        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00395-CR



                                    Kendall Alviar, Appellant

                                                  v.

                                   The State of Texas, Appellee


        FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
             NO. 60,892, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Kendall Alviar pleaded guilty to second-degree sexual assault. See Tex. Penal Code

Ann. § 22.011 (West Supp. 2009). The trial court deferred adjudication, see Tex. Crim. Proc. Code

Ann. art. 42.12 (West Supp. 2009), placed Alviar on community supervision for ten years, and

imposed additional terms including no contact with the complainant, Miranda Carver. Less than

five months later, the State moved to proceed with an adjudication of guilt, alleging that Vaughn had

violated the terms of his deferred adjudication by contacting Carver. At a hearing on the State’s

motion, Carver testified that Alviar had been a passenger in a car that tried to run her car off of the

road.    At the conclusion of the hearing, the court imposed a seven-year prison sentence.

Approximately one month later, Alviar moved for a new trial on the basis that Carver had sent him

a letter recanting her adjudication-hearing testimony. At a hearing on Alviar’s motion, Carver

testified that her adjudication-hearing testimony had been false. The trial court nevertheless denied
Alviar’s motion for a new trial. Alviar appeals, arguing that the trial court erred by denying his

motion for new trial without expressly discrediting Carver’s recantation testimony. We will affirm.


                       FACTUAL AND PROCEDURAL BACKGROUND

                On April 11, 2007, a Bell County grand jury indicted Alviar for the

November 5, 2006 sexual assault of Miranda Carver. On July 13, 2007, Alviar pleaded guilty to the

charge. The court accepted Alviar’s plea and set a punishment hearing for the following month. At

the punishment hearing, Alviar introduced into evidence an email he had received from Carver on

May 3, 2007 that stated in part: “I have told a huge lie to authorities that I am not proud of. What

I am trying to say is that both sexual encounters that happened on November 5th were both

consientual [sic]. I am very sorry that I made this false statement against you.” The trial court asked

Alviar whether he was offering the email because he wanted to withdraw his guilty plea. Alviar

replied that he did not because other factors would make it difficult for him to prevail in a jury trial.

After thoroughly questioning Alviar about his motivation for pleading guilty, the court reaffirmed

its acceptance of Alviar’s guilty plea.           The court then deferred adjudication, placed

Alviar on community supervision for ten years, and imposed additional terms including no

contact with Carver.

                On December 3, 2007, the State filed a motion to proceed with an adjudication of

guilt on the sexual-assault charge (the “motion”). The State alleged that Alviar had violated the

terms of his deferred adjudication by contacting, harassing, stalking, and threatening Carver.

                On April 4, 2008, the court held a hearing on the State’s motion. At the hearing,

Carver testified that on October 6, 2007, she had been driving on the freeway when a car driven by

                                                   2
Alviar’s girlfriend, Kali Wendler, cut her off and tried to run her off the road. Carver testified that

Alviar was in the passenger seat of Wendler’s car and that he screamed at her and threw things at

her car. Carver testified that this went on for several minutes and that she was alone in her car at the

time. Carver eventually exited the freeway and reported the incident to the police.

                The police officer who took Carver’s statement after the incident also testified at

the adjudication hearing. He testified that Carver seemed very upset and was crying when he

took her statement.

                Alviar called Kali Wendler as a witness. She testified that Carver had actually been

the aggressor in the freeway incident and that, contrary to Carver’s testimony, Carver’s boyfriend

had been in the car with Carver during the incident. She also testified that although she repeatedly

“flipped off” Carver during the incident, Alviar had not engaged Carver in any way (and had in fact

implored Wendler to disengage).

                At the conclusion of the hearing, the court found that the allegations in the State’s

motion were true. The court set a sentencing hearing for May 5, 2008. At that hearing, the court

sentenced Alviar to seven years in prison on the original sexual-assault charge.

                On May 21, 2008, Alviar filed a motion for new trial based on a letter Carver had sent

him on May 10. The letter recanted Carver’s adjudication-hearing testimony and also claimed that

she had only “stuck to her story” about being sexually assaulted because the district attorney told her

to.

                On June 20, 2008, the court held a hearing on Alviar’s motion. Carver was the only

witness either side called at the hearing. She testified that her adjudication-hearing testimony had



                                                   3
been false; she had not been alone in her car during the freeway incident, and Alviar had not

screamed or thrown things at her car. Carver claimed that she had lied about the incident to get Kali

Wendler in trouble because she did not like Wendler, but she did not know that Alviar would get in

trouble for the incident and did not intend for him to.             Carver also testified that her

November 5, 2007 sexual encounter with Alviar had been consensual.

