                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                  §
  THE STATE OF TEXAS,                                             No. 08-18-00002-CR
                                                  §
  Appellant,                                                         Appeal from the
                                                  §
  v.                                                               171st District Court
                                                  §
  ABRAHAM CONTRERAS,                                            of El Paso County, Texas
                                                  §
  Appellee.                                                        (TC# 20160D06093)
                                                   §

                                          OPINION

       In this appeal, the State of Texas contends that the trial court erred by granting Abraham

Contreras’ motion for a new trial. We reverse the new trial grant and render judgment denying the

motion for new trial.

                                        BACKGROUND

       This is a plea bargain case. On October 4, 2017, Contreras pleaded guilty to one count of

aggravated sexual assault of a child and two counts of indecency with a child in exchange for a

nine-year prison sentence and the requirement to register as a sex offender. At the request of

Contreras’ attorney, the trial court gave Contreras until November 3, 2017 (30 days) to turn himself

in to begin serving his sentence. On October 20, 2017, the trial court, stating that it believed

Contreras would abscond, issued a capias and ordered Contreras to surrender himself and begin
serving his prison sentence.

       On November 2, 2017—twenty-nine days after Contreras was sentenced—Contreras filed

a motion to substitute his first lawyer for another lawyer. The next day, Contreras’ new counsel

filed a “Motion to Withdraw Plea and for New Trial.” The motion stated, in relevant part:

                                             II.
               Mr. Contreras moves to withdraw his plea and moves for a new trial because
       his plea was the product of ineffective assistance of counsel and was therefore not
       a knowing and voluntary plea. He also moves for a new trial based on newly
       discovered evidence that could have been used in his defense, if his attorney had
       investigated and discovered the evidence. Mr. Contreras pleaded guilty without
       being adequately advised of his options and his rights. He did not have effective
       assistance of counsel to investigate his defense. He pleaded guilty based on the fear
       that, without anyone advocating for him, he could face more time in jail,
       notwithstanding his innocence.

                                             III.
               Mr. Contreras is in his sixties has never been arrested before in his life. He
       was charged with sexual assault of and indecency with a child, with a complete
       absence of physical evidence or third-party witnesses. His defense counsel did not
       investigate the substantial basis for the alleged victim and her mother to invent the
       charges against him. If Mr. Contreras had had effective representation, he would
       not have entered the guilty plea.

                                              IV.
               Mr. Contreras requests a hearing before this Court where he will present the
       newly discovered evidence and further present the details of the ineffective
       assistance of counsel. [FN 1] Counsel is not able at this point in time to be precise
       about which evidence is newly discovered evidence, because she was not able to
       get access to the discovery in this case. The portal is closed to her, because the case
       is closed. Further, prior defense counsel never printed or even downloaded the
       evidence in this case, so that is not available to the undersigned.

                                             V.
              This Court has discretion to grant a new trial in the interest of justice.
       Taylor v. State, 163 S.W.3d 277, 282 (Tex.App.—Austin 2005)(‘For over one
       hundred and thirty years, our trial courts have had the discretion to grant new trials
       in the interest of justice.’)(citing State v. Gonzalez, 855 S.W.2d 692, 694
       (Tex.Crim.App. 1993)). The granting or denying of a motion for a new trial is
       within the sound discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7
       (Tex.Crim.App.1995). Mr. Contreras is requesting an opportunity to withdraw his
       plea and have an attorney represent him in this matter who will review the evidence
       and investigate and present his defense. Justice is served allowing Mr. Contreras

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         this opportunity.

         [FOONOTE 1]: Mr. Contreras will also file a proffer of evidence in support of his
         request for a hearing.

         The trial court held a status conference on November 16, 2017. The State asserts that it

requested a reporter’s record for this hearing, but no record was taken, and the State characterizes

this conference as being an “informal status conference.”

         On December 8, 2017,1 Contreras filed a “Supplement to Motion for New Trial.” In the

supplement, Contreras asserted that he was not raising new ground other than those raised in his

original motion for new trial, but rather that he was supplying the specific evidence referenced in

the motion for new trial. He attached an affidavit from Private Investigator William Kirkpatrick.

Kirkpatrick attested that he interviewed three witnesses who had not been previously interviewed.

Two of the witnesses operated businesses within the same shopping center as Contreras, who

operated a jewelry shop. According to Kirkpatrick, the two witnesses he interviewed were familiar

with the complaining witness and her mother because the complaining witness’s mother operated

a retail booth at the shopping center, and the complaining witness was often there with her mother.

