      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00548-CR
                                        NO. 03-07-00697-CR



                                Christopher Lee Powell, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
                    NOS. D-1-DC-06-203467 & D-1-DC-06-203468
              HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In April 2007, Christopher Lee Powell pleaded guilty to two counts of indecency with

a child by exposure, a third-degree felony, and was placed on deferred adjudication community

supervision. See Tex. Penal Code Ann. § 21.11(a)(2)(A) (West 2003). Three months later, the State

filed a motion to proceed with adjudication of guilt, alleging that Powell had violated the terms of

his deferred adjudication by committing subsequent criminal offenses, namely, indecency with a

child by exposure, assault by committing bodily injury, assault by offensive or provocative contact,

and evading arrest.1 After a hearing, the trial court adjudicated Powell guilty of the initial offenses,


        1
           See Tex. Penal Code Ann. §§ 21.11(a)(2)(A) (indecency), 38.04(a) (evading arrest)
(West 2003), § 22.01(a)(1), (a)(3) (assault) (West Supp. 2007). All four offenses were alleged to
have taken place on the afternoon of July 29, 2007, at a south Austin shopping center. The State
produced evidence that Powell assaulted two women and exposed his genitals to a minor in the
parking lots of several different businesses, fled to a nearby gas station when the police arrived to
arrest him, and was eventually apprehended in an apartment complex.
sentenced him to six years’ imprisonment on each count, and ordered that the sentences be served

concurrently. On appeal, Powell complains that the trial court erred in failing to grant him a hearing

on his motion for new trial, which asserted that he was mentally incompetent at the time of the

adjudication proceedings. We affirm the judgment of the trial court.


                                         BACKGROUND

                Although Powell’s claim of mental incompetency was not formally raised until his

motion for new trial, it is evident from the record that the issue of his competency was before the

trial court throughout the proceedings. At the beginning of the hearing to adjudicate guilt, the trial

court inquired as to whether Powell understood the nature of the proceedings against him:


       Court:          Are you Christopher Powell who was placed on supervision in these
                       two cases?

       Defendant:      Yes, sir.

       Court:          Do you understand in each case a motion to proceed with
                       adjudication of guilt has been filed?

       Defendant:      Yes, sir.

       Court:          Do you wish to have these two motions read or do you waive the
                       reading of the motions?

       Defendant:      Waive.

       Court:          Is that because you understand the allegations as contained in each
                       motion?

       Defendant:      Yes.

       Court:          To the allegations in each motion to proceed with adjudication of
                       guilt, in each case, do you plead true or not true? A plea of true is an
                       admission; a plea of not true means you wish to have it proven, if it
                       can be, by the State, and we will have a hearing, which is what we are
                       scheduled for. How do you plead?

                                                  2
       Defendant:      Not true.


               The court accepted Powell’s pleas, and the proceedings continued. The State called

several witnesses, including the officers who pursued and arrested Powell for the July 29 offenses,

the child complainant in the subsequent alleged indecency charge, and one of the alleged assault

victims. The State also called Powell’s community supervision officer, who testified that he had

previously discussed with Powell all of the terms and conditions of his deferred adjudication

community supervision and that Powell understood the terms. The following exchange then took

place on cross-examination:


       Q.      Did you ever notice any challenges for Mr. Powell in comprehending things
               you were telling him?

       A.      Occasionally.

       Q.      How would you describe those limitations in comprehending?

       A.      I sometimes had to go over certain things on more than one occasion to make
               sure that he understood.


               Against the advice of his counsel, Powell testified on his own behalf. He admitted

to having run from police but denied committing any of the other offenses prior to evading arrest.

Instead, Powell testified that he had been in the area to drop off employment applications and, as he

approached the bus stop, he saw police cars; at that point, he “just panicked” and ran because his

probation officer told him “to have no kind of contact with the police department.” On cross-

examination, the State asked if Powell understood that the victims who testified had come into the

courtroom, pointed at Powell, and said that he “did those things.” Powell responded in the



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affirmative, and the prosecutor then asked, “Those were the same kinds of things that you were

placed on probation for?” Powell disagreed, stating, “One victim said I assaulted her. I’m not on

probation for assault.”

