                             NUMBER 13-08-00021-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


REGINALD GUILLORY,                                                             Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                   On appeal from the County Court at Law
                          of Liberty County, Texas.


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

       Appellant, Reginald Guillory, was charged by information with assault-family

violence, a class A misdemeanor. See TEX . PENAL CODE ANN . § 22.01(a)(1), (b) (Vernon

Supp. 2008). After a bench trial, the trial court found Guillory guilty and assessed

punishment at 180 days in jail. In four issues, Guillory argues: (1) he received ineffective

assistance of counsel; (2) the evidence was legally and factually insufficient to support his
conviction; and (3) the trial court abused its discretion in denying him a meaningful hearing

on his pro se motion for new trial. We affirm.

                                   I. Factual Background

A. State’s Evidence

       Reginald Guillory lived with his mother, Jackie Simon, in Ames, Texas. On July 25,

2007, while Simon was at work, Guillory put boxes in Simon’s house, moved her furniture

around, and took things off of the walls. He was trying to “move things out” so his son

could move into the house. When Simon came home, she found her house in a “mess,”

and she and Guillory began to argue. When she turned around to hang a picture, she felt

something hit the back of her head. She felt pain and heard her head “crack.” She fell

onto a table and hit her head. Shaking her head, she tried to get up and saw a candle on

the living room floor. She did not see what had hit her; however, she testified that she was

struck on her head by the candle. She asked Guillory why he had hit her with the candle,

but he did not answer. She got an icepick from her bedroom, and when she left her

bedroom, she saw Guillory sitting in a chair. She told him to get out of the house and that

if he hit her again, she was going to give him “some bodily injury.” After telling him this, she

stuck the icepick into the chair. When he still refused to leave, she went to the parole

office and told her son’s parole officer about the assault.

       Simon sought medical attention for her injury and testified that she had a

concussion to the left side of her head and a hematoma to the back of her head. When

the prosecutor asked her, “Now have you suffered any type of symptoms since being

struck with [the candle] that you were not suffering prior to being hit?”, she said she had

headaches, swelling to her head, and pressure to the back of her head that “falls on my

shoulder. . . .” She takes migraine headache pills four times a day and additional pain pills
                                            2
for her headaches as necessary. She testified that at the time of the assault, she and

Guillory were the only people in the house.

       On cross-examination, Simon testified that the injuries to her head were not caused

by a prior assault perpetrated by her husband. When asked how she knew Guillory threw

the candle at her, she said, “There wasn’t nobody else in there but Reginald [appellant].”

When asked “[h]ow do you know he threw the candle?”, she responded: “Because it was

right in front where I had it on my bar like I have all my other candles up there and that is

the candle that he picked up to strike me with” and that “[i]t fell to the floor when he hit me,

I caught my head and I heard it crack. I saw the candle on the floor and I fell.” Defense

counsel questioned her further by asking, “How do you know he hit you with that candle?

You did not see it coming. How do you know it wasn’t one of the cups or plates on the

floor? You don’t.” She replied, “It wasn’t any cups or plates sir in the living room on the

floor. They were in the kitchen area. . . .” Picking up the candle, defense counsel asked

her, “Can you say with absolute certainty that this thing was thrown at you?” She

answered affirmatively.

B. Defense Evidence

       Officer Tommy Koen with the Liberty County Sheriff’s Department spoke to Simon

about the assault on the date it occurred. He testified that Simon told him her son had

assaulted her. Officer Koen saw no injury to her head; however, when he touched the area

where she said she had been hit, she “hollered” and said it hurt. Officer Koen testified that

he saw what “appeared to be wax off a candle” in Simon’s hair. When defense counsel

asked him, “You said there was . . . a white waxy substance in her hair?”, he replied: “Yes

sir, there was a substance there in the area that she showed me that she had been hit with

the candle . . . . There was some white flaky stuff substance there.” Defense counsel
                                           3
showed him the candle that was allegedly used to hit Simon and asked him, “See that dent

in the candle right there? . . . You think that would be made from a skull? To this, Officer

Koen replied: there “is a tall statue there [in the house]. It had a small round, I don’t know

if it was a head or what on the statue, that the candle hit and there seemed to be some

white waxy substance on top of it that seemed to fit the gouge in the candle.”

        On cross-examination, the prosecutor asked officer Koen: “The material that you

found, you noticed in the hair of Ms. Simon, was that consistent with the color and texture

of State’s Exhibit 2?”1 He replied, “Yes it was.”

