No. 01-15-00472-CR

In the 

Court of Appeals 

For the 

First District of Texas 

At Houston 



No. 1414552

In the 184th District Court 

Of Harris County, Texas 



ALFREDO LARA 

Appellant 

V.

THE STATE OF TEXAS 

Appellee



STATE’S APPELLATE BRIEF 



DEVON ANDERSON

District Attorney 

Harris County, Texas 

KATIE DAVIS

Assistant District Attorney 

Harris County, Texas 

State Bar Number: 24070242 

davis_katie@dao.hctx.net 

FARNAZ FAIAZ

Assistant District Attorney 

Harris County, Texas 

1201 Franklin Street, Suite 600 

Houston, Texas 77002 

Telephone: (713) 755-5826 

Fax Number: (713) 755-5809 

ORAL ARGUMENT WAIVED

ACCEPTED

01-15-00472-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/24/2015 4:41:06 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/24/2015 4:41:06 PM CHRISTOPHER A. PRINE Clerk
i

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives 

oral argument since the issues appear well-settled in Texas jurisprudence. But the 

State will present argument if this Court deems it necessary. 

IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon AndersonDistrict Attorney of Harris County

Katie DavisAssistant District Attorney on appeal

Farnaz Faiaz  Assistant District Attorney at trial

Appellant or Criminal Defendant: 

Alfredo Lara

Counsel for Appellant:

Colin B. Amann—Counsel on Appeal

Kenneth Junck —Counsel at trial 

Trial Judge:

Honorable Jan KrockerPresiding Judge of 184th District Court
ii

TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT.......................................................... i

IDENTIFICATION OF THE PARTIES ................................................................................ i

TABLE OF CONTENTS...........................................................................................................ii

INDEX OF AUTHORITIES...................................................................................................iii

STATEMENT OF THE CASE.................................................................................................1

STATEMENT OF FACTS ........................................................................................................1

SUMMARY OF THE ARGUMENT..................................................................................... 3

REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR.................. 3

I. The appellant waived any error regarding a denial of a hearing on his motion 

for new trial because he failed to object to the hearing date set by the trial 

court, a date the appellant himself had requested, which was outside of the 

period to rule on his motion........................................................................................ 5

II. The appellant was not entitled to a hearing based on the allegations that 

trial counsel failed to investigate and present mitigating evidence during the 

punishment hearing in his motion for new trial. ...................................................9

CONCLUSION .........................................................................................................................15

CERTIFICATE OF SERVICE AND COMPLIANCE......................................................16
iii

INDEX OF AUTHORITIES

CASES

Baker v. State, 

956 S.W.2d 19 (Tex. Crim. App. 1997).........................................................................6, 7

Butler v. State, 

6 S.W.3d 636 (Tex. App.—

Houston [1st Dist.] 1999, pet. ref’d)..................................................................................6

Crowell v. State, 

949 S.W.2d 37 (Tex. App.—

San Antonio 1997, no pet.)...............................................................................................5, 7

Johnson v. State, 

925 S.W.2d 745 (Tex. App.—

Fort Worth 1996, pet. ref’d)................................................................................................ 5

Jordan v. State, 

883 S.W.2d 664 (Tex. Crim. App. 1994)..............................................................11, 12, 13

King v. State, 

29 S.W.3d 556 (Tex. Crim. App. 2000) .....................................................................9, 14

Mallet v. State, 

65 S.W.3d 59 (Tex. Crim. App. 2001).............................................................................14

Miniel v. State, 

831 S.W.2d 310 (Tex. Crim. App. 1992).......................................................................... 10

Mitchell v. State, 

68 S.W.3d 640 (Tex. Crim. App. 2002)......................................................................... 10

Oldham v. State, 

977 S.W.2d 354 (Tex. Crim. App. 1998)..........................................................................8

Prystash v. State, 

3 S.W.3d 522 (Tex. Crim. App. 1999)...............................................................................8

Reyes v. State, 

849 S.W.3d 812 (Tex. Crim. App. 1993)...........................................................................9

Rodriguez v. State, 

899 S.W.2d 658 (Tex. Crim. App. 1995).........................................................................11
iv

Ryan v. State, 

937 S.W.2d 93 (Tex. App.—

Beaumont 1996, pet. ref’d)...............................................................................................5, 7

