      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00751-CR



                                     Leonard Cox, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
      NO. D-1-DC-10-500333, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Leonard Cox was charged with the crime of causing bodily injury to an elderly

person. See Tex. Penal Code § 22.04(a)(3), (f) (explaining that person commits crime if he causes

bodily injury “to a child, elderly person, or disabled person” and that crime is third-degree felony

if it “is committed intentionally or knowingly”). At the time of the alleged assault, the victim,

Eurgene Nathenson, was 69 years old. Cox pleaded not guilty to the charges and waived his right

to a jury trial. At the conclusion of the trial, the district court found Cox guilty and sentenced him

to 6 years’ imprisonment but suspended the sentence and placed Cox under community supervision

for 3 years. After his sentence was imposed, Cox filed a motion for new trial alleging that his trial

counsel did not provide effective assistance. Cox’s motion was overruled by operation of law. See

Tex. R. App. P. 21.8 (explaining that if motion is not ruled on within 75 days after sentence was

imposed, motion “will be deemed denied”). Cox appeals his conviction. We will affirm the district

court’s judgment of conviction.
                                         BACKGROUND

               Cox was romantically involved with a woman named Carolyn Cookson. Weeks

before the assault at issue, Cox and Cookson were in a motorcycle accident that resulted in both of

them being treated for injuries. When they were released from medical care, Cox had a cast on his

arm, and Cookson was required to stay in a wheelchair while her broken leg was healing. After

Cookson was released from the hospital, David Kellum, who is Cookson’s brother, moved in

with Cookson to help her during her recovery. In addition to the help that she received from Kellum

and Cox, some of Cookson’s friends, including Nathenson and his wife, also provided assistance.

Cookson and Nathenson were part of a motorcycle-riding social group and had been friends for years.

               The assault that is the subject of this case occurred at Cookson’s home. Immediately

prior to the alleged assault, Cookson and Cox were eating breakfast in the kitchen, and Nathenson

came to Cookson’s house to see her. Although Nathenson testified that he rang the doorbell, Cox

testified that he did not hear a doorbell. However, Nathenson also explained at trial that he did not

wait for anyone to answer the door and instead opened the front door and entered the house. After

entering the home, Nathenson made his way to the kitchen and found Cookson and Cox. What

happened next is disputed and formed the basis for the trial and Cox’s conviction. What is not in

dispute is that shortly after Nathenson entered the kitchen, a fight ensued between Cox and Nathenson,

that Kellum came downstairs to see what was happening, that the police were called, that Cox was

subsequently arrested, and that Cox was found guilty of causing bodily injury to Nathenson.

               After Cox was sentenced, he filed a motion for new trial alleging that his trial

attorney provided ineffective assistance of counsel and attached to the motion several exhibits,



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which he alleged showed his counsel’s ineffective performance. Although Cox requested that the

district court convene a hearing regarding his motion, no hearing was scheduled, and Cox’s motion

was denied by operation of law. See Tex. R. App. P. 21.8. Cox appeals his judgment of conviction.


                                           DISCUSSION

                On appeal, Cox presents two issues. First, he urges that the district court erred by

failing to schedule a hearing regarding his motion for new trial. Second, he contends that the district

court erred by excluding the results of his polygraph test.


Hearing on Motion for New Trial

                As mentioned above, in his first issue, Cox contends that the district court erred by

not scheduling a hearing regarding his motion for new trial.

                A hearing on a motion for new trial has two purposes: “deciding whether the cause

shall be retried” and “prepar[ing] a record for presenting issues on appeal in the event the motion

is denied.” Trevino v. State, 565 S.W.2d 938, 941 (Tex. Crim. App. 1978). However, the right to

a hearing is not an absolute right. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). On

the contrary, “a hearing is not required when the matters raised in the motion for new trial are subject

to being determined from the record.” Id. at 816. In accordance with that rule, courts have held that

a hearing is required if a defendant “presents a motion for new trial raising matters” that are “not

determinable from the record.” Id.; see Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009).