         One of Kirkpatrick’s witnesses testified that her shop was right across from Contreras’

shop, that she saw the complaining witness come to Contreras’ booth and offer to clean his store,

that the complaining witness never seemed scared of Contreras, that Contreras seemed more

annoyed than interested in the complaining witness, and that she never saw Contreras act

inappropriately toward the complaining witness or go anywhere with Contreras.

         The second of Kirkpatrick’s witnesses saw Contreras frequently at the shopping center and

outside of work as well. That witness never saw Contreras act inappropriately toward the


1
 The State correctly notes that this date fell outside the thirty-day window following sentencing during which a trial
court can entertain a motion for a new trial or an amendment to a motion for new trial that has not yet been ruled
upon.

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complaining witness, and while he had seen the complaining witness and her mother with

Contreras, he never saw the complaining witness and Contreras alone together.

       Kirkpatrick’s third witness owned a jewelry store on Fort Bliss and had done business with

Contreras for several years. Contreras would visit the Fort Bliss jewelry store from time to time

to pick up jewelry to repair, but he always came alone, and the witness never saw anyone with

Contreras when he would visit.

       The Supplement also stated:

               Further, there is documentary evidence referred to in the police reports in
       this case that was either never obtained or never disclosed by the State or the
       Defense. Specifically, police reports in this case refer to CPS reports that conflict
       with UBH records. There is no detail in the State’s file as to why the complaining
       witness was at UBH, but clearly this could be exculpatory information. There is
       also reference to medical visits by the complaining witness. There is no detail in
       the police reports regarding this information, which would clearly be relevant. The
       undersigned has requested all of this information from the District Attorney. Once
       a hearing date is set for the Motion for New Trial, Defendant will subpoena said
       information.

       On December 15, 2017, the trial court held a nonevidentiary hearing regarding the motion

for a new trial. A transcript of this hearing appears in the record. The trial court asked the State

and counsel for the defense if they had been able to reach an agreement regarding the new trial

motion. The prosecutor at the hearing informed the trial court that the parties had not reached an

agreement. Counsel for Contreras reiterated the motion for new trial arguments, including the

arguments that there were apparently conflicting accounts given by the complaining witness.

Counsel for Contreras then proposed that the trial court grant—without a hearing—the motion for

new trial in the interest of justice so that the evidentiary record could be further developed in order

to get past the 75-day ruling deadline and then allow the State to file a motion to reconsider, at

which time the trial court could have a hearing and decide whether there had been an adequate

basis to grant the new trial in the first place. The prosecutor stated that the State did not agree and

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opposed a new trial. After hearing both sides, the trial court made the following comments on the

record:

          THE COURT: Now, see, this is the issue that we have, is the 75 days. If there – I
          guess, can I have an agreement from the State, that if I sign this as Ms. Stillinger
          says, it gets out of the box of the 75 day limit, and if you want to file a motion to
          reconsider, or whatever motion you want to file, I will entertain that?
                   I’ll just sign this right now so we don’t have to rule about the 75 days. I
          don’t want you go up to the Court of Appeals, after I have signed this, because I’m
          just – at this point, I don’t mind getting on the record saying that I’m just doing so,
          so there is no 75 day issue, and that we’ll have a full blown hearing, if indeed, that’s
          what the State wants. I’m telling you, on the record, I’ll give you a hearing on a
          motion to reconsider.

The prosecutor again opposed the grant of a new trial.

          The trial court ultimately granted the motion for a new trial. The trial court’s order stated,

in relevant part: “Although the Court is not reaching the issue of ineffective assistance and

therefore does not find ineffective assistance of counsel, the Court finds that a new trial should be

granted in the interest of justice.”

          This State’s appeal followed.

                                             DISCUSSION

                               Standard of Review and Applicable Law

          We review a trial judge's decision to grant a motion for new trial for an abuse of discretion.

State v. Herndon, 215 S.W.3d 901, 907 (Tex.Crim.App. 2007). That discretion, however, is not

unbounded or unfettered. State v. Zalman, 400 S.W.3d 590, 593 (Tex.Crim.App. 2013). A judge

is permitted to grant or deny a motion for new trial “in the interest of justice,” but justice means in

accordance with the law. Herndon, 215 S.W.3d at 907. A judge may not grant a new trial on mere

sympathy, an inarticulate hunch, or simply because he believes the defendant received a raw deal

or is innocent. Id. A trial court must grant a new trial for the reasons listed in TEX.R.APP.P. 21.3,

and it may grant a new trial on other valid legal grounds as well. Herndon, 215 S.W.3d at 907.

