AFFIRMED and Opinion Filed June 13, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-01561-CR 

THOMAS GEORGE GRISWOLD, III, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 382nd Judicial District Court 

Rockwall County, Texas 

Trial Court Cause No. 2-19-0884 

MEMORANDUM OPINION ON REMAND 

Before Justices Molberg, Goldstein, and Smith 

Opinion by Justice Goldstein 

Thomas George Griswold, III appeals his conviction for the third-degree 

felony offense of stalking. A jury convicted Griswold and sentenced him to ten 

years’ confinement. In three issues, Griswold asserts (1) the evidence is legally 

insufficient to support his conviction, (2) the trial court abused its discretion by 

denying his motion for new trial without conducting an evidentiary hearing, and (3) 

the trial court erred by denying his motion to quash the indictment because the 

stalking statute is unconstitutionally overbroad and vague on its face. 
 –2– 

On original submission, this Court determined that the stalking statute, section 

42.072(a) of the penal code, was unconstitutionally overbroad and vague on its face 

to the extent it incorporates section 42.07(a)(7) and includes the terms “harass, 

annoy, alarm, abuse, torment, embarrass, or offend”; reversed the trial court’s 

judgment; and remanded to the trial court to dismiss the indictment. 

The Texas Court of Criminal Appeals vacated this Court’s judgment and 

remanded this case for further consideration in light of its opinions in Ex parte 

Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), cert denied, 143 S. Ct. 774 

(February 21, 2023), and Ex parte Sanders, 663 S.W.3d 197 (Tex. Crim. App. 2022), 

in which the court of criminal appeals upheld the facial constitutionality of a 

previous version of section 42.07(a)(7). See Acts 2001, 77th Leg., ch. 1222 (S.B. 

139), § 1, eff. Sept. 1, 2001.1

 The Texas Court of Criminal Appeals recognized that 

“[t]he indictment in this case alleged conduct that occurred on or about January 1, 

2007 through April 24, 2018” and “[t]herefore, at least a portion of Appellant’s case 

involves a challenge to the version of section 42.07 that became effective after being 

amended by the legislature in 2017” See Acts 2017, 85th Leg., ch. 522 (S.B. 179), 

1 See also State v Chen, 2022 WL 3641038, Tex. Crim. App., Aug. 24, 2022, withdrawn and superseded 

on rehearing by.Ex parte Chen 665 S.W.3d 448 (Tex. Crim. App. 2022) writ of cert dismissed pursuant to 

Rule 46, February 16, 2023 (143 S. Ct. 649). 
 –3– 

§ 13, 14, eff. Sept. 1, 2017.2

 Griswold v. State, 662 S.W.3d 864–65 (Tex. Crim. 

App. 2022). 

Background 

Griswold was indicted for stalking under section 42.072 of the penal code for 

conduct beginning on or about January 1, 2007 and ending on April 24, 2018. 

Specifically, the indictment alleged that Griswold: 

did then and there on more than one occasion and pursuant to the same 

scheme or course of conduct directed specifically toward [the 

complainant] that [Griswold] knowingly engaged in conduct that 

constituted an offence under section 42.07 and/or conduct that 

[Griswold] knew or reasonably should have known [the complainant] 

would regard as threatening bodily injury for [the complainant] and or 

bodily injury or death, and did cause [the complainant] to be placed in 

fear of bodily injury or death, to-wit: 

The Defendant repeatedly communicated with [the complainant] 

that God had made the two of them one flesh, that she was his wife, and 

made repeated requests for sexual contact with [the complainant]; 

The Defendant repeatedly made public declarations on Facebook 

that God had made the two of them one flesh, that [the complainant] 

was his wife, and made repeated requests for sexual contact with [the 

complainant] 

2

 We note that Section 42.07 was amended three times during the time frames relevant here. Acts 2001, 

77th Leg., ch. 1222, § 1, eff. Sept. 1, 2001; Acts 2013, 83rd Leg., ch. 1278 (H.B. 1606), § 1, eff. Sept. 1, 

