Affirmed and Opinion Filed April 20, 2015 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-13-01260-CR 

NATHANIEL SCOTT ALLAN, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the County Court at Law No. 6 

Collin County, Texas 

Trial Court Cause No. 006-84804-2011 

MEMORANDUM OPINION 

Before Justices Fillmore and Schenck,1 and Chief Justice Thomas, Retired2

Opinion by Chief Justice Thomas, Retired 

A jury convicted appellant Nathaniel Scott Allan of driving while intoxicated, second 

offense. The trial court assessed punishment at 365 days confinement in the Collin County jail, 

probated for eighteen months, and assessed a $1,000 fine. Allan raises two issues on appeal. 

First, Allan contends the trial court erred by not conducting a hearing on his motion for new trial. 

Second, Allan complains he received ineffective assistance of counsel because his attorney did 

not timely communicate the State’s plea offer to him. 

Because all dispositive issues are settled in law, we issue this memorandum opinion. 

TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment. 

 

1

 Justice David Schenck succeeds Justice Michael O’Neill, a member of the original panel. Justice Schenck has reviewed the briefs and record in 

this case. See TEX. R. APP. P. 41(a). 

2

 The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment. 
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I. FACTUAL AND PROCEDURAL BACKGROUND 

On November 2, 2010, Allan was arrested for driving while intoxicated (DWI). Due to 

Allan’s prior conviction for DWI, the case was filed as driving while intoxicated, second offense. 

On Thursday, August 1, 2013, the trial judge conducted a pretrial arraignment and reminded the 

parties that the case was set for a jury trial the following Monday. Allan’s counsel of record was 

not present, but he sent another attorney in his place. The State informed the court that it had a 

new plea bargain offer. The trial court told the parties that it would accept a plea “right now,” 

but otherwise, the case would be going to trial on Monday. The trial court noted that the trial 

had been reset many times and the trial on Monday was specially set. The trial court then gave 

the State time to convey the new offer to Allan and his substitute counsel. After a brief recess, 

the State announced that the parties would be proceeding to trial. 

 The case proceeded to jury trial on August 5, 2013, and the jury returned a verdict of 

guilty. Following the verdict, the parties reached an agreed punishment of 45 days in jail. 

However, the trial court sent Allan for a drug test, and rejected the agreed punishment after he 

tested positive for opiates and amphetamines. The trial court sentenced Allan to 365 days in 

county jail, probated for 18 months, and assessed a fine of $1,000. 

 On September 5, 2013, Allan filed a notice of appeal and a motion for new trial. The trial 

court denied Allan’s motion for new trial on September 9, 2013. This appeal followed. 

II. DISCUSSION 

A. Motion For New Trial Hearing 

Allan first complains that the trial court erred by failing to conduct a hearing on his 

motion for new trial. The State responds the trial court did not abuse its discretion because Allan 

failed to properly present his request for a hearing. 
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Standard of Review and Applicable Law

We review a trial court’s denial of a hearing on a motion for new trial for an abuse of 

discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). A trial court abuses its 

discretion when the ruling “was so clearly wrong as to lie outside that zone within which 

reasonable persons might disagree.” Id. 

A defendant does not have an absolute right to a hearing on his motion for new trial. 

Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). Instead, he is entitled to a hearing 

when he (1) raises matters which are not determinable from the record, and (2) establishes 

reasonable grounds showing that he could potentially be entitled to relief. Id. “In addition to 

timely filing the motion with supporting affidavits that demonstrate reasonable grounds for 

believing that some error has occurred, the defendant must present the motion to the trial court.” 

Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). Presentment of a motion for new 

trial requires a defendant to do more than simply file the motion for new trial with the court 

clerk. Bearnth v. State, 361 S.W.3d 135, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). 

To present a motion, the defendant must give the trial court actual notice that he timely filed a 

motion for new trial and requests a hearing on the motion for new trial. See id.; see also 

Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). 

Application of Law to Facts 

On September 5, 2013, Allan filed a motion for new trial. The motion contained a 

paragraph entitled “Certificate of Presentment,” stating that a copy of the motion had been handdelivered to the trial court. Attached to the motion was a sworn affidavit from Allan detailing his 

reasons for believing he received ineffective assistance of trial counsel. Also attached was a fiat 

containing blank spaces for the date on which the motion was filed, whether the moving party 
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was entitled to a hearing, the date of any such hearing, and the signature of the presiding judge. 

