MEMORANDUM OPINION

No. 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 Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: July 21, 2010

AFFIRMED

After entering of a plea of guilty and being sentenced for felony failure 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.
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FACTUAL BACKGROUND

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 arrangement,” 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 requested 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 letter, 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 Simmons 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 case. 

 1 As part of the negotiated plea, the State dismissed a pending charge of unauthorized use of a motor vehicle. 2 The trial court filed both of Simmons’ letters on July 22, 2009. 3 Incarceration is an affirmative defense to a failure to appear charge. TEX. PENAL CODE ANN. § 38.10(C) (Vernon 

2003). Simmons, however, did not raise this affirmative defense at any time prior to writing his second letter. 
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permission for appeal on the FTA charge.”4

Simmons’ trial counsel filed a notice of appeal on August 6, 2009 and subsequently 

withdrew 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 appellate counsel and granted Simmons permission 

to appeal this case on October 29, 2009. 

 None of Simmons’ letters were supported by 

affidavits.

MOTION FOR A NEW TRIAL HEARING

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 motion for new trial. 

A. Standard of Review

An appellate court reviews 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 most favorable to the trial court’s ruling 

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 decision 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.
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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 

partly 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. Id; 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 is no evidence in the record that Simmons was without counsel during the critical 

thirty-day filing period for his motion for new trial. See TEX. R. APP. P. 21.4(a). Indeed, 

Simmons was represented by counsel at the time he drafted his pro se motions to the trial judge.5

 5 Simmons concedes he was still represented by trial counsel at the time he wrote the letters to the trial court 

requesting 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 se,

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. 
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Although Simmons’ letters may have suggested he was dissatisfied with his courtappointed 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 trial, 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 hearing 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 

determinable 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 738, 739 (Tex. 

App.—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 outside 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.”). 
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None 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

CONCLUSION

 As such, Simmons’ unsupported motions 

were fatally defective 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 trial 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 

untimely. See Tex. R. APP. 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.