Affirmed and Memorandum Opinion filed March 10, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00390-CR

CHRISTOPHER EDWARD HATFIELD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1577528

MEMORANDUM OPINION

We consider two issues in this appeal from a conviction for aggravated sexual 

assault of a child: first, whether the trial court abused its discretion when it denied a 

motion for new trial without having conducted an evidentiary hearing; and second, 

whether defense counsel was ineffective when counsel opened the door to testimony 

that appellant had committed extraneous bad acts. For the reasons explained below, 

we overrule both of these issues and affirm the trial court’s judgment.
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BACKGROUND

When she was seven years old, the complainant and her two sisters were 

placed in the care of a distant relative, who was identified in the record as the 

children’s aunt. Nearly a year after this placement, when she was about to turn eight, 

the complainant told her aunt about a disturbing dream involving appellant, who was 

her mother’s boyfriend. The complainant said that, in this dream, appellant broke 

into the aunt’s house and used his “privates” to “punch” the “privates” of the aunt’s 

daughter. The term “privates” was a euphemism for genitalia. The aunt assured the 

complainant that her daughter was safe and that no such attack could happen because 

their home was protected by a security system.

The complainant then revealed to her aunt that she had already experienced a 

similar attack. The complainant said that, when she was living with her mother and 

appellant just a few years earlier, appellant used his privates to punch her in her 

privates. The complainant also said that appellant urinated on her and told her that 

he hated her.

The aunt reported the complainant’s story to authorities, which eventually led 

to a criminal indictment. Appellant pleaded not guilty to the indicted offense, and 

during his trial, his defense counsel attempted to cast doubt on the prosecution’s 

theory of the case. Counsel suggested that the complainant’s allegation could not be 

believed because her outcry was delayed and there was no physical evidence. 

Counsel also challenged the credibility of the complainant, who testified that the 

sexual assault happened when she was three years old, which was inconsistent with 

the prosecution’s theory that the assault happened when she was five or six. Counsel

further suggested that a third party may have been responsible for the assault.

The jury rejected these defensive theories and convicted appellant as charged.
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MOTION FOR NEW TRIAL

After the conviction, the trial court appointed appellate counsel to replace trial 

counsel, who withdrew from the case. Appellate counsel then moved for a new trial, 

arguing that trial counsel had been ineffective.

The claim of ineffectiveness was not based on trial counsel’s opening the door 

to evidence of extraneous bad acts, which we address in appellant’s second issue on 

appeal. Instead, the claim of ineffectiveness was based on certain omissions, which 

were identified in the motion for new trial as follows:

Trial counsel failed to properly advise [appellant] regarding his 

eligibility for community supervision, and the probability of the 

complainant testifying at trial. Trial counsel also failed to properly 

prepare for trial by . . . failing to obtain CPS records, and failing to hire 

an expert or request funds for an expert under Ex parte Briggs, 187 

S.W.3d 458 (Tex. Crim. App. 2005).

The only evidence attached in support of the motion for new trial was an 

affidavit from the complainant’s mother, who attested in material part as follows:

2. Prior to trial, [trial counsel] told us that [appellant] was eligible 

for deferred adjudication. After [appellant] was found guilty, [trial 

counsel] asked the court to sentence [appellant] to deferred adjudication 

and the court told him it was too late.

3. Prior to trial the attorney told us that we needed an expert 

witness. However we did not have the funds to get one. It is my 

understanding that he could have asked the judge for money to hire an 

expert even though he was a hired attorney. Yet he did not even file a 

motion asking the court about getting an expert.

4. I do not believe the attorney prepared very well for trial. He did 

not get the CPS records, nor did he ever go over the video statements 

made by [appellant] and myself to the detective. I am not sure if he even 

looked at the CAC video. . . .

6. At trial I was surprised that [the complainant] testified because 

[trial counsel] had told us she would not because she was too young.
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Appellant requested the trial court to set his motion for a hearing, but the trial 

court denied the motion without having conducted any hearing at all. Appellant now 

complains in his first issue about the trial court’s failure to conduct a hearing.

As a general rule, to be entitled to a hearing on a motion for new trial, the 

defendant must raise grounds that are both undeterminable from the record and 

reasonable, meaning they could entitle the defendant to relief. See Smith v. State, 

286 S.W.3d 333, 340 (Tex. Crim. App. 2009). When, as here, the motion for new 

trial is based on allegations of ineffective assistance of counsel, this general rule 

requires the defendant to allege sufficient facts from which a trial court could 

reasonably conclude both that counsel failed to act as a reasonably competent 

attorney and that, but for counsel’s failure, there is a reasonable likelihood that the 

outcome of the trial could have been different. Id. at 340–41. Whether the defendant 

has satisfied this burden is a question for the trial court to decide in the first instance, 

and we review that decision for an abuse of discretion. Id. at 339.

