                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                           ____________________
                             NO. 09-14-00039-CR
                           ____________________


                   CLIFTON JAMES TAYLOR, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

________________________________________________________________________

                   On Appeal from the 221st District Court
                        Montgomery County, Texas
                      Trial Cause No. 13-09-09834 CR
________________________________________________________________________

                         MEMORANDUM OPINION

      Clifton James Taylor (“Taylor”) pleaded guilty to third-degree felony assault

on a family member. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West Supp.

2014). After a bench trial on punishment, the trial court sentenced Taylor to six

years of confinement in the Texas Department of Criminal Justice, Institutional

Division. In two appellate issues, Taylor argues that the trial court erred (1) in



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denying his motion for a new trial and (2) in assessing attorney’s fees. We overrule

issue one, sustain issue two, and affirm the judgment as modified.

                             FACTUAL BACKGROUND

      The State indicted Taylor for “assault family violence[/]strangulation” for

conduct that occurred on or about September 14, 2013. Taylor pleaded guilty to the

charge. The trial court held a sentencing hearing on December 13, 2013, and after

hearing testimony, it pronounced Taylor’s sentence. Several witnesses testified at

the hearing including Taylor, the victim (J.W.), three friends who were with Taylor

before and during the incident (Andrew, Lauren, and Grant), and Taylor’s uncle.

      J.W. testified that she and Taylor were in a “long-term relationship roughly

about five years.” During their relationship, Taylor worked “odds and ends” but

not a full-time job. J.W. said Taylor had told her “he was arrested with a Vicodin

in his pocket in ’99.” J.W. also testified that Taylor’s marijuana smoking was an

issue because “the purchasing of the marijuana obviously took a lot of money out

of the home.”

      J.W. explained that, on the night of September 14, 2013, she and Taylor

went to Andrew and Lauren’s house, that Taylor was drinking, that he was “[v]ery

irritable[,]” and as the night progressed “[h]e became more angry.” J.W. also

testified that Taylor was smoking marijuana that night. According to J.W., she and

                                         2
Taylor got into an “altercation[,]” and J.W. testified that once they returned to their

own home, Taylor “came up to me and he had the container of pork rinds in his

hand and he proceeded to slam them repetitively in my chest, which consequently

knocked me on the ground[.]” She said that shortly thereafter, Taylor began

choking her. According to J.W., Taylor then started tearing the house apart and

throwing things at her.

      J.W. sent a message by phone to Lauren telling Lauren she needed help.

J.W. told Taylor she was going to call the police, and that is when he grabbed the

phone out of her hands and they started wrestling. He destroyed her phone and then

his phone, crushing one phone with his hand and the other by “twisting it and

throwing it on the ground.” She testified further that he was “[v]ery angry, very

belligerent, hateful[,] . . . completely out of control.” She said that “[i]t was just

progressively getting worse. . . . he was going to take the baby. He was drunk. . . .

He kept destroying the house. He just kept repetitively destroying things.” J.W.

explained that:

      we ended up in a wrestling match again and I ended up on the floor on
      my back . . . and he was straddling on top of me and he had his hand
      on my throat choking me.
             And as he was choking me, I remember blacking out and laying
      there thinking that’s how I was going to die. And the last time -- the
      last thing I saw before I blacked out was this horrific look in his
      eyes. . . .

                                          3
J.W. testified that after Andrew and Grant arrived, Taylor “picked me up by my

neck and threw me through my daughter’s bedroom door.” Andrew, Grant, and

Taylor scuffled as Andrew and Grant “tried to pull [Taylor] off” of J.W. Her three

children were crying and terrified. J.W. tried to leave with the children, but Taylor

shoved her back on the ground twice. She explained further that

      The first time he pushed me, my arm locked up and I could feel
      shooting pains in my arm. And then once I got up and he pushed me
      the second time, my arm buckled from underneath me and I could feel
      my elbow break.