2013; Acts 2017, 85th Leg., ch. 522 (S.B. 179), §§ 13, 14, eff. Sept. 1, 2017. For purposes of our opinion 

on remand, the amendments do not require additional analysis of the terms “harass, annoy, alarm, abuse, 

torment, embarrass, or offend.” Barton was charged with harassment, alleged offenses that occurred in 

2012, under the definition of electronic communication analyzed under the 2001 version noting the current 

version is at Texas Penal Code section 42.07(a)(1). Sanders was governed by the 2013 version of the 

electronic harassment statute. The definition of electronic communication was expanded relative to the 

method or medium of transmission in 2017 and the 2013 amendments principally amended the stalking 

statute to incorporate the offense of harassment. The 2001 version defined electronic communication as “a 

communication initiated by electronic mail, instant message, network call or facsimile machine” and “to a 

pager.” Barton, 662 S.W.3d at 878 n.1, 2; see also Sanders, 663 S.W.3d at 201 n.1, 2. Here the expansive 

mode of the transmission raised in Presiding Judge Keller’s dissent are directly at issue, as the indictment 

asserts five specific allegations of repeated communications, public declarations on Facebook, public 

statements, and public threats. The majority opinions in Barton and Sanders focus on the non-speech 

conduct, the act of sending the communication, rather than, or irrespective of, the mode of transmission. 
 –4– 

The Defendant repeatedly made public statements about 

Gamma-Hydroxybutyrate, a common date rape drug; 

The Defendant made public statements that he needed "to kill 

people over" [the complainant]; 

The Defendant made public threats involving killing people, 

specifically anyone that touches [the complainant] and direct threats to 

the complainant’s] boyfriend; 

The indictment continued by alleging Griswold’s conduct caused the complainant 

“to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended” 

and “would cause a reasonable person to feel harassed, annoyed, alarmed, abused, 

tormented, embarrassed, or offended.” 

At the time Griswold was indicted, section 42.072 of the penal code, entitled 

“Stalking” provided: 

 (a) A person commits an offense if the person, on more than 

one occasion and pursuant to the same scheme or course of 

conduct that is directed specifically at another person, knowingly 

engages in conduct that: 

(1) constitutes an offense under Section 42.07, or that the actor 

knows or reasonably should know the other person will 

regard as threatening: 

(A) bodily injury or death for the other person; 

(B) bodily injury or death for a member of the other 

person’s family or household or for an individual with 

whom the other person has a dating relationship; or 

(C) that an offense will be committed against the other 

person’s property; 

 (2) causes the other person . . . to feel harassed, annoyed, 

alarmed, abused, tormented, embarrassed, or offended; and 

 (3) would cause a reasonable person to: 

. . . . 

(D) feel harassed, annoyed, alarmed, abused, tormented, 

embarrassed, or offended. 
 –5– 

TEX. PENAL CODE ANN. § 42.072(a). Section 42.07, the “electroniccommunications-harassment statute,” provided: 

 (a) A person commits an offense if, with intent to harass, annoy, 

alarm, abuse, torment, or embarrass another, the person: 

. . . 

 

 (7) sends repeated electronic communications in a manner 

reasonably likely to harass, annoy, alarm, abuse, torment, 

embarrass, or offend another. 

 

TEX. PENAL CODE ANN. § 42.07(a)(7). Also, at the time of the indictment, the 

definition of electronic communication encompasses current forms of 

communication and means: 

a transfer of signs, signals, writing, images, sounds, data, or intelligence 

of any nature transmitted in whole or in part by a wire, radio, 

electromagnetic, photoelectronic, or photo-optical system. The term 

includes: 

 (A) a communication initiated through the use of electronic mail, 

instant message, network call, a cellular or other type of telephone, a 

computer, a camera, text message, a social media platform or 

application, an Internet website, any other Internet-based 

communication tool, or facsimile machine; and 

 (B) a communication made to a pager. 

TEX. PENAL CODE ANN. § 42.07(b)(1). 

Prior to trial, Griswold filed a motion to quash the indictment alleging the 

stalking statute was unconstitutionally vague and overbroad, to the extent it 

incorporates the harassment statute, section 42.07(a)(7), and includes the terms 

harass, annoy, alarm, abuse, torment, embarrass, or offend, relying upon Ex parte 

Barton, 586 S.W.3d 573, 583‒85 (Tex. App.—Fort Worth 2019) (op. on reh’g), 
 –6– 

rev’d, 662 S.W.3d 876 (Tex. Crim. App. 2022). After a hearing, the trial court 

denied the motion and proceeded to trial. 