Smith v. State, 

286 S.W.3d 333 (Tex. Crim. App. 2009)......................................................... 9, 10, 11, 13

State ex rel. Cobb v. Godfrey, 

739 S.W.2d 47 (Tex. Crim. App. 1987).............................................................................8

State v. Zavala, 

28 S.W.3d 658 (Tex. App.—

Corpus Christi 2000, pet. ref’d)......................................................................................... 8

Stogiera v. State, 

191 S.W.3d 194 (Tex. App.—

San Antonio 2005, no pet.).................................................................................................13

Strickland v. Washington, 

466 U.S. 668 (1984)............................................................................................................. 10

Wilkerson v. State, 

726 S.W.2d 542 (Tex. Crim. App. 1986), 

cert. denied, 480 U.S. 940 (1987)..................................................................................... 10

STATUTES

TEX.CODE CRIM. PROC.ANN

art. 57.02(h) (West Supp. 2014)..........................................................................................1

TEX.CODE CRIM. PROC.ANN.

art. 57.03 (West 2013)...........................................................................................................2

TEX.CODE CRIM. PROC.ANN. 

art. 57B.01 (4)(A) (West 2013)............................................................................................2

TEX.CODE CRIM. PROC.ANN

art. 57B.02(h) (West Supp. 2014) .......................................................................................1

TEX.CODE CRIM. PROC.ANN.

art. 57B.03(d) (West 2013)...................................................................................................2

TEX.CODE CRIM. PROC.ANN

art. 57D.02(h) (West Supp. 2014)......................................................................................2
v

TEX.CODE CRIM. PROC.ANN.

art. 57D.03(d) (West 2013).................................................................................................2

TEX. FAM.CODE ANN. § 71.004 (West 2013).........................................................................2

RULES

TEX.R.APP. P. 4.1(a)..................................................................................................................4

TEX.R.APP. P. 4.1(b)..............................................................................................................4, 5

TEX.R.APP. P. 9.4(g)..................................................................................................................i

TEX.R.APP. P. 21.4(a)................................................................................................................4

TEX.R.APP. P. 21.8...................................................................................................................... 5

TEX.R.APP. P. 21.8(a)................................................................................................................6

TEX.R.APP. P. 21.8(c)................................................................................................................6

TEX.R.APP. P. 33.1(a)................................................................................................................ 7

TEX.R.APP. P. 38.1(i)...............................................................................................................14

TEX.R.APP. P. 39.1.......................................................................................................................i

OTHER AUTHORITIES

Harris County Holidays,

HARRISCOUNTYTX.GOV (Sept. 19, 2015), 

http://www.harriscountytx.gov/holidays.aspx ............................................................. 5

Thanksgiving Day in United States,

TIMEANDDATE.COM (Sept. 18, 2015), 

http://www.timeanddate.com/holidays/us/thanksgiving-day ..................................4
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State charged the appellant with serious bodily injury to a child, and 

alleged two deadly weapon paragraphs (CR – 13).1The appellant pled guilty as 

charged in the indictment without a plea bargain, and he pled true to the deadly 

weapon paragraphs (CR – 19-31, 34-35; 2 RR 7). After a pre-sentence investigation 

(PSI) and punishment hearing on October 29, 2014, the trial court found the 

appellant guilty, found the deadly weapon paragraphs true, and sentenced the 

appellant to 40 years confinement in the Institutional Division of the Texas 

Department of Criminal Justice (CR – 34-35; 2 RR 73). The appellant filed a timely 

notice of appeal, and the trial court certified that he had the right to appeal (CR –

30, 53-55).

STATEMENT OF FACTS

On June 2, 2012, the appellant called Amanda Hurt and told her that her sixmonth-old son, John,2

fell out of the bed and was injured (2 RR 18). Hurt rushed to 

 

1

“CR” will be used to refer to the Clerk’s Record and “RR” will be used to reference the 

reporter’s record.

