Opinion filed October 15 , 2015



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 4

- 00 3 41

- C R

__________ ANTHONY DON JACKSON , Appellant

V

. THE STATE OF TEXAS , Appellee

On Appeal from the 441 st District Court Midland County, Texas Trial Court Cause No. CR42 226

M E M O R A N D U M O P I N I O N The jury convicted Anthony Don Jackson of felony assault of a member of his
household (assault

- family violence) with a prior conviction of felony assault of a
member of his household

. The State alleged three enhancement paragraphs that it intended to prove during the punishment phase of trial ; Appellant pleaded “ not true”
to all of them

. T he trial court found that all enhancement allegations were “true
, ”
and it assessed punishment at confinement for twenty

- five years and a fine of $5,000

.2

T he trial court then sentenced Appellant. Appellant asserts a challenge to the sufficiency of the evidence

. Appellant also complains that the trial court erred when
it did not hold a hearing on his motion for new trial and when it denied that motion

. We affirm.
I. The Charged Offens e The grand jury indicted Appellant for the third

- degree felony of assault of a family or household member , Evelyn Hoyle

. The grand jury alleged that Appellant

st r uck her with his hands
, that he slammed a car door on her leg or legs
, and that he
had a prior conviction of felony assault against a family or household member

. 1 T EX

. P ENAL C ODE A NN

. § 22.01 (a)(1), (b)(2)(A ) (West Supp. 2014 ) ; T EX

. F AM

. C ODE A NN

. § 71.005 (West 2014 )

. “H ousehold ” means a unit composed of person s living together in the same dwelling, w ithout regard to whether they are related to each
othe r

. F AM . § 71.005. The range of punishment for felony assault of a member of a household, where the defendant has t w o prior felony convictions
, is confinement
for a term of life or a term of not more than ninety

- nine year s or less than twenty

five years. P ENAL § 12.42(d).
II. E vidence at Trial Hoyle , who lives in Midland , testified that she and Appellant were in a dating relationship and that she lived with Appellant at the time of the incident

. She said
that she had thou ght about end ing her relationship wi th Appellant. O ne August evening , Hoyle drove Appellant to a Stripes convenience store in Midland County. 2 While in the parking lot of that store, Hoyle told Appellant that she wanted to end their relationship. Hoyle explained that Appellant did not say anything and that he

1 The grand jur y also alleged in an additional enhancement paragraph that Appell ant had a prior DWI conviction. Additionally, the State filed a notice of its intent to enhance Appellant’s punishment pursuant to Section 12.42(d) of the Penal Cod e.

2 Hoyle testified that she had driven Appellant around town for several hou rs so he could visit friends

. During this time, Appellant drank alcohol in the car all day and into the evening

.3

looked like he was in deep thought. When she asked him to get out of her car , he just sat there. She got out of her car and went to the passenger side
, opened the front passenger door
, and told Appellant to get out. Appellant got out of the car and then

as s umed what Hoyle described as a “boxing stance”; he raised up his clenched fists
toward her

. Hoyle asked Appellant if he was going to fight her
, but he never responded. Hoyle said that she never hit Appellant. Hoyle walked back around the car to the
driver’s side and sat in the driver’s seat. A lthough Hoyle sat down in the driver’s
seat of her car , she did not shut the door
, and her left leg was in between the car door and car frame. At that time, Appellant walked around t he car and slammed the door into her leg; he slammed it three times into her leg. During this time, Appellant
never said a word ; Hoyle said that Appellant was not mistaken as to whether Hoyle ’s left leg was outside her car

. Hoyle knew that she neede d to l eave because her mentally handicapped adult
child was in her car . Hoyle had the driver’s side window rolled d own, and Appellant punched her o n the left temple of her head with his closed fist. Hoyle testified that her leg swelled and hurt after Appellant slammed the door on her leg. She also
testified that her head hurt after he hit her o n the head

. At the time of trial, it was still necessary for Hoyle to wear compression sock s and to use a cane . Hoyle
continued to have trouble with her left knee, and she continued to suffer from
headac hes. Hoyle said that a man walked past her car as the altercation occurred at the store and that he stood between Appellant and the car . The man told her to leave. Hoyle drove away from the parking lot
, and she went to her daughter ’s place of employment to tell her daughter about what Appellant had done