        Guillory denied hitting his mother on her head with a candle and said he did not

know how the candle became dented. He said the candle was on the counter in the

house. Guillory testified that when he refused to leave the house, Simon “picked the

phone out of the thing and threw it, through where the bar part is. So I don’t know if the

candle fell cause I didn’t pay attention to the candle.” He further testified she swung the

icepick at him four or five times, put it to his throat, and threatened to kill him. Then, she

started sticking the icepick into the chair. When she backed up, he got out of the chair and

tried to pull the icepick out of her hand. According to Guillory, she pulled back on the

icepick, she slipped and hit her head on the table.

                                              II. Discussion

A. Ineffective Assistance of Counsel

        In issues one and two, Guillory argues he received ineffective assistance of counsel.

See U.S. CONST . amend. VI. In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court established a two-prong test for evaluating ineffective assistance of


        1
        State’s exhibit 2 is the candle, which Guillory allegedly used to hit Sim on. The candle was recovered
from Sim on’s house and adm itted into evidence during the State’s case-in-chief.
                                                      4
counsel claims. Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). To obtain

a reversal of a conviction under the Strickland test, an accused “must show that: (1)

counsel’s performance fell below an objective standard of reasonableness; and (2)

counsel’s deficient performance prejudiced the defense, resulting in an unreliable or

fundamentally unfair outcome of the proceeding.” Id. (citing Strickland, 466 U.S. at 687).

The second prong of the Strickland test is generally met by showing there is a reasonable

probability that, but for counsel’s deficient performance, the result of the proceeding would

have been different. Id. (citing Strickland, 466 U.S. at 692); Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.

App. 2001).

1. Failure to Timely Amend Motion for New Trial

       Guillory argues his trial counsel was ineffective for failing to timely amend his pro

se motion for new trial. A defendant may amend his or her motion for new trial before it

is acted upon so long as it is amended within thirty days of the sentencing date. TEX . R.

APP. P. 21.4(b); Klapesky v. State, 256 S.W.3d 442, 454 (Tex. App.–Austin 2008, pet.

ref’d). Here, assuming counsel’s performance was deficient for failing to amend Guillory’s

pro se motion for new trial, Guillory has failed to demonstrate a reasonable probability that

the result of the proceeding would have been different if counsel had acted professionally

by timely amending the motion for new trial. See Thompson, 9 S.W.3d at 812.




                                             5
2. Counsel’s Failure to Assert Ineffective Assistance of Counsel Claims at the Hearing on

the Motion for New Trial

        On November 26, 2007, Guillory filed a timely pro se motion for new trial, alleging:

(1) the trial court abused its discretion in refusing to grant his pro se motion to dismiss2 his

attorney of record, and (2) he received ineffective assistance of trial counsel. Guillory

argues that the attorney who represented him at the hearing on his pro se motion for new

trial was ineffective for failing to assert that his trial counsel was ineffective. Even if we

assume the attorney who represented Guillory at the new-trial hearing was deficient on this

basis, Guillory has failed to demonstrate a reasonable probability that the result of the

proceeding would have been different if counsel had acted professionally by asserting this

claim at the new-trial hearing. See Thompson, 9 S.W.3d at 812.

3. Failure to Request a Hearing on the Discovery Motion

        Guillory argues trial counsel was ineffective for failing to request a hearing on his

discovery motion. After Guillory was charged with Simon’s assault, his trial counsel filed

a discovery motion; however, no hearing was ever held on the motion. On appeal, Guillory

argues that because potentially exculpatory material “was hidden by the State,” trial

counsel’s failure to “press for a hearing” on the discovery motion constituted ineffective

assistance of counsel. To protect an accused’s “right to a fair trial, the Due Process

Clause of the Fourteenth Amendment to the United States Constitution requires the

prosecution to disclose exculpatory and impeachment evidence to the defense that is

material to either guilt or punishment.” Ex parte Reed, 271 S.W.3d 698, 726 (Tex. Crim.

App. 2008) (citing Strickler v. Greene, 527 U.S. 263, 280 (1999)). The Supreme Court has


        2
         W e note that on Septem ber 13, 2007, Guillory’s attorney of record filed a m otion to withdraw as
counsel in this case. That day, the trial court granted the m otion to withdraw.
                                                    6
held that this rule encompasses evidence unknown to the prosecution but known to law-

enforcement officials and others working on their behalf. Kyles v. Whitley, 514 U.S. 419,

438 (1995). To succeed in showing a violation, an accused must show: (1) the evidence

is favorable to him because it is exculpatory or impeaching; (2) the evidence was

suppressed by the government or persons acting on its behalf, either inadvertently or

willfully; and (3) the suppression of the evidence resulted in prejudice (i.e., materiality). Ex

parte Reed, 271 S.W.3d at 726-27 (citing Strickler, 527 U.S. at 281-82); see Brady v.

