park

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with his family during the robbery. Appellant and Dolores both testified that they
provided this alibi information to counsel before trial. Therefore, appellant was
aware of where he was on the offense date and this information was known and
available to him at the time of trial. The existence of Dolores and Julie as potential
witnesses cannot be considered newly discovered evidence. Dolores and Julie both
stated in their affidavits that although counsel asked them to assist in appellant’s
case, they did not expect appellant to lose and did not take their alibi testimony
seriously.

      “Since appellant must have known prior to the trial where he was and what
he was doing, and who he was with, the evidence of alibi presented by [the
witness] could not have been considered as ‘newly discovered.’” Baker v. State,
504 S.W.2d 872, 875 (Tex. Crim. App. 1974) (concluding potential alibi witness
who was with appellant during the offense cannot be considered newly
discovered); see also Drew, 743 S.W.2d at 227 (holding that appellant’s
nonparticipation in the offense was known to him before trial); Yarbrough v. State,
57 S.W.3d 611, 618 (Tex. App.—Texarkana 2001, pet. ref’d) (holding that
appellant’s co-defendant’s testimony that appellant did not commit the offense
could not be considered newly discovered evidence). Appellant fails the first prong
because his alibi and alibi witnesses were known to him at the time of trial.

      Further, appellant’s failure to provide alibi witness testimony to his trial
counsel was due to a lack of diligence. When appellant’s trial counsel repeatedly
requested information regarding the alibi evidence, appellant failed to provide his
trial counsel with that information. See Marines, 292 S.W.3d at 111−12 (finding
that appellant’s failure to inform trial counsel of newly discovered evidence was
due to appellant’s lack of diligence); Zamora v. State, 647 S.W.2d 90, 95 (Tex.
App.—San Antonio 1983, no pet.) (holding that appellant’s failure to inform his

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attorney about known witness showed lack of due diligence).

      We conclude that the trial court did not abuse its discretion by denying
appellant’s motion for new trial. Appellant has failed to show that this “newly
discovered evidence” was either unknown or unavailable to him at the time of trial
and that the failure to obtain this evidence was not due to a lack of diligence. We
overrule appellant’s single issue.

                                     CONCLUSION

      We overrule appellant’s issue and affirm the trial court’s denial of the
motion for new trial.




                                       /s/       Ken Wise
                                                 Justice



Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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