Opinion filed September 8, 2022

In The

Eleventh Court of Appeals __________

No. 11-21-00023-CR

__________

MICHAEL EDWARD BESERIL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. C-18-0904-CR

M E M O R A N D U M O P I N I O N

This appeal presents what Chief Justice John Roberts might call “a 

Matryoshka doll”1 of ineffective assistance claims—ineffective assistance of 

posttrial counsel in failing to secure a hearing on Appellant’s motion for new trial 

which, in turn, involved a claim of ineffective assistance of trial counsel. Appellant,

1

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497 (2010).
2

Michael Edward Beseril, presents a single issue on appeal. He argues that posttrial 

counsel provided ineffective assistance when they failed to request a hearing on his

motion for new trial and that, had counsel done so, the trial court would have been 

obligated to conduct a hearing on the ineffective assistance claims that he asserted 

against his trial counsel. We modify and affirm. 

Background

Appellant was indicted in 2018 for evading arrest using a motor vehicle, a 

third-degree felony. TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2016). The 

trial court appointed Marc Chastain to represent Appellant. Appellant quickly 

became dissatisfied with Chastain’s services and retained another attorney, Israel 

Guardiola, to replace Chastain. But Appellant soon became dissatisfied with 

Guardiola’s services as well and, in April of 2019, sent Guardiola a notice of 

termination. The trial court then appointed Josh Stephens to represent Appellant. 

The jury found Appellant guilty of evading arrest and, after returning a finding 

of “True” to enhancement allegations relating to two prior felony convictions,

assessed his punishment at confinement for thirty-five years in the Texas Department 

of Criminal Justice-Institutional Division (TDCJ-ID) and a $10,000 fine. See TEX.

PENAL CODE ANN. § 12.42(d) (West 2019). The trial court sentenced Appellant 

accordingly. 

On June 6, 2019, Appellant’s posttrial attorney, Kevin Acker, filed a motion 

for new trial. In the motion, Appellant argued that each of his trial attorneys deprived 

him of the effective assistance of counsel by deficiently representing him in various 

respects. Specifically, Appellant argued that Chastain and Guardiola were deficient 

in their representation because they incorrectly advised him that the maximum term

he could serve in the TDCJ-ID for his offense was twenty years. Appellant also 

argued that Stephens was deficient in his representation because he “did not tell

[Appellant] of any offer from the DA.” According to Appellant, Acker filed this 
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motion for new trial but never presented it to the trial court. The State also concedes 

that Acker never requested a hearing. 

Acker also failed to file a notice of appeal. As a result, Appellant missed 

the deadline for filing an appeal. Appellant then filed an application for writ 

of habeas corpus, seeking relief in the form of an out-of-time appeal. 

The Court of Criminal Appeals granted the application and ordered that “[a]ll 

deadlines shall be calculated as if [Appellant] was sentenced on the date” that the 

Court of Criminal Appeals issued its mandate. The mandate issued on February 23, 

2021. Appellant’s first appellate attorney, Mike Holmes, filed a notice of appeal the 

next day. According to Appellant, Holmes never refiled or presented Appellant’s 

motion for new trial to the trial court. Holmes could have refiled the motion up to 

thirty days after the issuance of the Court of Criminal Appeals’ mandate. See TEX. R.

APP. P. 21.4. Had he refiled the motion, Holmes would have had ten days to 

subsequently present the refiled motion for new trial to the trial court. See TEX. R.

APP. P. 21.6. The State does not address whether Holmes ever refiled Appellant’s 

motion for new trial but concedes that he never requested a hearing on it.

Discussion

I. Appellant was not deprived of the effective assistance of counsel 

when his attorneys failed to present his motion for new trial.

A. Standard of Review and Applicable Law

To prevail on his claims of ineffective assistance, Appellant must satisfy a 

two-pronged standard. Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. 

State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). First, Appellant must show 

that trial counsel’s performance was deficient in that it fell below an objective 

standard of reasonableness. Perez, 310 S.W.3d at 892–93. To establish deficient 

performance, a defendant must show that counsel’s representation was objectively 

unreasonable based on “prevailing professional norms.” Id. at 893 (quoting 
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Strickland, 466 U.S. at 688). Second, Appellant must show that trial counsel’s 

deficient performance prejudiced his defense. Id. To establish prejudice, a 

defendant must show a reasonable probability that the result of the proceeding would 

have been different but for counsel’s deficient performance. Strickland, 466 U.S. at 

693–94. A reasonable probability is a probability sufficient to undermine the 

confidence in the outcome. Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting 

Strickland, 466 U.S. at 694).

A trial court abuses its discretion by failing to hold a hearing on a verified 

motion for new trial when the motion and accompanying affidavits raise matters that 

are indeterminable from the record and that, if true, establish grounds upon which 

the defendant could potentially be entitled to relief. See Hobbs v. State, 298 S.W.3d

193, 199 (Tex. Crim. App. 2009); Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. 

