                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-15-00271-CR


                                 ANGEL OBELLA, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 85th District Court
                                     Brazos County, Texas
             Trial Court No. 11-01948-CRF-85, Honorable Kyle Hawthorne, Presiding

                                            July 1, 2016

                                            OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant, Angel Obella, entered a plea of guilty on July 14, 2014, to the offense

of aggravated sexual assault of a child under the age of 14 years. 1 Appellant was

sentenced to serve 30 years in the Institutional Division of the Texas Department of

Criminal Justice (ID-TDCJ). Appellant filed a motion for new trial. Appellant appeals

contending that the trial court committed reversible error when it allowed the motion to



      1
          See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii) (West Supp. 2015).
be overruled by operation of law without setting a hearing on the motion. We will abate

and remand for a hearing on appellant’s motion for new trial.


                                Factual and Procedural Background


       Appellant’s July 14, 2014 plea of guilty was entered without any plea agreement

with the State. After the plea was entered, the trial court accepted the plea of guilty but

did not enter a finding of guilt.2 A punishment hearing was conducted March 15, 2015.

After hearing the evidence, the trial court found appellant guilty and sentenced him to

serve 30 years in the ID-TDCJ.


       On April 14, 2015, appellant filed a motion for new trial. The motion for new trial

alleged that appellant’s plea of guilty was involuntary because he received ineffective

assistance of counsel. Attached to appellant’s motion for new trial were the affidavits of

appellant and his father, Joe A. Obella. Appellant’s affidavit makes the following factual

allegations regarding his trial counsel’s performance.                First, trial counsel met with

appellant “no more than 5 times” during the time the case was pending. Second, trial

counsel waited until the eve of trial to show appellant the videotape of his interview with

the police. Third, trial counsel advised appellant that, since he had no prior felony

record, he would probably receive probation. Fourth, trial counsel did not discuss the

parole law with appellant, specifically, if he were sentenced to a period of incarceration,

he would have to serve half of the prison time before being eligible for parole. Fifth, trial

counsel did not discuss the fact that appellant was ineligible for a community

supervision sentence based on the offense for which he entered his plea of guilty.


       2
           Appellant was requesting deferred adjudication community supervision.

                                                    2
Sixth, trial counsel failed to investigate what Joe A. Obella had told appellant about the

recantation of the statement given by the victim’s sister to the child advocacy center

regarding seeing appellant in bed with the victim. The affidavit of Joe A. Obella was

limited to asserting that he had advised appellant about the recantation of the prior

statement by the sister of the victim but trial counsel never called Joe A. Obella to

discuss this matter. Based on these factual allegations, appellant contends that his trial

counsel was so ineffective as to render his plea of guilty involuntary.


       After appellant’s motion for new trial was filed, the State filed a response on May

21, 2015. The State’s response included the affidavit of trial counsel. By his affidavit,

trial counsel directly challenged the factual allegations contained in appellant’s affidavit.

The trial court did not conduct a hearing on the motion for new trial. Neither did the trial

court enter an order overruling the motion for new trial. Rather, the motion for new trial

was overruled by operation of law.


       Appellant appeals the failure of the trial court to afford him a hearing on his

motion for new trial. Through three issues, appellant contends that he raised sufficient

factual allegations to render his plea involuntary and, because he raised these factual

allegations, the trial court abused its discretion in not conducting a hearing on the

motion for new trial. We will abate and remand to the trial court for a hearing on

appellant’s motion for new trial.


                         Standard of Review and Applicable Law


       An appellate court reviews the failure to hold a hearing on a motion for new trial

based upon an abuse of discretion standard. See Holden v. State, 201 S.W.3d 761,


                                             3
763 (Tex. Crim. App. 2006). Failure to hold a hearing on appellant’s motion for new trial

is an abuse of discretion when the motion raises matters not determinable from the

record, as long as the defendant provides a supporting affidavit showing reasonable

grounds for holding that relief should be granted. Smith v. State, 286 S.W.3d 333, 337

(Tex. Crim. App. 2009). The affidavits need not establish a prima facie case, or even

reflect every component legally required to establish relief. Id. at 339. It is sufficient if a

fair reading of the affidavit gives rise to reasonable grounds in support of the

allegations.   Id.   However, a trial court may rule based upon sworn pleadings and

affidavits without oral testimony; live testimony is not required. Holden, 201 S.W.3d at

763. “It has long been held that a trial court may decide a motion for new trial based on

sworn pleadings and affidavits admitted in evidence without hearing oral testimony. Id.

(quoting Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.—Austin 2000, pet. ref’d)).


                                          Analysis


       Appellant contends that the failure to conduct a hearing on the motion for new

trial was reversible error. The State’s reply is that it filed a controverting affidavit and,

when this is reviewed, it is apparent that appellant’s motion for new trial should be

overruled. To this end, the State spends most of its brief concluding that, under the

ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), appellant has either not raised a factual

issue regarding the deficiencies of trial counsel’s performance or has not shown that

holding a hearing on the motion for new trial would result in any change in the outcome.

