COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JESUS SOLIS,

Appellant,

v.

THE STATE OF TEXAS,

Appellee. §

§

§

§

§

§ No. 08

- 17

- 00007

- CR

Appeal from

120 th District Court

of El Paso County, Texas

(TC # 20130D02293 )

O P I N I O N

In a three

- count indictment, Appellant was charged with commission of the offenses of

continuous sexual abuse of young children (Count I), sexual assault of a child, S.G. (Count II), and

indecency with a child, S.G (Count III). A jury acquitted Appellant of the offense of continuous

sexual abuse of young children, but convicted him of the offenses of sexual assault of a child and

indecency with a child

. The trial court imposed the jury ’ s sentences of confinement for ten and

seven years, respectively

, and assessed fines of $10,000.00 each for Counts II and III

.

Appellant thereafter filed a motion for new trial claiming he was entitled to a new hearing

base d on newly available exculpatory evidence

. After hearing evidence and argument

, the trial

court denied Appellant ’ s motion

. On appeal, Appellant argues the trial court abused its discretion

in denying his motion for new trial.2 BACKGROUND

Appellant was married to Christina Gonzalez, and was step father to Christina ’ s young

daughters, S.G., J.G., A.G.

, and Alondra

. A fter S.G., J.G., and A.G. made outcries against

Appellant for abusing them sexually, police reports were prepared and Appellant was charged as

alleged in the indictment

.

Count II of the indictment alleged that Appellant i ntentionally and knowingly caused the

penetration of the sexual organ of S.G., a child younger than 17 years of age, by means of

Appellant ’ s sexual organ. Count III alleged that Appellant, with the intent to arouse and gratify

his sexual desire, intentionally or knowingly engaged in sexual contact with S.G., a child younger

than 17 years of age and not Appellant ’ s spouse, by touching any part of S.G. ’ s genitals.

In add ition to other witnesses, sisters S.G., J.G., A.G.

, their mother, grandmother, and aunt

,

and Appellan t and his mother and father testified at trial

. The sisters testified that for several

years they had experienced or witnessed physical and sexual abuse by Appellant at home and

during trips when they were required to travel alone with Appellant in his semi

- truck

. 1 T here was

evidence that the sisters recanted their reports of abuse at the direction of their mother, Christina,

w ho did not believe

, acknowle dge

, or act on the girls ’ reports of sexual abuse in spite of the girls ’

testimony that Christina had actually observed Appellant ’ s sexual abuse

. Christina ’ s daughter

Alondra did not present testimony during trial. Christina ’ s sister, Araceli, testified that she had

seen one of the daughters leave unhappily with a suitcase to travel alone with Appellant in his

semi

- truck

.

Christina denied that her daughters had traveled alone with Appellant

. She asserted that

1 The abuse also occurred on “ family ” trips.3

that her daughters ’ accusations were lies , a nd she had chosen to leave her daughters in the care of

the state after they had been removed from their home , which she continued to share with

Appellant

. Appellant testified and denied that he sexually or physically assault ed the girls and

asserted that he never traveled alone with them.

Motion for New Trial

After he was convicted of committing the offenses against S.G., Appellant filed a motion

seeking a new trial on the basis that “ material and critical exculpatory evidence, heretofore

unavailable to the defense, has been obtained by the defense subsequent to the defendant ’ s

conviction and sentence, ” and argued that the motion should be granted “ in the interest of justice. ”

Appellant asserted that S.G. ’ s older sister, Alondra

, had been present during all events the State

relied on at trial to prove the allegations in the indictment and to prove extraneous offenses of

physical abuse against S.G. and her sisters

, but had refused to cooperate or to testify for Appellant

because she did not want to be involved, and had exhibited a hostile, non

- cooperative attitude

toward Appellant

. He noted that during the period immediately prior to trial, Alondra had been

confined in an out

- of

- state jail on unrelated criminal charges, where she remained until after

Appellant ’ s trial. For these reasons, Appellant claims Alondra was unavailable to testify

favorably in his defense at trial.

Appellant presented Alondra ’ s affidavit in support of his motion for new trial. Appellant

argued that “ [b]ecause of the [s]trong exculpatory nature of the evidence now offered by Alondra

. . . , [the trial court] should grant a new trial in the interest of justice, if not for other reasons. ”