. Hoyle then went
home and called the police

. The police went to Hoyle’s home and interviewed her ; the police also took photographs of her injuries. Th e photographs showed some4

bru i s es on her leg and a faint red spot on her head. Hoyle later we n t to the emergency

room. Brad ley Randall Robertson is a certified peace officer with the Midland Police Department. He responded to Hoyle’s residence after she called the police. When he arrived, Officer Robertson saw Appellant in the front yard on a swing. Appellant
was unconsciou s

. He was “disheveled”; his clothes were “messed up”; and he had a strong odor of alcohol . W hen Officer Robertson awakened him, A ppellant did not speak to Officer Robertson. Officer Robertson asked Appellant to remove his hands from his pockets so that the officer could determine whether Appellant had a

weapon

. Appellant refused several verbal commands, but eventually showed Offic er Robertson his hands. A backup officer arrived on scene, and Officer Robertso n handcuffed Appellant. After Officer Robertson spoke with Hoyle, he determined that Appellant had committed an assault on Hoyle and that Hoyle was a member of Appellant’s hou sehold. Officer Robertson referred to the offense as assault

- family
violence.
III. Discussion and Analysis Appellant asserts that the evidence was insufficient to convict him of assault
of a member of his household because Hoyle ’s testimony was not credible. Appellant also asserts that the trial court erred when it did not hold a hearing on his
motion for new trial and then denied that motion for new trial.
A. Issue One: Sufficiency of the Evidence We review the sufficiency of the evidence under the standard of review set

out in Jackson v. Virginia , 443 U.S. 307 (1979). Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State , 337 S.W.3d 286, 288

– 89 (Tex. App.

— Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could5

have found the essential elements of the offense beyo nd a reasonable doubt.
Jackson , 443 U.S. at 319; Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The trier of fact is the sole judge of the weight and credibility of the evidence.
Brooks , 323 S.W.3d at 899 (citing Jackson , 443 U.S. at 319, 326). A reviewing court may not reevaluate the weight and credibility of the evidence and substitute its own judgment for that of the factfinder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The reviewing court must presume that the fact finder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Hoyle testified that she lived with Appellant

. She also testified that Appellant
struck her o n the left temple of her head and that h e slammed the car door on her left leg three times. Police took photographs of her injuries
, and the photographs we re in evidence at trial. Further, Officer Roberston described the injuries that were d epicted in t he photograph s

. Hoyle went to the emergency room and medical staff
there treated her for b r uises. As we have noted, Hoyle suffered bruises and
, since
the assault
, has also suffered from recurrent headaches. She also has had to wear compression socks on her left leg and has had to use a cane. Appellant argues that Hoyle was not a credible witness. However, the jury was the arbiter of the disputed facts and was free to believe Hoyle’s testimony. Appellant did not testify, but he

st ipulated that he had a prior conviction for felony assault of a family member or
member of his household. We hold that there was sufficient evidence for the jury to find beyond a reasonable doubt that Appellant had committed the offense of felony
assault of a member of his household with one prior felony conviction for the same
offense. We overrule Appellant’s first issue.6

B. I ssue Two: Denial of Hearing on Motion for New Trial and Denial of Motion for New Trial We note at the outset that Appellant’s secon d complaint on appeal is not one in which he argues that h is counsel was ineffective. Ineffective assistance was the subject of his motion for new trial

. Appellant’s second complaint , nonetheless, has two parts

. H e complains in the first part that the trial court failed to hold a hearing
on the motion for new trial

. The second part of Appellant’s complaint is that the
trial court denied his motion for new trial

.

1. Appellant’s Motion for New Trial Appellant asserted in his motion for new trial that he r eceived ineffective assistance of counsel prior to trial and at trial. Appellant was to receive a six

- year sentence from the court, as part of an agreement not to appeal, if the jury found Appellant guilty. But after trial, Appellant rejected the agreeme nt because he wanted to appeal his conviction. Appellant was represented by counsel prior to trial as well

a s during trial and after trial. After Appellant filed his motion for new trial, the trial court denied Appellant’s request for a hearing and also denied Appellant’s motion
for new trial.
2. Denial of Request for Hearing on Motion for New Trial We review a trial court’s denial of a hearing on a motion for new trial under

an abuse of discretion standard. Smith v. State
, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009) . We will only reverse if the decision to deny a hearing was so clearly wrong as to lie outside the zone of reasonable disagreement