C.F., the complainant, testified that, after graduating from Rockwall High 

School with Griswold in 2006, Griswold began a pattern of frequent text, voicemail, 

email, and social media messaging to her. C.F. had never kissed or dated Griswold 

and had not “been intimate in any way whatsoever” with Griswold. There was “not 

initially” anything troubling with Griswold’s communications, and C.F. “was trying 

to just be nice to him.” However, within a few months, the frequency of the contact 

started to scare C.F. C.F. changed her Summer 2006 plans from being a church 

camp counselor because she found out Griswold signed on to attend. In Spring of 

2007, Griswold’s letters began stating that Griswold was a prophet and God was 

telling him that C.F. was meant to be his wife. C.F. never spoke with Griswold after 

June 2007. 

In Fall 2007, Griswold transferred to West Point. Griswold told C.F. he would 

kill for her, which scared C.F. because Griswold was at West Point “training to be 

able to use weapons.” In one letter, Griswold told C.F. “Please don’t be afraid of 

me,” apologized for “the stress this has caused” C.F., and wrote that he was 

“begging” C.F. “please don’t get me in trouble for this.” In November 2007, C.F.’s 

father (Father) flew to West Point with Griswold’s father and left with the 

understanding that Griswold’s commanding officer would order Griswold to end 
 –7– 

communication with C.F. However, Griswold did not stop communicating with C.F. 

Griswold also ignored a cease and desist letter from an attorney. 

At the end of 2007, Griswold resigned from West Point, and “things did go 

quiet for a little while.” Griswold began contacting C.F. again when she started 

dating B.D., the man she eventually married. C.F. made her social media private, 

but Griswold used “different Facebook profiles” to get in. As a result, C.F. and her 

friends all had to continually block Griswold’s different accounts to prevent 

Griswold from obtaining information about what C.F. was doing. At that time, C.F. 

was scared that Griswold would “do whatever he needs to to actually physically get 

to” C.F. but C.F.’s “bigger fear” was that Griswold “would hurt someone [C.F.] 

loved to get to” C.F. C.F. also feared that Griswold might sexually assault her. 

C.F. knew Griswold had dabbled in drugs in high school and college, and 

Griswold told her he was high on LSD when he “baptized himself in his parents’ 

pool” and “Jesus came down and told him that [C.F.] was his wife.” In 2015 and 

2016, C.F. became more frightened when Griswold mentioned “injecting 

methamphetamine.” As a medical professional, C.F. knew that particular drug 

“makes you more reckless.” On Facebook, Griswold posted “open discussions” 

about the date rape drug GHB. When Father again attempted to intervene to stop 

Griswold, Griswold directed some of his anger toward Father, saying Father was 

“keeping [C.F.] from him.” On March 2, 2016, Griswold sent a message saying 

“Burn [C.F.] with unquenchable fire for the literal expanse of eternity if I do not get 
 –8– 

to be with my wife ([C.F.]) in the next three months.” This “time limit” scared C.F. 

“a lot more” because it indicated that Griswold had “some kind of a plan in place” 

and “there might be something harmful at the end of that for [C.F.] or [her] family” 

if Griswold did not get what he wanted. 

In March 2016, Father met with Detective Burks of the Rockwall Police 

Department. Burks filed harassment charges against Griswold, who lived in 

Rockwall County. Griswold pled guilty to harassment based upon his conduct that 

was directed towards Father, did not claim insanity, and was placed on probation on 

February 16, 2017 for 24 months. Griswold violated his probation by drinking 

alcohol and contacting C.F. through Facebook six times. 

After C.F.’s divorce from B.D. was finalized in 2018, Griswold’s 

communications toward her became more focused on sex. In a series of posts on 

Facebook, Griswold wrote about C.F. living as his “sex slave” and said he would 

not “overly stalk you babies if you’ll still be my friend.” Griswold also sent C.F. 