App. 2002); Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). The Court 

of Criminal Appeals has held that one such claim that is indeterminable from the 

record, but which could entitle a criminal defendant to relief, is “that trial counsel 

was ineffective for failing to inform [the defendant] of a plea bargain offered by the 

State.” Reyes, 849 S.W.2d at 816; see also Martinez, 74 S.W.3d at 22 (explaining 

that “[t]he particulars of . . . the plea offer . . . are among the factual matters that 

should be fully developed at a hearing”). However, a hearing is not required on a 

defendant’s motion for new trial alleging ineffective assistance of counsel unless he 

alleges “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 v. State, 286 S.W.3d 333, 340–41 (Tex. Crim. App. 2009).
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B. Analysis

Appellant argues that Acker and Holmes were deficient in their representation 

because they failed to present his motion for new trial to the trial court. He argues 

that this was prejudicial because, but for Acker’s and Holmes’s unprofessional 

conduct, the trial court would have granted a hearing on Appellant’s motion for new 

trial and thereby crucial evidence of ineffective assistance by his trial attorneys could 

have been developed for the appellate record. We disagree. For the reasons that 

follow, we hold that Appellant has not demonstrated a reasonable probability that, 

but for Acker’s and Holmes’s alleged errors, the trial court would have granted a 

hearing on his motion for new trial. In other words, Appellant has failed to satisfy 

the prejudice prong of Strickland.

1. The Deficient Performance Prong

Appellant points out that one prerequisite of a defendant’s entitlement to a 

hearing on his motion for a new trial is that the motion must be presented to the trial 

court. TEX. R. APP. P. 21.6 (“The defendant must present the motion for new trial to 

the trial court within 10 days of filing it.”). “[T]he filing of the motion alone is not 

sufficient to bring the motion to the trial [court’s] attention.” Reyes, 849 S.W.2d at 

815. 

In his brief, Appellant argues that Acker filed a motion for new trial but never 

presented it to the trial court. Appellant also argues that Holmes failed to refile or 

present the motion to the trial court after the Court of Criminal Appeals reset the 

appellate deadlines and gave him a second bite at the apple. Appellant argues that, 

because the motion for new trial would have entitled Appellant to a hearing—see, 

e.g., Hobbs, 298 S.W.3d at 199; Martinez, 74 S.W.3d at 21; Reyes, 849 S.W.2d at 

816—the failure to present the motion to the trial court could never be considered 

reasonable trial strategy.
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With respect to Appellant’s claim against Acker, we pause to note that Acker 

submitted an affidavit to the trial court in which he states that he requested a “hearing 

on the motion . . . orally multiple times” (emphasis added). Thus, even accepting 

Appellant’s argument that it could never be reasonable trial strategy not to present a 

motion for new trial, it is not at all clear that Acker’s legal representation was

deficient. However, assuming without deciding that Acker and Holmes were 

deficient in their legal representation, Appellant cannot satisfy the prejudice prong.

2. The Prejudice Prong

An important prerequisite to a defendant’s entitlement to a hearing on his 

motion for new trial is that the motion must be supported by an affidavit “specifically 

showing the truth of the grounds for attack.” Martinez, 74 S.W.3d at 21. This 

requirement exists to “limit[] and prevent[] ‘fishing expeditions.’” Hobbs, 298 

S.W.3d at 199. While the supportive affidavit “need not reflect each and every 

component legally required to establish relief,” Martinez, 74 S.W.3d at 21–22, “[i]f 

the affidavit is conclusory . . . [or] unsupported by facts, . . . no hearing is required.” 

Hobbs, 298 S.W.3d at 199. In other words, “the supporting affidavit ‘must reflect 

that reasonable grounds exist for holding that such relief could be granted.’” 

Martinez, 74 S.W.3d at 21 (quoting Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. 

App. 1994)). 

The verification in Appellant’s motion for new trial is flawed because the 

affidavit he attached to his motion is wholly inadequate. Because it is quite brief, 

we relay its contents in toto:

My name is Michael Edward Beseril. I am above the age of 

eighteen years, and I am fully competent to make this affidavit. I am 

the Defendant in this Motion for New Trial. The facts stated in this 

affidavit are within my personal knowledge and are true and correct.

That is the affidavit in its entirety. Appellant does not say that the facts stated in his 

motion for new trial are within his personal knowledge and that they are true and 
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correct. Rather, he says that the facts stated “in this affidavit” are within his personal 

knowledge and that they are true and correct. But the only facts stated in his affidavit 

are that he is Michael Edward Beseril, that he is the defendant described in the 

motion for the new trial, and that he is neither a minor nor incompetent to make the 

affidavit. Appellant’s supporting affidavit does not claim to verify the assertions in 

his motion for new trial. Even if Appellant had substituted the words “motion for 

new trial” for the word “affidavit,” the affidavit would still be inadequate to verify 

the motion because it is devoid of any assertions of fact that support the claims made 

in the motion.

In his motion for new trial, Appellant claims, for example, that Stephens “did 

not tell Defendant of any offer from the D.A.” Indeed, such an omission would 

constitute deficient representation because defense attorneys have a duty to 

communicate formal plea offers made by the State to their clients. See Missouri v. 