J.W. said that at the end of the night, she had blood “all over” her shirt and

scratches on her neck. As a consequence of breaking her arm, she lost her job, and

she was unemployed at the time of the trial. J.W. also testified that while Taylor

was in custody awaiting trial, even though Taylor was under a “no contact” order,

he attempted to contact her six times.

      Andrew testified that Taylor and J.W. were at his house on the evening the

assault occurred, along with Andrew, Andrew’s wife Lauren, Lauren’s brother

Grant, and Grant’s girlfriend Ann. Andrew testified that he thought Taylor was

intoxicated that night, and he observed Taylor and J.W. arguing. Andrew said that

Taylor became “[m]ore aggressive” toward J.W.

      After Taylor and J.W. left, Lauren received a text from J.W. that said

“[s]end your husband, please. Help.” Andrew testified that he and Grant went to
                                         4
J.W.’s house, and as they approached the house, they heard screaming. Andrew

stated that when he walked into the house, Taylor had his hands around J.W.’s

neck, and Taylor threw J.W. across the room; then he was on the floor on top of

her, and he was choking her. Andrew testified that he pulled Taylor off of J.W.,

and then Taylor and Grant got into a confrontation. Andrew further testified that

Taylor retrieved a sword from another room and then swung the sword at Grant.

Finally, Andrew testified that when his wife Lauren showed up at J.W.’s house,

Taylor punched Lauren in the face.

      Grant also testified at the sentencing hearing. He explained that Taylor

became violent with him and swung a sword at Grant. As a result of the incident,

Grant’s hand was broken. He had a cast on his hand for three-and-a-half weeks,

which interfered with his ability to work.

      Lauren testified that she received a text from J.W. “around 12:17 saying,

‘Send your husband Andy here, please. Help.’” Lauren explained that when she

arrived later, she saw J.W. in the car, trying to leave with the children, and Taylor

jumped up on J.W.’s car. Taylor then hit Lauren on her chin area and “knocked

[her] jaw out of place.”

      Taylor also testified at the sentencing hearing. He told the court that he did

not recall most of the night in question because he was “way too intoxicated.” He

                                             5
did not remember hitting his wife with the food container, throwing her to the

ground, strangling her, or throwing her through a door. However, he did remember

destroying his wife’s phone but not why he did so. He recalled the scuffle with

Grant and Andrew but did not know at the time the reason for the scuffle. He

denied hitting Lauren and stated he did not remember swinging a sword at anyone.

      On cross examination, he remembered drinking and smoking marijuana

when he was at Andrew and Lauren’s house, but he did not remember wanting to

drive home despite being intoxicated, or forcing J.W. to get into the car with him.

Taylor testified that he previously had been “arrested for Vicodin[,]” not cocaine.

He also testified he was convicted for “DWI back in ’04.” Taylor’s uncle also

testified that he understood Taylor’s prior conviction was for prescription drugs.

      Prior to delivering the sentence, the court addressed Taylor directly and

stated: “you remember what everybody did to you but you don’t remember what

you did to everybody else. . . . I find that highly, highly questionable.” The court

further told Taylor that, in this situation

      you could have been charged for that sword with aggravated assault,
      . . . could have been charged with driving while intoxicated, . . . could
      have been charged with possession of marijuana, and . . . could have
      been charged for assaulting all of these people there -- all of that.
              And, instead, they went forward on the case against her, which
      is fine.


                                              6
The court also observed that, based on the witnesses’ testimony, “it looks like you

stayed home, didn’t work very much, and smoked pot all day.” As to Taylor’s own

testimony, the court observed that he “minimized” his own actions, “downplayed”

what he did, and “for some reason accountability is not getting in.” The court

stated that such minimization was “deeply troubling because that means you would

do it again.” Ultimately, the court sentenced Taylor to six years in prison, with

credit for time served, and no fine. The six-year sentence is within the range of

punishment allowed by the applicable statute for third degree felony assault. See

Tex. Penal Code Ann. § 12.34 (West 2011).

