COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS,

Appellant,

v.

ABRAHAM CONTRERAS,

Appellee.

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No. 08-18-00002-CR

Appeal from the

171st District Court

of El Paso County, Texas

(TC# 20160D06093)

O P I N I O N

In this appeal, the State of Texas contends that the trial court erred by granting Abraham 

Contreras’ motion for a new trial. We reverse the new trial grant and render judgment denying the 

motion for new trial.

BACKGROUND

This is a plea bargain case. On October 4, 2017, Contreras pleaded guilty to one count of 

aggravated sexual assault of a child and two counts of indecency with a child in exchange for a 

nine-year prison sentence and the requirement to register as a sex offender. At the request of 

Contreras’ attorney, the trial court gave Contreras until November 3, 2017 (30 days) to turn himself 

in to begin serving his sentence. On October 20, 2017, the trial court, stating that it believed 

Contreras would abscond, issued a capias and ordered Contreras to surrender himself and begin 
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serving his prison sentence.

On November 2, 2017—twenty-nine days after Contreras was sentenced—Contreras filed 

a motion to substitute his first lawyer for another lawyer. The next day, Contreras’ new counsel 

filed a “Motion to Withdraw Plea and for New Trial.” The motion stated, in relevant part:

II.

Mr. Contreras moves to withdraw his plea and moves for a new trial because 

his plea was the product of ineffective assistance of counsel and was therefore not 

a knowing and voluntary plea. He also moves for a new trial based on newly 

discovered evidence that could have been used in his defense, if his attorney had 

investigated and discovered the evidence. Mr. Contreras pleaded guilty without 

being adequately advised of his options and his rights. He did not have effective 

assistance of counsel to investigate his defense. He pleaded guilty based on the fear 

that, without anyone advocating for him, he could face more time in jail, 

notwithstanding his innocence.

III.

Mr. Contreras is in his sixties has never been arrested before in his life. He 

was charged with sexual assault of and indecency with a child, with a complete 

absence of physical evidence or third-party witnesses. His defense counsel did not 

investigate the substantial basis for the alleged victim and her mother to invent the 

charges against him. If Mr. Contreras had had effective representation, he would 

not have entered the guilty plea.

IV.

Mr. Contreras requests a hearing before this Court where he will present the 

newly discovered evidence and further present the details of the ineffective 

assistance of counsel. [FN 1] Counsel is not able at this point in time to be precise 

about which evidence is newly discovered evidence, because she was not able to 

get access to the discovery in this case. The portal is closed to her, because the case 

is closed. Further, prior defense counsel never printed or even downloaded the 

evidence in this case, so that is not available to the undersigned.

V.

This Court has discretion to grant a new trial in the interest of justice.

Taylor v. State, 163 S.W.3d 277, 282 (Tex.App.—Austin 2005)(‘For over one 

hundred and thirty years, our trial courts have had the discretion to grant new trials 

in the interest of justice.’)(citing State v. Gonzalez, 855 S.W.2d 692, 694 

(Tex.Crim.App. 1993)). The granting or denying of a motion for a new trial is 

within the sound discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 

(Tex.Crim.App.1995). Mr. Contreras is requesting an opportunity to withdraw his 

plea and have an attorney represent him in this matter who will review the evidence 

and investigate and present his defense. Justice is served allowing Mr. Contreras 
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this opportunity.

[FOONOTE 1]: Mr. Contreras will also file a proffer of evidence in support of his 

request for a hearing.

The trial court held a status conference on November 16, 2017. The State asserts that it 

requested a reporter’s record for this hearing, but no record was taken, and the State characterizes 

this conference as being an “informal status conference.”

On December 8, 2017,1 Contreras filed a “Supplement to Motion for New Trial.” In the 

supplement, Contreras asserted that he was not raising new ground other than those raised in his 

original motion for new trial, but rather that he was supplying the specific evidence referenced in 

the motion for new trial. He attached an affidavit from Private Investigator William Kirkpatrick. 

Kirkpatrick attested that he interviewed three witnesses who had not been previously interviewed.

Two of the witnesses operated businesses within the same shopping center as Contreras, who 

operated a jewelry shop. According to Kirkpatrick, the two witnesses he interviewed were familiar 

with the complaining witness and her mother because the complaining witness’s mother operated 

a retail booth at the shopping center, and the complaining witness was often there with her mother. 