Maryland, 373 U.S. 83, 87-88 (1963). “Evidence is material to guilt or punishment ‘only if

there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.’” Id. at 727 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)). “‘A ‘reasonable probability’ is a probability sufficient

to undermine confidence in the outcome.’” Id. (quoting Bagley, 473 U.S. at 682). Here,

Guillory complains the prosecution withheld: (1) the offense report relating to an incident

when Simon’s husband assaulted her; (2) the details relating to the extent of the injuries

Simon suffered when she was assaulted by her husband; (3) Simon’s prior criminal history;

and (4) photographs, which showed a waxy substance in Simon’s hair.

a. The Offense Report and Details About the Injuries Simon Suffered After Her Husband
Assaulted Her

       During the State’s case-in-chief, Simon testified that on July 19, 2007 (six days

before Guillory allegedly assaulted Simon), she and her husband “had gotten into a

confrontation” during which he hit her with an open door on his truck, causing her to fall

and hit her head on concrete. She did not know she suffered any injury to her head “until

later because . . . . [she] started having headaches.” When the prosecutor asked her,

“Okay so you didn’t go see a doctor right away?”, she said, “No I didn’t.”

                                               7
       Guillory does not state how either the offense report or the details of Simon’s prior

head injury constituted exculpatory or impeaching evidence. We note defense counsel’s

strategy was to show, in part, the injuries Simon testified that she received from Guillory’s

assault upon her were actually caused by the prior assault. Assuming arguendo that the

complained-of evidence was either exculpatory or impeaching, Guillory still has the burden

to show that the suppression of this evidence resulted in prejudice. See Ex parte Reed,

271 S.W.3d at 726-27 (stating that to succeed in showing a Brady violation, an accused

must show the suppression of the evidence resulted in prejudice (i.e., materiality)). Guillory

has not shown that there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different. See id. at 727.

b. Simon’s Criminal History

       On appeal, Guillory states that Simon’s criminal history does not appear in the

record, and he does not state the nature of her criminal history. Nevertheless, assuming

arguendo that the State withheld evidence of Simon’s criminal history, Guillory still has the

burden to show that the suppression of the criminal history resulted in prejudice to him.

See Ex parte Reed, 271 S.W.3d at 726-27. Guillory has not shown that there is a

reasonable probability that, had the criminal history been disclosed to the defense, the

result of the proceeding would have been different. See id. at 727.

c. Photographs of Simon’s Hair

       Shortly after Guillory assaulted Simon, Officer Koen saw what “appeared to be wax

off a candle” in Simon’s hair. He used a digital camera to photograph the substance and

then transferred the photographs onto a disc, which was submitted along with his report

to the sheriff’s office. During trial, defense counsel asked Officer Koen, “Did you put that

fact in your report? The fact that you believe that there was some wax in her [Simon’s]
                                            8
hair?” To this, he replied, “It should . . . show up in the pictures that I took at the incident.”

Officer Koen did not bring these photographs to trial with him, and defense counsel had

not seen them. After defense counsel passed Officer Koen as a witness, the trial court

asked Officer Koen to retrieve the photographs.             Officer Koen told the court the

photographs “would have to be developed” unless there was another way to show them.

When the trial court asked the prosecutor if he had a digital printer, he said that he did.

After a recess, the prosecutor told the trial court he had given the photographs to defense

counsel. At this point, the following exchange occurred between the court and defense

counsel:

       Court:         And do you desire a recess, continuance for a day or so while
                      you examine those photographs?

       Counsel:       No Judge, I’ve examined them. Our problem is more so that
                      we prepared defenses in a certain way and those pictures kind
                      of put a bit of a cramp in our procedure.

       Court:         Well I will recess the trial while you re-examine it if you want to.

                      ****

       Court:         I have indicated to . . . [defense counsel] that I am willing to
                      give him any time, reasonable time that he needs as a result
                      of [the] State’s inability to comply with the [discovery]
                      agreement. . . .

After another recess, defense counsel told the trial court:

       Counsel:       There are a couple of pictures that I am going to object to
                      coming in. Most of them are okay. There are a couple of them
                      that kind of hurts the Defense strategy that we have built up
                      during trial.