However, in an effort to prevent unfettered fishing expeditions, that rule is subject to the limitation

that the defendant establish the existence of reasonable grounds showing that he would be entitled



                                                   3
to relief. Smith, 286 S.W.3d at 339. Accordingly, courts require “as a prerequisite to hearing when

the grounds in the motion are based on matters not already in the record, that the motion be

supported by an affidavit, either of the defendant or someone else, specifically setting out the factual

basis of the claim.” Id. To be sufficient, a fair reading of the affidavit must give rise to reasonable

grounds to support the claims, but “affidavits that are conclusory in nature and unsupported by facts

do not provide the requisite notice of the basis for the relief claimed” and do not require that a

hearing be held. Id.; see Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).

                When reviewing the denial of a hearing on a motion for new trial, appellate courts

apply an abuse-of-discretion standard. Smith, 286 S.W.3d at 339; see also id. (stating that court

abuses its discretion if its decision lies outside zone of reasonable disagreement); State v. Mechler,

153 S.W.3d 435, 439 (Tex. Crim. App. 2005) (explaining that court abuses its discretion if its ruling

is unreasonable or arbitrary). In performing this review, appellate courts are limited to reviewing the

trial court’s “determination of whether the defendant has raised grounds that are both undeterminable

from the record and reasonable, meaning that they could entitle the defendant to relief.” Smith,

286 S.W.3d at 340.

                In his appellate brief, Cox alleges that the district court should have convened a

hearing based on the allegations in his motion that his trial attorney did not provide effective

assistance of counsel. The right to effective assistance is not a guarantee of errorless or of perfect

assistance. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); see Frangias v. State,

392 S.W.3d 642, 653 (Tex. Crim. App. 2013). Accordingly, decisions regarding effectiveness must

be based on the totality of the representation, Frangias, 392 S.W.3d at 653; see also Davis v. State,



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413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref’d) (explaining that assessment of performance

should consider cumulative effect of counsel’s deficiencies), and evidence in the record of isolated

errors does not render an attorney’s performance ineffective, Robertson, 187 S.W.3d at 483.

However, a single error can render the representation ineffective if it “was egregious and had a

seriously deleterious impact on the balance of the representation.” Frangias, 392 S.W.3d at 653.

               To successfully present an ineffectiveness claim, the defendant must overcome

the strong presumption that his trial “counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984). To prevail, the

defendant must show that the attorney’s “representation fell below an objective standard of

reasonableness . . . under prevailing professional norms” and that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 688, 694. If a defendant fails to satisfy either prong of the test established in

Strickland, the court need not consider the remaining prong. Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001).

               When arguing on appeal that the district court erred, Cox points to four alleged

instances of ineffective assistance.1 First, Cox alleges that his attorney failed to impeach Kellum’s


       1
         The fact section of Cox’s brief is approximately 40 pages in length. That section contains
a summary of Cox’s testimony regarding the alleged assault, provides additional details regarding
the incident that he did not testify about but surmises must have occurred, criticizes the manner in
which the police interviewed the witnesses to the incident, and asserts that the police officers
believed that he was not the aggressor. In addition, Cox also discusses the motorcycle accident,
provides details about his relationship with Cookson, suggests that at various times he felt as though
Cookson was not being honest with him, explores Cookson’s family dynamics and past sexual
history, mentions how he felt that Nathenson disliked him and blamed him for the injuries that
Cookson sustained in the accident, chronicles the end of the romantic relationship between him and

                                                  5
testimony at trial. During the trial, Kellum explained that he saw Cox assault Nathenson by hitting

Nathenson with his cast. On appeal, Cox urges that Kellum’s testimony was inconsistent with the

statement that he provided to the police shortly after the incident. That statement was attached to