“video after video” directly. C.F. immediately turned off her social media. 

The jury convicted Griswold of stalking as charged in the indictment and 

sentenced him to ten years in prison. He then filed a motion for new trial, which the 

trial court denied. This appeal followed. 

DISCUSSION 

A. Third Issue on Remand 
 –9– 

We first address Griswold’s third issue, in which he challenges the 

constitutionality of the stalking statute.3

 In particular, he contends the harassment 

statute, which is incorporated by direct reference into the stalking statute, is 

unconstitutionally vague and overbroad because the words “harass, annoy, alarm, 

abuse, torment, or embarrass” “leaves the electronic-communications subsection 

open to various ‘uncertainties of meaning.’” In two recent opinions, the Texas Court 

of Criminal Appeals disagreed. 

In Barton, the appellant was charged with violating penal code section 

42.07(a)(7). Appellant filed a motion to quash the information arguing that the 

statute was unconstitutional and that the information failed to provide adequate 

notice because it lacked specificity. The motion was denied after a hearing. 

Appellant then filed a pre-trial application for habeas corpus relief again raising the 

constitutionality of the statute. The trial court denied relief, but the court of appeals 

held section 42.07(a)(7) unconstitutional and reversed. Ex parte Barton, 586 S.W.3d 

at 585. The court of criminal appeals determined that, for First Amendment 

purposes, the conduct regulated by section 42.07(a)(7) is non-speech conduct that 

3

 Griswold’s Motion to Quash the Indictment was based solely on the provisions of the stalking statute 

that incorporate the harassment statute. To the extent Griswold seeks to challenge the constitutionality of 

the stalking statute on another basis on appeal, the constitutional challenge was not presented to the trial 

court and therefore is not preserved for our review. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. 

App. 2009) (holding appellant may not raise facial challenge to constitutionality of statute for first 

time on appeal). Even if preserved, this Court has upheld the facial constitutionality of the stalking 

statute. Taherzadeh v State, 648 S.W.3d 681 (Tex. App.—Dallas 2022); see also State v. Seibert,

156 S.W.3d 32 (Tex. App.—Dallas 2004).
 –10– 

does not implicate the First Amendment. Barton, 662 S.W.3d at 885. The court of 

criminal appeals held that section 42.07(a)(7), the electronic harassment statute, is 

not facially unconstitutional. Id. The court reversed the judgment of the court of 

appeals and remanded for further proceedings. 

In Sanders, the appellant was also charged with violating penal code section 

42.07(a)(7). The court held that, on its face, section 42.07(a)(7), the electronic 

harassment statute, proscribes non-speech conduct that does not implicate the 

protections of the First Amendment, although elements of speech may be employed 

to commit the offense. Sanders, 663 S.W.3d at 216. 

In light of these authorities, we are constrained to reject Griswold’s facial 

constitutional challenge to the stalking statute insofar as it incorporates the 

harassment statute. See Barton, 662 S.W.3d at 885; Sanders, 663 S.W.3d at 216. 

We overrule Griswold’s third issue.4

B. First Issue: Legally Sufficiency 

In his first issue, Griswold argues the evidence is legally insufficient to 

support his conviction. Specifically, Griswold complains that, while the evidence 

4

 Griswold does not challenge the constitutionality of the statute as applied to the allegations in the 

indictment nor does he seek First Amendment protections of the alleged content-based conduct. While 

Barton and Sanders rely on non-communicative based conduct to support the facial constitutionality of the 

harassment statute and, for our purposes, the stalking statute, we are not presented with an opportunity for 

an as applied analysis, and we are therefore precluded from doing so. “The question of whether the statute 

is vague will have to wait for a proper as-applied challenge.” Barton, 662 S.W.3d at 885. Further, while 

this case illustrates the inability to divorce content from conduct in the harassment context, as incorporated 

into the stalking statute, we are also not presented with an opportunity to conduct an overbreadth analysis 

under the First Amendment as there is no contention that Griswold’s communications were protected 

speech, either at the trial court or on appeal. See Barton, 662 W.W.3d at 886-87 (Keller, P.J., dissenting) 
 –11– 

was sufficient for the jury to reject his defense of insanity, the evidence was 

nevertheless insufficient to establish that he acted knowingly when he committed 

the alleged offenses. 