2 A person who has access to or obtains the name, address, telephone number, or other identifying 

information of a victim younger than 17 years of age may not release or disclose the identifying 

information to any person who is not assisting in the investigation, prosecution, or defense of the 

case. TEX. CODE CRIM. PROC. ANN art. 57B.02(h) (West Supp. 2014) (requiring confidentiality of 

identifying information of family violence victims); TEX. CODE CRIM. PROC. ANN art. 57.02(h) 

(West Supp. 2014) (requiring confidentiality of identifying information of sexual assault victims); 
2

the hospital to care for him (2 RR 11, 18). She and the appellant shared custody of 

John, and John had been in the appellant’s care that day (2 RR 11-13, 17). 

At the hospital, Hurt learned that John had suffered a brain injury (2 RR 19). 

She also learned that John had both recent and older injuries (2 RR 20). The 

doctors stated that John’s injuries could not be explained by rolling off the bed, 

but the appellant stuck to his story (2 RR 20-23). Hurt learned that the doctors 

believed John could have been shaken (2 RR 21-22). The appellant eventually 

admitted that he had been frustrated and thrown John into his car seat four to five 

times (2 RR 24, 40, 45-46).

John stayed in the hospital for three weeks (2 RR 23). Because of his injuries 

John is developmentally behind other children his age, and he walks with a limp (2 

RR 26, 33-34). Hurt takes John to the hospital every six months to drain a shunt 

that was placed in his brain (2 RR 25-26). She also takes John to physical and 

speech therapy once a week (2 RR 26). 

 

TEX. CODE CRIM. PROC. ANN art. 57D.02(h) (West Supp. 2014) (requiring confidentiality of 

identifying information of human trafficking victims). The release or disclosure of such 

information to any person is a class C misdemeanor. TEX.CODE CRIM. PROC.ANN. art. 57.03 (West 

2013); TEX. CODE CRIM. PROC. ANN. art. 57B.03(d) (West 2013); TEX. CODE CRIM. PROC. ANN. art. 

57D.03(d) (West 2013). Under Article 57B.01, the term “victim” means a person who was the 

subject of an offense that allegedly constitutes family violence, as defined by Section 71.004 of the 

Texas Family Code. TEX. CODE CRIM. PROC. ANN. art. 57B.01 (4)(A) (West 2013); TEX. FAM. CODE 

ANN. § 71.004 (West 2013) (defining family violence as an act by a member of a family against 

another member of the family that is intended to result in physical harm, bodily injury, assault, or 

sexual assault). Therefore, the pseudonym “John” will be used for the victim in this case.
3

SUMMARY OF THE ARGUMENT

The appellant challenges the trial court’s failure to hold a hearing on his 

motion for new trial. But the appellant failed to preserve error by not objecting to 

the hearing date set by the trial court, a date the appellant himself had requested. 

Moreover, the appellant’s motion was insufficient to grant relief based on his claim 

of trial counsel’s ineffective investigation and presentation of mitigating evidence 

during the punishment hearing. 

REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR

In the appellant’s first point of error, he argues that the appeal should be 

abated for the trial court to conduct a hearing on his motion for new trial. (App’nt 

Brf. ii, 2). In the appellant’s second point of error, he argues that the appellant was 

entitled to an evidentiary hearing regarding the allegation of trial counsel’s failure 

to investigate and present mitigating evidence at the punishment hearing (App’nt 

Brf. ii, 2). Because these points of error address the same legal concepts, they will 

be addressed together.

In the punishment hearing, the State presented testimony from Hurt 

regarding John’s injuries and prognosis (2 RR 10-30, 35-37). Both the State and the 

appellant admitted the PSI report into evidence that included information about

the appellant’s background, employment, his request for probation, and character 

reference letters on the appellant’s behalf. See (Joint Ex. #1). Trial counsel for the 
4

appellant cross-examined Hurt, specifically emphasizing to the court that Hurt 

would like the appellant to be placed on probation to be able to continue making 

child support payments (2 RR 30-37). Additionally, trial counsel presented the 

appellant’s testimony and reference letters for the court’s consideration (2 RR 7-8, 

37-44). The appellant requested probation (2 RR 44, 61-62, 68-69). Although the 

trial court sympathized with Hurt’s need for child support, she sentenced the 

appellant to 40 years in prison (2 RR 73).