               The State also asked Powell whether any other witnesses would testify that he had

been submitting employment applications on the day in question:


       Q.      Who is coming in?

       A.      I don’t know them. All I know the people that work for Burlington Coat
               Factory. I just turned in the application to them.

       Q.      Are they going to come in to court and testify that you did that?

       A.      If I could get hold of them or something.

       Q.      Have you tried to get a hold of them since you have been in custody for the
               last three months?

       A.      No, sir because you can’t get a hold of nobody when you are out there except
               [if] you have a phone card or your people accept collect calls.

       Q.      Did you ask your attorney to ask the Court to issue subpoenas for those things
               and those people?

       A.      No, sir. I asked for the police report, but he said that he didn’t have it.


               After both sides rested and closed, the court found the State’s allegations to be true

and adjudicated Powell guilty of both of the underlying offenses of indecency with a child by

exposure. Before the court assessed punishment, Powell’s counsel made the following statement:


       Your Honor, I want to very briefly say that I think it’s plain that my client is a simple
       young man. I don’t know that even being guilty of these allegations he has difficulty
       comprehending the gravity of the circumstances from the perspective of society and
       the victims. I believe he needs help more than he needs punishment. . . . [H]e does
       apparently have some confusion about his role as a man in regards to women and . . .
       sending him to prison is only going to make matters worse for him.

                                                  4
               The court then gave Powell the opportunity to make a statement; he said, “I agree

with my lawyer about the imprisonment thing and be placed back on probation to spend my life

better and my life better in the community. And that’s all.”

               Powell was sentenced to six years in the institutional division of the Texas

Department of Criminal Justice on each indecency count, with the sentences to run concurrently.

Powell timely filed a notice of appeal and motion for new trial, accompanied by an affidavit executed

by his newly appointed appellate counsel, asserting that Powell was mentally incompetent at the time

of the adjudication proceedings. Powell’s motion for new trial was overruled by operation of law,

and this appeal followed.


                                           ANALYSIS

               Powell contends that the trial court erred in failing to hold a hearing on his motion

for new trial because his motion raises facts outside the record relating to his claim of mental

incompetency that would entitle him to relief.2 We disagree. Powell’s motion for new trial and

supporting affidavit alleged that, due to his mental deficit or developmental delay, he did not

understand the proceedings against him and that this resulted in a violation of his rights to due

process and due course of law. The affidavit from Powell’s appellate counsel recited that, based on

her 45-minute interview with Powell following the adjudication hearing and her experience in

representing a large number of criminal defendants, Powell did not understand the nature or effect

of the proceedings. Specifically, the affidavit states that Powell: (1) did not know that he had been



       2
         He does not assert, however, that the trial court erred by failing to conduct an inquiry
sua sponte regarding Powell’s competency at the time of the revocation hearing.

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found guilty or that a sentence had been assessed; (2) thought that the adjudication hearing was a

pretrial proceeding and that his trial would take place later; (3) believed that the witnesses did not

“testify” at the hearing, but rather “just showed up and answered some questions,” and (4) believed

that the trial judge had “offered” him a six-year sentence, which did not mean that he had actually

been sentenced, even though Powell remembered getting “a paper” that said he could appeal. The

affiant concluded that, in her opinion, Powell needed to be evaluated by a medical professional in

order to identify his disabilities and assess the level of his cognitive functioning.

               We review a trial court’s refusal to hold an evidentiary hearing on a motion for new

trial for an abuse of discretion. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003);

Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002). A trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could support the trial

court’s ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (citing Lewis v. State,

911 S.W.2d 1, 7 (Tex. Crim. App. 1995)).

               The right to a hearing on a motion for new trial is not absolute. Rozell v. State,

176 S.W.3d 228, 230 (Tex. Crim. App. 2005); Reyes v. State, 849 S.W.2d 812, 815-16 (Tex. Crim.

App. 1993). It has long been held that a trial court may decide a motion for new trial based on sworn

pleadings and affidavits without hearing oral testimony.         See Holden, 201 S.W.3d at 763;

McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985); Vallone v. State, 147 S.W.2d 227,

230 (Tex. Crim. App. 1941). As a prerequisite to obtaining a hearing on a motion for new trial, a

defendant must support his motion with an affidavit showing the truth of the grounds for attack.