Cox’s motion for new trial. In his statement, Kellum explained that on the morning of the incident,

he heard Cookson scream, ran downstairs to see what was going on, saw Cox grab Nathenson and

throw him onto a dining table, and yelled at Cox to leave Nathenson alone. Further, in his statement,

Kellum explained that although he heard sounds indicating that there was a struggle before he

went downstairs, the only physical altercation that he saw was when Cox threw Nathenson. In light

of this statement, Cox contends that his attorney should have impeached Kellum’s testimony that

he observed Cox hit Nathenson with his cast. However, the record shows that Cox’s attorney did

impeach Kellum’s testimony by pointing out that his statement to the police made no mention of

observing Cox hit Nathenson.

                Second, Cox seems to argue that his trial counsel did not thoroughly question

Nathenson about the injuries that he allegedly sustained. However, the extent of his injuries were

established when the State admitted as exhibits Nathenson’s medical records as well as photos

taken of the injuries shortly after the incident.




Cookson, insists that he continued to see Cookson after the incident in an effort to ascertain why
Cookson lied to the police and to discover whether Cookson was planning to sue him for the injuries
that she sustained in the crash, details how Nathenson filed a grievance against him with the State
Bar of Texas, compares the performance of his lawyer during the grievance proceeding with that of
his trial attorney, questions the efficacy of his trial attorney, and lists several actions and inactions
by his trial attorney that he disagreed with. However, during the argument section of his brief, Cox
limits his ineffective-assistance challenge to the specific actions discussed above.

                                                    6
               Third, Cox contends that his attorney should have impeached the testimony of

Nathenson and Cookson regarding their description of the events occurring immediately before

the incident. Specifically, Cox contends that his attorney should have called police officers and his

investigator to the stand to show “Nathenson’s true motives at the time he entered the home.”

Regarding the investigator, Cox attached an affidavit to his motion for new trial in which an

acquaintance of his, Cindi Wiggins, stated that she heard his investigator relate a statement made by

Nathenson in which Nathenson said that he entered Cookson’s home on the morning in question by

“just walk[ing] in as was custom.” Further, Cox argues that the police officers that investigated the

incident would have corroborated that characterization of the events in question because they would

testify that Cox or Cookson told them that Nathenson entered the house without express permission.

According to Cox, this evidence would have impeached the testimony of Nathenson and Cookson

regarding the events leading up to the altercation and would have helped show that Nathenson

intended to confront Cox on that morning.

               However, the requested testimony would not have contradicted the testimony of

Nathenson or Cookson. In his testimony, Nathenson explained that Cookson left the door unlocked

so that people who were stopping by to help her while she recovered could enter, that he rang

the doorbell to Cookson’s home and entered the house without waiting for someone to open the

door, and that once he was inside, Cookson shouted that she was in the kitchen. Similarly, Cookson

testified that Nathenson knocked on the door, entered the home without someone opening the

door for him, and walked to the kitchen. In addition, in light of the fact that the desired testimony

would not have contradicted the testimony of Nathenson or Cookson and given the nature of the



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desired testimony from the police officers and the investigator, it is not entirely clear that Cox’s

attorney would have been able to introduce that testimony. See Tex. R. Evid. 801(d) (explaining

that hearsay “is a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to provide the truth of the matter asserted”), 802 (forbidding, in general,

admission of hearsay).

                Finally, Cox argues that the district court erred by failing to convene a hearing

because he presented evidence that his trial attorney was “laboring under the influence” of alcohol

from the night before. As support for this proposition, Cox attached to his motion for new trial the

affidavit from Wiggins mentioned above. In her affidavit, Wiggins stated that on the night before

trial, she overheard a conversation between Cox and his attorney in which she thought that the

attorney sounded intoxicated. Moreover, Wiggins explained that the attorney’s “language was

slurred and very vulgar” and that he said that he would “kill” the State’s witnesses during their

testimonies. In addition, Wiggins related that the attorney told Cox to meet him at the office early

in the morning on the day of trial but that the attorney did not show up for the meeting.