       Court:         [D]o I need to wait and to hear those at the time that they might
                      be introduced?

       Counsel:       I can make the appropriate objections at the time.

       During Officer Koen’s cross-examination, the prosecutor offered into evidence a

                                                9
photograph showing the waxy substance in Simon’s hair. Defense counsel objected that

the photograph was “extremely prejudicial to the way that we built our defense. . . .” The

trial court sustained the objection.

       On appeal, Guillory argues that “[h]ad the defense known of the pictures and the

evidence of wax in the hair, it would have presented a different defense which explained

the existence of the wax.” However, we note that the trial court asked Guillory’s counsel

if he “desire[d] a recess, continuance for a day or so while you examine those

photographs[?]”    However, counsel told the court he did not need a continuance.

Afterwards, the trial court stated it was “willing to give him [defense counsel] any time,

reasonable time that he needs as a result of [the] State’s inability to comply with the

[discovery] agreement.” Rather than request additional time to prepare a defense to

explain the existence of the wax in Simon’s hair, defense counsel told the court he would

object to the photographs as they were introduced. The record does not show what

defense, if any, defense counsel would have prepared had he known about the

photographs before trial.    Thus, Guillory has not shown that there is a reasonable

probability that, had the photographs been disclosed to the defense before trial, the result

of the proceeding would have been different. See Ex parte Reed, 271 S.W.3d at 727.

       Therefore, even assuming counsel was deficient for failing to have a hearing on the

discovery motion, Guillory has failed to demonstrate a reasonable probability that the result

of the proceeding would have been different if counsel had obtained a hearing on the

discovery motion. See Thompson, 9 S.W.3d at 812. Issues one and two are overruled.

B. Sufficiency of the Evidence

       In issue three, Guillory argues the evidence is legally and factually insufficient to

support his conviction.

                                             10
1. Standard of Review-Legal Sufficiency

       In reviewing the legal sufficiency of the evidence to support a conviction, we view

all the evidence in the light most favorable to the verdict in order to determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanchez v. State, 275

S.W.3d 901, 902 n.2 (Tex. Crim. App. 2009). This “standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S.

at 319. The trier of fact is the sole judge of the weight and credibility of the evidence. TEX .

CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment for that of

the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must

resolve any inconsistencies in the evidence in favor of the judgment. Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000).

a. Applicable Law

       We review the sufficiency of the evidence by the elements of the offense as defined

by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997); State v. Blankenship, 170 S.W.3d 676, 682 (Tex. App.–Austin

2005, pet. ref’d). The Malik test applies to non-jury or bench trials. Malik, 953 S.W.2d at

240; Blankenship, 170 S.W.3d at 682.

       Section 22.01(a)(1) of the Texas Penal Code entitled “Assault” provides that “[a]

person commits an offense if the person . . . intentionally, knowingly, or recklessly causes

bodily injury to another, . . . .” TEX . PENAL CODE ANN . § 22.01(a)(1). “Bodily injury” is
                                               11
defined as “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8)

(Vernon Supp. 2008).

       Here, the information alleged the offense in the following manner: “REGINALD

GUILLORY heretofore on or about the 25th Day of July A.D., 2007, . . . did then and there

intentionally, knowingly, or recklessly cause[d] bodily injury to JACKIE SIMON, a member

of the defendant’s family or household, to-wit: BY STRIKING HER WITH A CANDLE

AND/OR A CANDLE HOLDER; . . . .” The family code states that “‘Family’ includes

individuals related by consanguinity . . . .” TEX . FAM . CODE ANN . § 71.003 (Vernon 2008).

Section 573.022(a) of the government code provides, in relevant part, that “Two individuals

are related to each other by consanguinity if: (1) one is a descendant of the other; . . . .”

TEX . GOV’T CODE ANN . § 573.022(a)(1) (Vernon 2004).            “Household” means a unit

composed of persons living together in the same dwelling, without regard to whether they

are related to each other.” TEX . FAM . CODE ANN . § 71.005.

b. Analysis

       In this case, a rational fact finder could have determined the following from the

evidence: (1) Simon is Guillory’s mother, and both lived in the same household; (2) while

they were having an argument, Simon turned around and felt something hit the back of her

head; (3) she felt pain and heard her head “crack”; (4) when she tried to get up, she saw

a candle on the living room floor; (5) she did not see what had hit her, but testified that the

candle had hit her on the head; (6) when she asked Guillory why he had hit her with the

candle, he did not answer; (7) she testified she knew the object that hit her on the head

was a candle because prior to getting hit, the candle was on the bar; after she was hit, she

saw the candle on the floor; (8) when Officer Koen touched the area on Simon’s head

where she said she had been hit, she “hollered” and said it hurt; and (9) Officer Koen saw

                                              12
what “appeared to be wax off a candle” in Simon’s hair in the area where she said she had

been hit with the candle.

