Order issued May 8, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-01115-CR

———————————

JESUS GONZALEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1307888

O R D E R

A jury found appellant, Jesus Gonzalez, guilty of the offense of murder,1and 

the trial court assessed his punishment at confinement for fifty years. Appellant 

has moved this Court to abate his appeal and remand the case to the trial court for 

 

1 See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).
2

an evidentiary hearing on his new-trial motion, contending that the trial court 

abused its discretion in not holding a hearing on his motion. 

We abate the appeal and remand the case for additional proceedings.

Background

On January 4, 2013, appellant filed a new-trial motion, contending that his 

trial counsel provided him ineffective assistance in not calling any witnesses on his 

behalf in the punishment stage of trial. Appellant notes that he “readily admitted 

his responsibility and confessed his guilt,” yet his trial counsel presented “no 

mitigation case.” After the jury returned its guilty verdict against appellant, the 

State called three witnesses during the punishment phase of trial, and, “[r]ather 

than counter” the testimony, appellant’s trial counsel, “simply rested and presented 

no witnesses . . . .” Appellant timely presented his new-trial motion to the trial 

court, which denied the motion without an evidentiary hearing on January 9, 2013.

Standard of Review

We review a trial court’s denial of a hearing on a new-trial motion for an 

abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009); 

Washington v. State, No. 01-11-00692-CR, 2012 WL 2512717, at *3 (Tex. App.—

Houston [1st Dist.] June 28, 2012, order). The purposes of a new-trial hearing are 
3

(1) to determine whether the case should be retried or (2) to complete the record 

for presenting issues on appeal. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim.

App. 2009). There is not an absolute right to such a hearing. Id. However, a trial 

court abuses its discretion in not holding a hearing if the new-trial motion and 

accompanying affidavits (1) raise matters that are not determinable from the record 

and (2) establish reasonable grounds showing that the defendant could potentially 

be entitled to relief. Id. A new-trial motion must be supported by an affidavit 

specifically setting out the factual basis for the claim. Id. “If the affidavit is 

conclusory, is unsupported by facts, or fails to provide requisite notice of the basis 

for the relief claimed, no hearing is required.” Id. But a supporting affidavit “need 

not establish a prima facie case, or even reflect every component legally required 

to establish relief.” Smith, 286 S.W.3d at 339 (citation omitted). Rather, it “is 

sufficient if a fair reading” of the affidavit “gives rise to reasonable grounds in 

support of the claim.” Id.

Hearing on New-Trial Motion

In his motion to abate, appellant argues that the trial court erred in denying 

his request for an evidentiary hearing on his new-trial motion because “the reasons 

for trial counsel’s decision not to present a mitigation case remain unclear, thus 

necessitating a hearing on the issue.” The State argues that this Court may not 
4

abate the appeal for the trial court to conduct an “out-of-time” evidentiary hearing 

on appellant’s motion because we would have to suspend the Texas Rules of 

Appellate Procedure to do so and “[t]he traditional method for bringing an 

ineffective claim before this Court is to brief the merits of the issue in a direct 

appeal.”

Here, the State does not challenge the fact that it cannot be determined from 

the record whether appellant’s trial counsel had any particular strategy in mind in 

not presenting the jury with any mitigation evidence in the punishment phase of 

trial. Thus, in determining whether the trial court abused its discretion in denying 

appellant a hearing on his new-trial motion, we need only consider whether 

appellant’s new-trial motion and accompanying affidavits establish reasonable 

grounds demonstrating that he could potentially be entitled to relief on his 

ineffective-assistance claim. Id.; see also Washington, 2012 WL 2512717, at *4.

In order to prove an ineffective-assistance claim, a defendant must show that 

his trial counsel’s performance fell below an objective standard of reasonableness 

and, but for his counsel’s unprofessional error, there is a reasonable probability 

that the result of the proceeding would have been different. Strickland v. 

Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); 

Smith, 286 S.W.3d at 340. “Reasonable probability” is a “probability sufficient to 

undermine confidence in the outcome,” meaning “counsel’s errors were so serious 
5

as to deprive the defendant of a fair trial, a trial whose result is reliable.” Smith, 

286 S.W.3d at 340. Thus, before a defendant will be entitled to a hearing on a

new-trial motion alleging ineffective assistance, he must 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 his trial would have been different.” Id. 

at 340–41. 

In his new-trial motion, appellant asserted that his trial counsel failed to 

interview or call numerous witnesses who were available and willing to testify on 

his behalf in regard to his punishment.

