Jordan v. State

¶1OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

¶2Appellant was convicted of delivery of cocaine, enhanced by proof of one prior felony conviction, and sentenced to seventy-five years confinement. The Court of Appeals affirmed. Jordan v. State, 852 S.W.2d 689 (Tex.App.—Houston [14th] 1993). We granted appellant’s petition for discretionary review to determine whether the Court of Appeals erred in concluding the trial judge’s failure to hold a hearing on appellant’s motion for new trial was not an abuse of discretion and did not conflict with our decision in Reyes v. State, 849 S.W.2d 812 (Tex.Cr.App.1993). See, Tex.R.App.Pro. 200(c)(3). We will affirm.

¶3Appellant was represented by court-appointed counsel at trial. Afterward, trial counsel was substituted by appellate counsel. Appellate counsel filed a motion for new trial alleging nine reasons why trial counsel was ineffective. The motion was supported by a sworn affidavit. Appendix.1 The motion was timely filed and presented to the trial judge as required by Tex.R.App.Pro. 31. The trial judge overruled the motion without holding a hearing.

¶4On appeal, appellant argued that since the motion for new trial was properly filed and alleged matters not determinable from the record, the trial judge’s failure to hold a hearing was in conflict with our holding in Reyes. The Court of Appeals held there was no abuse of discretion in the trial judge’s denial of the motion for new trial and found *665Reyesdistinguishable because “appellant failed to show how the facts, if true, affected the representation he received.” Jordan, 852 S.W.2d at 692. Appellant now argues the Court of Appeals misapplied Reyes.

¶5In Reyesthe defendant filed a motion for new trial which alleged ineffective assistance of trial counsel for failing to communicate to him a plea offer. We noted that in prior opinions “we have held, in certain instances, the trial judge abuses his discretion in failing to hold a hearing on a motion for new trial that raises matters which are not determinable from the record.” Id, 849 S.W.2d at 816. We further opined that as a prerequisite to a hearing, and as a matter of pleading, motions for new trial must be supported by an affidavit of either the accused or someone else specifically showing the truth of the grounds asserted. Ibid.However, the affidavit is not required to reflect every component legally required to establish relief but the motion for new trial or affidavit must reflect that reasonable grounds exist for holding that such relief could be granted. Ibid.

¶6We have previously held that a defendant need not establish a ‘prima facie case for a single cognizable ground raised in his motion for new trial. McIntire v. State, 698 S.W.2d 652, 658 (Tex.Cr.App.1985). Reyesmakes it clear that a defendant need only assert reasonable grounds for relief which are not determinable from the record in order to be entitled to a hearing. Therefore, contrary to the Court of Appeals’ opinion in the instant case, if the defendant’s motion and affidavit are sufficient, a hearing on the motion is mandatory. Reyes, 849 S.W.2d at 816. The purpose of the hearing is for a defendant to fully develop the issues raised in his motion for new trial. See, Trevino v. State, 565 S.W.2d 938, 940 (Tex.Cr.App.1978).

¶7Appellant’s motion was timely filed, properly presented to the trial judge and was supported by his sworn affidavit, which is set out in the appendix. However, this fact alone does not end our inquiry; we must determine whether the affidavit shows reasonable grounds which would entitle him to a hearing on the motion. See, McIntire, 698 S.W.2d at 658. Although Appellant asserts nine allegations of ineffective assistance, the affidavit is conclusory in nature. For example, appellant alleged counsel failed to properly investigate the facts and failed to subpoena two named witnesses, Willie Carr, Jr., and Wanda Carr, “who could have provided crucial exculpatory information to the jury about the facts of the case.”2 However, appellant failed to say why counsel’s investigation was deficient, or what further investigation would have revealed. In addition, he failed to state what the two witnesses would have said to exculpate him. Like the defendant in Reyes, if either of these grounds had been properly supported by facts, and found to be true by the trial judge after a hearing, appellant may have been entitled to a new trial. However, we hold this affidavit is deficient. Therefore, the motion for new trial was not sufficient to put the trial judge on notice that reasonable grounds existed to believe counsel’s representation may have been ineffective. See and compare, Green v. State, 754 S.W.2d 687, 687-688 (Tex.Cr.App.1988) (juror affidavits submitted in support of motion sufficient to show reasonable grounds that jury misconduct occurred); McIntire, supra at 659-660 (motion and supporting affidavits sufficient to show reasonable basis for new trial existed); Owens v. State, 763 S.W.2d 489, 493-496 (Tex.App.—Dallas 1988, pet. ref'd) (defendant’s motion sufficiently detailed to show trial judge deprived defendant of various constitutional rights).

¶8Appellant’s motion for new trial, supported by his sworn affidavit, was timely filed and properly presented to the trial judge. The motion alleged matters not determinable from the record, namely that counsel was ineffective. However, because the supporting affidavit was deficient, we hold the trial judge did not abuse his discretion in failing to hold a hearing in accordance with Tex. R.App.Pro. 31(d).

¶9The judgment of the Court of Appeals is affirmed.

¶10*666APPENDIX

¶11AFFIDAVIT IN SUPPORT OF MOTION

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¶131) Counsel was ineffective in failing to properly strongly advise me to accept the State’s pre-trial recommendation of 5 years, on a ease of Delivery of a Controlled Substance with one enhancement with a 15 year minimum; he told me only that if I went to trial and lost, I probably would get at the most 20 years;

¶142) Counsel was ineffective in failing to advise me in a manner that promoted an understanding of the law in relation to the facts of the case, in that counsel failed to explain to me the law of parties as applied to the facts of the ease;

¶153) Counsel was ineffective in failing to advise me in a manner that promoted an understanding of the law in relation to the facts of the case, in that counsel failed to go over the elements of the offense with me;

¶164) Counsel was ineffective in failing to advise me in a manner that promoted an understanding of the law in relation to the facts of the case, in that counsel failed to warn me and inform me as to the range of punishment applicable to the offense charged in the indictment; the first-1 heard as to the range of punishment and anything about a fine was at the voir dire stage of the jury trial;

¶175) Counsel was ineffective in failing to advise me in a manner that promoted an understanding of the law in relation to the facts of the ease, in that counsel failed to inform me of the right of appeal, rights to confrontation, cross examination, compulsory process and the privilege against self-incrimination;

¶186) Counsel was ineffective in spending an insufficient amount of time with me in advising me and preparing the case, in that the only consultation time counsel spent with me, outside of cursory visits to the courtroom holdover, was at the Harris County Jail Rehab Center only one time on Sunday October 16, 1991 before the Monday jury trial for about 20 minutes;

¶197) Counsel was ineffective in failing to advise me in a manner that promoted an understanding of the law in relation to the facts of the case, in that counsel failed to have a subpoena issued for and to have called as defense witnesses at the jury trial, two other witnesses Willy Carr, Jr. and Wanda Carr, who could have provided crucial exculpatory information to the jury about the facts of the ease;

¶208) Counsel was ineffective in failing to properly and thoroughly investigate the facts of the case;

¶219) Counsel was ineffective in that counsel’s advice and lack of advice did not allow me an informed and conscious choice as to the alternative, options, and choices which I could exercise in the case, in order to provide for the best result possible under the circumstances;

¶22/S/Troy Lynn Jordan

¶23Troy Lynn Jordan, Affiant