Appellant raised four allegations of ineffectiveness in his motion for new trial: 

first, that counsel failed to advise him about his eligibility for community 

supervision; second, that counsel failed to advise him about the probability of the 

complainant testifying at trial; third, that counsel failed to obtain CPS records; and 

fourth, that counsel failed to hire an expert or request funds for an expert. We address 

these allegations in reverse order because that is how appellant has presented them 

in his appellate brief.

Beginning with the expert point, appellant argues that he was entitled to a 

hearing because the affidavit testimony established that counsel never requested 

funds for an expert under Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). 

But this allegation of ineffectiveness was wholly unsubstantiated. Appellant did not 

identify in his motion what type of expert was needed for his defense, whether an 
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expert would have been available to testify on his behalf, or even how his defense 

could have benefited from the testimony of an expert. The complainant’s mother 

likewise failed to establish such facts in her supporting affidavit. Without these 

explanations, appellant did not satisfy his burden of alleging sufficient facts from 

which the trial court could have reasonably concluded both that counsel’s 

performance was deficient and that the deficient performance resulted in prejudice. 

See Smith, 286 S.W.3d at 339 (“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.”); see also Jones v. State, 500 S.W.3d 106, 

116 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (the defendant failed to establish 

that counsel was ineffective by not engaging an expert witness where the defendant 

produced no evidence showing that an expert was available and that an expert could 

have offered beneficial testimony).

In his next point, appellant argues that the trial court should have conducted a 

hearing because the affidavit testimony established that counsel never obtained the 

CPS records or reviewed certain video evidence. But even if we assumed for the 

sake of argument that appellant alleged sufficient facts to show that counsel had not 

adequately prepared for trial, appellant still alleged no facts showing that he suffered 

any prejudice from counsel’s deficient performance. There was no discussion in 

either the motion for new trial or the supporting affidavit about the contents of the 

CPS records or the video evidence. Nor was there any indication as to how counsel 

would have used such records and evidence had his preparation been more thorough.

Because appellant did not establish any basis for showing that he was prejudiced, 

the trial court was not required to conduct a hearing on his claim of ineffectiveness. 

See Smith, 286 S.W.3d at 342 (the trial court did not abuse its discretion by denying 

a motion for new trial without conducting a hearing where the defendant made no 
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attempt to explain how the outcome of the trial would have been different but for 

counsel’s alleged deficient performance).

Appellant argues next that he was entitled to a hearing because counsel 

erroneously advised him that the complainant would not testify during his trial. Once 

again, even if we assumed that this allegation was sufficient for the trial court to 

reasonably conclude that counsel’s performance was deficient, appellant still 

neglected to address how he was prejudiced. Because he did not provide any factual 

basis from which the trial court could have concluded that the outcome of the 

proceedings would have been different but for counsel’s erroneous advice, appellant 

did not establish that he was entitled to a hearing on his motion for new trial. Id.

In his final point, appellant argues that he should have received a hearing 

because of counsel’s erroneous advice regarding his eligibility for deferred 

adjudication or community supervision. According to the supporting affidavit from 

the complainant’s mother, counsel told appellant about his eligibility for deferred 

adjudication before the trial began, but when counsel requested deferred 

adjudication during the punishment phase of trial, the trial court responded that the 

request was too late. We conclude that no hearing was required to evaluate this claim 

of ineffectiveness because counsel’s alleged request was never recorded in the 

official trial court transcript. Based on that omission, the trial court could have 

determined from the record that the alleged claim of ineffectiveness was false.

Appellant responds in his brief that the request may have occurred off the 

record. He then asserts:

An out of time hearing on the Appellant’s motion for new trial is needed 

to further develop the record to determine if trial counsel made this 

request off the record in some way and if the trial court told trial counsel 

it was too late as this may lead to a potential argument the trial court 

potentially failed to consider the full range of punishment and/or trial 
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counsel failed to object to the trial court not allowing him to argue for 

deferred adjudication.

This reasoning also fails. Hearings are not intended to be “fishing 

expeditions.” See Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). And 

the trial court would not have needed a hearing if it could have relied on its own 

recollection to determine whether there was an off-the-record discussion. See 

Holden v. State, 201 S.W.3d 761, 764 (Tex. Crim. App. 2006) (“The judge was 

familiar with the history and facts of the case.”).