2

 He attached 12 affidavits to his motion for 

new trial.3 According to the translations of the affidavits, one affiant testified that 

 

2 Appellant further contended in his new-trial motion that the trial court erred in not

instructing the jury on the issue of “sudden passion” and a new trial is warranted 

in “the interest of justice.” He does not assert either of these grounds as a basis for 

remanding the case for an evidentiary hearing.

3 The affidavits, which are all in Spanish, are accompanied by uncertified 

translations, apparently by staff members of the Harris County Public Defender’s 

Office. These translations would not be sufficient to establish the admissibility of 

the affidavits into evidence. See TEX. R. EVID. 1009(a), (f). Nevertheless, 

appellant would have been entitled to the appointment of an interpreter to assist 

with providing live testimony to the trial court at a hearing on his motion, and the 

affidavits, coupled with the translations, were sufficient to inform the trial court 

that appellant had evidence to support his motion. See TEX. CODE CRIM. PROC.

ANN. art. 38.30(a) (Vernon Supp. 2012); Leal v. State, 782 S.W.2d 844, 849 (Tex. 

Crim. App. 1989); Rodriguez v. State, No. 05-10-00142-CR, 2011 WL 1744410, 

at *3–4 (Tex. App.—Dallas May 9, 2011, no pet.) (mem. op., not designated for 

publication); Peralta v. State, 338 S.W.3d 598, 606 (Tex. App.—El Paso 2010, no 

pet.); Chia-Ochoa v. State, No. 14-02-00857-CR, 2003 WL 21710444, at *2 (Tex. 
6

he spoke with appellant’s trial counsel and expected to be called to testify that 

appellant was a good father, son, uncle, brother, and husband. However, he was 

not called to testify. Eight other affiants testified that although they were not

contacted by trial counsel or by an investigator, they would have been willing to 

testify that appellant was a peaceful, hard-working, and good family man; a good 

father, husband, brother, son, and friend; and he was nice to his children, calm, not 

aggressive or violent, and responsible. Another affiant echoed these sentiments, 

but did not specifically state that he was willing and available to testify. An 

additional affiant testified that no one contacted him regarding any possible 

testimony; appellant wanted to give his family, to whom he was dedicated, a good 

future; he was not violent or a drunk; and he wanted to foster a child from 

“Children International.” Finally, two affiants, both of whom reside in Mexico, 

testified that appellant completed elementary and middle school, he studied to 

become a mechanic and received good grades, he was dedicated to his wife, and he 

had not had problems with anyone.

In his motion and supporting affidavits, appellant alleged facts which, if 

established at a hearing, would show that his trial counsel’s representation was 

 

App.—Houston [14th Dist.] July 24, 2003, pet. ref’d) (mem. op., not designated 

for publication); Villarreal v. State, 853 S.W.2d 170, 172 (Tex. App.—Corpus 

Christi 1993, no pet.); see also TEX. R. EVID. 1009(e) (authorizing admission of 

translation of foreign language document at trial by live testimony of qualified 

expert translator).
7

deficient and the deficient performance prejudiced appellant. First, the “failure to 

investigate and call any punishment witnesses amounts to deficient performance.” 

Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.—Houston [1st Dist.] 2005, pet. 

ref’d); see also Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th 

Dist.] 2000, pet. ref’d) (holding that failure to investigate and evaluate available 

punishment evidence amounts to deficient performance). Second, the failure to 

present any evidence of mitigating factors for the jury to consider to balance 

against the State’s punishment evidence, including evidence of good character 

traits, such as taking care of a child, helping friends and relatives, being a good 

father, and being a hard worker, demonstrates prejudice. See Shanklin, 190 

S.W.3d at 165; Milburn, 15 S.W.3d at 270–71. Thus, by presenting evidence to 

the trial court that his trial counsel failed to interview any of the available 

witnesses and the witnesses would have testified to positive character traits, 

appellant alleged sufficient facts to entitle him to an evidentiary hearing on his 

new-trial motion.

4

 See Smith, 286 S.W.3d at 340–41.

 

4 Of course, appellant’s trial counsel would be entitled to testify at the hearing to 

explain what investigation, if any, he conducted and any trial strategy he may have 

employed in not calling the witnesses. See, e.g., Hobbs v. State, 298 S.W.3d 193, 

202 (Tex. Crim. App. 2009) (stating defense counsel entitled to present his 

strategy on record); see also Dillon v. State, No. 12-06-00135-CR, 2007 WL 

4216253, at *3–7 (Tex. App.—Tyler Nov. 30, 2007, pet. ref’d) (mem. op., not 

designated for publication) (concluding that trial counsel not ineffective based on 

decision not to call character witnesses other than defendant and defendant’s wife 

because counsel made reasonable decision that character witnesses would not be 

effective in case involving child sexual assault and counsel did not ignore any 
8

Accordingly, we hold that the trial court abused its discretion in not holding

a hearing on appellant’s new-trial motion. See id. at 340.