Appellant does not explain how or why Alondra ’ s statements in her affidavit would entitle him to

a new trial.4

Succinctly stated, Alondra ’ s affidavit alleged that Appellant never sexually abused her, and

to her knowledge, Appellant never sexually abused S.G. Alondra noted that neither she nor her

sisters ever traveled alone with Appellant

, and when Alondra traveled on business trips with

Appellant

, Christina was present. Alondra acknowledged that she had made allegations of sexual

abuse against Appellant that were inspired by her sisters ’ comments about sexual abuse but were

not true

. She also denied that Appellant or Christina ever physically abused her. When Alondra

was 13 or 14 years old, S.G. discussed allegations of sexual abuse by Appellant with Alondra while

at their Aunt Araceli ’ s home

. Alondra believed S.G. had made allegations against Appellant “ as

a plan to get him locked up for a long time

, ” and had done so at the suggestion of their aunt who

did not like Appellant and had engaged in many private conversations with S.G. Alondra

acknowledged that she had no street address because she was “ in and out of jail, ” and had refused

to cooperate and did not want to be involved in Appellant ’ s trial

. After Appellant ’ s trial , Alondra

decided to testify for Appellant because she believes that he is innocent of the charges . Alondra

expressed her belief that sisters were encouraged by their aunt, and grandmother and grandfather

to make the accusations

.

Hearing on Motion for New Trial

At Appellant ’ s hearing on the motion for new trial, Alondra testified that she had bonded

out of jail on November 1, 2016

, the day following Appellant ’ s sentencing. 2 She declared that

Appellant had never sexually abuse her

, and stated that she knew Appellant did not abuse her

sisters because she “ was there in the house the whole time

. ” Alondra had not testified on behalf

of Appellant during his trial because she loves her family

, and felt her sisters ’ allegation s were

2 The guilt

- innocence phase of Appellant ’ s trial concluded on October 27, 2016, and the punishment phase concluded

on October 31, 2016.5

extreme

. She did not want to be a part of the trial or to be required to choose sides

. For th ese

reason s

, Alondra had refused to cooperate with “ the defense ” at trial.

Alondra ’ s testimony essentially mirrored that of her affidavit

. However, w hen asked why

S.G. would have fabricated her allegations of sexual abuse

, Alondra replied that she did not know.

Alondra suggested , however, that S.G. had been mad that Appellant could not afford to take her

to California to participate in acting classes, and noted that S.G. had made recordings of herself

singing and had posted them on YouTube . Alondra explained that S.G. was “ really, like, big with

her little fan people that she had[,] ” and that an agent who was going to attempt to book S.G. on a

few shows. When this did not occur, S.G. would cry and tell Appellant, “ You don ’ t care about

my dreams. ”

On cross

- examination, Alondra acknowledged that after Appellant had been charged and

child protective services had opened its case

, she had also accused Appellant of sexually abusing

her . She claimed that the stories her sisters told were planned before they were interviewed

, and

said that some accusations were retracted

. Alondra acknowledged that she did not remember

whether this was before or after she went to live with her grandfather, because she had moved out

of the city and had run away, and she didn ’ t want to say anything because she “ wasn ’ t really there

the whole time that all this happened

. ” Alondra again admitted that she had made several

allegations of sexual abuse against Appellant and but had recanted those allegations

. She

admitted that she wa s close to Appellant ’ s mother , Mrs. Solis, but later indicated that she had only

recently begun speaking with Mrs. Solis and denied that she had received financial support from

her.

At the close of the hearing, the trial court determined that Alondra ’ s testimony was no6

different than the testimony heard at trial because there was testimony about accusations and

recantations . The trial court also noted that there was nothing that Alondra ’ s testimony would

have added other than her assertion that the sexual abuse did not occur

, and hers would simply be

another voice, along with th e testimony of Appellant and Christina

, that the sexual abuse did not

occur. After noting that the jury did not convict Appellant of all of the charges brought against

him and had weighed the evidence and the credibility of the witnesses

, the trial court concluded

that Alondra ’ s testimony did not form the basis for granting a new trial and denied the motion.

DISCUSSION

Preservation

In a single issue, Appellant argues the trial court abused its discretion in denying his motion

for new trial. We first address Appellant ’ s assertion that the State should have provided him

notice that Alondra had recanted her sexual abuse allegations

. To preserve a complaint for review

on appeal, the record must show that the complaint was made to the trial court by a timely request,

objection, or motion and the trial court ruled thereon, or refused to rule thereon and the

complaining party objected to the trial court ’ s refusal to rule. T EX .R.A PP .P. 33.1(a). Appellant

did not raise his notice complaint in his motion for new trial or during the hearing on his motion

.

Therefore, this complaint is not preserved for our consideration

. 3

Relevant Law and Standard of Review

An accused shall be granted a new trial where material evidence favorable to the accused

has been discovered since trial. T EX .C ODE C RIM .P ROC .A NN

. art. 40.001

. An accused seeking a

new trial must satisfy a four

- part test establishing that: (1) the newly discovered evidence was

3 We additionally note that Appellant does not direct us to cases

, statutes

, or rules

, nor advances any argument in

support of this assertion. See T EX .R.A PP .P. 38.1(i).7

unknown or unavailable to the movant at the time of his trial; (2) the movant ’ s failure to discover

or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and

is not merely cumulative, corroborative, collateral, or impeaching; and, (4) the new evidence is

probably true and will probably bring about a different result i n another trial. Keeter v. State

, 74

S.W.3d 31, 36

- 37 (Tex.Crim.App. 2002)

.

