                                 MEMORANDUM OPINION
                                        No. 04-09-00507-CR

                                    Kenneth Lamont SIMMONS,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 198th Judicial District Court, Kerr County, Texas
                                      Trial Court No. B08-588
                             Honorable Emil Karl Prohl, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 21, 2010

AFFIRMED

           After entering of a plea of guilty and being sentenced for felony failure to appear,

Appellant Kenneth Lamont Simmons requested the appointment of appellate counsel and an

evidentiary hearing on his motion for new trial. The trial court appointed appellate counsel, but

did not conduct an evidentiary hearing. On appeal, Simmons claims the trial court’s refusal to

conduct a hearing on his pro se motion for new trial, during the critical thirty-day period after his

sentencing, violated his due process rights. We affirm the judgment of the trial court.
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                                         FACTUAL BACKGROUND

        On July 10, 2009, pursuant to the terms of a negotiated plea agreement, Simmons entered

a plea of guilty to felony failure to appear and was sentenced to two years confinement and

assessed a fine in the amount of $1,500.00. 1 Shortly thereafter, on July 17, 2009, Simmons

wrote two letters to the trial court requesting the court vacate its judgment. 2 In his first letter,

Simmons reiterated a claim he raised at trial, namely that the plea agreement read at trial “was

not in line with the original plea arrangement,” and had been “altered after I signed and sworn

[sic] to it” and “I was not advised [of the changes] by my attorney.” The letter, however, did not

explain precisely how the plea papers were altered. In his second letter to the trial court,

Simmons requested the trial court vacate its judgment based on an affirmative defense, namely

that he was incarcerated on the date he allegedly failed to appear. 3 Simmons attached three

documents to support his incarceration claim: (1) a letter addressed to Simmons at the Kerr

County Jail, dated August 15, 2008, from Richard Langlois, a San Antonio attorney representing

him in a pending Bexar County case; (2) a copy of the instant indictment, which stated the

offense occurred “on or about the 2nd day of September, 2008;” and (3) a copy of the original

judgment of conviction in the instant case.

        On July 31, 2009, Simmons wrote another letter to the trial court, in which he referenced

his previous correspondence and restated his desire to appeal. In his third letter, Simmons

pleaded “for consideration of new evidence, appointment of [appellate] counsel, [and]




1
  As part of the negotiated plea, the State dismissed a pending charge of unauthorized use of a motor vehicle.
2
  The trial court filed both of Simmons’ letters on July 22, 2009.
3
  Incarceration is an affirmative defense to a failure to appear charge. TEX. PENAL CODE ANN. § 38.10(C) (Vernon
2003). Simmons, however, did not raise this affirmative defense at any time prior to writing his second letter.

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permission for appeal on the FTA charge.” 4 None of Simmons’ letters were supported by

affidavits.

          Simmons’ trial counsel filed a notice of appeal on August 6, 2009 and subsequently

withdrew based on an alleged conflict of interest and Simmons’ allegations that he “disregarded

evidence and dismissed [Simmons’] wishes and concerns on several occasions.” On August 24,

2009, the trial court appointed Simmons new appellate counsel and granted Simmons permission

to appeal this case on October 29, 2009.

                                     MOTION FOR A NEW TRIAL HEARING

          In his sole issue on appeal, Simmons argues this case should be abated and remanded to

the trial court for a hearing on his pro se motion for new trial.

A. Standard of Review

          An appellate court reviews the trial court’s denial of a hearing on a motion for new trial

for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Wallace

v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). “We do not substitute our judgment for

that of the trial court, but rather we decide whether the trial court's decision was arbitrary or

unreasonable. We must 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 that losing party.” Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.

App. 2004). We will reverse only when the trial court’s decision lies outside the zone within

which reasonable persons might disagree. See Webb, 232 S.W.3d at 112; Charles, 146 S.W.3d at

208; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).




4
    Simmons’ third letter was dated July 31, 2009, but was filed by the trial court on August 12, 2009.

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B. Hybrid Representation

        It is well-settled in Texas jurisprudence that a defendant has no right to hybrid

representation. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Bledsoe v.

State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (“[I]n the State of Texas, Appellants are not

entitled to ‘hybrid’ or ‘dual’ representation.”); Dunn v. State, 819 S.W.2d 510, 525 (Tex. Crim.

App. 1991) (holding a defendant is not “constitutionally entitled to any form of hybrid

representation”). “Hybrid representation” is defined as representation partly by counsel and

partly by the defendant himself. Robinson, 240 S.W.3d at 922. As noted by the Court of

Criminal Appeals in Robinson v. State, when a criminal defendant is represented by counsel, a

trial court has no legal duty to consider and rule on his pro se motion. Id; In re Molina, 94

S.W.3d 885, 886 (Tex. App.—San Antonio 2003, no pet.) (per curiam) (holding defendant must

establish that the trial court had a legal duty to perform a non-discretionary act in order to show

an abuse of discretion); In re Velazquez, No. 04-09-00797-CR, 2010 WL 26335, at *1 (Tex.