After his conviction, the appellant filed a motion for a new trial, alleging 

that his trial counsel was ineffective for his failure to properly advise him about 

the consequences of his plea, failure to communicate any plea-bargains, and failure 

to conduct a thorough investigation into mitigating factors (CR – 37-39). The 

appellant timely presented his motion and further requested an evidentiary 

hearing on his motion (CR – 39).3The record indicates that the court did not 

 

3

It appears that the appellant timely filed his motion for new trial on December 1, 2014 (CR –

48-49). The appellant’s sentence was imposed on October 29, 2014, which made any motion for 

new trial due on November 28, 2014 (CR – 34-35). See TEX. R. APP. P. 21.4(a). The appellant 

explained to the trial court that the courts were closed that day, the Friday after Thanksgiving 

(CR – 48). See Thanksgiving Day in United States, TIMEANDDATE.COM (Sept. 18, 2015), 

http://www.timeanddate.com/holidays/us/thanksgiving-day (noting that Thanksgiving 2014 fell 

on November 27). Thus, the appellant filed his motion for new trial on the following business 

day, December 1 (CR – 27, 48-49). See TEX. R. APP. P. 4.1(a) (noting that if the last day of a 

designated period falls on a legal holiday the period extends to the end of the next day that is not 

a Saturday, Sunday, or legal holiday); see also TEX. R. APP. P. 4.1(b)(noting that if the clerk’s office 

is closed or inaccessible on the last day of a filing period, the period for filing is extended to the 

next day it is open and accessible). Although the appellant failed to provide any evidence that 

the courts were closed on November 28, based on the current list of holidays on the Harris 

County Clerk’s website, it is likely that the courts were inaccessible on the Friday following 

Thanksgiving in 2014. See Harris County Holidays, HARRISCOUNTYTX.GOV (Sept. 19, 2015), 
5

affirmatively overrule the motion for new trial, and it was overruled by operation 

of law (CR – 49). See TEX.R.APP. P. 21.8. 

I. The appellant waived any error regarding a denial of a hearing on 

his motion for new trial because he failed to object to the hearing 

date set by the trial court, a date the appellant himself had 

requested, which was outside of the period to rule on his motion. 

The appellant requests that this Court abate the appeal for the trial court to 

conduct a hearing on his motion for new trial. (App’nt Brf. ii, 5, 19-20). But the 

appellant waived any error because he failed to object to the hearing date set by 

the trial court. “When a motion for new trial is presented to the trial court, the 

burden of ensuring that the hearing thereon is set for a date within the trial court's 

jurisdiction is properly placed on the party presenting the motion.” Crowell v. State, 

949 S.W.2d 37, 38 (Tex. App.—San Antonio 1997, no pet.); see also Ryan v. State, 937 

S.W.2d 93, 97 (Tex. App.—Beaumont 1996, pet. ref’d) (holding it was incumbent 

upon the appellant to obtain a hearing prior to the 75-day deadline; noting that 

there was nothing in the record to indicate any efforts by the appellant to obtain a 

hearing prior to the deadline); Johnson v. State, 925 S.W.2d 745, 748 (Tex. App.—

Fort Worth 1996, pet. ref’d) (holding that it was incumbent upon the appellant to 

develop some record before the expiration of the trial court’s jurisdiction which 

demonstrated his efforts to reschedule a hearing on his motion for new trial). 

 

http://www.harriscountytx.gov/holidays.aspx; see also TEX. R. APP. P. 4.1(b) (noting that the 

closing or inaccessibility of the clerk’s office may be proved by certificate of the clerk or counsel, 

an affidavit or other satisfactory proof). 
6

The record indicates that the appellant’s sentence was imposed on October 

29, 2014, which made any ruling on a motion for new trial due on or before January 

12, 2015 (CR – 34-35). See TEX. R. APP. P. 21.8(a) (“The court must rule on a motion 

for new trial within 75 days after imposing or suspending sentence in open 

court.”). The appellant presented his motion for new trial to the court coordinator 

on December 11, 2014 (CR – 51). See Butler v. State, 6 S.W.3d 636, 641 (Tex. App.—

Houston [1st Dist.] 1999, pet. ref’d) (holding that presentation to the court 

coordinator satisfies the presentment requirement of giving actual notice to the 

trial court). The appellant requested a hearing date, and one was set for January 

20, 2015 (CR – 45, 49). 

