      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-09-00182-CR




                    Jose Gudiel-Brenes aka Christian Palacios, Appellant

                                                v.

                                 The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-07-300971, HONORABLE BOB PERKINS, JUDGE PRESIDING



                           MEMORANDUM                  OPINION


               A jury found appellant Jose Gudiel-Brenes guilty of capital murder. See Tex. Penal

Code Ann. § 19.03(a)(2) (West Supp. 2009). The State did not seek the death penalty, and the trial

court assessed punishment at life imprisonment. See id. § 12.31(a). In a single issue, appellant

contends that the trial court reversibly erred by overruling his motion for new trial without

conducting an evidentiary hearing. We overrule this contention and affirm the conviction.

               Eighteen-year-old Gamaliel Jimenez-Bohorquez was fatally shot during a robbery on

the night of April 21, 2007. Gamaliel’s father, Guillermo Jimenez-Hernandez, testified that he and

his son were walking home just after 10:00 p.m. when they were accosted by two men. One of the

men pointed a black pistol at Guillermo’s head and demanded money. Guillermo gave the man

$105. The man then pointed the pistol at Gamaliel and demanded money. Gamaliel dropped
$1000 on the ground. The man then shot Gamaliel and, after gathering up the money, the

two assailants ran from the scene.

                Guillermo first told the police that the two robbers were black, but he changed his

statement and said that the man with the pistol was black and the second man was Hispanic. He said

that he noticed a white car near the scene of the robbery, but he did not see if the robbers got into it

as they fled.

                Niesha Mackey spoke to the police at the scene of the shooting and testified at

appellant’s trial. Mackey said that she noticed a group of Hispanic men “fighting and kicking.” She

testified that the men “scattered” when she approached them in her car, and she called 911. Mackey

said that she noticed a burgundy or maroon car at the scene, but she did not see any of the men get

into it. She also testified that as she was calling the police, a white truck or SUV drove past her at

a high rate of speed.

                Juan Manuel Irias contacted the police a few days after the murder. He initially

claimed to have been a witness, but he later admitted participating in the crime. Testifying under

a grant of immunity, Irias said that he, appellant, and a woman were driving around in appellant’s

red Dodge looking for someone to rob when they spotted the Jimenezes. According to Irias,

appellant armed himself with a pistol that he took from under the car seat. Irias testified that it was

appellant who brandished the pistol and demanded money, and it was appellant who fired the

fatal shot.

                A .38 caliber bullet was recovered from Gamaliel’s body. Although the murder

weapon was never recovered, there was evidence that appellant owned an unusual .38 caliber



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revolver at the time of the murder. Appellant’s former employer, Oady Lee Spencer, testified that

appellant had often shown him a black .38 revolver with a pin through the barrel to prevent it from

being fired. Spencer said that the last time he saw this pistol was around April 15, 2007. At that

time, the pin had been removed, leaving holes in the barrel. When Spencer remarked that it would

be dangerous to fire the weapon, appellant told him that the pistol “would work.” Appellant’s

former roommate, Rolando Orellana-Gaytan, testified that on April 22, 2007, appellant told him that

he had committed a murder with two other people. Orellana also testified that he had seen

appellant’s black .38 revolver and was with appellant when he sold the revolver to Pedro Carballo.

Carballo testified that he purchased a black .38 revolver from appellant. He said that he did not

notice the two holes in the barrel until he fired the pistol a few days later and “lead came out and it

fell on my arm and it scared me.” Carballo said that he left the pistol under a trailer, but the pistol

was not there when he took police officers to the location.

               A police crime scene specialist testified that Gamaliel’s shirt had a large bullet hole

and a smaller hole that might have been caused by a bullet fragment. A police firearms examiner

testified that .38 caliber bullets found in appellant’s residence were consistent with the bullet

recovered from Gamaliel’s body. This witness also testified that the bullet recovered from the body

had defects that were consistent with it being fired from a pistol with holes in the barrel of the sort

described by the other witnesses.

               Appellant’s trial counsel vigorously cross-examined the State’s witnesses to

highlight the inconsistencies in their testimony. Counsel also stressed the State’s reliance on Irias’s

self-serving testimony. The defense rested without calling any witnesses.