                However, other than asserting that his counsel seemed intoxicated on the night

before trial and that his counsel missed a scheduled meeting before trial, Cox did not establish the

existence of reasonable grounds showing that he could be entitled to relief on this ineffectiveness

claim. See Smith, 286 S.W.3d at 339. In arguing this claim, Cox has not presented reasonable

grounds showing that the result of the trial would have been different in the absence of his attorney’s

alleged intoxication. See Strickland, 466 U.S. at 694. Moreover, although we need not address this

allegation further, we note that an ineffectiveness claims is analyzed by considering the totality of



                                                   8
the attorney’s representation. When representing Cox, at Cox’s suggestion, his attorney attempted

to introduce the results of a polygraph test that Cox had taken regarding the incident. His attorney

also presented an opening statement during the trial in which he argued that the incident was the

result of hostility that Nathenson had towards Cox, cross-examined the State’s witnesses, called Cox

to the stand to provide testimony regarding the incident and the events leading up to it, and gave a

closing statement in which he argued that the evidence did not establish Cox’s guilt beyond a

reasonable doubt.

               In light of the preceding, we cannot conclude that the district court abused its

discretion by determining that Cox’s ineffectiveness claims were either not reasonable or were

determinable from the record and that, therefore, a hearing on the motion for new trial was not

required. Accordingly, we overrule Cox’s first issue on appeal.


Polygraph Results

               In his second issue on appeal, Cox contends that the district court erred by excluding

the results of the polygraph test that he took regarding the events in question. In presenting this

claim, Cox acknowledges that Texas courts have repeatedly held that polygraph results are not

admissible. Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012) (explaining that court

of criminal appeals has continually held that “the results of polygraph examinations are inadmissible

over proper objection because the tests are unreliable”). However, Cox contends that those rulings

violate the Equal Protection Clause because trial courts have used the results during probation

revocation proceedings. See U.S. Const. amend. XIV, § 1 (prohibiting states from denying people

within their jurisdiction “the equal protection of the laws”).

                                                  9
                 In order to preserve an issue for appeal, the record must show that “the complaint

was made to the trial court” and that the trial court made a ruling or refused to make a ruling.

Tex. R. App. P. 33.1. During a pretrial hearing, Cox discussed the polygraph results, and the district

court stated that the law was settled that polygraph results are not admissible. However, the district

court did allow Cox to proffer the results of the polygraph. When Cox was proffering the results,

he did not present his constitutional argument to the district court, and Cox essentially concedes

that in his brief. See Perry v. State, 367 S.W.3d 690, 694 (Tex. App.—Texarkana 2012, no pet.)

(explaining that issue is not preserved for review when “complaint made on appeal does not comport

with the complaint made at trial”).2

                 Accordingly, we must conclude that Cox did not preserve this issue and, therefore,

overrule his second issue on appeal.


                                          CONCLUSION

                 Having overruled Cox’s two issues on appeal, we affirm the district court’s judgment

of conviction.




       2
         Although Cox does not mention the polygraph in the argument portion of his first issue,
he does imply in his second issue that his trial attorney’s handling of the polygraph issue was
ineffective. In particular, Cox contends that one of his trial strategies “was to waive a jury trial and
attempt to admit the polygraph” before the district court because “the chances of it being admitted
might be much greater in front of a judge as a trier of fact than a jury.” Moreover, although Cox
concedes that the polygraph results would likely not have been admitted, he also wanted his attorney
to preserve his constitutional claims by objecting to the denial of their admission. Even construing
Cox’s contentions as an ineffectiveness challenge, we would be unable to either directly sustain
that challenge or conclude that the district court should have held a hearing on that issue given
the remainder of his counsel’s representation and given the current state of the law pertaining to
polygraph results. See Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012).

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                                             __________________________________________

                                             David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: August 26, 2014

Do Not Publish




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