      Following sentencing, on December 31, 2013, Taylor filed a “Motion for

New Trial and Motion in Arrest of Judgment,” requesting a new trial on the basis

of “newly discovered evidence” concerning a prior arrest. In his motion, Taylor

alleged that:

      The defendant was charged by information on January 22, 1999, in
      Cause No. 803137 in the 339th District Court in Harris County, Texas
      for the offense of Possession of Hydrocodone, 1-4 grams. It appears
      that his probation judgment incorrectly stated the nature of the
      controlled substance, by referring to it as “Cocaine”, . . . and there was
      no amendment to the information and no indictment.

      At the hearing on the motion for new trial, the appellant filed an affidavit

from his trial counsel stating that the appellant’s previous conviction was for the

offense of possession of hydrocodone, and not cocaine. Attached to the affidavit
                                          7
was a copy of an information charging the appellant with possession of

hydrocodone. The trial court conducted a hearing on the motion for new trial on

January 15, 2014. The court then denied the motion for new trial, explaining that

despite the alleged error regarding one of Taylor’s prior arrests, “[t]he actual

offense itself affected me more than any of that information, that I made my

decision based on just the testimony of the victim, testimony of the other

witnesses, and just the nature of the offense that was detailed.” Taylor timely filed

a Notice of Appeal.

                      DENIAL OF THE MOTION FOR NEW TRIAL

      Taylor’s first issue on appeal is that the trial court abused its discretion by

denying his motion for new trial. Taylor’s motion was based on what he describes

as “newly discovered evidence.” Appellant contends that the new evidence bears

on his credibility.

      We review a trial court’s denial of a motion for new trial under an abuse of

discretion standard. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App.

2012) (citing Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001)). “‘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. (quoting Holden v.

State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)). An appellate court views the

                                         8
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; Holden, 201 S.W.3d at 763;

Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

      Motions for new trial based on grounds of newly discovered evidence are

not favored by courts. Drew v. State, 743 S.W.2d 207, 225-26 (Tex. Crim. App.

1987). Texas Code of Criminal Procedure Article 40.001 provides “[a] new trial

shall be granted an accused where material evidence favorable to the accused has

been discovered since trial.” Tex. Code Crim. Proc. Ann. art. 40.001 (West 2006).

In order for a defendant to be entitled to a new trial on the basis of newly

discovered or newly available evidence, the following four-part test must be met:

(1) the new evidence was unknown or unavailable to him at the time of trial; (2)

his failure to discover or to obtain the evidence was not due to his lack of

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 on another trial. Carsner v. State,

                                         9
444 S.W.3d 1, 2-3 (Tex. Crim. App. 2014) (citing Wallace v. State, 106 S.W.3d

103, 108 (Tex. Crim. App. 2003), and Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.

Crim. App. 2002)). The failure of the movant to establish any one of the four

required elements for a new trial based on newly discovered evidence supports the

trial court’s denial of the motion. See Jones v. State, 234 S.W.3d 151, 157 (Tex.

App.—San Antonio 2007, no pet.) (citing Shafer v. State, 82 S.W.3d 553, 556

(Tex. App.—San Antonio 2002, pet. ref’d)).

      The requirement that a movant 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). Neither appellant’s motion

for new trial nor his appellate brief suggests that the purported “newly discovered

evidence,” i.e., that Taylor’s prior arrest was for hydrocodone or Vicodin and not

for cocaine, was unknown to Taylor at the time of the sentencing hearing. Indeed,

the record shows that the trial court heard testimony concerning whether Taylor’s

1999 arrest was for possession of cocaine or for Vicodin. When the evidence was

known and accessible to a defendant at the time of trial, the movant has not shown

a proper basis for granting a new trial. Estrada v. State, 2005 Tex. App. LEXIS

10506, *21 (Tex. App.—San Antonio July 20, 2005, pet. ref’d) (mem. op.) (citing

Drew, 743 S.W.2d at 227 n.14.). Additionally, Taylor does not argue or establish

                                        10
that his failure to obtain the evidence was not due to his lack of diligence.

