Affirmed and Memorandum Opinion filed April 10, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00153-CR

THOMAS JAMES IANUZI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1368809

M E M O R A N D U M O P I N I O N

Appellant pleaded guilty to assaulting his wife. The trial court deferred a

finding of guilt and placed appellant on community supervision for a period of five 

years. In a single issue, appellant contends that the trial court abused its discretion 

by failing to conduct a live hearing on his motion for new trial. We affirm the trial 

court’s judgment.
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BACKGROUND

Appellant moved for a new trial on two separate grounds. The first ground 

attacked the voluntariness of the plea. Appellant argued that his plea was 

involuntary because he was not rational when he appeared before the trial court. 

Appellant supported his claim with a sworn affidavit, which concentrated on both 

his mental and physical health. Appellant testified that he suffered from attention 

deficit disorder and required a prescribed dosage of Adderall. Appellant claimed 

that he had been deprived of his medication since arriving in jail, more than two 

weeks before the plea hearing. Appellant also testified that he was malnourished. 

As a bodybuilder, he was accustomed to consuming between 7,000 and 15,000 

calories per day. In jail, however, appellant’s daily caloric intake was less than 

2,000, according to his own estimation. Appellant asserted in his motion that he 

entered his plea “to save his life and health.”

The second ground in appellant’s motion for new trial was for ineffective 

assistance of counsel. Appellant contended that his trial counsel failed to 

investigate the allegations from his wife. Appellant testified that his wife was 

addicted to pills and alcohol. Appellant also suggested in his motion that his wife 

had falsified her criminal complaint in order to rid herself of him and to begin

living with another man.

The trial court denied appellant’s motion by written order, without having 

conducted a hearing.

ANALYSIS

Appellant’s sole point of error is that the trial court refused to hold a hearing 

on his motion for new trial. He asks for a remand for a hearing.
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A defendant must give the trial court actual notice that he timely filed a 

motion for new trial and that he requests a hearing on the motion for new trial. See 

Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). “Presenting the 

motion for new trial and the request for a hearing is akin to objecting to the 

erroneous admission of evidence. Absent a proper objection that alerts the trial 

court to the erroneous admission, the error has not been preserved for appellate

review.” Id.

Appellant did not request a hearing in his motion for new trial, and the 

record contains no other indication that his desire for a hearing was brought to the 

attention of the trial court. Because there was no request for a hearing, any error in 

failing to hold a hearing was not preserved for appellate review. On this basis 

alone, we may overrule appellant’s sole issue on appeal. See id. at 231.

Even if error had been preserved, appellant has not demonstrated that the 

trial court clearly abused its discretion by ruling without the benefit of a hearing.

When, as here, a defendant alleges matters in a motion for new trial that cannot be 

determined from the record, a hearing is not required unless the defendant 

establishes the existence of reasonable grounds showing that he could be entitled to 

relief. See Smith v. State, 286 S.W.3d 333, 338–40 (Tex. Crim. App. 2009). This 

burden is satisfied when the motion for new trial is supported by an affidavit that 

specifically sets forth the factual basis for the defendant’s claim. Id. at 339. An 

affidavit that is conclusory in nature and unsupported by facts does not provide the 

requisite notice of the basis for the defendant’s claim. Id.

A. Appellant failed to show reasonable grounds that his plea was 

involuntary.

Where, as here, the record shows that the defendant was duly admonished, 

there is a prima facie showing that the guilty plea was entered knowingly and 
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voluntarily. See Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001). By 

signing the admonishments, a heavy burden is placed upon the defendant to show a 

lack of voluntariness. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. 

App. 1998) (per curiam); Chapa v. State, 407 S.W.3d 428, 432 (Tex. App.—

Houston [14th Dist.] 2013, no pet.). The defendant must demonstrate that he did 

not fully understand the consequences of his plea such that he suffered harm. See 

Martinez, 981 S.W.2d at 197.

A trial court may not accept a plea of guilty unless it appears that the 

defendant is mentally competent and that the plea is free and voluntary. See Tex. 

Code Crim. Proc. art. 26.13(b). We presume that a defendant is competent until he 

proves his incompetency by a preponderance of the evidence. See id. art. 

46B.003(b). A defendant is incompetent if he lacks either (1) sufficient present 

ability to consult with his lawyer with a reasonable degree of rational 

understanding, or (2) a rational as well as factual understanding of the proceedings 

against him. See id. art. 46B.003(a).