App.—San Antonio January 6, 2010, no pet.) (mem. op.) (“A trial court has no legal duty to rule

on a pro se motion with regard to a criminal proceeding in which the defendant is represented by

counsel.”).

        There is no evidence in the record that Simmons was without counsel during the critical

thirty-day filing period for his motion for new trial. See TEX. R. APP. P. 21.4(a). Indeed,

Simmons was represented by counsel at the time he drafted his pro se motions to the trial judge. 5

Specifically, the record reflects Simmons’ trial counsel was appointed on August 15, 2008 and

was not discharged from Simmons’ case until August 24, 2009.

5
   Simmons concedes he was still represented by trial counsel at the time he wrote the letters to the trial court
requesting a new trial. Simmons, however, claims this was merely a pro forma representation, “as there was an
obvious rift between [Simmons] and [his] trial counsel.” Therefore, Simmons alleges his requests were pro se,
without the involvement of trial counsel.


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        Although Simmons’ letters may have suggested he was dissatisfied with his court-

appointed trial attorney, Simmons’ letters are not evidence that his counsel had abandoned him

or failed to explain his appellate options. See Burnett v. State, 959 S.W.2d 652, 660 (Tex.

App.—Houston [1st Dist.] 1997, pet. ref’d). In fact, in addition to representing Simmons during

the preliminary trial matters, the trial counsel acted on Simmons’ behalf to file notice of appeal

with the court on August 6, 2009. Because Simmons was represented by counsel at the time he

filed his pro se motion for new trial, we cannot say the trial court had a legal duty to consider or

rule on the motion. See Robinson, 240 S.W.3d at 922.

C. Evidentiary Hearing

        Regardless of whether the trial court considered hybrid representation, a defendant’s right

to an evidentiary hearing is not absolute. Lempar v. State, 191 S.W.3d 230, 234 (Tex. App.—

San Antonio 2005, pet. ref’d). Instead, an evidentiary hearing on a defendant’s motion for new

trial is necessary only when the motion is supported by affidavits and raises matters not

determinable from the record. 6 If a defendant’s motion for new trial is based upon facts outside

the record and the defendant fails to provide supporting affidavits, the motion is insufficient as a

pleading. Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983) (recognizing an

unverified motion for new trial, which is based on matters outside the record, is insufficient as a

pleading); Klapesky v. State, 256 S.W.3d 442, 454 (Tex. App.—Austin 2008, pet. ref’d) (“A

motion for new trial alleging facts outside the record without supporting affidavits is not a proper

pleading and is defective; [therefore,] a trial court does not err in refusing to grant a hearing on

such a motion.”).


6
  Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). This is designed to curb the limitless “fishing
expeditions” that the absolute right to a hearing would create. Musgrove v. State, 986 S.W.2d 738, 739 (Tex.
App.—San Antonio 1999, pet. ref’d) (“The policy underlying this pleading requirement is to prevent ‘fishing
expeditions.’”).

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        None of Simmons’ letters were supported by affidavits—despite alleging facts outside

the scope of the record. See Reyes, 849 S.W.2d at 816. For example, in his first letter, Simmons

broadly asserts his attorney did not advise him on the allegedly altered plea bargain agreement.

Simmons, however, did not furnish an oath or affidavit to support his assertion. Likewise,

Simmons raised the issue of his incarceration for the first time in his second letter, but neglected

to attach a sworn statement or supporting affidavit. 7 As such, Simmons’ unsupported motions

were fatally defective and did not warrant an evidentiary hearing. See Bearden, 684 S.W.2d at

690; Klapesky, 256 S.W.3d at 454. After reviewing the record, we cannot say the trial court

below abused its discretion in refusing to hold an evidentiary hearing on Simmons’ motion. See

Wallace, 106 S.W.3d at 108; Klapesky, 256 S.W.3d at 454.

                                                 CONCLUSION

        Because Simmons was represented by counsel at the time he sent letters requesting a new

trial, and the letters were not supported by sworn affidavits, we cannot say the trial court abused

its discretion in denying Simmons’ motion for new trial. Accordingly, the judgment of the trial

court is affirmed.




                                                         Rebecca Simmons, Justice

DO NOT PUBLISH




7
  Simmons’ third letter was filed after the thirty-day filing deadline for a motion for new trial and was therefore
untimely. See Tex. R. APP. P. 21.4(a). Nevertheless, Simmons’ third letter is unverified and unsupported; it
therefore suffers from the same fatal defects as his first and second letters.


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