The record reflects that the first time the trial court heard anything on the 

appellant’s motion was on January 20, outside of the 75 days (CR – 46-52). See

TEX. R. APP. P. 21.8(a). Therefore, the appellant’s motion for new trial was 

overruled by operation of law (CR – 46-52, 57). See TEX. R. APP. P. 21.8(c) (“A 

motion not timely ruled on by written order will be deemed denied when the 

period prescribed in (a) expires.”); see also Baker v. State, 956 S.W.2d 19, 25 (Tex. 

Crim. App. 1997) (noting that after the 75 days have passed after the sentence was 

imposed, the trial court lacked any authority to grant the motion). 

The appellant argues that the January 20 hearing date was a “clerical error” 

or “an unfortunate error in the scheduling.” (App’nt Brf. ii, 5, 19). But the appellant 
7

failed to present any evidence to support this contention. Instead, the record 

reflects that the appellant admitted that scheduling the hearing outside of the 

allotted 75 days was his own error when he requested the hearing date from the 

court coordinator (CR – 45, 49). When explaining why the hearing date was set 

outside of the 75 days, he stated:

As to – I – have the hearing must be conducted within 75 days and I 

have in my motion January 12. When I was reading that, discussing 

the hearing, I was – I was a little bit dyslexic. I read 21st. So when I 

read on the 20th, I figured that would be okay because it was within 

75 days. So that’s why it was set for the 20th, today, but that is not 

the case. So the time has expired. (CR – 49).

The appellant neither objected to the January 20 date nor tried to request an 

earlier date within the appropriate time period. There is no evidence that the date 

was input incorrectly. There is no evidence that he had in fact requested a date 

prior to January 12 and had been denied. There are no docket notations, motions, 

writs, hearing transcripts, or any other written indication that the appellant made 

any attempt before January 20 to hold the hearing within the required time period. 

But whether it was a clerical or scheduling error, it was the appellant’s 

responsibility as the proponent of the motion for new trial to schedule a hearing 

within the allotted time period. See Crowell, 949 S.W.2d at 38; Ryan, 937 S.W.2d at

97. Thus, any error is not preserved. See Baker, 956 S.W.2d at 24-25 (holding that 

by failing to object to the untimely setting, the appellant failed to preserve his 

complaint that the trial judge should have held a hearing); TEX. R. APP. P. 33.1(a)
8

(requiring a complaint be made to the trial court by timely request, objection, or 

motion in order to preserve a complaint for appellate review); see also Prystash v. 

State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (noting that under the “invited 

error” doctrine an appellant is estopped from complaining of the trial court’s 

actions when he invited the error).

The appellant fails to provide any authority for why abatement would be 

required. The trial court lost its plenary power to act on the appellant’s motion for 

new trial when it was overruled by operation of law. State v. Zavala, 28 S.W.3d 658, 

659 (Tex. App.—Corpus Christi 2000, pet. ref’d) (citing State ex rel. Cobb v. Godfrey, 

739 S.W.2d 47, 49 (Tex. Crim. App. 1987)). This is not a situation in which this 

Court can suspend the rules. See Zavala, 28 S.W.3d at 659 (holding that an 

appellate court may not suspend the rule that a motion for new trial be heard 

within 75 days, even when the court orally granted the new trial within the period 

but failed to sign the motion until two days outside of that period) (citing Oldham 

v. State, 977 S.W.2d 354, 358 (Tex. Crim. App. 1998)). Thus, because the appellant 

failed schedule a hearing on his motion for new trial within the 75 day period, any 

error is waived and the appellant’s request for abatement should be denied. The 

appellant’s first issue should be overruled.
9

II. The appellant was not entitled to a hearing based on the 

allegations that trial counsel failed to investigate and present 

mitigating evidence during the punishment hearing in his motion 

for new trial. 

The purpose of a hearing on a motion for new trial is to (1) decide whether 

the cause should be retried and (2) prepare a record for presenting issues on 

appeal in the event the motion is denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. 

Crim. App. 2009); State v. Gonzalez, 855 S.W.2d 692, 695 (Tex. Crim. App. 1993) . 

But the right to a hearing on a motion for new trial is not an absolute right. Reyes v. 

State, 849 S.W.3d 812, 815-16 (Tex. Crim. App. 1993). A hearing is only required 

when the appellant has raised matters that are not determinable from the record 

and established the existence of reasonable grounds showing that he could be 

entitled to relief. Smith, 286 S.W.3d at 339-40 (citing Reyes, 849 S.W.3d at 815-16). 