Furthermore, as previously stated, a new trial should not be granted when the

alleged “newly discovered evidence” is merely cumulative, corroborative, or

collateral to testimony or evidence previously presented at trial. Keeter, 74 S.W.3d

at 36-37. Evidence regarding his dispute as to the conviction for hydrocodone or

Vicodin, rather than “cocaine,” was already before the court as Taylor, J.W., and

Taylor’s uncle testified thereto, and it was in the charging instrument for the prior

offense. Therefore, the “new evidence” that Taylor presented in his motion for new

trial was merely cumulative, corroborative, or collateral to testimony or evidence

previously presented at trial.

      Finally, appellant fails to demonstrate in either his motion for new trial or in

his appellate brief that the alleged “newly discovered evidence” would probably

bring about a different result on another trial. When pronouncing Taylor’s

sentence, the court commented on inconsistencies in Taylor’s memory concerning

the events of September 14, 2013, and his apparent lack of accountability. At the

hearing on Taylor’s motion for new trial, the court explained the identity of the

substance for which Taylor was previously arrested did not determine the sentence,

but rather the court considered “[t]he testimony of the victim, testimony of the

other witnesses, and just the nature of the offense that was detailed.” The trial court

                                          11
explained that “the actual offense itself” weighed most heavily in determining the

sentence, and the court stated it “did not put a lot of emphasis” on evidence

concerning prior convictions or probation. Appellant’s statement in his appellate

brief that the newly discovered evidence “surely would have affected” the outcome

of his trial is conclusory and not supported by the record. The trial court could

have reasonably concluded that the alleged newly discovered evidence suggested

by appellant’s motion, even if true, was not compelling enough to probably bring

about a different result in a new trial. See Wallace, 106 S.W.3d at 108 (The Court

affirmed the trial court’s denial of a motion for new trial, despite appellate court’s

use of the wrong legal standard, because the new evidence, even if true, was not

compelling enough to overcome the strength of the prosecution’s case.).

       Viewing the record in the light most favorable to the trial court’s ruling, and

deferring to the trial court’s credibility determination, we conclude that a

reasonable reading of the record supports the trial court’s ruling and the trial court

did not abuse its discretion in denying the motion for new trial. We overrule

appellant’s first issue.




                                          12
                                 ATTORNEY’S FEES

      In issue two, Taylor argues that after being found indigent, his status did not

change before he was sentenced. He contends that the trial court erred in assessing

$1,032 in attorney’s fees in the judgment. The State agrees.

      A trial court may tax the defendant with attorney’s fees if there is a material

change in the defendant’s ability to pay attorney’s fees between the date the trial

court initially determined the defendant to be indigent and appointed trial counsel

and the date of the final judgment. See Tex. Code Crim. Proc. Ann. arts. 26.04(p)

(West Supp. 2014); see also Roberts v. State, 327 S.W.3d 880, 884 (Tex. App.—

Beaumont 2010, no pet.).

      In this case, the record shows that the trial court found Taylor to be indigent

and appointed trial counsel before entry of the judgment. Following Taylor’s

sentencing, the trial court also appointed counsel to represent Taylor in his appeal.

The trial court made no findings regarding whether any material change occurred

in Taylor’s status as an indigent defendant. Furthermore, the record does not reflect

that Taylor’s financial circumstances materially changed after he was found

indigent. See Tex. Code Crim. Proc. Ann. art. 26.04(p); Mayer v. State, 309

S.W.3d 552, 556 (Tex. Crim. App. 2010); Roberts, 327 S.W.3d at 884. Therefore,

we sustain issue two.

                                         13
      The Texas Rules of Appellate Procedure authorize this Court to render the

judgment the trial court should have rendered. See Tex. R. App. P. 43.2, 43.3.

Therefore, we modify the judgment the trial court rendered by deleting the award

of $1,032 in attorney’s fees as costs of court. Otherwise, we affirm the trial court’s

judgment as modified.

      AFFIRMED AS MODIFIED.


                                                    _________________________
                                                        LEANNE JOHNSON
                                                             Justice


Submitted on November 21, 2014
Opinion Delivered January 28, 2015
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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