We review a trial court ’ s denial of a motion for new trial for an abuse of discretion and

reverse the trial court ’ s denial only if no reasonable view of the record could support the trial

court ’ s ruling

. Burch v. State

, 541 S.W.3d 816, 820 (Tex.Crim.App. 2017) ; State v. Gutierrez

,

541 S.W.3d 91, 98 (Tex.Crim.App. 2017)

. This deferential standard requires that we view the

evidence in the light most favorable to the trial court ’ s ruling. Burch

, 541 S.W.3d at 820. In

making our determination, we must not substitute our judgment for that of the trial court, and we

must uphold the trial court ’ s ruling if it is within the zone of reasonable disagreement. Id. When

there are two reasonable views of the evidence, the trial court ’ s ruling falls within the zone of

reasonable disagreement. Id.

The credibility of the witnesses presented in a motion for new trial and the probable truth

of the new evidence are matters to be determined by the trial court. See Etter v. State, 679 S.W.2d

511, 515 (Tex.Crim.App. 1984). Should it appear to the trial court that, under the circumstances

of the case, the weight or credibility of the new evidence is not such that it would probably bring

about a different result in a new trial, it is within the discretion of the trial court to deny the motion.

Jones v. State, 711 S.W.2d 35, 37 (Tex.Crim.App. 1986).

When the court does not issue findings of fact, we imply the findings necessary to support

the ruling if they are reasonable and supported by the record. Gutierrez

, 541 S.W.3d at 98

, citing8

Johnson v. State

, 169 S.W.3d 223, 239 (Tex. Crim App. 2005). A ppellant ’ s failure to establish

any of the essential requirements for granting a new trial warra nts the trial court ’ s refusal to grant

one. Collins v. State

, 548 S.W.2d 368, 380 (Tex.Crim.App. 1976)

.

Analysis

The record shows that multiple individuals had contact with Alondra or knew her

whereabouts prior to trial. At the outset of trial, Appellant ’ s counsel acknowledged to the trial

court that he knew that Alondra was in custody in New Mexico. Christina test ified that she had

a good relationship and had recently spoken with Alondra

, and she lamented that Alondra was not

present at trial to testify and tell jurors “ the truth. ” According to Christina, Alondra had asked for

Christina ’ s forgiveness “ for everything [Alondra had] said. ”

Appellant ’ s mother

, Graciela Solis , first testified that she had not been helping Alondra

financially, but later acknowledged that she had put some money in Alondra ’ s account about one

month or so before trial. Mrs. Solis urged that sh e had not paid Alondra money to testify, to not

testify, or “ in exchange [of] anything, ” and declared that Alondra wanted to testify . Mrs. Solis

wished that Alondra had been able to testify. In his motion for new trial, Appellant assert ed that

Alondra had refused to cooperate or testify

, and did not want to be involved in the proceedings,

but acknowledged an awareness that she was confined in New Mexico prior to trial

. At the

hearing on the motion for new trial, Appellant ’ s counsel informed the trial court that he did not

have Alondra ’ s st reet address but had learned that she was confined in New Mexico before trial

and suggested to the trial court that securing her presence by “ out

- of

- state writ ” before trial would

have taken u p to a year

. 4 During the hearing, Alondra acknowledged that Defense counsel had

4 In his motion for new trial and at the hearing on the motion, Appellant did not address A rticles 24.28 or 24.29, by

which Texas adopted, respectively, the Uniform Act to Secure the Attendance of Witnesses from Without the State in9

seen her several times but had not spoken to her. T here is some evidence that Appellant or defense

counsel or other witnesses had knowledge of what Alondra ’ s testimony would be

, that it would

have been favorable to Appellant , and that they knew this , along with her whereabouts, prior to

trial

. Consequently, Appellant has not satisfied the first

- prong requirement of establishing that

Alondra ’ s testimony was newly discovered evidence that was unknown to him at the time of his

trial. Keeter

, 74 S.W.3d at 36

- 37.

Moreover, the record supports a finding that Appellant did not exercise reasonable

diligence in attempting to discover or obtain Alondra ’ s favorable testimony

. Id. At trial,

Appellant called as witnesses both his wife Christina, who had recently spoken with Alondra, and

his mother

, who had put money in Alondra ’ s account weeks before trial

. Through the testimonies

of these witnesses, there were indications that Alondra was cooperative and that her testimony

about “ the truth ” would have favored Appellant ’ s defense. As we have noted, the law provides

mechanisms for securing the attendance of witnesses who are either out of state or are confined

.

