               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                          NO. PD-0121-13



                                     THE STATE OF TEXAS

                                                   v.

                                 JEREMY THOMAS, Appellee

             ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                     FROM THE FIRST COURT OF APPEALS
                              HARRIS COUNTY

                  K ELLER, P.J., delivered the opinion of the unanimous Court.

         The question in this case is whether a new trial may be granted in the interest of justice upon

a claim that defense counsel failed to call an exculpatory witness who was known to him and

available at trial, if the claim is not based on ineffective assistance of counsel. We hold that it may

not. We therefore affirm the judgment of the court of appeals.1

                                         I. BACKGROUND

                                                A. Trial



         1
             State v. Thomas, 2012 Tex. App. LEXIS 10519 (Tex. App. Houston [1st Dist.] Dec. 20,
2012).
                                                                                         THOMAS- 2

       Vernon Keith Moses was shot and killed in an apartment complex in Houston. Multiple

witnesses gave statements to police; some of the witnesses testified at trial. Among those who

testified was appellee’s girlfriend, Ciarra Vallery. Ciarra stated that her sister, Shelita, was at the

apartment complex on the night in question and told Ciarra about the shooting, though Shelita said

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.”

Although Shelita did not testify at trial, she had given the police a statement, which appellee

reviewed before giving his own statement to the police. Shelita’s statement was made known and

available to defense counsel months before the trial.2 A jury convicted appellee of murdering Moses,

and the trial court assessed punishment at confinement for life.3

       Appellee filed a motion for a new trial.4 He urged that it be granted “in the interest of justice”


       2
           Id. n. 2.
       3
           Id. at *3.
       4
           Tex. R. App. P. 21.3:
                The defendant must be granted a new trial, or a new trial on punishment, for any
                of the following reasons:
                (a) except in a misdemeanor case in which the maximum possible punishment is a
                fine, when the defendant has been unlawfully tried in absentia or has been denied
                counsel;
                (b) when the court has misdirected the jury about the law or has committed some
                other material error likely to injure the defendant’s rights;
                (c) when the verdict has been decided by lot or in any manner other than a fair
                expression of the jurors’ opinion;
                (d) when a juror has been bribed to convict or has been guilty of any other corrupt
                conduct;
                (e) when a material defense witness has been kept from court by force, threats, or
                fraud, or when evidence tending to establish the defendant’s innocence has been
                intentionally destroyed or withheld, thus preventing its production at trial;
                (f) when, after retiring to deliberate, the jury has received other evidence; when a
                juror has talked with anyone about the case; or when a juror became so
                                                                                        THOMAS- 3

because there was compelling evidence that was not presented at trial.5 With the motion for new trial,

appellee included an affidavit from Shelita, wherein she claimed that she saw Carnell Meredith, not

appellee, shoot Moses.6

       Shelita was not present at the hearing on the motion for new trial, but defense counsel from

trial was sworn in and took the witness stand. The State offered, and the trial court admitted into

evidence, the statement that Shelita gave to the police. The trial court noted that Shelita’s statement

to the police and the affidavit accompanying the motion for a new trial were essentially the same.7

Appellate counsel stated that they were not pursuing a claim of ineffective assistance of counsel for

failing to call Shelita, nor any other ground listed in the statute.8 When the State attempted to ask



                intoxicated that his or her vote was probably influenced as a result;
                (g) when the jury has engaged in such misconduct that the defendant did not
                receive a fair and impartial trial; or
                (h) when the verdict is contrary to the law and the evidence.
       5
           Thomas, 2012 Tex. App. LEXIS 10519, at *3.
       6
        Id.; Meredith pled guilty to the murder of Moses and received a ten-year sentence.
Evidence of this was presented to the jury before its verdict.
       7
           Thomas, 2012 Tex. App. LEXIS 10519, at *3.
       8
           At the hearing on the motion, the following exchange occurred:

       THE COURT: You’ve given me 21.3 but you haven’t said whether [the ground you are
       basing this motion on is] A, B, C, D.

       MS. WOOD: It should list the grounds for a Motion For New Trial, and it’s Texas Rule
       of Appellate Procedure 21.3.

       THE COURT: That’s what I’m looking at. Is it A, B, C, D?

