### MEMORANDUM OPINION
N o. 04

- 09

- 00507

- CR Kenneth Lamont SIMMONS , Appellant

v. The STATE of Texas, Appellee From the 198th Judicial District Court , Kerr County, Texas Trial Court No. B08

- 588 Honorable Emil Karl Prohl , Judge Pr esiding Opinion by: Rebecca Simmons, Justice Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebecca S immons , Justice Delivered and Filed: July 21 , 2010
AFFIRMED After entering of a plea of guilty and being sentenced for felony f ailure to appear, Appellant Kenneth Lamont Simmons requested the appointment of appellate counsel and an evidentiary hearing on his motion for new trial. The trial court appointed appellate counsel, but did not conduct an evidentiary hearing. On appeal, Simmons claims the trial court’s refusal to conduct a hearing on his pro se motion for new trial, during the critical thirty

- day period after his sentencing, violated his due process rights. We affirm the judgment of the trial court.04

- 09

- 00507

- CR

- 2

- F ACTUAL B ACKGROUND On July 10, 2009, pursuant to the terms of a negotiated plea agreement, Simmons entered a plea of guilty to felony failure to appear and was sentenced to two years confinement and assessed a fine in the amount of $1,500.00. 1 Shortly thereafter, on July 17, 2009, Simmons wrote two letters to the trial court requesting the court vacate its judgment. 2 In his first letter, Simmons reiterated a claim he raised at trial, namely that the plea agreement read at trial “was not in line with the original plea arrangem ent,” and had been “altered after I signed and sworn [sic] to it” and “I was not advised [of the changes] by my attorney.” The letter, however, did not explain precisely how the plea papers were altered. In his second letter to the trial court, Simmons r equested the trial court vacate its judgment based on an affirmative defense, namely that he was incarcerated on the date he allegedly failed to appear. 3

On July 31, 2009, Simmons wrote another letter to the trial court, in which he referenced his previous correspondence and restated his desire to appeal. In his third lette r, Simmons pleaded “for consideration of new evidence, appointment of [appellate] counsel, [and] Simmons attached three documents to support his incarceration claim: (1) a letter addressed to Simmon s at the Kerr County Jail, dated August 15, 2008, from Richard Langlois, a San Antonio attorney representing him in a pending Bexar County case; (2) a copy of the instant indictment, which stated the offense occurred “on or about the 2nd day of September, 2008;” and (3) a copy of the original judgment of conviction in the instant c ase.

1 As part of the negotiated plea, the State dismissed a pending charge of unaut horized use of a motor vehicle. 2 The tri al court filed both of Simmons’ letters on July 22, 2009. 3 Incarceration is an affirmative defense to a failure to appear charge. T EX
. P ENAL C ODE A NN
. § 38.10( C ) (Vernon 2003). Simmons , however, did not raise this affirmative defense at any time prior to writing his second letter.04

- 09

- 00507

- CR

- 3

- permission for appeal on the FTA charge.” 4

Simmons’ trial counsel filed a notice of appeal on August 6, 2009 and subsequently withdr e w based on an alleged conflict of interest and Simmons’ allegations that he “disregarded evidence and dismissed [Simmons’] wishes and concerns on several occasions.” On August 24, 2009, the trial court appointed Simmons new a ppellate counsel and granted Simmons permission to appeal this case on October 29, 2009. None of Simmons’ letters were supported by affidavits.

M OTION FOR A N EW T RIAL H EARING In his sole issue on appeal, Simmons argues this case should be abated and remanded to the trial court for a hearing on his pro se mot ion for new trial. A. Standard of Review An appellate court review s the trial court’s denial of a hearing on a motion for new trial for an abuse of discretion. Webb v. State , 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Wallace
v. State , 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). “We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. We must view the evidence in the light mo st favorable to the trial court’ s rul ing and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party.” Charles v. State , 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). We will reverse only when the trial court’s decisi on lies outside the zone within which reasonable persons might disagree. See Webb , 232 S.W.3d at 112; Charles , 146 S.W.3d at 208; State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

4 Simmons’ third letter was dated July 31, 2009, but was filed by the trial court on August 12, 2009

.04

- 09

- 00507

- CR

- 4

- B. Hybrid Representation It is well

- settled in Texas jurisprudence that a defendant has no right to hybrid representation. See Robinson v. State , 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Bledsoe v.
State , 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (“[I]n the State of Texas, Appellants are not entitled to ‘hybrid’ or ‘ dual’ representation.”); Dunn v. State , 819 S.W.2d 510, 525 (Tex. Crim. App. 1991) (holding a defendant is not “constitutionally entitled to any form of hybrid representation”). “Hybrid representation” is defined as representation partly by counsel and
pa rtly by the defendant himself. Robinson , 240 S.W.3d at 922. As noted by the Court of Criminal Appeals in Robinson v. State, when a criminal defendant is represented by counsel, a trial court has no legal duty to consider and rule on his pro se motion. I d ; In re Molina , 94 S.W.3d 885, 886 (Tex. App.

