                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-13-00147-CR


                         THE STATE OF TEXAS, APPELLANT

                                            V.

                             GERALD BARROW, APPELLEE

                              On Appeal from the County Court
                                    Hale County, Texas
                Trial Court No. 2012C-427, Honorable Bill Coleman, Presiding

                                       July 16, 2014

                              CONCURRING OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      This appeal causes me to recall the old adage admonishing one to be careful

about what he asks since he may just get it. Gerald Barrow was charged with class A

misdemeanor assault involving family violence.         That he assaulted the complaining

witness (i.e., his live-in girlfriend whom he later married by the time of trial) is

unquestioned.     That a jury heard evidence about his claim of self-defense is

unquestioned. That the jury was charged on self-defense is unquestioned, and that the

jury rejected that claim is unquestioned. And, though his sentence could have included
incarceration, he simply received a fine. Yet, Barrow wanted a new trial because he

thought his defense counsel should have bolstered the claims of self-defense by

tendering evidence of his future wife’s prior convictions for assault.                      These prior

convictions were allegedly unknown to trial counsel, though Barrow knew of them and

was capable of disclosing them to his legal representative had he cared to.1                       Again,

one should be careful for what he asks.

        As explained in the well-written opinions of both Justices Campbell and Pirtle, the

trial court agreed with Barrow and granted his motion for new trial on two grounds.

While granting a new trial does occur, I must admit that it is more the exception than the

rule. And, being the exception, it creates the predicament faced by this court . . . how

do we review a decision when it is based upon a legal theory that must be “firmly

founded” on the factual record and the factual record is rather undeveloped. The legal

theory in question is that arising from the Sixth Amendment of the United States

Constitution and affording an accused the right to effective assistance of counsel.

        I cannot dispute that a trial court has the ability to grant new trials. See TEX. R.

APP. P. 21.9 (stating that a trial court must grant a new trial “when it has found a

meritorious ground for new trial”). And as both the opinions of Justice Campbell and

Justice Pirtle explain, whether to grant such relief lies within the trial court’s discretion.

State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014) (stating that the standard

of review is one of abused discretion).              As they also noted, that discretion is not

unfettered.     Id. at 105.     It does not allow the court to grant a new trial based on

sympathy, hunch, personal notions of right and wrong, or the like. Id at 104. Rather,


        1
          In truth, the extent of what counsel actually knew or not is itself a game of conjecture since he
did not testify at the new trial hearing.

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the decision must be based upon a valid legal theory, and the defendant must show that

he is entitled to a new trial under the law. Id. at 104-105; See State v. Herndon, 215

S.W.3d 901, 909 (Tex. Crim. App. 2007) (stating that though “[w]e need not today set

out bright-line rules concerning appellate review of a trial court's discretion in this

area. . . we do conclude that a trial court would not generally abuse its discretion in

granting a motion for new trial if the defendant: (1) articulated a valid legal claim in his

motion for new trial; (2) produced evidence or pointed to evidence in the trial record that

substantiated his legal claim; and (3) showed prejudice to his substantial rights under

the standards in Rule 44.2 of the Texas Rules of Appellate Procedure”).

        To reiterate, the legal theory at issue here is the right to effective assistance of

counsel.2     A defendant is denied that right when it is shown that his counsel’s

performance was deficient and that the deficiency prejudiced the defendant. Nava v.

State, 415 S.W.3d 289, 307-308 (Tex. Crim. App. 2013). And, while one would think

that the right would serve only to protect the defendant, it appears that our Court of

Criminal Appeals has expanded it, somewhat, to protect the interests of counsel as well.

Whether this expansion was intentional or not is unimportant. It, nonetheless, has been

expanded as evinced by verbiage in opinions like Nava and Menefield v. State, 363

S.W.3d 591 (Tex. Crim. App. 2012).              The pertinent language tells us that “[i]f trial

counsel has not been afforded the opportunity to explain the reasons for his conduct,

we will not find him to be deficient unless the . . . conduct [is] ‘so outrageous that no

competent attorney would have engaged in it,’” Nava v. State, 415 S.W.3d at 308,

        2
          I recognize that the trial court also indicated that it granted new trial on the basis of newly
discovered evidence. While a new trial may be granted on that basis, see Keeter v. State, 74 S.W.3d 31,
36 (Tex. Crim. App.2002), evidence is not new if it was known to the defendant. Drew v. State, 743
S.W.2d 207, 227 n. 14 (Tex. Crim. App.1987). And, the record here illustrates that the supposedly new
evidence, i.e., the complaining witness’ prior convictions for assault, was known to Barrow.

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quoting, Menefield v. State, supra, and “[t]rial counsel ‘should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective.’” Menefield v.

State, 363 S.W.3d at 593 (emphasis added); Rylander v. State, 101 S.W.3d 107, 110-

11 (Tex. Crim. App. 2003). If the Court of Criminal Appeals did not care to assure that

trial counsel be afforded some protection, it would not matter whether trial counsel was

accorded opportunity to explain himself before being “denounced.” But, he is to be

accorded that opportunity, and it must not be denied him unless his conduct is

sufficiently outrageous as to be of the ilk that no competent attorney would have done it.

       Here, trial counsel was denounced as incompetent without being afforded the

privilege to explain himself. It may well be that other evidence could have bolstered

Barrow’s claim of self-defense. But, defense counsel was not given the chance to

explain why it was not used. It may be that he had no reason. It may be that he did.

But it cannot be disputed that he was afforded no chance to reveal either.

       Nor can it be said that the defense was ignored in its entirety. Again, Barrow’s

wife testified about her effort to assault Barrow, which purportedly included the use of a

knife. So too did the trial court incorporate the defense into its jury charge. And, though

appellant was found guilty, his punishment was rather lenient for someone who struck

his live-in girlfriend at the time. From these circumstances one could deduce that the

jury may well have taken into consideration the victim’s role in the incident.

       Whether the particularly old admonishment may have played a role in defense

counsel’s strategy is also unknown. The rule of civil decorum about which I refer relates

to boys hitting girls. Few males, and females for that matter, can legitimately deny

having been taught or having heard the directive that “boys don’t hit girls” even if



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provoked.    Its potential influence upon a juror’s mindset or viewpoint cannot be

discounted, and that may well be a factor weighed by an astute trial attorney when

selecting a trial strategy. To this I also add the realization that Barrow married the

woman whom he wanted others to believe was so dangerous as to cause him to fear for

his well-being.   Indeed, he married her after the assault and despite knowing her

supposedly violent tendencies. How that would play with a jury (and its potential impact

on the credibility of Barrow) could have also influenced trial counsel’s judgment.

       I cannot say that any of the forgoing circumstances played any role in defense

counsel’s strategies or actions. I can only say that they prevent me from deeming a

possible hesitance to further color Barrow’s wife as a bad or violent person through the

use of prior convictions as conduct that no reasonably competent attorney would

pursue. Thus, per Nava and Menefield, defense counsel was entitled to appear and

explain himself before the trial court was authorized to “denounce” him as incompetent

by granting a new trial.

       Simply put, the trial court’s decision was not based on a valid legal theory. This

is so because it did not abide by the law and procedure applicable to establishing claims

of ineffective assistance. Thus, I too conclude that it abused its discretion in granting

new trial and vote to reverse the order doing same.




                                                              Brian Quinn
                                                              Chief Justice


Do not publish.




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