Martinez, 74 S.W.3d at 21. Generally, a trial court should hold a hearing if the motion and attached

affidavit raise matters not determinable from the record that could entitle the accused to relief.

Wallace, 106 S.W.3d at 108.

                                                   6
                To be sufficient to entitle the defendant to a hearing, the motion for new trial and

supporting affidavit need not establish a prima facie case for a new trial; however, the motion and

affidavit must reflect that reasonable grounds exist for holding that such relief could be granted. Id.

Affidavits that are unsupported by facts are insufficient to put the trial court on notice that reasonable

grounds for relief exist. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). The purpose

of the hearing is to give the defendant an opportunity to fully develop the matters raised in his

motion that, if proved at a hearing, could entitle him to relief. Wallace, 106 S.W.3d at 108;

Martinez, 74 S.W.3d at 21.

                When competency is challenged in a motion for new trial, the trial court does not look

to see whether the evidence raises a bona fide doubt as to competence; instead, it applies the normal

standard used in deciding a motion for new trial under which the trial court considers all the evidence

presented, judges the credibility of witnesses, and resolves conflicts in the evidence.               See

Purchase v. State, 84 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). We apply

the abuse-of-discretion standard because, at this stage of the proceeding, the trial court determines

whether the accused’s incompetency, if any, impugned the integrity of its judgment during trial, and

the trial court is in the best position to make this determination. See Edwards v. State, 993 S.W.2d

171, 176 (Tex. App.—El Paso 1999, pet. ref’d).                We consider all of the competency

evidence presented in support of the motion for new trial and reverse only if the trial court abused

its discretion. Id.

                From our review of the entire record, we conclude that the trial court did not abuse

its discretion in declining to hold a hearing on Powell’s motion for new trial. The record itself

contains sufficient evidence for the trial court to have reasonably concluded that Powell was



                                                    7
competent—including Powell’s own statements during the adjudication proceeding—that cast doubt

on and in some instances contradict the factual allegations made in the affidavit in support of

Powell’s motion. For example, the allegation that Powell “did not know that any court proceedings

finding him guilty or assessing a sentence had occurred” is inconsistent with Powell’s own

statements to the trial court indicating that he understood the nature of the adjudication proceedings

and the allegations made by the State that he had violated the terms of his community supervision.

Likewise, Powell stated to the court that he understood that he had already pleaded guilty to two

counts of indecency with a child by exposure. His understanding was further demonstrated during

his testimony at the adjudication hearing when he corrected the prosecutor by stating that he was not

on probation for the “same” offenses the State now alleged him to have committed. Moreover, his

testimony suggested that he could comprehend that he would be allowed to call witnesses and

present a defense in the present proceedings and that he had conferred with his counsel in asking for

the police report to be made available to him.3

               Furthermore, the record demonstrates that the trial court had already been made aware

that Powell’s cognitive function was potentially impaired, as the court had heard testimony from

Powell’s probation officer that Powell occasionally had difficulty comprehending and trial counsel’s

statements concerning Powell’s limited ability to understand the gravity of the charges against him

and his confusion about gender and social roles. On this record, we believe that the trial court was


       3
           We further note that the record demonstrates evidence that Powell was competent at the
time of the adjudication hearing, while the facts asserted in his appellate counsel’s affidavit concern
Powell’s understanding a month after the hearing took place. The test for determining a defendant’s
competency, however, considers a defendant’s “present ability” to consult with his lawyer with a
reasonable degree of rational understanding. Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App.
2008). Even if we assume that the allegations contained in the affidavit are true, they do not provide
a basis for determining that Powell was incompetent at the time of the adjudication hearing or that
his ability to consult with his lawyer was compromised at that time.

                                                  8
able to decide Powell’s motion for new trial based solely on the sworn pleadings and affidavits

without needing to hear further testimony. Accordingly, we overrule Powell’s point of error and

affirm the judgment of the trial court.


                                          CONCLUSION

               Because the trial court did not err in refusing to hold a hearing on Powell’s motion

for new trial, we affirm the judgment.




                                            Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: August 14, 2008

Do Not Publish




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