Frye, 566 U.S. 134, 145 (2012). However, neither Appellant’s affidavit nor his 

motion for new trial contains any factual assertions to suggest that a plea offer was

ever made in the first place. But even if we assume that the State made a plea offer 

at some point during the course of the proceedings below, neither the motion nor the

affidavit contains any assertion that Appellant would have accepted the plea offer if

his attorney had timely communicated it to him. See id. at 147 (holding that, to 

establish prejudice where counsel fails to communicate a plea offer, “defendants 

must demonstrate a reasonable probability” that (1) “they would have accepted the 

earlier plea offer” and (2) “the plea would have been entered without the prosecution 

canceling it or the trial court refusing to accept it”); see also Ex parte Argent, 393 

S.W.3d 781, 784 (Tex. Crim. App. 2013) (adopting the Frye standard of prejudice as 

Texas law). 

Accordingly, we cannot say that there is a reasonable probability that, had 

Acker and Holmes properly filed and presented Appellant’s motion for new trial, the 
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trial court would have granted a hearing on the matter. Moreover, even if the motion 

had been properly filed and presented, based on these facts the trial court would not 

have abused its discretion if it had denied a request for a hearing. See Hobbs, 298 

S.W.3d at 199; Martinez, 74 S.W.3d at 21. Because Appellant has not satisfied the 

prejudice prong of Strickland, we overrule Appellant’s sole issue on appeal.

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II. The trial court’s judgment must be modified to correct clerical 

errors relating to the enhancement allegations and to delete the 

unauthorized fine.

The Texas Rules of Appellate Procedure provide this court with authority to 

modify a judgment when necessary. See TEX. R. APP. P. 43.2(b). We believe it 

necessary to modify the judgment in this case in two respects. First, the judgment 

contains clerical errors. The State sought to enhance Appellant’s punishment range 

from a third-degree felony range to a habitual offender range. See PENAL 

§§ 12.34(a), 12.42(d). The State properly alleged, and proved, that Appellant had 

been previously convicted for deadly conduct in 2001 and tampering with evidence 

in 2011, both of which are third-degree felonies. See id. §§ 22.05, 37.09 (West Supp. 

2021). The jury found both enhancement paragraphs to be true and assessed 

Appellant’s punishment at confinement for thirty-five years in the TDCJ-ID. Such 

punishment would not have been available absent the jury’s findings of “True” to 

both enhancement paragraphs. Yet, when the trial court signed its judgment of 

conviction, “N/A” was entered in the sections of the judgment marked “1st

Enhancement Paragraph,” “2nd Enhancement Paragraph,” “Finding on 1st

Enhancement Paragraph,” and “Finding on 2nd Enhancement Paragraph.”

We have the power to correct and modify the judgment of a trial court “to 

make the judgment speak the truth” when we have the necessary data and 

2

Our analysis of the Strickland prongs is restricted to the matter presented in this appeal—whether 

Appellant was entitled to a hearing on his motion for new trial. We express no opinion on the ultimate 

relief that Appellant may seek in a writ of habeas corpus. 
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information to do so. Johnson v. State, No. 11-19-00137-CR, 2021 WL 1307426, at 

*5 (Tex. App.—Eastland Apr. 8, 2021, pet. ref’d) (mem. op., not designated for 

publication). In this case, the record reflects that two prior felony convictions were 

alleged for enhancement purposes, that Appellant pleaded “Not True” to both 

allegations, and that the jury made findings of “TRUE” to both allegations. 

Accordingly, we modify the trial court’s judgment of conviction as follows: The 

notations “N/A” are removed from the sections in the judgment marked “1st

Enhancement Paragraph” and “2nd Enhancement Paragraph” and replaced with the 

words: “PLEADED NOT TRUE.” The notations “N/A” are also removed from the 

sections in the judgment marked “Finding on 1st Enhancement Paragraph” and 

“Finding on 2nd Enhancement Paragraph” and replaced with the word: “TRUE.”

Second, the judgment contains an unauthorized fine. Appellant’s punishment 

was enhanced to habitual status pursuant to Section 12.42(d) of the Texas Penal 

Code. Section 12.42(d) does not contain any provision that authorizes a fine to be 

imposed. PENAL § 12.42(d); Taylor v. State, No. 11-12-00317-CR, 2014 

WL 6806849, at *8 (Tex. App.—Eastland Nov. 26, 2014, pet. ref’d) (mem. op., not 

designated for publication); Dolph v. State, 440 S.W.3d 898, 908 (Tex. App.—

Texarkana 2013, pet. ref’d); Blevins v. State, 74 S.W.3d 125, 132 (Tex. App.—Fort 

Worth 2002, pet. ref’d). When an unauthorized fine has been imposed, an appellate 

court may reform the judgment to delete the fine. See Ex parte Youngblood, 698 

S.W.2d 671, 672 (Tex. Crim. App. 1985). Here, an unauthorized fine of $10,000 

was assessed against Appellant. Because that fine was not authorized under

Section 12.42(d), we modify the judgment of the trial court to delete the $10,000 

fine.
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This Court’s Ruling 

As modified above, we affirm the judgment of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

September 8, 2022

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.