Opinion
No. 10-07-00045-CR.
Opinion delivered and filed April 2, 2008. DO NOT PUBLISH.
Appealed from the 54th District Court McLennan County, Texas Trial Court No. 1998-129-C2.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice GRAY dissents. A separate opinion will not be issued.)
MEMORANDUM OPINION
Gerald Wayne Smith pleaded guilty to one count of sexual assault. He received ten years deferred adjudication community supervision. The State later filed a motion to adjudicate, alleging that Smith had violated four conditions of community supervision. Smith entered pleas of "not true" to these allegations. The court adjudicated Smith's guilt and sentenced him to twenty years in prison. On appeal, Smith contends that the court: (1) erred by failing to conduct a hearing on his motion for new trial; and (2) violated his right to due process by adjudicating guilt in part on a stale allegation. We reverse and remand.
HEARING ON MOTION FOR NEW TRIAL
Smith's first issue challenges the trial court's denial of a hearing on his motion for new trial, wherein he alleged ineffective assistance of counsel.Jurisdiction
The State argues that this issue is "relevant only to the trial court's decision to adjudicate," thereby depriving us of jurisdiction. Under the law in effect at the time the trial court adjudicated Smith's guilt, "No appeal may be taken from this determination." Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 53(b), 1995 TEX. GEN. LAWS 2734, 2750 (amended 2007) (current version at TEX. CODE CRIM. PROC. ANN. art. § 42.12, § 5(b) (Vernon Supp. 2007)). We "'do not have jurisdiction to consider claims relating to the trial court's determination to proceed with an adjudication of guilt on the original charge.'" Davis v. State, 195 S.W.3d 708, 710 (Tex.Crim.App. 2006) (quoting Hogans v. State, 176 S.W.3d 829, 832 (Tex.Crim.App. 2005)). If an appellant raises such a claim, we "should dismiss that claim without reaching the merits." Hogans, 176 S.W.3d at 832. The specific issue presented on appeal is whether the trial court erred by failing to a hold a hearing on Smith's motion. This issue does not arise from the determination to proceed with an adjudication of guilt. See Buerger v. State, 60 S.W.3d 358, 361 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (article 42.12, section 5(b) does not bar a complaint that the trial court erred in failing to hold a hearing on the defendant's motion for new trial); see also Amaro v. State, 970 S.W.2d 172, 173 (Tex.App.-Fort Worth 1998, no pet.) (same). Because a motion for new trial is a post-adjudication proceeding, we have jurisdiction to consider Smith's first issue. See Buerger, 60 S.W.3d at 361; see also Amaro, 970 S.W.2d at 173.Entitlement to a Hearing
Although a defendant does not have an "absolute right" to a hearing on a motion for new trial, a trial court must hold a hearing when a defendant raises a matter "not determinable from the record." Reyes v. State, 849 S.W.2d 812, 815-16 (Tex.Crim.App. 1993). However, the defendant must provide a supporting affidavit showing reasonable grounds for holding that relief should be granted. See id. at 816. Affidavits which are conclusory in nature and unsupported by facts are insufficient to put the trial court on notice that reasonable grounds for relief exist. See Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994). A trial court's denial of a hearing on a motion for new trial is reviewed for abuse of discretion. See Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003). Smith timely filed a motion for new trial and supporting affidavit, alleging that trial counsel was ineffective by failing to advise him of his right to testify and by failing to present medical records. Smith argued that his testimony and the records would have rebutted his community supervision officer's testimony that he abused prescription medications, never had surgery, and failed to provide medical documentation. His affidavit states that trial counsel failed to present the medical records as evidence on Smith's behalf and that counsel:[T]old me I was going to go back on probation when I went to court. He told me to just say not true and not to say anything else. I was never given a chance to say anything on my behalf.Smith claimed that several facts presented at the adjudication hearing were incorrect and complained of his counsel's failure to question the deputy sheriff, subpoena records, and present medical records as evidence on his behalf. Smith explained that the records would have revealed that he was not "lying." Because Smith's claim of ineffective assistance is not determinable from the record, we must determine whether his affidavit shows reasonable grounds which would entitle him to a hearing. See Jordan, 883 S.W.2d at 665. The State argues that Smith's affidavit is conclusory and insufficient because it neither states that trial counsel actually failed to advise Smith of his right to testify nor explains how Smith's testimony would have resulted in a different outcome. However, Smith was not required to establish a prima facie case. See id. For instance, in Porter v. State, No. 09-05-494-CR, 2007 Tex. App. Lexis 3525 (Tex.App.-Beaumont May 9, 2007, no pet.) (not designated for publication), Porter filed a motion for new trial alleging ineffective assistance based on trial counsel's failure to advise him of his "absolute right to testify" and explaining that he "wanted to place 'material evidence into the record . . . that goes to motive, character and bias of the complaining witness.'" Id. at *2. Porter's affidavit stated:
Well when it was my time to defend myself [trial counsel] refused to put me on. I begged and argued three different ways telling him what my witness knew and all, he just refused. My witness and I were ready. Had I known I had the right to just get up and walk to the witness stand myself, my hand before God I would have. When I realized he was not putting me on I sat back sighed and rubbed my face and said, "okay." At that point I wanted to cry. I knew I was doomed. . . .Id. at *4. The Beaumont Court found that "Porter's motion and affidavit raised the claim that trial counsel did not inform him he had an absolute right to testify at the guilt-innocence phase of the trial." Id. at *5. Because the record was "silent as to whether trial counsel informed defendant of his right to testify," the Court held that "Porter should be given an opportunity to present underlying facts of consequence bearing upon the alleged ineffective assistance claim, and, if there was a failure to inform, facts bearing upon a harm analysis." Id. at *7. Similarly, Smith's motion and affidavit raise the claim that trial counsel did not inform him of his fundamental right to testify, resulting in his inability to rebut witness testimony. His affidavit states that trial counsel told him that he would receive probation. Instead, Smith received a twenty-year prison sentence. Moreover, the record does not contain the conversations between Smith and his trial counsel, and it is silent as to trial counsel's reasons for his actions. See Mendoza v. State, 935 S.W.2d 501, 503 (Tex.App.-Waco 1996, pet. ref'd). Absent a hearing on the motion, we cannot determine the content of the conversations between Smith and his trial counsel. See Torres v. State, 4 S.W.3d 295, 297 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). The trial court should have held a hearing on Smith's motion so that he could have fully developed the factual basis for his ineffective assistance claim. See Wallace, 106 S.W.3d at 108 (the purpose of a hearing is to allow the defendant an "opportunity to fully develop the matters raised in his motion"). Accordingly, we sustain Smith's first issue and remand this cause to the trial court for a hearing on Smith's motion for new trial. Because we so hold, we will not address Smith's second issue. See Mendoza, 935 S.W.2d at 503-04.