See T EX .C ODE C RIM .P ROC .A NN

. arts. 24.28 and 24.29. The record does not reflect that Appellant

sought a continuance

, the issuance of a subpoena or writ

, or that he otherwise attempted to secure

Alondra ’ s attendance as a witness. On this record, Appellant failed to establish the second prong

for securing a new trial because he could have discovered or obtained Alondra ’ s testimony with

the exercise of reasonable diligence but failed to do so. Keeter

, 74 S.W.3d at 36

- 37 ; see also

Acosta v. State

, 285 S.W.2d 764, 765 (Tex.Crim.App. 1955)( Appellant who knew of defense

witness at trial but did not seek continuance to locate and secure attendance of the witness at trial

Criminal Proceedings and the Uniform Act to Secure Rendition of Prisoners in Criminal Proceedings. See T EX .C ODE

C RIM .P ROC .A NN

. arts. 24.28 and 24.29. We do not examine wheth er either provision was or was not available to

Appellant in securing Alondra ’ s testimony at trial.10

failed to show required due diligence necessary for new trial); Markham v. State

, 644 S.W.2d 53,

56 (Tex.App.

-- San Antonio 1982, no pet.) (Appellant did not exercise reasonable diligence to

discover or obtain evidence where two months before trial, witness told Appellant ’ s mother that

he had committed the offense).

A s the trial court noted, Alondra ’ s testimony would have been cumulative and

corroborative of other evidence at trial

. Although Alondra would have testified that Appellant

did not physically or sexually abuse her, did not abuse her sisters, that the sisters did not travel

alone with Appellant, and that when she traveled with Appellant, Christina accompanied her, this

same evidence was presented at trial through Christina and Appellant. Consequently, because

Appellant has not established that Alondra ’ s testimony would have been admissible and not merely

cumulative, corroborative, collateral, or impeaching

, he has failed to establish the third prong

as required

. Keeter

, 74 S.W.3d at 36

- 37 ; see also Wilson v. State

, 633 S.W.2d 952, 958

(Tex.App.

-- El Paso 1982, no pet.) (where testimony of “ new evidence ” witness presented the same

evidence to which Appellant testified at trial, such evidence was cumulative and corroborative).

In order to find evidence “ probably true ” as required by the fourth prong, a trial court must

determine that the whole record presents no good cause to doubt the credibility of the witness

whose testimony constitutes new evidence, either by reason of the facts proven at the trial or by

the controverting affidavits on the motion or otherwise. Henderson v. State, 82 S.W.3d 750, 755

(Tex.App.

- - Corpus Christi 2002, pet. ref ’ d)

, citing Jones v. State

, 711 S.W.2d 35, 37 n.4

(Tex.Crim.App. 1986)

. However

, a finding that new evidence is probably not true can be made

when that evidence contradicts either the mass of reliable testimony at trial or the defendant ’ s own

testimony, or the new testimony is inconsistent or otherwise inherently suspect. Id.

, citing Jones,11

711 S.W.2d at 37 n.4.

Here, not only did Alondra give inconsistent testimony during the hearing, some of that

testimony was also inconsistent with the testimony she presented in her supporting affidavit

.

During the hearing on the motion for new trial, Alondra testified that she had been close to

Mr s

. Solis since they first met when Christina began dating Appellant

, bu t Alondra later denied

receiving any financial assistance from Mrs. Solis and declared that she had only recent ly begun

to speak with Mrs. Solis. Alondra also testified at the hearing that S.G. had falsely accused

Appellant because S.G. was disappointed that he did not assist her in pursuing an acting or musical

career. However, in her affidavit, Alondra said S.G. had been convinced by her aunt to lodge

sexual abuse allegations against Appellant. Th ese inconsistencies were sufficient to show that

Appellant had failed to satisfy the fourth

- prong requirement of establishing that Alondra was a

credible witness

, and that her testimony was probably true and would probably bring about a

different result following another trial. Keeter

, 74 S.W.3d at 36

- 37

. Under the circumstances of

this case, because the weight or credibility of the new evidence is not such that it would probably

bring about a different result in a new trial, it was within the trial court ’ s discretion to deny

Appellant ’ s motion for new trial. See Jones, 711 S.W.2d at 37.

A reasonable view of the record supports the trial court ’ s ruling denying the motion for

new trial

, and the trial court ’ s implici t factual findings are both reasonable and supported in the

record

. For these reasons, and because Appellant failed to establish the four requirements for

obtaining a new trial, the trial court did not abuse its discretion. Appellant ’ s sole issue on appeal

is overruled.12 CONCLUSION

The trial court ’ s judgment is affirmed.

Dec ember 1 9 , 2018

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)