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As the Court of Criminal Appeals explained in Herndon, there is generally no abuse of discretion

in a new trial grant on non-enumerated grounds 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 harmless

error standards of the Texas Rules of Appellate Procedure. Id. at 909. The defendant need not

establish reversible error as a matter of law before the trial court may exercise its discretion in

granting a motion for new trial. Id. On the other hand, trial courts do not have the discretion to

grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that

the flaws adversely affected his substantial rights to a fair trial. Id.

        A defendant’s motion for new trial must be filed no later than thirty days after the date

when the trial court imposes or suspends sentence in open court. TEX.R.APP.P. 21.4(a). A motion

is a prerequisite for the trial court to grant a new trial; the court may not do so on its own motion.

State v. Aguilera, 165 S.W.3d 695, 698 n.9 (Tex.Crim.App. 2005). A trial court may not order a

new trial on a ground for relief not alleged in the motion for new trial, even if it is supported by

the evidence. State v. Frias, 511 S.W.3d 797, 808 (Tex.App.—El Paso 2016, pet. ref'd). Should

the trial court refuse to limit its ruling to the original motion and grant relief on the basis of the

amendment over the State's objection, the appellate court should consider only the validity of the

original and any timely amended motion for new trial, and should reverse any ruling granting a

new trial based upon matters raised for the first time in an untimely amendment. Id. The accused

is required to allege sufficient grounds to apprise the trial court and the State as to why he believes

he is entitled to a new trial. Zalman, 400 S.W.3d at 594 (explaining that the motion must contain

enough detail to give the other party notice of what is being complained of so that it can properly

prepare for the hearing); State v. Gonzalez, 855 S.W.2d 692, 694–95 (Tex.Crim.App. 1993). The



                                                   6
general rule is that a trial court's ruling will be upheld if it is correct on any applicable legal theory

presented in the motion for a new trial, even if the court articulated an invalid basis for granting a

new trial. See Herndon, 215 S.W.3d at 905 n.4. This is the “right ruling, wrong reason” doctrine.

Id.

                                     Interest of Justice Grounds

        The bulk of Contreras’ new trial motion presented an ineffective assistance of counsel

claim against his previous trial counsel. Although we should uphold a new trial grant where a trial

court relies on the wrong ground in its order but another ground presented in the motion would

support the grant, Herndon, 215 S.W.3d at 905 n.4, here the trial court explicitly stated that it was

not relying on ineffective assistance of counsel grounds in granting a new trial. As such, we must

discount those disavowed grounds as a basis for the grant and turn instead to the remaining grounds

upon which the trial court’s ruling could have rested. The only remaining ground timely raised in

the motion for new trial is an interest-of-justice ground.

        Based on our review of the record and the trial court’s stated reasons for granting the new

trial, it appears that the trial court granted this motion for new trial on interest-of-justice grounds

in an effort to get past the 75-day deadline before the motion would be overruled by operation of

law. The trial court explained that it would grant the motion and thereby provide Contreras with

more time to obtain evidence, and if Contreras failed to provide evidence in support of his claim,

the trial court would rescind the new trial grant and reinstate Contreras’ conviction.

        We do not believe a trial court has the discretion to grant a new trial for the purpose of

allowing a defendant time to gather evidence that was not presented in a timely-filed motion for

new trial. The standard is clear: a defendant who files a motion for a new trial must offer valid

grounds and evidence in support of those grounds in the motion within thirty days of conviction



                                                    7
in open court. See TEX.R.APP.P. 21.4(a); cf. Mercier v. State, 96 S.W.3d 560, 562 (Tex.App.—

Fort Worth 2002, no pet.)(evidence attached to an amended motion for new trial filed outside the

thirty-day filing period could not be considered). Further, a motion for new trial can only be

granted as a matter of discretion if it is supported by sufficient evidence.

       Given the compressed timelines involved in resolving a motion for a new trial, claims

requiring the development of more evidence are often more appropriate for resolution in habeas

proceedings. However, based on the record before us, we do not believe the trial court could have

granted a new trial under the circumstances.

       The State’s sole issue is sustained.

                                          CONCLUSION

       The judgment of the trial court is reversed. We render judgment denying the motion for

new trial.



October 31, 2019
                                               YVONNE T. RODRIGUEZ, Justice

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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