But to prevent fishing expeditions, courts require that the motion “must be 

supported by affidavit specifically showing the truth of the grounds of attack.” See 

King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).

The appellant argues that trial counsel was ineffective during his 

punishment hearing for his failure to conduct a thorough investigation into 

mitigating evidence. (App’nt Brf. 4-5, 16-19).4 A claim of ineffective assistance is 

 

4 Although the appellant provided other reasons that trial counsel was ineffective in his affidavit 

and his motion for new trial, on appeal he only focuses on trial counsel’s failure to investigate 

mitigating factors that could have been presented in the PSI. (Appn’t Brf. 16-19). The appellant’s 

affidavit listed eight reasons why he believed his counsel was ineffective, and his motion for new 
10

governed by the two-prong test set out in Strickland v. Washington, 466 U.S. 668 

(1984). In order to prove an ineffective assistance claim, the appellant must first 

show that the trial counsel’s performance was deficient. Id. at 687; see Mitchell v. 

State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). “Specifically [the appellant] 

must prove by a preponderance of the evidence, that the trial counsel’s 

representation fell below the objective standard of professional norms.” Mitchell, 68 

S.W.3d at 642; Smith, 286 S.W.3d at 340. The appellant must also show that the 

deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. Prejudice 

is shown by the reasonable probability that but for his counsel’s unprofessional 

errors, the result of the proceeding would have been different. Mitchell, 68 S.W.3d 

at 642.

In reviewing a claim of ineffective assistance, a reviewing court presumes 

that trial counsel was competent, and the appellant has the burden to rebut this 

presumption by proving that his attorney’s representation was not sound strategy. 

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) (citing Strickland, 466 

U.S. at 689). An appellate court looks to the totality of the representation, rather 

than isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 

548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987); Rodriguez v. State, 899 

 

trial discussed six of those reasons (CR – 38, 41-42). And on appeal, the appellant only argues 

that four of those eight reasons were sufficient to require a hearing. (Appn’t Brf. 16-19).
11

S.W.2d 658, 665 (Tex. Crim. App. 1995). Therefore, before the appellant is entitled 

to a hearing on his motion for new trial alleging ineffective assistance of counsel, 

he must allege sufficient facts from which a trial court could reasonably conclude 

both that counsel failed to act as a reasonably competent attorney and that, but for 

counsel’s failure, there is a reasonable likelihood that the outcome of his trial 

would have been different. Smith, 286 S.W.3d at 340-41; see also Jordan v. State, 883 

S.W.2d 664, 664-65 (Tex. Crim. App. 1994) (finding that the appellant’s motion 

for new trial did not show deficiency or prejudice, and therefore failed to give 

notice that reasonable grounds existed to entitle him to relief).

The appellant argues that he was entitled to a hearing based on his specific 

complaints that: (1) trial counsel never reviewed the complainant’s medical or CPS 

records with him, (2) trial counsel failed to advise him of his right to hire a medical 

expert, (3) trial counsel failed to inform the trial court about his completed anger 

management and parenting classes, and (4) trial counsel failed to inform the court 

about the results from his psychological evaluation and negative drug tests. 

(App’nt Brf. 16-18). But each of these allegations is either conclusory in nature or 

determinable from the record. See Smith, 286 S.W.3d at 339 (requiring, as a 

prerequisite to a hearing when the grounds in the motion for new trial are based 

on matters not already in the record, that the motion be supported by an affidavit, 

either of the defendant or someone else, specifically setting out the factual basis for 
12

the claim); Jordan, 883 S.W.2d at 665 (finding a hearing was not required when the 

appellant’s affidavit was conclusory and failed to show why his counsel was 

deficient or prejudiced him).

The appellant’s assertion that trial counsel never advised him of his right to 

hire a medical expert fails to establish why trial counsel’s investigation was 

deficient, or what further investigation would have revealed. The appellant asserts 

that a medical expert could have reviewed the complainant’s medical records and 

presented a prognosis to the court. (App’nt Brf. 17). But no affidavit from a medical 

expert is provided to show what further inquiry into the records would have 

revealed, what an expert would have testified to, or how it may have contradicted 

Hurt’s testimony. See Jordan, 883 S.W.2d at 665 (finding that a bare allegation that 

trial counsel failed to subpoena two names witnesses without indicating what 

they would have said to exculpate him was insufficient to require the court to have 

a hearing). Similarly, the appellant failed to establish what a review of the 

complainant’s medical or CPS records with the appellant would have revealed. See 

id.

