                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-269-CR


GUILLERMO RAUL VALLE                                               APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      A jury convicted Appellant Guillermo Raul Valle of one count of

aggravated sexual assault of a child under fourteen years old, two counts of

indecency with a child–contact, and one count of indecency with a

child–exposure. The jury assessed Appellant’s punishment at confinement for

life for the aggravated sexual assault, twenty years for each count of indecency

with a child–contact, and ten years for indecency with a child–exposure.    The


      1
          … See T EX. R. A PP. P. 47.4.
trial court sentenced him accordingly, with the indecency sentences running

concurrently with each other but consecutively to the life sentence. In his sole

issue, Appellant contends that the trial court abused its discretion by failing to

grant his motion for new trial based on newly discovered evidence. Because

the trial court did not abuse its discretion, we overrule Appellant’s sole issue

and affirm the trial court’s judgment.

      At trial, the thirteen-year-old complainant testified that Appellant had

sexually molested him when he was eight-and-a-half or nine years old. His

description of the sexual acts was detailed and explicit. The complainant’s

father, J.G., testified only that the complainant, the police, and C.P.S.

personnel had told him about the sexual acts that Appellant had perpetrated on

the complainant.

      After the trial, Enrique Avila told Appellant’s attorney that roughly four

years earlier, he had had a conversation with J.G. in which J.G. had accused

a man other than Appellant of molesting his son. Appellant filed a motion for

new trial based on newly discovered evidence, which the trial court denied after

a hearing. Avila did not claim that the complainant had accused anyone other

than Appellant of molesting him.

      Article 40.001 of the code of criminal procedure provides that “a new

trial shall be granted an accused where material evidence favorable to the



                                         2
accused has been discovered since trial.” 2 A trial court’s decision whether to

grant a new trial based on newly discovered evidence will not be reversed

absent an abuse of discretion.3       A defendant seeking a new trial based on

newly discovered evidence must satisfy a four-part test to prove an abuse of

discretion.4 One prong, the fourth prong in the Ayers test, is that the new

evidence is probably true and will probably bring about a different result in

another trial.5

      The newly discovered evidence, the testimony of Enrique Avila, merely

consists of statements that the complainant’s father, not the complainant, had

accused a man other than Appellant of molesting his son. This evidence does

not suggest that Appellant was not guilty of molesting the child. Nor does this

evidence impeach the complainant’s testimony. At most, Avila’s testimony

merely suggests that the complainant’s father believed or suspected that

someone in addition to Appellant may have molested the complainant.

      In his reply brief, Appellant states, “The trial testimony of the complainant

and his father make[s] clear that neither of them had experienced anything of


      2
          … T EX. C ODE C RIM. P ROC. A NN. art. 40.001 (Vernon 2006).
      3
          … Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002).
      4
      … Id. at 36-37 (discussing the Ayers test, Ayers v. State, 606 S.W.2d
936, 941 (Tex. Crim. App. 1980)).
      5
          … Id. at 37; see also Ayers, 606 S.W.2d at 941.

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this sort before, and were hesitant to even speak about it to one another.”

Appellant cites us to no specific portion of the record. In the interest of justice,

however, we have examined the entire record carefully. Although the record

shows that the complainant’s father did not want to hear the details of the

abuse, and it is also clear from the record that the son and father did not speak

easily of the subject, nowhere in the record is there evidence that “neither of

them had experienced anything of this sort before.” Nor does the record make

clear that the complainant’s father had never suspected anyone of molesting

his son either before the acts the complainant described or in the time between

October 2002, the date alleged in the indictment, and July 2007, the date of

Appellant’s trial.

      Because the testimony relied on by Appellant as newly discovered

evidence does not satisfy the fourth prong of the Ayers test, we overrule

Appellant’s sole issue and affirm the trial court’s judgment.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL B: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 12, 2008



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