. Id

. The purposes of a hearing on a motion for new trial are (1) to determine whether the case should be
retrie d and (2) to prepare a record for presenting issues on appeal if the trial court
denies the motion. Id. at 338. A hearing on a motion for new trial is not an absolute right. Id. A hearing is not required when the matters raised in the motion fo r new
tr ial can be determined from the record. Id. However, a trial court abuses its7

discretion by failing to hold a hearing if the motion and accompanying affidavits (1) raise matters that are not determinable from the record and (2) establish reasonable ground s showing the defendant could potentially be entitled to relief. Hobbs v. State
, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). Appellant asserted in his motion for new trial that defense counsel failed to inform him of “plea offers” and ranges of punishme nt. Appellant also claimed that
his counsel never told him that he could elect to have a jury assess his punishment. Appellant further claimed that defense counsel erred when counsel failed to call witnesses, including Appellant. To be entitled to a hea ring on a motion for new trial with respect to an ineffective

- assistance

- of

- counsel claim, a defendant “does not have to plead a prima facie case, but he must at least allege facts that show reasonable grounds to believe that he could prevail under both prongs” of the
Strickland test. Smith , 286 S.W.3d at 338; see Strickland v. Washington
, 466 U.S. 668, 686 (1984).
The Strickland test has two prongs: (1) a performance standard and (2) a prejudice standard. Strickland , 466 U.S. at 687. For the performa nce standard, a defendant must show that counsel ’ s representation fell below an objective standard
of reasonableness. Id. at 688. For the prejudice standard, a defendant must show
that there is a reasonable probability that the outcome would have differe d but for
counsel ’ s errors. Wiggins v. Smith
, 539 U.S. 510, 534 (2003); Strickland
, 466 U.S.
at 693

– 94 ; Andrews v. State
, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Appellant did not attach an affidavit to his motion for new trial; instead, he attached a
verification to the motion. But the motion did not adduce evidentiary facts there
were outside the record. Appellant’s arguments failed to demonstrate what outside

e vidence indicated that defense counsel’s performance was deficient; he also failed to outline how any alleged def iciency prejudiced his defense. See Strickland
, 466
U.S. at 689

– 92. Appellant did not adduce facts outside of the record that would have8

put the trial court on notice that a hea ring on his alleged ineffective

- assistance

- of

counsel claim was necessary. A tria l court need not hold a hearing if the trial court can determine the merits of the motion by a review of the record. Smith
, 286 S.W.3d

at 338. Having reviewed the record, we hold that the trial court did not abuse its discretion when it denied Appellant’s request for a hearing on Appellant’s motion
for new trial.

3. Denial of Motion for New Trial
We review the trial court’s denial of the m otion for new trial under a n abuse
of discretion standard

. State v. Herndon
, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). Appellant never adduced any evidence that there were other plea offers by the State, and he never stated that he would have accepted a plea offer had one been communicated to him. As to punishment, Appellant was aware of the range of punishment because Appellant wrote to the trial court , prior to the punishment phase of trial, and asserted that the range of punishment was incorrect

. A ppellant also does not explain how his failure to file an election for the jury to assess punishment would have changed the outcome of the punishment phase. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.07, § 2(b) (West Supp. 2014)

. Appellant received the lowest sentence possi ble in the range of punishment. Appellant also does not identify which witnesses should have been called or what they would have said that would have been exculpatory. Appellant was advised at trial about the perils or danger that

wo uld be involved if he testified in his own defense

. Appellant chose not to testify because of his prior criminal history, which would have been admissible as part of

any cross

- examination in both the guilt and punishment phase s

. Appellant’s
assertions we re nothing more than conclusory statements without explanation on how evidence, not in the record, would have shown that he was potentially entitled
to relief. See H

obbs
, 298 S.W.3d at 199

. The trial court did not abuse its discretion9

when it denied Appe llant’s motion for new trial without a hearing. We overr ule Appellant’s second issue.
IV. Conclusion
We have reviewed the record
, and there was sufficient evidence that Appellant intentionally or knowingly caused bodily injury to a member of his household,
Ev elyn Hoyle, when he struck her with his hand and slammed a car door on her left leg. Accordingly, w e hold that the evidence was sufficient for a rational jury to find beyond a reasonable doubt that Appellant was guilt y of the offense of felony assaul t

on a member of his household

. We also hold that th e trial court did not abuse its
di s c r etion when it denied Appellant’s request for a hearing on the motion for new
trial and ultimately denied the motion for new trial. As a result, we have overrule d
both of Appellant’s issues

. V. This Court’s Ruling
We affirm the judgment of the trial court.

MIKE WILLSON
JUSTICE

Octo ber 15 , 2015 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: W right , C.J., W illson, J

. , and Bailey, J.