One of Kirkpatrick’s witnesses testified that her shop was right across from Contreras’ 

shop, that she saw the complaining witness come to Contreras’ booth and offer to clean his store, 

that the complaining witness never seemed scared of Contreras, that Contreras seemed more 

annoyed than interested in the complaining witness, and that she never saw Contreras act 

inappropriately toward the complaining witness or go anywhere with Contreras.

The second of Kirkpatrick’s witnesses saw Contreras frequently at the shopping center and 

outside of work as well. That witness never saw Contreras act inappropriately toward the 

 

1 The State correctly notes that this date fell outside the thirty-day window following sentencing during which a trial 

court can entertain a motion for a new trial or an amendment to a motion for new trial that has not yet been ruled 

upon.
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complaining witness, and while he had seen the complaining witness and her mother with 

Contreras, he never saw the complaining witness and Contreras alone together.

Kirkpatrick’s third witness owned a jewelry store on Fort Bliss and had done business with 

Contreras for several years. Contreras would visit the Fort Bliss jewelry store from time to time 

to pick up jewelry to repair, but he always came alone, and the witness never saw anyone with 

Contreras when he would visit.

The Supplement also stated:

Further, there is documentary evidence referred to in the police reports in 

this case that was either never obtained or never disclosed by the State or the 

Defense. Specifically, police reports in this case refer to CPS reports that conflict 

with UBH records. There is no detail in the State’s file as to why the complaining 

witness was at UBH, but clearly this could be exculpatory information. There is 

also reference to medical visits by the complaining witness. There is no detail in 

the police reports regarding this information, which would clearly be relevant. The 

undersigned has requested all of this information from the District Attorney. Once 

a hearing date is set for the Motion for New Trial, Defendant will subpoena said 

information.

On December 15, 2017, the trial court held a nonevidentiary hearing regarding the motion 

for a new trial. A transcript of this hearing appears in the record. The trial court asked the State 

and counsel for the defense if they had been able to reach an agreement regarding the new trial 

motion. The prosecutor at the hearing informed the trial court that the parties had not reached an 

agreement. Counsel for Contreras reiterated the motion for new trial arguments, including the 

arguments that there were apparently conflicting accounts given by the complaining witness.

Counsel for Contreras then proposed that the trial court grant—without a hearing—the motion for 

new trial in the interest of justice so that the evidentiary record could be further developed in order 

to get past the 75-day ruling deadline and then allow the State to file a motion to reconsider, at 

which time the trial court could have a hearing and decide whether there had been an adequate 

basis to grant the new trial in the first place. The prosecutor stated that the State did not agree and 
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opposed a new trial. After hearing both sides, the trial court made the following comments on the 

record:

THE COURT: Now, see, this is the issue that we have, is the 75 days. If there – I 

guess, can I have an agreement from the State, that if I sign this as Ms. Stillinger 

says, it gets out of the box of the 75 day limit, and if you want to file a motion to 

reconsider, or whatever motion you want to file, I will entertain that?

I’ll just sign this right now so we don’t have to rule about the 75 days. I 

don’t want you go up to the Court of Appeals, after I have signed this, because I’m 

just – at this point, I don’t mind getting on the record saying that I’m just doing so, 

so there is no 75 day issue, and that we’ll have a full blown hearing, if indeed, that’s 

what the State wants. I’m telling you, on the record, I’ll give you a hearing on a 

motion to reconsider.

The prosecutor again opposed the grant of a new trial. 

The trial court ultimately granted the motion for a new trial. The trial court’s order stated, 

in relevant part: “Although the Court is not reaching the issue of ineffective assistance and 

therefore does not find ineffective assistance of counsel, the Court finds that a new trial should be 

granted in the interest of justice.”

This State’s appeal followed.

DISCUSSION

Standard of Review and Applicable Law

We review a trial judge's decision to grant a motion for new trial for an abuse of discretion.

State v. Herndon, 215 S.W.3d 901, 907 (Tex.Crim.App. 2007). That discretion, however, is not 

unbounded or unfettered. State v. Zalman, 400 S.W.3d 590, 593 (Tex.Crim.App. 2013). A judge 

is permitted to grant or deny a motion for new trial “in the interest of justice,” but justice means in 

accordance with the law. Herndon, 215 S.W.3d at 907. A judge may not grant a new trial on mere 

sympathy, an inarticulate hunch, or simply because he believes the defendant received a raw deal 

or is innocent. Id. A trial court must grant a new trial for the reasons listed in TEX.R.APP.P. 21.3, 

and it may grant a new trial on other valid legal grounds as well. Herndon, 215 S.W.3d at 907.
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As the Court of Criminal Appeals explained in Herndon, there is generally no abuse of discretion 

in a new trial grant on non-enumerated grounds if the defendant: (1) articulated a valid legal claim 

in his motion for new trial; (2) produced evidence or pointed to evidence in the trial record that 

substantiated his legal claim; and (3) showed prejudice to his substantial rights under the harmless 

error standards of the Texas Rules of Appellate Procedure. Id. at 909. The defendant need not 

establish reversible error as a matter of law before the trial court may exercise its discretion in 

granting a motion for new trial. Id. On the other hand, trial courts do not have the discretion to 

grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that 

the flaws adversely affected his substantial rights to a fair trial. Id.