On September 9, 2013, the trial court denied Allan’s motion for new trial without a hearing. 

The record does not indicate whether the motion for new trial was, in fact, hand-delivered 

to the trial judge. We assume the trial judge had actual notice of the motion because the trial 

judge denied the motion four days after it was filed. However, Allan was required to put the trial 

judge on actual notice that he desired the judge to hold a hearing on his motion for new trial. 

Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). “‛Presentment’ must be 

apparent from the record, and it may be shown by such proof as the judge’s signature or notation 

on the motion or proposed order, or an entry on the docket sheet showing presentment or setting 

a hearing date.” Id. In this case, there are no handwritten notations on the motion, none of the 

blanks on the fiat have been filled in, and there are no entries on the docket sheet showing 

presentment or a scheduled hearing date. See id. The record contains no evidence that Allan or 

his attorney took steps to obtain a setting, or attempted to get a ruling on a request for a hearing. 

See Perez v. State, 429 S.W.3d 639, 644 (Tex. Crim. App. 2014). 

Based on this record, we conclude that Allan failed to put the trial court on notice that he 

desired a hearing on his motion for new trial. See Gardner, 306 S.W.3d at 305. We overrule 

Allan’s first issue. 

B. Ineffective Assistance Of Counsel 

Allan next contends he was denied effective assistance of counsel because his trial 

counsel failed to timely communicate the State’s plea bargain offer to him. Allan argues that 

because his trial counsel did not timely communicate the plea offer to him, he was “forced to go 

to trial when he wanted to resolve his case more favorably with a plea bargain.” In response, the 

State argues the record is inadequate to support Allan’s contention. 
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Standard of Review and Applicable Law

 To prevail on a claim of ineffective assistance of counsel, an appellant must meet the 

two-pronged test established by the United States Supreme Court in Strickland v. Washington, 

466 U.S. 668 (1984), and adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53 

(Tex. Crim. App. 1986). Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Allan 

must show that (1) trial counsel’s representation fell below an objective standard of 

reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability 

that the result of the proceeding would have been different but for trial counsel’s deficient 

performance. Strickland, 466 U.S. at 688–92; Villa v. State, 417 S.W.3d 455, 462–63 (Tex. 

Crim. App. 2013). Allan bears the burden of proving his claims by a preponderance of the 

evidence. Lopez, 343 S.W.3d at 142. It is not enough to merely show, through the benefit of 

hindsight, that trial counsel’s actions were questionable. Id. at 142–43. 

 Review of counsel’s representation is highly deferential, and we indulge a strong 

presumption that counsel’s conduct fell within a wide range of reasonable representation. Villa, 

417 S.W.3d at 463; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). In order for 

an appellate court to find that counsel was ineffective, counsel’s alleged deficiency must be 

affirmatively demonstrated in the record. Lopez, 343 S.W.3d at 142; Brennan v. State, 334 

S.W.3d 64, 71 (Tex. App.—Dallas 2009, no pet.). The defendant must produce record evidence 

sufficient to overcome the presumption that, under the circumstances, the challenged action was 

sound trial strategy. Strickland, 466 U.S. at 689; Villa, 417 S.W.3d at 463. 

Application of Law to Facts 

Allan argues that his trial counsel was ineffective because he failed to timely 

communicate the State’s plea offer to him. According to the record, the State told the trial court 

that it had e-mailed a new plea offer to Allan’s actual trial counsel the morning of August 1, 
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2013. The record also indicates that Allan learned of the plea offer the same day, during the 

pretrial arraignment hearing. Relying on contentions raised in his affidavit attached to his 

motion for new trial, Allan contends, among other things, that his substitute counsel informed 

him of the State’s offer and told him to consult with his actual trial counsel, but Allan was not 

given time to consult with his actual trial counsel before being required to make a decision 

whether to go to trial on Monday. However, Allan’s affidavit is not evidence. Because the 

affidavit was not introduced as evidence at a hearing on Allan’s motion for new trial, it is merely 

“a pleading that authorizes the introduction of supporting evidence,” and is not evidence itself. 