Whether trial counsel admitted evidence that he completed a parenting or 

anger management course, the results of his psychological evaluation, and 

evidence that he passed drug and alcohol tests were determinable from the record. 

See id. During the punishment hearing, trial counsel did not ask the appellant any 
13

questions or admit any evidence regarding these issues. See (2 RR 37-44). 

Furthermore, the trial court indicated during the punishment hearing that she was 

not interested in information regarding parenting classes because she would not 

allow contact with children (2 RR 31). Regardless, the appellant failed to provide 

the results of these courses or evaluations in his motion for new trial as proof of 

their evidentiary value. See Jordan, 883 S.W.2d at 665; cf. Stogiera v. State, 191 S.W.3d 

194, 198-201 (Tex. App.—San Antonio 2005, no pet.) (finding a hearing was 

required to determine trial counsel’s effectiveness when the appellant presented 

affidavits from licensed clinical social workers and psychologists about the need 

for a psychological evaluation with his motion for new trial).

Moreover, the appellant failed to explain how these deficiencies would have 

changed the outcome of the case. See Smith, 286 S.W.3d at 345 (holding that trial 

court did not abuse its discretion in refusing to hold a hearing on a motion for new 

trial, where the appellant failed to explain how his counsel’s allegedly 

unprofessional errors would have changed the outcome of the case). Although the 

State requested a lower sentence based on the need for child support, the trial 

court explained that she could not allow the appellant to “buy his way out” (2 RR 

73). Therefore, the appellant’s bare assertions regarding his failure to conduct a 

thorough investigation and present mitigating evidence fail to establish facts 
14

entitling him to a hearing. And, as previously stated, he failed to request a hearing 

within the appropriate period. Thus, his second point of error should be overruled.

Finally, in the alternative to abatement, the appellant contends that this 

Court should remand the case to the trial court for a new punishment hearing. 

(App’nt Brf. 3, 20). But the appellant fails to provide any argument or authority to 

support this contention. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear 

and concise argument for the contentions made, with appropriate citations to 

authorities and to the record.”). Without more, the appellant’s bare assertions fail 

to establish that trial counsel rendered a deficient performance that harmed the 

appellant. See King, 29 S.W.3d at 569 (holding that trial court did not abuse its 

discretion in refusing to hold a hearing on a motion for new trial, where the 

affidavit, alleging ineffective assistance of counsel, was deficient for failing to 

specify supporting facts); see also Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 

2001) (noting a record on direct appeal cannot adequately reflect the motives 

behind trial counsel’s actions). As previously stated, it was the appellant’s 

responsibility to develop such a record. Thus, the appellant’s request should be 

denied.
15

CONCLUSION

It is respectfully submitted that all things are regular and the conviction 

should be affirmed. 

DEVON ANDERSON

District Attorney

Harris County, Texas

/S/ Katie Davis

KATIE M. DAVIS

Assistant District Attorney

Harris County, Texas

1201 Franklin Street, Suite 600

Houston, Texas 77002

Telephone (713) 755-5826

Fax Number (713) 755-5809

Davis_Katie@dao.hctx.net

State Bar Number: 24070242
16

CERTIFICATE OF SERVICE AND COMPLIANCE

This is to certify that: (a) the word count function of the computer program 

used to prepare this document reports that there are 3,744 words in it; and (b) a 

copy of the foregoing instrument will be served by efile.txcourts.gov to:

Colin B. Amann

1004 Prairie, Suite 300

Houston, TX 77002

713-652-2003/p

713-652-2002/f

colin@khalawyers.com

/S/ _ Katie Davis

KATIE M. DAVIS

Assistant District Attorney

Harris County, Texas

1201 Franklin Street, Suite 600

Houston, Texas 77002

Telephone (713) 755-5826

Fax Number (713) 755-5809

Davis_Katie@dao.hctx.net

State Bar Number: 24070242

Date: September 24, 2015