       MS. WOOD: Oh, you’re asking which ground we’re going under?

       THE COURT: Yes.
                                                                                        THOMAS- 4

trial counsel, who testified at the motion for new trial, whether he had a strategy for not calling

Shelita as a witness, appellate counsel objected and asserted attorney-client privilege.9

       Nevertheless, the trial court granted the new trial, stating in the order:

       First, I do believe that testimony of [Shelita] could have made a difference in the outcome
       of the trial during 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 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 the 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.10

                                   B. Court of Appeals Decision

       The State appealed, contending that there was no legal basis for a new trial or a new




           MS. WOOD: Okay. Well, those grounds are not exclusive. If you–if you notice for
           instance, ineffective assistance is not one of those grounds. It’s commonly known that
           the rule does not provide exclusive grounds. And when the trial court chooses to grant a
           new trial based on some other reason, that’s called in the interest of justice.
       9
            Thomas, 2012 Tex. App. LEXIS 10519, at *3. Appellate counsel for appellee argued:

       [The motion 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.
       10
            Id. at *3-4.
                                                                                          THOMAS- 5

punishment hearing.11 The First Court of Appeals in Houston reversed and remanded, holding that

the trial court abused its discretion by granting a new trial, that Thomas did not demonstrate a valid

legal reason for granting a new trial “in the interest of justice,” and that defense counsel’s failure to

call Shelita Vallery as a witness justified a new trial on neither guilt nor punishment.12 Appellee

petitioned this Court for review, which we granted to consider whether the court of appeals erred in

holding that the trial court abused its discretion by granting a motion for new trial in the interest of

justice and, in the alternative, whether the case should be remanded for a new punishment hearing.

                                            II. ANALYSIS

                               A. Standards for granting a new trial

        The standard of review when a trial court grants a motion for a new trial is abuse of

discretion.13 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, “whether the trial court acted

without reference to any guiding rules or principles.”14 The mere fact that a trial court may decide

a matter differently from an appellate court does not demonstrate an abuse of discretion.15 Appellate

courts view the evidence in the light most favorable to the trial court’s ruling, defer to the court’s

credibility determinations, and presume that all reasonable fact findings in support of the ruling have




        11
          TEX . CODE CRIM . PROC. art. 44.01(a)(3) (providing State opportunity to appeal order
granting new trial in a criminal case).
        12
             Thomas, 2012 Tex. App. LEXIS 10519, at *8.
        13
             State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007).
        14
             Id. at 907 (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005)).
        15
             Id. at 907-08.
                                                                                            THOMAS- 6

been made.16 A trial court abuses its discretion if it grants a new trial for a non-legal or a legally

invalid reason.17 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.’”18

        Appellee argues that a trial court does not abuse its discretion when it grants a new trial in

the “interest of justice.” Noting that the list of grounds for granting a new trial in the Rules of

Appellate Procedure is “illustrative, not exclusive,” he points to a long history of trial courts

exercising their discretion to grant new trials “in the interest of justice.”19 This argument stems

primarily from oft-quoted language in State v. Gonzales:

        For more than one hundred and twenty years, our trial judges have had the discretion to grant
        new trials in the interest of justice. In Mullins v. State, the Supreme Court, which at that time
        had criminal jurisdiction, held: . . . The discretion of the District Court, in granting new trials,
        is almost the only protection to the citizen against the illegal or oppressive verdicts of
        prejudiced, careless, or ignorant juries, and we think the District Court should never hesitate
        to use that discretion whenever the ends of justice have not been attained by those verdicts.20

        In State v. Herndon, the Court answered the question whether “in the interest of justice” is

an independent ground for granting a new trial.21 In that case, we affirmed the trial court’s grant of

a motion for new trial on a ground not specified in the Rules of Appellate Procedure. In Herndon,