See id. at 693. While a review on the merits of the motion for new trial might well lead

to that conclusion, the State has, in the words of the old adage, “put the cart ahead of

                                              4
the horse.” Such is the case because, under the procedural posture in which we find

this matter, the State’s pleadings and attached affidavit were just that, a pleading and

an attached affidavit. Nothing in the record before us demonstrates that the trial court

considered anything, appellant’s or the State’s affidavits. In this case, the motion for

new trial was overruled by operation of law only. There is no court order overruling the

motion.


      The lack of an order overruling the motion is the distinguishing factor between

this case and the Scaggs case, cited in the State’s brief. See Scaggs, 18 S.W.3d at

282. The trial court in Scaggs clearly stated that it “considered the defendant’s Motion

for New Trial, the State’s Response to the Motion for New Trial, and the affidavits

attached to each motion, which are hereby admitted into evidence.” Id. Because the

various enumerated documents were admitted into evidence, the trial court was not

required to conduct a hearing with oral testimony. See Holden, 201 S.W.3d at 763.


      Texas Rule of Appellate Procedure 21.7 states, “The court may receive evidence

by affidavit or otherwise.” TEX. R. APP. P. 21.7. It does not say, or allude to the fact,

that the court may base a decision upon pleadings only. In our case, procedurally, all

we have is the appellant’s motion and the State’s responsive pleadings. Nothing in this

record demonstrates that the pleadings and affidavits were ever introduced in evidence.

See TEX. R. APP. P. 21.7; Holden, 201 S.W.3d at 763.


      The pleadings of appellant sufficiently raised factual allegations of ineffective

assistance of counsel. The purpose of a hearing on a motion for new trial is to decide

whether appellant’s case should be retried and to prepare a record for presenting issues



                                           5
on appeal. Smith, 286 S.W.3d at 338. Because we have issues raised by the motion

for new trial that are not determinable based on the record before us, we conclude that

the trial court abused its discretion in not conducting a hearing on the motion. See id.


       Having concluded that the trial court abused its discretion when it denied

appellant a hearing on his motion for new trial, we must now decide the proper remedy

and disposition.   We observe, initially, that a hearing on a motion for new trial “is

fundamentally a part of the post-trial review process, and not a part of the trial itself.”

Vera v. State, 836 S.W.2d 344, 348 (Tex. App.—Amarillo 1992, no pet.) (quoting

Trevino v. State, 565 S.W.2d 938, 941 (Tex. Crim. App. 1978) (en banc)). A trial court

may correct its failure to hold a hearing on a motion for new trial without this Court

reversing the trial court’s judgment and remanding the cause for a new trial. See id.

We are directed to refrain from affirming or reversing a judgment when “the trial court’s

erroneous action or failure or refusal to act prevents the proper presentation of a case to

the court of appeals” and when “the trial court can correct its action or failure to act.”

See TEX. R. APP. P. 44.4. Here, the trial court can correct its error by conducting a

hearing on appellant’s motion for new trial, thereby allowing for a proper presentation of

the cause on appeal.


       Accordingly, we abate the appeal and, by virtue of our mandate that will issue

forthwith, the trial court will now be reinvested with jurisdiction over this cause. See

Vera, 836 S.W.2d at 348. We remand the cause to the trial court and order that it

conduct a hearing on appellant’s motion for new trial. Id. Due to the unique procedural

considerations this appeal presents, the effect of this Court’s disposition is to return

appellant to the stage of the proceeding prior to the imposition of sentence and the filing

                                             6
of the notice of appeal. See id.; see also Alafa v. State, No. 07-00-00113-CR, 2000

Tex. App. LEXIS 5600, at *9–10 (Tex. App.—Amarillo Aug. 21, 2000, no pet.) (per

curiam); Musgrove v. State, 986 S.W.2d 738, 740 (Tex. App.—San Antonio 1999, pet.

ref’d). Having set aside the notice of appeal, we no longer consider the matter “on

appeal” and, instead, consider this particular appeal as finally disposed. See Musgrove,

986 S.W.2d at 740; Vera, 836 S.W.2d at 348.3 Should the trial court ultimately deny

appellant’s motion for new trial, the sentence must be reimposed, and appellant, if he so

desires, must begin the appeal process anew. See Vera, 836 S.W.2d at 348; see also

Vera v. State, 868 S.W.2d 433, 436 (Tex. App.—San Antonio 1994, no pet.).




                                                         Per Curiam


Publish.




        3
         We note that our abatement in this case differs from a typical abatement for findings of fact and
conclusions of law. Ordinarily, such an abatement is an interlocutory decision by this Court and is not
appealable. See Vera, 836 S.W.2d at 348 n.2. The abatement in this case is a final, appealable
decision. Id.

                                                    7