Moreover, as with his other claims of ineffectiveness, appellant did not 

establish any facts in his motion or evidence that would support a finding that, but 

for counsel’s alleged deficiencies, there was a reasonable probability that appellant 

would have received deferred adjudication or his punishment would have been 

different. Because appellant did not provide a sufficient basis to show that he was 

prejudiced, the trial court did not abuse its discretion by denying the motion for new 

trial without having conducted a hearing. See Smith, 286 S.W.3d at 345.

EXTRANEOUS BAD ACTS

The complainant’s older sister testified as a witness for the prosecution. On 

direct examination, the sister discussed her family’s various living situations, how 

she and her siblings were removed from their mother’s care by CPS, and how they 

were ultimately placed with their aunt. The sister testified briefly about appellant, 

saying that he was very controlling and that he and her mother openly had sex in 

front of the children.

On cross-examination, defense counsel asked the sister if appellant had ever 

sexually molested her. The sister responded that appellant had entered her bed one 

evening when he was naked and under the influence. The sister later added that 

appellant masturbated in front of the family on several occasions, and that he was 
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also prone to physically abusing the family. Because defense counsel had opened 

the door to these extraneous bad acts, the prosecution explored them in further detail 

upon redirect examination.

Appellant now complains that counsel was ineffective by opening the door to

this evidence of extraneous bad acts. To prevail on this claim, appellant had the 

burden of proving that his counsel’s performance was deficient, and that the 

deficient performance was so prejudicial that it deprived him of a fair trial. See 

Strickland v. Washington, 466 U.S. 668, 687 (1984). We need only address the 

performance prong, because the failure to establish either prong defeats the claim of 

ineffectiveness. See Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

When assessing counsel’s performance, we look at the totality of the 

representation and to the circumstances of the case, not to isolated instances in the 

record reflecting errors of commission or omission. See Robertson v. State, 187 

S.W.3d 475, 483 (Tex. Crim. App. 2006). We will only conclude that counsel’s 

performance was deficient if it fell below an objective standard of reasonableness. 

See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). This is not a 

low threshold. Our review of counsel’s performance is highly deferential, beginning 

with the strong presumption that counsel’s decisions were reasonably professional 

and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 

771 (Tex. Crim. App. 1994). Thus, any allegation of ineffectiveness must be firmly 

founded in the record, and the record must affirmatively demonstrate the alleged 

ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In this case, the record is silent as to counsel’s reasons for questioning the 

sister. Though appellant moved for a new trial, he did not complain in his motion 

about counsel’s opening the door to evidence of extraneous bad acts, and counsel 

never filed an affidavit explaining his cross-examination strategy.
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On this silent record, we could only conclude that counsel’s performance was 

deficient if his conduct was “so outrageous that no competent attorney would have 

engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 

2005). That level of unreasonableness cannot be shown here. If counsel had been 

told by appellant that no extraneous sexual or physical abuse had occurred, counsel 

would have had a plausible basis for believing that his questions would not elicit an 

incriminating response. That would be reason enough to reject the claim of 

ineffectiveness. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007) 

(“If counsel’s reasons for his conduct do not appear in the record and there is at least 

the possibility that the conduct could have been grounded in legitimate trial strategy, 

we will defer to counsel’s decisions and deny relief on an ineffective assistance claim 

on direct appeal.”).

There is also the possibility that counsel relied on the prosecution’s pretrial 

notice of intent to use extraneous offenses, which omitted any mention that appellant 

had sexually molested the sister. Though the pretrial notice mentioned that appellant 

had indecently exposed himself to the sister and that he had physically abused her, 

counsel may have reasonably decided to elicit testimony about these extraneous bad 

acts because his questioning may have removed the sting from an attack that would 

otherwise come from the prosecution. See Huerta v. State, 359 S.W.3d 887, 891–92 

(Tex. App.—Houston [14th Dist.] 2012, no pet.). Appellant suggests that this 

strategy was unreasonable because the extraneous bad acts were inadmissible. But 

this argument fails to appreciate that the extraneous bad acts were admissible to rebut 

a theory of mistaken identity, which was one of appellant’s defenses. See Tex. R. 

Evid. 404(b).

Based on the foregoing, we conclude that appellant failed to overcome the 

strong presumption that his counsel’s performance was reasonable.
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CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Bourliot, and Hassan.

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