               On cross-examintion, Carver admitted that she had spoken with the prosecutor several

times before the adjudication hearing and knew that the hearing would affect Alviar, not Wendler.

She also admitted that (1) her adjudication-hearing testimony was consistent with the statement she

gave the police immediately after the freeway incident; (2) the district attorney had not in fact told

her to “stick to her story” of sexual assault; (3) she had visited Alviar in prison and spoken with him

on the phone several times since the adjudication hearing; and (4) she had become friendly with Kali

Wendler since the adjudication hearing.

               The State subsequently introduced recordings of telephone conversations between

Alviar and Carver and cross-examined Carver concerning them. Carver admitted that during the

conversations (1) Alviar told her multiple times to write recantation letters that stated their sex had

been consensual, the October freeway incident had not happened, and the prosecutor had

harassed her; (2) Alviar threatened her by saying that he could put her in jail if he just “opened his

mouth”; and (3) Alviar threatened to reveal her “big secret” if she did not recant her adjudication-

hearing testimony.

               After Carver stepped down, the prosecution and defense both made arguments

concerning her credibility. The court denied Alviar’s motion for new trial without explicitly



                                                  4
discrediting Carver’s testimony or giving any other explanation for its ruling. Alviar subsequently

filed this appeal.


                                     STANDARD OF REVIEW

                A sentencing court must grant a motion for new trial if “material evidence favorable

to the accused has been discovered since trial.” Tex. Crim. Proc. Code Ann. art. 40.001 (West

2006). Under this standard,


        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.


Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). A trial court has discretion in

deciding whether these requirements are met, so we review its decision for abuse of discretion. See

Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).1 We do not substitute our judgment

for the trial court’s, but rather decide whether the trial court’s decision was arbitrary or unreasonable.

Id. We view the evidence in the light most favorable to the trial court’s ruling and presume that all

reasonable factual findings that could have been made against the losing party were made against

the losing party. Id. A trial court abuses its discretion in denying a motion for new trial only when

its ruling is unsupportable on any reasonable view of the record. Id.




        1
          The same review standard applies when, as here, the motion for new trial is based on the
retraction of witness testimony. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002).

                                                    5
                                            DISCUSSION

                Alviar argues that the trial court abused its discretion in denying his motion for new

trial. He bases this argument on the fact that the court “failed to state that it found Carver’s

recantation to be unbelievable.” Alviar acknowledges that “[t]he general rule is that a trial court

does not abuse its discretion in denying a motion for new trial based upon the recantation of a

material witness if the trial court does not believe the recant[ation] testimony of the witness.” He

argues, nevertheless, that because “the trial court merely stated, ‘I’m denying the defense’s motion

for new trial[,] . . . [t]here is no indication that the trial court [actually] found Carver’s recantation

unbelievable or non-credible.”

                Alviar’s argument, in other words, is that the trial court had to expressly discredit

Carver’s testimony before it could deny Alviar’s motion for new trial. That is not the law. See Tex.

R. App. P. 21.8(b) (in ruling on motion for new trial, court may make oral or written findings of

fact). Rather, when a trial court does not explain its basis for denying a motion for new trial, we

“must defer to any reasonable implied factual findings that the trial court might have made in

denying” the motion. Charles, 146 S.W.3d at 211 (emphasis added).

                Alviar based his motion for new trial on Carver’s testimony and recantation letter.

Because the trial court denied Alviar’s motion, we must infer that the trial court discredited this

evidence. See id. Having reviewed the record, it is clear that Carver’s testimony and letter

contradicted Carver’s earlier statements. The trial court was well within its discretion to credit the

latter and discredit the former. See id. at 208 (citing Beck v. State, 573 S.W.2d 786, 791 (Tex. Crim.

App. 1978), for proposition that court has “the right to accept or reject any part of” witness’s



                                                    6
testimony when presiding over motion for new trial). Thus, the trial court did not abuse its discretion

in denying Alviar’s motion for new trial. See id.; Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App.

2002) (abuse-of-discretion review standard applies where motion for new trial is based on retraction

of witness testimony).


                                          CONCLUSION

               For the reasons stated above, we affirm the trial court’s judgment.



                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: June 25, 2010

Do Not Publish




                                                  7
