### NUMBER 13

- 14

- 00044

- CR



## COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

JOHN HALL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 66th District Court of Hill County, Texas.



## MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes

Memorandum Opinion by Chief Justice Valdez

A jury found appellant, John Hall, guilty of the offense of state

- jail

- felony

theft. See T EX

. P ENAL C ODE A NN . § 31.03(e)(4) (West, Westlaw through Ch. 46

2015 R.S.) . The trial court sentenced Hall to five years’ probation and ordered him

to pay restitution in the amount of $19,900 as a condition of his probation. Hall

filed a motion for new trial alleging that the trial court improperly excluded evidence

that was relevant and favorable to his defense; he also requested a hearing on the2

motion. The trial court denied Hall’s motion for a new trial without a hearing. By

one issue, Hall contends that the trial court erred in not holding a hearing before

denying his motion for new trial. We affirm.

I. Background 1

Hall, a home contractor, contracted to build a home for Mike Carmen in the
fall of 2010. Carmen gave Hall $21,000, which was supposed to be paid to

Somervell Floors to buy building materials for the project. Shortly thereafter,

Somervell Floors delivered the materials to Carmen, but Hall never paid Somervell

Floors for the materials. Somervell Floors filed a complaint with the police. After

investigating the matter, the State charged Hall with theft.

Prior to trial, the State presented a motion in lim ine to the trial court. This

motion in limine sought to prevent Hall from introducing evidence that he filed for

bankruptcy after becoming indebted to Somervell Floors. The State argued that

Hall’s subsequent bankruptcy was irrelevant to any issue in the case. Hall

responded that this evidence was probative of his lack of intent to commit theft.

After hearing the arguments of the parties, the trial court granted the State’s motion

in limine but advised Hall that “[a]s the evidence comes out [at trial], I'm certainly

willing to revisit with you [.]”

Hall testified in his defense at trial. When Hall’s testimony broached the

subject of his bankruptcy, the following exchange occurred:

State : Your Honor, may we approach please?

(At the Bench; on the rec ord)

Defense counsel: Is it the bankruptcy?

1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket equalization order issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. § 73.001 (West , Westlaw through Ch. 46 2015 R.S.)3 State: That's what he was about to say.

Defense counsel: Okay. Let me just rephrase that.

Trial Court: You all need me?

Defense counsel: Your Honor, I'll rephrase that question.

Hall resumed his testimony on a matter unrelated to bankruptcy. He never

obtained a ruling from the trial court on whether evidence of his bankruptcy would

have been admissible. At the close of the evidence, the jury found Hall guilty of

state

- jail

- felo ny theft.

Thereafter, Hall filed a motion for new trial alleging that the trial court erred

in excluding evidence of his bankruptcy, which affected his substantial rights.

Attached to Hall’s motion for new trial is his affidavit, in which he states:

[T ]he trial court judge would not allow me to testify [about my bankruptcy] nor would he let my trial attorney refer to that fact. If the jury would have heard this defense, I would have been acquitted. 2

By way of a written letter to the parties, the tria l court denied Hall’s motion

for new trial without a hearing. Specifically, the trial court found that Hall was

“factually incorrect” in asserting that he was not allowed to put on evidence of his

bankruptcy. This appeal followed.

II. Discussion

By his s ole issue, Hall contends that the trial court erred in not conducting

a hearing on his motion for new trial to determine whether evidence of his

bankruptcy was properly excluded. A defendant's right to an evidentiary hearing

on a motion for new trial is n ot an absolute right, and we will not reverse a trial

2 Also attached to Hall’s motion for new trial is the order from the bankruptcy court discharging him from bankruptcy.4

court's failure to hold a hearing unless the court abused its discretion. Wallace v.

State , 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). A trial court abuses its

discretion in failing to hold a hearing when the motion for new trial and

accompanying affidavits (1) raise matters that are not determinable from the record

and (2) establish reasonab le grounds showing that the defendant could potentially

be entitled to relief. Hobbs v. State , 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).