A defendant’s motion for new trial must be filed no later than thirty days after the date 

when the trial court imposes or suspends sentence in open court. TEX.R.APP.P. 21.4(a). A motion 

is a prerequisite for the trial court to grant a new trial; the court may not do so on its own motion.

State v. Aguilera, 165 S.W.3d 695, 698 n.9 (Tex.Crim.App. 2005). A trial court may not order a 

new trial on a ground for relief not alleged in the motion for new trial, even if it is supported by 

the evidence. State v. Frias, 511 S.W.3d 797, 808 (Tex.App.—El Paso 2016, pet. ref'd). Should 

the trial court refuse to limit its ruling to the original motion and grant relief on the basis of the 

amendment over the State's objection, the appellate court should consider only the validity of the 

original and any timely amended motion for new trial, and should reverse any ruling granting a 

new trial based upon matters raised for the first time in an untimely amendment. Id. The accused 

is required to allege sufficient grounds to apprise the trial court and the State as to why he believes 

he is entitled to a new trial. Zalman, 400 S.W.3d at 594 (explaining that the motion must contain 

enough detail to give the other party notice of what is being complained of so that it can properly 

prepare for the hearing); State v. Gonzalez, 855 S.W.2d 692, 694–95 (Tex.Crim.App. 1993). The 
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general rule is that a trial court's ruling will be upheld if it is correct on any applicable legal theory

presented in the motion for a new trial, even if the court articulated an invalid basis for granting a 

new trial. See Herndon, 215 S.W.3d at 905 n.4. This is the “right ruling, wrong reason” doctrine.

Id.

Interest of Justice Grounds

The bulk of Contreras’ new trial motion presented an ineffective assistance of counsel 

claim against his previous trial counsel. Although we should uphold a new trial grant where a trial 

court relies on the wrong ground in its order but another ground presented in the motion would 

support the grant, Herndon, 215 S.W.3d at 905 n.4, here the trial court explicitly stated that it was 

not relying on ineffective assistance of counsel grounds in granting a new trial. As such, we must 

discount those disavowed grounds as a basis for the grant and turn instead to the remaining grounds 

upon which the trial court’s ruling could have rested. The only remaining ground timely raised in 

the motion for new trial is an interest-of-justice ground.

Based on our review of the record and the trial court’s stated reasons for granting the new 

trial, it appears that the trial court granted this motion for new trial on interest-of-justice grounds 

in an effort to get past the 75-day deadline before the motion would be overruled by operation of 

law. The trial court explained that it would grant the motion and thereby provide Contreras with 

more time to obtain evidence, and if Contreras failed to provide evidence in support of his claim, 

the trial court would rescind the new trial grant and reinstate Contreras’ conviction. 

We do not believe a trial court has the discretion to grant a new trial for the purpose of 

allowing a defendant time to gather evidence that was not presented in a timely-filed motion for 

new trial. The standard is clear: a defendant who files a motion for a new trial must offer valid 

grounds and evidence in support of those grounds in the motion within thirty days of conviction 
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in open court. See TEX.R.APP.P. 21.4(a); cf. Mercier v. State, 96 S.W.3d 560, 562 (Tex.App.—

Fort Worth 2002, no pet.)(evidence attached to an amended motion for new trial filed outside the 

thirty-day filing period could not be considered). Further, a motion for new trial can only be 

granted as a matter of discretion if it is supported by sufficient evidence.

Given the compressed timelines involved in resolving a motion for a new trial, claims 

requiring the development of more evidence are often more appropriate for resolution in habeas 

proceedings. However, based on the record before us, we do not believe the trial court could have 

granted a new trial under the circumstances.

The State’s sole issue is sustained.

CONCLUSION

The judgment of the trial court is reversed. We render judgment denying the motion for 

new trial.

October 31, 2019

YVONNE T. RODRIGUEZ, Justice

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

(Do Not Publish)