Appellant argued that the conditions in jail affected his mental and physical 

health. He testified that he was deprived of medication used to treat his attention 

deficit disorder. He also testified that he felt like he was “starving to death” 

because he was denied his typical high-calorie diet. When appellant finally 

appeared in court, he claimed that the trial judge commented that he looked dazed 

and like “a deer in the headlights.” Appellant testified that he would have not 

pleaded guilty had he been in a normal state of health.

Appellant’s affidavit testimony does not support a conclusion that he was 

incapable of consulting with his lawyer at the plea hearing, or that he lacked a 

present and factual understanding of the proceedings against him. Even if we were 

to take as true that appellant suffers from attention deficit disorder, “[t]he fact that 
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a defendant is mentally ill does not by itself mean he is incompetent.” See Turner 

v. State, No. AP-76580, — S.W.3d —, 2013 WL 5808250, at *11 (Tex. Crim. 

App. Oct. 30, 2013). There must be some evidence that the “mental illness operates 

in such a way as to prevent him from rationally understanding the proceedings 

against him or engaging rationally with counsel in the pursuit of his own best 

interests.” Id. Here, there is no such evidence. Appellant did not claim that his 

mental condition rendered him incompetent. Nor did he explain the nature and 

duration of withdrawal symptoms from Adderall, if any, or that such symptoms

would preclude a person from rationally participating in criminal proceedings.

Similarly, there is no evidence explaining how a lower-calorie diet affected the 

state of appellant’s mind. Without such evidence, appellant failed to set forth a 

factual basis demonstrating that his plea of guilty was involuntary. Cf. Green v. 

State, 264 S.W.3d 63, 68 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) 

(affidavit was conclusory where defendant never explained how his medications, 

which were allegedly working improperly, precluded him from competently 

entering a guilty plea). 

B. Appellant failed to show reasonable grounds that he was denied 

the effective assistance of trial counsel.

A defendant may raise a claim of ineffective assistance of counsel in a 

motion for new trial. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 

1993). The defendant must establish two elements: (1) that his trial counsel’s 

representation was deficient, and (2) that the deficient performance was so serious 

that it deprived him of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 

(1984); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986). To 

show deficiency, the defendant must prove by a preponderance of the evidence that 

his counsel’s representation fell below the standard of professional norms. See 

Strickland, 466 U.S. at 688. To show prejudice, the defendant must demonstrate 
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that there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different. Id. at 694. Before he will be 

entitled to a hearing on his motion for new trial, a defendant complaining of 

ineffective assistance of counsel must allege sufficient facts from which a trial 

court could reasonably conclude that both of these elements have been satisfied. 

See Smith, 286 S.W.3d at 340–41.

Appellant argued in this motion that his trial counsel was deficient because 

she conducted no investigation into the facts of the case. Appellant asserted that 

the allegations against him were untrue, and that his wife, who suffered from 

addiction, fabricated her story so that she could live with another man.

Appellant failed to support his claim with any evidence or affidavit 

testimony. Appellant did not explain how his wife’s alleged problem with 

addiction had any bearing on the assault charges against him. There is no mention 

in the affidavit that she falsified her complaint, or that she had ill motives to falsify 

her complaint. There is also no testimony that an investigation would have 

discovered evidence useful to the defense.

Appellant addressed his trial counsel’s performance in just a single 

paragraph in his affidavit. He testified as follows:

Bail in my case was set at twenty thousand ($20,000) dollars. The first 

lawyer appointed to represent me was supposed to contact my family 

so they could help me to make bail. I gave that lawyer all the names of 

my family members and told her where they lived. I never heard from 

or saw that lawyer again. By the time a new lawyer was appointed I 

had been in jail for two or three weeks. I lost track of time.

Even if we were to assume that trial counsel’s performance was constitutionally 

deficient, this evidence wholly fails to raise a factual basis for concluding that the 

outcome of the proceedings would have been different if counsel had conducted an 
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investigation. Without a showing of prejudice, appellant did not demonstrate that 

he was entitled to relief, and the trial court did not abuse its discretion by failing to 

give him a hearing on his motion for new trial. See King v. State, 29 S.W.3d 556, 

569 (Tex. Crim. App. 2000) (hearing not required where defendant made bare 

assertion that counsel was ineffective for failing to investigate and there was no 

evidence or explanation of how an investigation would have been beneficial).

CONCLUSION

We overrule appellant’s sole issue and affirm the judgment of the trial court.

/s/ Tracy Christopher

Justice

Panel consists of Justices Boyce, Christopher, and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).