— San Antonio 2003 , no pet.) (per curiam) (holding defendant must establish that the trial court had a legal duty to perform a non

- discretionary act in order to show an abuse of discretion); In re Velazquez , No. 04

- 09

- 00797

- CR, 2010 WL 26335, at *1 (Tex. App.

— San Antonio January 6, 2010, no pet.) (mem. op.) (“A trial court has no legal duty to rule
on a pro se motion with regard to a criminal proceeding in which the defendant is represented by counsel.”). There i s no evidence in the record that Simmons was without counsel during the critical thirty

- day filing period for his motion for new trial. See T EX
. R. A PP
. P. 21.4( a). Indeed, Simmons was represented by counsel at the time he drafted his pro se motions to t he trial judge. 5

5 Simmons concedes he was still represented by trial counsel at the time he wrote the letters to the trial court re questing a new trial. Simmons , however, claims this was merely a pro forma representation, “as there was an obvious rift between [Simmons] and [his] trial counsel.” Therefore, Simmons alleges his requests were pro s e, without the involvement of trial counsel. Specifically, the record reflects Simmons’ trial counsel was appointed on August 15, 2008 and was not discharged from Simmons’ case until August 24, 2009.04

- 09

- 00507

- CR

- 5

- Although Simmons’ letters may have suggested he was dissatisfied with his court

a ppointed trial attorney, Simmons’ letters are not evidence that his counsel had abandoned him or failed to explain his appellate options. See Burnett v. State , 959 S.W.2d 652, 660 (Tex. App.

— Houston [1st Dist.] 1997, pet. ref’d). In fact, in addition to representing Simmons during the preliminary trial matters, the trial counsel acted on Simmons’ behalf to file notice of appeal with the court on August 6, 2009. Because Simmons was represented by counsel at the time he filed his pro se motion for new tria l, we cannot say the trial court had a legal duty to consider or rule on the motion. See Robinson , 240 S.W.3d at 922. C. Evidentiary Hearing Regardless of whether the trial court considered hybrid representation, a defendant’s right to an evidentiary hearin g is not absolute. Lempar v. State , 191 S.W.3d 230, 234 (Tex. App.

— San Antonio 2005, pet. ref’d). Instead, an evidentiary hearing on a defendant’s motion for new trial is necessary only when the motion is supported by affidavits and raises matters not de terminable from the record. 6

6 Reyes v. State , 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). This is designed to curb the limitless “fishing expeditions” that the absolute right to a hearing would create. Musgrove v. State , 986 S.W.2d 73 8, 739 (Tex. Ap p.

— San Antonio 1999, pet. ref’d ) (“The policy underlying this pleading requirement is to prevent ‘fishing expeditions.’”). If a defendant’s motion for new trial is based upon facts outside the record and the defendant fails to provide supporting affidavits, the motion is insufficient as a pleading. Bearden v. State , 648 S.W.2d 688, 690 (Tex. Crim . App. 1983) (recognizing an unverified motion for new trial, which is based on matters outside the record, is insufficient as a pleading); Klapesky v. State , 256 S.W.3d 442, 454 (Tex. App.

— Austin 2008, pet. ref’d) (“A motion for new trial alleging facts o utside the record without supporting affidavits is not a proper pleading and is defective; [therefore,] a trial court does not err in refusing to grant a hearing on such a motion.”).04

- 09

- 00507

- CR

- 6

- N one of Simmons’ letters were supported by affidavits

— despite alleging facts outside the scope of the record. See Reyes , 849 S.W.2d at 816

. For example, in his first letter, Simmons broadly asserts his attorney did not advise him on the allegedly altered plea bargain agreement. Simmons, however, did not furnish an oath or affidavit to support his assertion. Likewise, Simmons raised the issue of his incarceration for the first time in his second letter, but neglected to attach a sworn statement or supporting affidavit. 7

C ONCLUSION As such, Simmons’ unsupported motions were fatally d efective and did not warrant an evidentiary hearing

. See Bearden , 684 S.W.2d at 690; Klapesky , 256 S.W.3d at 454. After reviewing the record, we cannot say the trial court below abused its discretion in refusing to hold an evidentiary hearing on Simmons’ motion. See Wallace , 106 S.W.3d at 108; Klapesky , 256 S.W.3d at 454.

Because Simmons was represented by counsel at the time he sent letters requesting a new trial , and the letters were not supported by sworn affidavits, we cannot say the tri al court abused its discretion in denying Simmons’ motion for new trial. Accordingly, the judgment of the trial court is affirmed.

Rebecca Simmons, Justice
DO NOT PUBLISH

7 Simmons’ third letter was filed after the thirty

- day filing deadline for a motion for new trial and was therefore un timely. See Tex

. R. A PP
. P. 21.4( a). Nevertheless, Simmons’ third letter is unverified and unsupported; it therefore suffers from the same fatal defects as his first and second letters.