Burrus v. State, 266 S.W.3d 107, 112 (Tex. App.—Fort Worth 2008, no pet.) (quoting Jackson v. 

State, 139 S.W.3d 7, 20 (Tex. App.—Fort Worth 2004, pet. ref’d); see also Rouse v. State, 300 

S.W.3d 754, 762 (Tex. Crim. App. 2009) (“[P]ost-trial motions such as these are not self-proving 

and any allegations made in support of them by way of affidavit or otherwise must be offered 

into evidence at a hearing.”). Therefore, to the extent Allan relies on the affidavit attached to his 

motion as evidence supporting his ineffective assistance claim, the affidavit is not evidence. Id. 

The record is otherwise silent with respect to the nature of the discussions between Allan and 

substitute counsel. And we are unable to determine from the record whether Allan attempted to 

contact his actual trial counsel during the recess. In his appellate brief, Allan concedes that 

without a hearing on his motion for new trial, it is difficult to determine from the record any of 

the facts surrounding the plea offer. 

 Allan also argues that if his trial counsel had timely conveyed the plea offer, the case 

could have been resolved without a trial. Again relying on contentions raised in his affidavit 

attached to his motion for new trial, Allan contends that “there seems to be a reasonable 

probability that Appellant and the State would have been able to dispose of this case without a 

trial had Appellant’s trial counsel timely conveyed any plea bargain offer.” However, Allan does 
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not point to any evidence in support of this speculation, and does not detail how trial counsel’s 

performance was deficient. According to the record of the pretrial arraignment, the court 

allowed a recess for the State to convey the new plea offer to Allan and his substitute counsel. 

Following the recess, the State informed the trial court that it was ready to proceed with the trial 

on Monday but asked the court’s permission to place the offer into the record. The trial court 

agreed, and the State read the plea offer into the record. The record does not contain any 

statements or objections by Allan or his substitute counsel when the State read the plea offer into 

the record or when the State announced that the parties would proceed to trial. The record also 

reflects that on Monday, the first day of trial, neither party mentioned the plea offer during 

preliminary proceedings outside the presence of the jury. And finally, the record includes 

Allan’s testimony during the punishment phase, stating that he fought this all the way because he 

felt like he was innocent. To show prejudice from ineffective assistance of counsel where a plea 

offer was rejected because of counsel’s deficient performance, appellant must demonstrate a 

reasonable probability that he would have accepted the plea offer had he been afforded effective 

assistance of counsel. See Armstead v. State, No. 05-11-00966-CR, 2013 WL 1281901, at *5 

(Tex. App.—Dallas Mar. 19, 2013, no pet.) (mem. op., not designated for publication) (citing 

Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012)). Allan has not met this burden. 

As discussed above, there was no hearing on the motion for new trial. Consequently, 

there is no record of a hearing at which Allan’s trial counsel was afforded the opportunity to 

explain his actions or trial strategy. When no evidentiary record is developed at a hearing on a 

motion for new trial, it is extremely difficult to show that trial counsel’s performance was 

deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Trial counsel should 

ordinarily be given an opportunity to explain his actions before being denounced as ineffective. 

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). “Generally, a silent record that 
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provides no explanation for counsel’s actions will not overcome the strong presumption of 

reasonable assistance.” Brennan, 334 S.W.3d at 71. 

We cannot speculate beyond the record provided. See id. at 74. Because the record fails 

to demonstrate trial counsel’s alleged ineffectiveness for failing to timely convey the State’s plea 

offer to Allan, we conclude that Allan has not shown that trial counsel’s performance fell below 

an objective standard of reasonableness. See Lopez, 343 S.W.3d at 143. We overrule Allan’s 

second issue. 

III. CONCLUSION 

 Having overruled both of Allan’s issues, we affirm the trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47 

131260F.U05 

 

/Linda Thomas/ 

LINDA THOMAS 

JUSTICE, ASSIGNED 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

NATHANIEL SCOTT ALLAN, Appellant 

No. 05-13-01260-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the County Court at Law 

No. 6, Collin County, Texas 

Trial Court Cause No. 006-84804-2011. 

Opinion delivered by Justice Thomas. 

Justices Fillmore and Schenck participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. 

Judgment entered April 20, 2015.