       Controverting evidence showed that: (1) Guillory denied that he had hit Simon; (2)

he said that Simon hit her head after she had fallen down when pulling on the icepick; (3)

Officer Koen saw no injury on Simon’s head; (4) Officer Koen testified that the “flakes that

appeare[d] to . . . . be wax” “could have been anything[;]” (5) six days prior to this assault,

Simon had fallen and hit her head on concrete; and (6) the prior assault caused her to

have headaches.

       Given this evidence, we assume the trial court resolved conflicts, including

conflicting inferences in favor of the verdict. Matchett v. State, 941 S.W.2d 922, 936 (Tex.

Crim. App. 1996). In conducting our legal sufficiency review, we defer to that resolution

and also resolve any inconsistencies in favor of the verdict. See id.; Matson v. State, 819

S.W.2d 839, 843 (Tex. Crim. App. 1991). Viewing the evidence in the light most favorable

to the verdict, we hold the evidence is legally sufficient to sustain the conviction beyond a

reasonable doubt.

2. Standard of Review-Factual Sufficiency

       In a factual sufficiency review, the only question to be answered is: “Considering

all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a

reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).

Evidence can be deemed factually insufficient in two ways: (1) “the evidence supporting

the conviction is ‘too weak’ to support the factfinder’s verdict:” or (2) “considering conflicting

evidence, the factfinder’s verdict is ‘against the great weight and preponderance of the

evidence.’” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (quoting Watson

v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). “When a court of appeals

                                               13
conducts a factual sufficiency review, [the court] must defer to the jury’s findings.” Id.

(citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). The court of criminal

appeals has “set out three ‘basic ground rules’ implementing this standard.” Id. (quoting

Watson, 204 S.W.2d at 414). First, the appellate court “must consider all of the evidence

in a neutral light, as opposed to in a light most favorable to the verdict.” Id. (citing Watson,

204 S.W.3d at 414). Second, the appellate court “may only find the evidence factually

insufficient when necessary to ‘prevent manifest injustice.’” Id. (quoting Cain, 958 S.W.2d

at 407). “Although the verdict is afforded less deference during a factual sufficiency

review,” an appellate court is not free to “override the verdict simply because it disagrees

with it.” Id. (citing Cain, 958 S.W.2d at 407). Third, the appellate court “must explain why

the evidence is too weak to support the verdict or why the conflicting evidence greatly

weighs against the verdict.” Id. (citing Watson, 204 S.W.3d at 414).

       Viewing the evidence neutrally, we conclude the evidence supporting the conviction

is not so weak that the fact finder’s determination is clearly wrong and manifestly unjust,

or that the verdict is against the great weight and preponderance of the evidence. We hold

the evidence is factually sufficient to support the conviction. Issue three is overruled.

C. Hearing on Motion for New Trial

       In issue four, Guillory argues the trial court abused its discretion by denying him a

meaningful hearing on his pro se motion for new trial. To preserve an issue for appellate

review, “[t]he brief must contain a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record.” TEX . R. APP. P. 38.1(i). “An

argument that fails to cite supporting authority presents nothing for review.” Rocha v.

State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000) (citing McFarland v. State, 928 S.W.2d 482,

512 (Tex. Crim. App. 1996), see Dunklin v. State, 194 S.W.3d 14, 23 (Tex. App.–Tyler
                                              14
2006, no pet.); Willis v. State, 192 S.W.3d 585, 597 (Tex. App.–Tyler 2006, pet. ref’d);

Dennis v. State, 151 S.W.3d 745, 752 (Tex. App.–Amarillo 2004, pet. ref’d); King v. State,

17 S.W.3d 7, 23 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d) (op. on reh’g). Because

Guillory has failed to cite supporting authority for his argument, his issue is inadequately

briefed and presents nothing for review. See TEX . R. APP. P. 38.1(i); Rocha, 16 S.W.3d at

20 (argument that fails to cite to supporting authority in support of claim presents nothing

for review). Issue four is overruled.

                                        III. Conclusion

       We affirm the trial court’s judgment.




                                                    ROSE VELA
                                                    Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 2nd day of July, 2009.




                                               15