In this case, Hall requested a hearing to determine whether the trial court

erred in excluding evidence of his ban kruptcy. However, the record reflects that

the trial court never had an opportunity to rule on the admissibility of Hall’s

bankruptcy because Hall never sought to introduce this evidence at trial; nor did

he request a ruling from the trial court when his testimony broached the subject.

As such, the trial court found that Hall’s motion raised a matter that was premised

on a “factually incorrect” statement of the record

— i.e., that the trial court actually

made a ruling. The incorrectness of Hall’s factual assertion was determinable from

the record and therefore did not entitle him to a hearing. 3 Id. Moreover, the record

reflects that the relevance of Hall’s bankruptcy was the subject of the State’s

pretrial motion in limine, during which the trial court heard and rejected Hall’s

argument that this evidence was probative of his lack of intent to commit theft.

3 We note that the trial court did grant the State’s pretrial motion in limine. However, this ruling was not a ruling on the admissibility of bankruptcy evidence at trial. “A motion in limine is defined as a procedural device that permits a party to identify, before trial, certain evidentiary rulings that the court may be asked to make so as to prevent the asking of prejudicial questions and the making o f prejudicial statement s in the presence of the jury.” See Onstad v. Wright , 54 S.W.3d 799, 805 (Tex. App.

— Texarkana 2001, pet. denied) (emphasis added). A ruling on a motion in limine “ does not purport to be one on the merits but one regarding th e administration of the trial.” See Harnett v. State , 38 S.W.3d 650, 655 (Tex. App.

— Austin 2000, pet. ref'd) . The trial court’s pretrial ruling on the State’s motion in limine did not exclude evidence of Hall’s bankruptcy, but merely required Hall to app roach the bench and obtain a ruling on the admissibility of that evidence at trial; the record reflects that Hall approached the bench but did not obtain a ruling. Thus, no hearing was required because Hall’s failure to obtain this ruling was determinable from the record, regardless of the trial court’s previous ruling on the State’s motion in limine.5

Without providing anything new for the trial court to review, Hall’s motion for new

trial requested a hearing to revisit this issue

— an issue which t he parties already

addressed prior to trial and which was determinable from the record. 4 Therefore,

we cannot conclude that the trial court abused its discretion in denying Hall’s

motion for new trial without a hearing. See Lempar v. State , 191 S.W.3d 23 0, 235

(Tex. App.

— San Antonio 2005, pet. ref'd) (holding that the trial court’s evidentiary

ruling was determinable from the record and therefore did not entitle the defendant

to a hearing on his motion for new trial to determine whether the ruling was pro per);

see also Hobbs , 298 S.W.3d at 199.

III. Conclusion

We affirm the judgment of the trial court.


### /s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice

Do not publish. T EX

. R. A PP

. P. 47.2(b).

Delivered and filed the 16th day of July, 2015.

4 For the first time on appeal, Hall challenges the trial court’s failure to hold a hearing on the ground that the prosecutor might have been improperly mo tivated by a desire to aid the theft victim in collecting a debt that had already been discharged in bankruptcy. See Cabla v. State

, 6 S.W.3d 543, 550 (Tex. Crim. App. 1999) (Meyers, J., concurring) (advocating for the adoption of the “principal motivatio n test,” in which the subjective motivation of the prosecutor determines the validity of an order requiring a debtor

- defendant to pay restitution on a debt that was previously discharged in bankruptcy). We need not address whether Hall was entitled to a h earing on this ground because the record reflects that he made no mention of it in his motion for new trial or accompanying affidavit, and therefore, the trial court was never presented with the issue. See Hobbs v. State , 298 S.W.3d 193, 199 (Tex. Crim. A pp. 2009) (observing that n o hearing on a new

trial motion is required if the accompanying affidavit fails to set out the factual basis for the claim

, or fails to provide notice of the basis for the relief sought).