Opinion
Nos. 10-03-00309-CR, 10-03-00312-CR
Opinion delivered and filed February 23, 2005. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court Nos. 2003-689-C, 2002-274-C. Remanded for a hearing.
John Kuchera, Attorney ay Law, Waco, TX, for appellant/relator. John W. Segrest, McLennan County District Attorney, and Christy Barber, McLennan County Asst. District Attorney, Waco, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Charlie Gonzales appeals from a conviction for aggravated assault. He was charged in a four-count indictment with two counts of sexual assault and two counts of aggravated assault alleged to have been committed against the same person on a single date. He pled not guilty and was tried before a jury. The trial court granted a mistrial. Gonzales was later charged in another indictment with aggravated assault, alleged to have been committed against the same person and on the same date as the other four counts. All of the causes were joined together by agreement of the parties and tried to a jury. The jury returned a verdict of not guilty on the sexual assault counts. The jury was given only one verdict form for the offense of aggravated assault. The charge itself authorized conviction on any of the two aggravated assault allegations from the initial indictment or the two allegations from the subsequent indictment. The jury found Gonzales guilty of one offense of aggravated assault and assessed punishment at 20 years' confinement and a $10,000 fine. Gonzales brings five issues on appeal: (1) whether the trial court erred in failing to conduct a hearing on his motion for new trial; (2) whether his trial counsel rendered ineffective assistance by failing to object to the jury charge; (3) whether the trial court committed fundamental structural error in submitting the jury charge; (4) whether the evidence was legally insufficient; and (5) whether the evidence was factually insufficient. We will overrule Gonzales's fourth issue, sustain his first issue, and remand for a hearing on his motion for new trial.
The judgment lists both trial court case numbers, so we do not know in which cause the trial court intended that the conviction be entered.
Issues (4) and (5) were brought only in cause number 10-03-00309-CR.
BACKGROUND
The alleged victim testified that she and Gonzales attended a festival, became intoxicated, and got in an argument. They left the festival and went to the home they shared. Gonzales became increasingly angry with her. She testified that he ordered her into the bathroom and told her to disrobe and defecate because he intended to penetrate her anally. While she was seated on the toilet, he forced her to perform oral sex on him, held a knife to her, and cut her on the back with the knife. She testified that he then took her into the bedroom and forced her to allow him to penetrate her anally. During the intercourse, he punched her in the back of the head. He then turned her over onto her back, got on top of her, pinned her arms, and beat her with his elbows. She testified that she temporarily lost consciousness. When she regained consciousness, Gonzales told her to shower to clean herself. After lying in the shower for awhile, she put on a bathrobe and went into the kitchen, where she saw Gonzales with a knife in his hand. Believing that he was about to "finish [her] off," she grabbed a cordless phone and attempted to dial 9-1-1 as she ran from the house. He chased her, and the two struggled from the door out onto the lawn. She went to a neighbor's house, and the neighbor called the police and an ambulance. Gonzales testified in his own defense. He testified that after they returned home from the festival, he and the alleged victim "drank a little bit," "smoked marijuana," "watched TV," and "had sex." Some friends called and he invited them over. This upset the alleged victim. They argued, she began pushing and shoving Gonzales, and threatened to kill herself with a knife. When one of his friends arrived, she told Gonzales: "If you let him in, then I am going to fuck you up. . . . I'll make you lose your job. I'll make you lose your kids. You will lose everything, the house and all." He testified that he told her she was pathetic and that if she was going to kill herself, he was not going to stand and watch. He then left with his friend.Legal Sufficiency
Because Gonzales's legal sufficiency issue would afford him the greatest relief, we will consider the fourth issue first. We review legal sufficiency by viewing all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). Gonzales argues that there is no evidence that the alleged victim suffered serious bodily injury as a result of being struck by his hand or elbow. The State argues that Gonzales challenges the sufficiency of only one of the various manner and means of committing aggravated assault alleged in the jury charge. The jury charge authorized conviction of aggravated assault if the jury found: (1) Gonzales intentionally, knowingly, or recklessly caused bodily injury to the alleged victim by cutting her in the back while using or exhibiting a deadly weapon (a knife); (2) he intentionally threatened her with imminent bodily injury while exhibiting a deadly weapon (the knife); (3) he intentionally, knowingly, or recklessly caused serious bodily injury to her by striking her with his hand or elbow; or (4) he intentionally, knowingly, or recklessly caused bodily injury to her by striking or strangling her with his hand using or exhibiting a deadly weapon (his hand). Thus the jury could have found him guilty of aggravated assault without finding the victim suffered serious bodily injury. When a general verdict is returned, the jury's verdict will be upheld when the evidence is sufficient to support a finding of guilt under any of the allegations submitted. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). Gonzales does not challenge the sufficiency of the evidence as to the other manner and means alleged. Thus, viewing all of the evidence in the light most favorable to the verdict, we determine that a rational jury could have found that he used or exhibited a deadly weapon during commission of an assault. Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2004-05). We overrule this issue.Motion for New Trial