        16
             Charles v. State, 146 S.W.3d 204, 208 (2004)
        17
             Herndon, 215 S.W.3d at 907
        18
             Id.
        19
             Id.; TEX . R. APP . P. 21.3.
        20
          855 S.W.2d 692, 694 (Tex. Crim. App. 1993) (citations omitted); See Mullins v. State,
37 Tex. 337, 339-340 (1873).
        21
             215 S.W.3d 901 (Tex. Crim. App. 2007).
                                                                                         THOMAS- 7

the motion for new trial was based on the court stenographer not recording a portion of the

proceedings as required.22 Though this particular error was not objected to at trial and is not one

listed in Rule 21.3, the Court held that “a trial judge may, but need not, grant a motion for new trial

on the basis of unpreserved trial error if that error is sufficiently serious that it has affected the

defendant’s substantial rights.23

       We held that it was not an abuse of discretion to grant a new trial in Herndon, but we also

provided guidance for when a trial court is authorized to do so. Though the trial court may grant a

motion for new trial on a basis not listed in Rule 21.3, the court cannot grant a new trial “unless the

defendant shows that he is entitled to one under the law.”24 The trial court’s discretion to grant a

motion for new trial “in the interest of justice” is not “unbounded or unfettered.”25 Instead, “justice”

means “in accordance with the law.”26 Without a showing that substantial rights were affected, a

defendant should not be granted a new trial or else “the phrase ‘interest of justice’ would have no

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

unreviewable rulings.”27 We said, in summary:

       We need not today set out bright-line rules concerning appellate review of a trial
       court’s discretion in this area, but we do conclude that a trial court would not


       22
         TEX . R. APP . P. 13.1. The motion was additionally based on a claim of improper
argument by the prosecutor, but the merits of that claim were not decided by the Court. Herndon,
215 S.W.3d. at 906.
       23
            Herndon, 215 S.W.3d at 910.
       24
            Id. at 907 (citing State v. Hight, 907 S.W.2d 845, 847 (Tex. Crim. App. 1995));
       25
            Id.
       26
            Id.
       27
            Id.
                                                                                           THOMAS- 8

        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 in Rule 44.2 of the
        Texas Rules of Appellate Procedure.28

        Appellee contends that there are numerous instances in which an appellate court has upheld

a trial court’s decision to grant a new trial. The State responds that, in each of these cases, there was

some sort of valid legal basis in each claim, even if there was not a specific ground as enumerated

in Rule 21.3. We agree. There must be some legal basis underpinning the grant of a new trial, even

if it is granted in the interest of justice. We turn to the determination of whether there is a valid legal

claim in this case.

               B. A known, exculpatory, but uncalled witness as a valid legal claim.

        Herndon made clear that for a trial court to grant a motion for new trial in the interest of

justice, the movant must have articulated a valid legal claim.29 Generally, if there is a “valid legal

claim” in a motion for new trial, a court will not abuse its discretion by granting it.30 Here, appellee

claims that the absence of Shelita Vallery’s testimony at trial resulted in appellee being “deprived

of direct exculpatory evidence that would have worked to show his innocence,” and that this is a

“valid legal error.” The court of appeals held that, because trial counsel was timely made aware of

Shelita’s statement, Shelita was available to testify but counsel stated at trial he would not call her,

and appellate counsel deliberately chose not to raise ineffective assistance of counsel by failing to

call Shelita, there was no valid legal claim as a ground for the motion.


        28
             Id. at 909.
        29
             Id.
        30
             Id.
                                                                                          THOMAS- 9

        At the motion for new trial, on appeal, and again before this Court, appellee has pointed to

the Fourteenth Court of Appeals opinion in State v. Moreno for the proposition that a claim that

available exculpatory evidence was not introduced at trial is a valid legal claim upon which to base

a motion for new trial in the interest of justice.31 The Moreno opinion, however, seems to be

inconsistent with our Herndon opinion in that it is not clear that it requires a valid legal claim to

underlie a motion for new trial in the interest of justice. At any rate, because it is a court of appeals

opinion, it is not binding on this Court.

        Appellee also relies on Gonzales, cited above. The motion for new trial in Gonzales alleged

that a witness favorable to the defense had not testified at sentencing. Appellee contends that, since

we upheld the trial court’s decision to grant a new trial in that case, the failure to call a witness who

could testify favorably to the defense is a valid legal ground for a motion for new trial.32 Herndon,

in which we articulated the requirements for granting a motion for new trial in the interest of justice,

was decided after Gonzales, so Gonzales is of limited value. Nevertheless, Gonzales would meet

the requirements of Herndon because the trial court could find from the record in Gonzales that the

exculpatory witness was not available at trial.33

        There are certain grounds on which the absence of witnesses at trial can form the basis for

granting a new trial. For instance, a new trial can properly be granted if exculpatory evidence is




        31
             297 S.W.3d 512 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d).
        32
             855 S.W.2d 692, 695 (Tex. Crim. App. 1993).
        33
             Id.
                                                                                        THOMAS- 10

known by the State and not disclosed to the defense.34 For Brady claims, though, and with claims

of actual innocence35 or newly discovered evidence,36 there must be an allegation of new evidence

before a new trial can be granted. Here, it is uncontroverted that the defense knew at the time of trial

about Shelita’s statement.