We apply well-known standards when reviewing challenges to the legal 

sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We view all of the 

evidence in the light most favorable to the prosecution and determine whether any 

rational trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt. Villa v State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). We 

measure the legal sufficiency of the evidence by the elements of the offense as 

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 

239–40 (Tex. Crim. App. 1997). The hypothetically correct jury charge sets out the 

law, is authorized by the indictment, does not unnecessarily increase the State’s 

burden of proof or unnecessarily restrict the State’s theories of liability, and 

adequately describes the particular offense for which the defendant was tried. Id. at 

240. 

 We must give deference to the responsibility of the trier of fact to fairly 

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts. Villa, 514 S.W.3d at 232. Our role is 

only to ensure that the jury reached a rational conclusion, not to re-evaluate the 
 –12– 

weight and credibility of the evidence. See Muniz v. State, 851 S.W.2d 238, 246 

(Tex. Crim. App. 1993). 

Circumstantial evidence is as probative as direct evidence in establishing the 

accused’s guilt. Hooper v. State, 214 S.W.3d 9, 13 Tex. Crim App. 2007). Each 

fact need not point directly and independently to the guilt of the appellant, as long 

as the cumulative force of all the incriminating circumstances is sufficient to support 

the conviction. See id. Juries are permitted to draw multiple reasonable inferences 

as long as each inference is supported by the evidence presented at trial. Id. at 15. 

Juries are not permitted to come to conclusions based on mere speculation or 

factually unsupported inferences or presumptions. Id. An inference is a conclusion 

reached by considering other facts and deducing a logical consequence from them, 

while speculation is mere theorizing or guessing about the possible meaning of facts 

and evidence presented. Id. at 16. 

Griswold first concedes that the evidence is sufficient to establish that he 

could not rely on his insanity defense. However, Griswold asserts that the evidence 

is insufficient to show he had the required mental state when he committed the 

alleged bad acts. Specifically, Griswold repeatedly argues there is no evidence that 

he knew when he sent a message that the message “constituted an offense under 

42.07” or that it would be interpreted as a threat of bodily injury or death to C.F. or 

a member of her family or a person with whom she was in a dating relationship. In 

making this argument, Griswold cites the testimony of the State’s expert, Dr. 
 –13– 

Mitchell Dunn, that mentally ill people like Griswold may know that an act is 

criminal even when they do not “necessarily believe they were wrong.” 

Here, as limited by the indictment and a hypothetically correct jury charge, 

the State had to prove that Griswold: (1) on more than one occasion; (2) pursuant to 

the same scheme or course of conduct directed specifically toward C.F.; (3) 

knowingly engaged in conduct that constituted an offense under section 42.07 and/or 

conduct that Griswold knew or reasonably should have known that C.F. would 

regard as threatening bodily injury for C.F. and or bodily injury or death; (4) did 

cause C.F. to be placed in fear of bodily injury or death and would cause a reasonable 

person to fear bodily injury or death for herself. See TEX. PENAL CODE ANN. § 

42.072(a) (emphasis added). The indictment listed five specific allegations of 

repeated communications, public declarations on Facebook, public statements, and 

public threats. Thus, even if Griswold did not “know” that his decade-long barrage 

of letters, messages, and contacts constituted an offense under section 42.07 or 

would cause C.F. to be placed in fear of bodily injury or death, that does not end our 

inquiry. The question before us is whether the evidence is legally sufficient to 

establish that Griswold reasonably should have known that his behavior would have 

such an effect. See id. 

Griswold was charged with stalking over a decade-long period of time. The 

undisputed evidence showed, among other things, that Griswold repeatedly sent 

emails, letters, cds, and text messages during that time frame. The jury could 
 –14– 

rationally have believed that these actions constituted a course of conduct, occurring 

on more than one occasion, that was directed specifically at C.F. There was evidence 

from which the jury could have rationally concluded that C.F exhibited behavior 

objectively demonstrating fear of Griswold’s conduct. 