Gonzales argues that the trial court erred in failing to conduct a hearing on his motion for new trial. When the trial court denies a hearing on a defendant's motion for new trial and the defendant appeals from that denial, we review the trial court's decision for an abuse of discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003). A defendant does not have an "absolute right" to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993). However, when a defendant raises a matter "not determinable from the record," the trial court is required to hold a hearing. Id. at 816. The defendant must include a supporting affidavit with the motion for new trial showing reasonable grounds for holding that relief should be granted. Id. Gonzales timely filed a motion for new trial and included a supporting affidavit. He alleged that his trial counsel rendered ineffective assistance by failing to object to a portion of the jury charge at the conclusion of the guilt-innocence phase. He alleged that his trial counsel's failure to object to the jury instructions and verdict form gave the jurors the option of finding him guilty of aggravated assault without rendering a unanimous verdict as to any of the charged acts of aggravated assault. The record does not reveal why trial counsel did not object to the verdict form. Because we cannot determine from the record whether the failure to object was part of counsel's trial strategy, we conclude that the court should have held a hearing on Gonzales's motion for new trial in which the factual basis for his ineffective assistance of counsel claim could have been fully developed. Mendoza v. State, 935 S.W.2d 501, 503 (Tex.App.-Waco 1996, pet. ref'd). Thus we hold that, because Gonzales timely filed a motion for new trial with a supporting affidavit alleging ineffective assistance of counsel not determinable from the record, he is entitled to a hearing on the motion. We sustain his first issue. Because Gonzales's remaining issues will be moot if the trial court grants his motion for new trial and because they can be reasserted if the trial court denies the motion, we need not address the remaining issues. Accordingly, we remand this cause to the trial court for a hearing on Gonzales's motion for a new trial. The parties may appeal anew, as prescribed by the applicable statutes and rules, from the disposition in the trial court of the motion. Price v. State, 826 S.W.2d 947, 948 (Tex.Crim.App. 1992); Mendoza, 935 S.W.2d at 504. The appellate timetable for a new appeal shall commence on the earlier of: (1) the date of the ruling on the motion for a new trial, or (2) the seventy-fifth day after our mandate issues. TEX. R. APP. P. 2, 18.1, 21.8, 26.2, 43.6.CONCLUSION
We find the evidence legally sufficient to support the jury verdict, but because the trial court failed to grant Gonzales a hearing on his motion for new trial, we remand the cause to the trial court to conduct a hearing on that motion.DISSENTING OPINION
One of the most difficult standards of review to apply is the abuse-of-discretion standard. It is an easy test to state and most people have some notion of what it means just by the label. It becomes a bit more problematic, however, when you actually try to define the standard. It serves no useful purpose here to catalog all the different ways that the test has been described to try to actually define how to objectively test a trial court's decision by an abuse-of-discretion standard. Probably the most complex test is the one defined by Justice John Powers in Landon v. Jean-Paul Budinger, Inc., from the Austin Court of Appeals in 1987. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934-937 (Tex.App.-Austin 1987, no writ). The test is cumbersome and time consuming. Parties do not brief in light of this description of the test because courts seldom attempt to use it. On the other end of the spectrum of descriptions for the abuse-of-discretion standard of review would be something like, the trial court's decision is "within the zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). And unless the reviewer is really careful, it is so very easy to find an abuse-of-discretion when the reviewer simply disagrees with the trial court. For example, in this case, the Court makes no effort to determine whether there was a need for a hearing on the motion for new trial; but the Court remands the case for a hearing. If the Court has not evaluated whether there was charge error, the Court cannot properly determine if a hearing was necessary. If there was no error in the charge, there can be no ineffective assistance of counsel for not objecting to it, and there would be no need to hold a hearing on the motion for new trial. Thus, the trial court did not abuse its discretion by not holding a hearing on the motion. And if there is error in the charge and it was harmless when measured against the standard for a defective charge to which an objection was made, then there, too, is no need to know why there was no objection by counsel. It would not matter. And if the charge is defective, and it is egregious harm, then it still does not matter because the Court could resolve the merits of the issue. So, only if it lies betwixt and between egregious harm and harmful error if it had been objected to, does the Court need to know why counsel did not object to the charge. Because only then does it matter if there was an objection. And only then would we need a record of the trial counsel's reasons for not objecting to address the ineffective assistance of counsel issue. The Court stops far short of the analysis necessary to properly resolve the issue. I would not. The Court should perform its assigned task and determine whether the trial court abused its discretion. But a single vote will not change the result, so I will yield to a more timely response and note my dissent and await the time with patience until the trial court makes its determination known and the answer returned. In the Interest of S.A.P., 135 S.W.3d 165, 177-178 (Tex.App.-Waco 2004) (Gray, C.J., dissenting), rev'd, 2005 Tex. LEXIS 52, *1; 48 Tex. Sup. J. 368 (Tex. Jan. 21, 2005).