        Moreover, if exculpatory evidence is known to defense counsel before the trial, but not

introduced at trial, a new trial could be granted on the basis of ineffective assistance of counsel.

When counsel faces an ineffective-assistance claim, the attorney-client privilege is waived, and trial

counsel has the opportunity to explain his actions.37 But here, when the State inquired into the

possible legal strategy for not calling Shelita, counsel refused to answer, asserting the attorney-client

privilege.

        Appellee also argues that the court of appeals should have exercised “deference to historical

fact” because the trial court “found it credible that [Shelita] witnessed another man–not Jeremy

Thomas–commit the murder. Therefore, the salient historical fact that this Court must embrace is

that Jeremy Thomas did not shoot the complainant.” Assuming without deciding that this would be

an appropriate constraint on the court’s analysis, we turn to the specific claims. Shelita did not

testify. The findings of fact in this case were based on the trial court’s hearing on the motion for a

new trial. Shelita’s affidavit was provided with the motion, but no testimony from Shelita nor




        34
         Brady v. Maryland, 373 U.S. 83 (1963); Pena v. State, 353 S.W.3d 797 (Tex. Crim.
App. 2011).
        35
             Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).
        36
             Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002).
        37
             See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
                                                                                         THOMAS- 11

anyone at the hearing was presented relating to the identity of the shooter. As the State pointed out

at the hearing on the motion, Shelita was not subject to cross-examination, so the trial court was

viewing the affidavit in a vacuum. The State suggested that the reason that defense counsel decided

not to call Shelita was that he believed she was not credible, but counsel refused to testify about the

reasons for his decision. The State argued that it would be a miscarriage of justice to grant a new

trial on the basis of evidence that the defense chose not to introduce, especially when defense counsel

immunized himself from testifying about his strategy by explicitly declining to allege ineffective

assistance of counsel. We agree. Counsel could have presented a valid legal claim–such as

ineffective assistance of counsel–to underlie his motion for new trial in the interest of justice. He

did not do so. There was no valid legal claim upon which the trial court could base its grant of a new

trial. We overrule appellee’s first issue.

                                         C. New Punishment

        The court of appeals held that since the failure of counsel to call Shelita was not a valid basis

upon which to base a new trial at guilt, it was necessarily also not a proper ground at punishment.38

We agree. It is apparent from the trial court’s ruling on the motion for new trial that he had second

thoughts about the sentence that he imposed upon appellee. Appellee relies on State v. Stewart for

the proposition that a trial court may grant a new trial if it realizes that the sentence it has given was

too high. The court of appeals in Stewart did uphold the granting of a new trial on punishment, but

it still required that there be a “specific, identifiable, and quantifiable” error.39 The court of appeals


        38
             Thomas, 2012 WL 6624940 at *8.
        39
          State v. Stewart, 282 S.W.3d 729, 738 (Tex. App.–Austin 2009, no pet.) (a new trial on
punishment can be granted when the trial judge relied on an identifiable misstatement in a
presentence investigation report).
                                                                                        THOMAS- 12

in that case said, “We do not hold 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[.]”40 In the

absence of a valid legal claim of any sort to base a new trial on, the court of appeals was correct to

reverse the trial court’s grant of a new trial on punishment. We overrule Appellee’s second issue

and affirm.

                                            IV. Conclusion

        A motion for a new trial, whether for guilt or punishment, requires a valid legal claim. The

failure of trial counsel to call an exculpatory witness who was available at trial and known to the

defense is not, by itself, a valid legal claim.

        Having overruled both of appellee’s issues, we affirm the judgment of the court of appeals.

Delivered: April 16, 2014
Publish




        40
             Id. at 738.