Critically, there is evidence from which the jury could have rationally 

concluded that Griswold knew or reasonably should have known that C.F. would 

regard his behavior as threatening bodily injury for C.F. and/or bodily injury or 

death. Among the communications attributed to, or known by, Griswold, and before 

the jury, were the following: 

• Facebook message to C.F. and two others: “Can I get your 

current phone numbers or get you to unblock Me on your 

current phone numbers? 

• A Facebook message “I have a real Facebook Account you 

all have blocked. I won’t overly stalk you.... I’ll never be 

sane again if I don’t get to have sex with C.F....” 

• Numerous text messages where Griswold refers to C.F. as 

his wife and he her husband, they are of “one flesh” 

• “God made [C.F.] and I one flesh in 2007” 

• “In 2007, God told Me to pursue her [C.F.] as I 

would wisdom... and ‘the two became one flesh’” 

• In an email to C.F. in August of 2007: “ I am going to kill 

people for a living, i would kill any man that would touch 

you (if we happen like I think we do). I would kill any one 

that would touch our children (if that ever happened) I am 

not afraid of any thing [C.F.]. There is nothing I fear.” 

• In an October 11, 2007 text to C.F. Griswold stated “your 

fear is unjust” 

 Undated handwritten letter that states “Please don’t be afraid 

of me.” 
 –15– 

• A December 20, 2007 Criminal Trespass Letter was sent to 

Griswold putting him on notice that he is not welcome at 

identified properties where CF or her family reside, along 

with notification of the offense of Criminal Trespass. 

• A Judgment and Order Granting Deferred Adjudication after 

having pled guilty to the offense of Harassment signed 

February 16, 2017, that included a condition that Griswold 

“will have no contact, direct or indirect,” with C.F.’s Father, 

or his family members, including C.F. 

• In April 2018, Griswold posted Facebook messages relative 

to his “need to have sex” with C.F. 

• Undated statements in Facebook postings by Griswold: 

 “I'm meant to love a woman and when the army 

officers, the policemen, the angry fathers, my parents 

and the medical professionals tell me to stop...I don't. 

Not because it is hard for me to do. But because I can't 

not.” 

 “Do you realize the girl’s Fathers are ready to prosecute 

you? Look... calm down... I hit on your daughter... 

this is my third manic episode..just ignore the raucous 

and kindly let me manifest my messiah complex... ” 

 “sorry to embarrass you [C.F]....” 

 “I need to kill people over [C.F.] to feel okay and I 

never will so I'll never feel okay so just kill me. 

Anybody. Please . “ 

 “Who is [B.D.] where did he take her why did he take 

her from Tommy Griswold... I parade around 

everything that knows I'm the Truth if you try to take 

her from me I will kill everything I ever knew could 

ever exist that could take her from me” 

Thus, the record shows Griswold was subjected to repeated interventions attempting 

to get him to cease and desist contacting C.F., including a court order to have no 

direct or indirect contact with C.F.; nevertheless, Griswold’s public statements and 
 –16– 

contact with C.F. increased in frequency, escalated in sexually explicit content and 

threats of harm. Given the evidence and the record, the jury rationally could have 

concluded that Griswold knew or reasonably should have known that his constant 

messaging would be regarded by C.F. as threatening bodily injury for C.F. and or 

bodily injury or death, and did cause C.F. to be placed in fear of bodily injury or 

death. On the record before us, we determine a rational trier of fact could have 

found the essential elements of the offense as set out in the hypothetically correct 

charge for stalking beyond a reasonable doubt. See Villa, 514 S.W.3d at 232; Malik, 

953 S.W.2d at 239–40. We overrule Griswold’s first issue. 

C. Second Issue: Motion for New Trial 

In his second issue, Griswold complains that the trial court erred in denying 

his motion for new trial without conducting an evidentiary hearing. The purpose of 

a hearing on a motion for new trial is to: (1) decide whether the cause shall be retried 

and (2) prepare a record for presenting issues on appeal in the event the motion is 

denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). Such a hearing 

is not an absolute right. Id. A hearing is not required when the matters raised in the 

motion for new trial are subject to being determined from the record. Id. 