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                Sentence was imposed in open court on March 12, 2009. Trial counsel filed a notice

of appeal on March 20.1 On April 16, appellant’s pro se “affidavit of fact/inmate’s declaration and

motion for new trial” was filed by the district clerk. In this document, which was supported by a

declaration under penalty of perjury dated April 6, 2009, appellant alleged that his trial counsel

provided ineffective assistance because “he failed to conduct an adequate investigation of the facts

and potential witnesses in the case, specifically, defendant requested [counsel] to contact and

subpoena several witnesses who could have testified on his behalf during the guilt-innocence and

punishment phases of trial.” As it appears in the clerk’s record, the face of the motion bears an

undated written notation signed by the trial court: “This is a nullity. This is filed too late. Deadline

was 4/13.”2 The court took no other action on the motion. Appellant contends that the motion for

new trial was timely and that an evidentiary hearing on the motion was required.

                Appellant bases his contention that the motion was timely on the assumption that the

trial court’s written notation was made before the motion was filed by the district clerk. Based on

this assumption, appellant argues that “it is reasonable to believe” that the court acted no later than

April 15, that the clerk received the motion no later than April 14, and that appellant deposited the

motion in the mail no later than April 13. This would make the motion timely under the mailbox

rule. See Tex. R. App. P. 9.2(b).




   1
     Trial counsel moved to withdraw on May 5. The order was granted the day it was filed, and
appellate counsel was appointed on May 6.
  2
     The deadline for filing the motion for new trial was Monday, April 13, 2009. See Tex. R. App.
P. 4.1(a), 21.4(a).

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                Alternatively, appellant urges that we should be guided by the opinion in Warner

v. Glass, 135 S.W.3d 681 (Tex. 2004). In that case, the supreme court held that a pro se inmate’s

civil petition that is placed in a properly addressed and stamped envelope or wrapper is deemed filed

at the moment prison authorities receive the document for mailing. Id. at 682; see Tex. R. Civ. P. 5.

In Warner, the date of the postmark was not reflected in the record, but the inmate’s petition was

received and filed by the clerk six days after the deadline. 135 S.W.3d at 683. The supreme court

reversed the judgment dismissing the petition as untimely and remanded the cause to the trial court

for a finding as to the date the petition was placed in the prison mail system. Id. at 686.

                The State replies that the trial court obviously acted on appellant’s pro se motion for

new trial after it was filed by the clerk on April 16, noting that the court circled the date of the clerk’s

file mark. Using appellant’s own calculations, the State argues that appellant could have deposited

the motion in the mail as late as April 14. More substantially, the State argues that the only pertinent

fact established by the record is the date the motion was filed by the clerk and that it is pure

speculation for appellant to assert that he complied with the mailbox rule. The State further argues

that, unlike the inmate in Warner, appellant has never alleged that he timely deposited his motion

for new trial in the prison mail system. See id. at 683.

                We need not decide whether appellant’s pro se motion for new trial was timely (or

abate the appeal for a finding on this issue) because, even if the motion was timely, the trial court

did not abuse its discretion by failing to conduct a hearing. First, appellant was represented by

counsel when the motion was filed, and a trial court may disregard any pro se motion presented by

a defendant who is represented by counsel. Robinson v. State, 240 S.W.3d 99, 922-23 (Tex. Crim.



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App. 2007). Second, the bare assertions in appellant’s motion were not sufficient to entitle him to

a hearing. A trial court must conduct a hearing on a motion for new trial if the motion and

accompanying affidavits raise matters not determinable from the record that would entitle the

defendant to relief. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Reyes v. State,

849 S.W.2d 812, 816 (Tex. Crim. App. 1993). Although the pleadings need not establish a prima

facie case for a new trial, they must show that reasonable grounds exist for holding that relief could

be granted. Wallace, 106 S.W.3d at 108; Reyes, 849 S.W.2d at 816. To obtain a hearing on a

motion for new trial alleging ineffective counsel, the defendant must allege facts from which the trial

court could reasonably conclude both that counsel failed to act as a reasonably competent attorney

and that, but for counsel’s failure, there is a reasonable likelihood that the outcome of the trial would

have been different. Smith v. State, 286 S.W.3d 333, 340-41 (Tex. Crim. App. 2009). In his pro se

motion, appellant asserted that his trial counsel did not adequately investigate the case, but he did

not allege what further investigation counsel should have conducted. Appellant asserted that counsel

failed to subpoena witnesses, but he did not name the witnesses or explain how their testimony

would have benefitted his defense. Similar allegations have been held insufficient to require a

hearing on a motion for new trial. See King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).

For both of these reasons, we hold that the trial court did not abuse its discretion by failing to

conduct a hearing on appellant’s pro se motion for new trial.




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              The judgment of conviction is affirmed.




                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: March 26, 2010

Do Not Publish




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