Conversely, a trial judge abuses his discretion in failing to hold a hearing on a motion 

for new trial when that motion raises matters which are not determinable from the 

record. Id. To hold otherwise would deny the accused meaningful appellate review. 

Id. 
 –17– 

Recognizing that an unrestricted requirement of a hearing on matters not 

determinable from the record could lead to “fishing expeditions,” the court of 

criminal appeals has also held that even a defendant who has raised such matters is 

not entitled to a hearing on his motion for new trial unless he establishes the 

existence of reasonable grounds showing that the defendant could be entitled to 

relief. Id. at 339. Thus, as a prerequisite to a hearing when the grounds in the motion 

are based on matters not already in the record, the motion must be supported by an 

affidavit, either of the defendant or someone else, specifically setting out the factual 

basis for the claim. Id. The affidavit need not establish a prima facie case, or even 

reflect every component legally required to establish relief. Id. It is sufficient if a 

fair reading of it gives rise to reasonable grounds in support of the claim. Id. But 

affidavits that are conclusory in nature and unsupported by facts do not provide the 

requisite notice of the basis for the relief claimed; thus, no hearing is required. Id. 

When examining a trial court’s denial of a hearing on a motion for new trial, 

we review for an abuse of discretion. Id. In so doing, we reverse only when the trial 

judge’s decision was so clearly wrong as to lie outside that zone within which 

reasonable persons might disagree. Id. And in the absence of such an abuse of 

discretion this Court would not be justified in reversing the judgment. Id. at 340. 

Our review, however, is limited to the trial judge’s determination of whether the 

defendant has raised grounds that are both undeterminable from the record and 

reasonable, meaning they could entitle the defendant to relief. Id. This is because 
 –18– 

the trial judge’s discretion extends only to deciding whether these two requirements 

are satisfied. Id. If the trial judge finds that the defendant has met the criteria, he 

has no discretion to withhold a hearing. Id. In fact, under such circumstances the 

trial judge abuses his discretion in failing to hold a hearing. Id. 

The record here shows that, during voir dire, the prosecutor projected an 

image of Charles Manson on a screen for the jury to see. The prosecutor made the 

point that Manson was “absolutely insane” but still criminally responsible for his 

conduct and also mentioned Hinkley and other famous defendants who claimed 

insanity as a defense before stating the standard in Texas to find insanity. Griswold 

made no objection. On December 19, 2019, Griswold filed a motion for new trial in 

which he alleged that the prosecutor, when showing the picture of Charles Manson, 

sent an “unstated or non-verbal message” to the jurors that Griswold is comparable 

“in a way that is harmful” to Manson. The motion was supported by the declaration 

of Griswold’s mother who stated: (1) during jury selection the attorney for the State 

projected an image of Charles Manson onto a screen for the jury to see and (2) as a 

spectator this looked like her son being compared with Charles Manson. 

Griswold did not object during voir dire when the State showed an image of 

Charles Manson to the jury in the context of a discussion about insanity. The trial 

in this case concluded on November 20, 2019 and Griswold filed his motion for new 

trial on December 19, 2019. A defendant may not raise a matter for the first time in 

a motion for new trial if he had the opportunity to raise it at trial. Colone v. State, 
 –19– 

573 S.W.3d 249, 260 (Tex. Crim. App. 2019); see TEX. R. APP. P. 33.1 (complaint 

must be “timely”). We conclude that, by failing to object or otherwise challenge the 

State’s use of Charles Manson’s image, Griswold could not raise the issue for the 

first time in a motion for new trial. See Colone, 573 S.W.3d at 260. Accordingly, 

the trial court did not abuse its discretion in neither holding the requested evidentiary 

hearing nor denying Griswold’s motion for new trial. See Smith, 286 S.W.3d at 339. 

We overrule Griswold’s second issue. 

We affirm the trial court’s judgment.

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

191561F.U05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
 –20– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

THOMAS GEORGE GRISWOLD, 

III, Appellant 

No. 05-19-01561-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 382nd Judicial 

District Court, Rockwall County, 

Texas 

Trial Court Cause No. 2-19-0884. 

Opinion delivered by Justice 

Goldstein. Justices Molberg and 

Smith participating. 

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

AFFIRMED. 

Judgment entered June 13, 2023