In regard to the State’s argument that this Court may not abate the appeal for 

the trial court to conduct an evidentiary hearing on appellant’s new-trial motion, 

we note that ample authority actually compels such an abatement of the appeal. 

Indeed, we “must not affirm or reverse a judgment or dismiss an appeal if: (1) the 

trial court’s erroneous action or failure or refusal to act prevents the proper 

presentation of a case to the court of appeals; and (2) the trial court can correct its 

action or failure to act.” TEX. R. APP. P. 44.4(a). In such a circumstance, we must 

direct the trial court to correct the error and then proceed as if the error had not 

occurred. See id. 44.4(b).

Here, the trial court’s error prevents appellant from properly presenting his 

claim for ineffective assistance of counsel in his direct appeal to this court. See

TEX. R. APP. P. 21.2; Washington, 2012 WL 2512717 at *5; McCain v. State, 995 

S.W.2d 229, 245 n.9 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); Toney v. 

State, 783 S.W.2d 740, 742 (Tex. App.—El Paso 1990, pet. ref’d); see also Cooks 

v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007) (“Sometimes a motion for 

 

promising leads after conferring with defendant); Hills v. State, No. 14-02-00379-

CR, 2003 WL 21402606, at *2 (Tex. App.—Houston [14th Dist.] June 19, 2003, 

pet. ref’d) (mem. op., not designated for publication) (concluding that defendant

failed to demonstrate ineffective assistance after trial counsel swore, in affidavit, 

that appellant refused to provide counsel with names of any witnesses who might 

be of assistance).
9

new trial is a necessary step to adduce facts not otherwise in the record, in order to 

be able to present these points of error based on those facts in the appeal.”). 

Because the trial court can correct its error by holding an evidentiary hearing on 

appellant’s motion, we may not reverse or affirm the judgment or dismiss the 

appeal until the trial court has corrected the error. See TEX. R. APP. P. 44.4. 

Therefore, we must direct the trial court to remedy the error, by holding an 

evidentiary hearing on appellant’s new-trial motion before we issue a judgment 

and mandate in this case. See TEX. R. APP. P. 18.1 (requiring clerk of court to 

issue mandate in accordance with judgment), 43.2 (authorizing types of judgments 

by appellate courts), 44.4 (requiring appellate court to direct trial court to correct 

remediable error that prevents proper presentation of appeal and to proceed as if 

error had not occurred); see also TEX. R. APP. P. 43.6 (authorizing appellate court 

to “make any other appropriate order that the law and the nature of the case 

require.”).

The cases relied upon by the State in support of its argument are not on 

point. All but one of the cases cited by the State involved a situation in which the

appellate court rejected an appellant’s request, based on Texas Rule of Appellate 

Procedure 2, to file an out-of-time motion for new trial. See Oldham v. State, 977 

S.W.2d 354, 359–60 (Tex. Crim. App. 1998); Benson v. State, 224 S.W.3d 485, 

488, 493–95 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Bowler v. State, 822 
10

S.W.2d 334, 335 & n.2 (Tex. App.—San Antonio 1992, pet. ref’d); Torres v. State, 

804 S.W.2d 918, 920 (Tex. App.—El Paso 1990, pet. ref’d), overruled on other 

grounds, M.B. v. State, 905 S.W.2d 344 (Tex. App.—El Paso 1995, no writ). In 

the other case, the appellate court declined to use rule 2 to abate the case for a 

hearing on a new-trial motion after the appellant had waived any complaint 

regarding the trial court’s failure to hold such a hearing. See Crowell v. State, 949 

S.W.2d 37, 38 (Tex. App.—San Antonio 1997, no pet.). Here, in contrast, 

appellant timely filed and presented his new-trial motion and the trial court erred in

not holding an evidentiary hearing on the motion.

Accordingly, we must abate this appeal and remand the case to the trial court

to conduct an evidentiary hearing. See TEX. R. APP. P. 44.4; see also TEX. R. APP.

P. 43.6 (authorizing appellate courts to “make any other appropriate order that the 

law and the nature of the case require”); Martinez v. State, 74 S.W.3d 19, 22 (Tex. 

Crim. App. 2002) (concluding that trial court abused its discretion in failing to 

conduct hearing on new-trial motion, reversing court of appeals, and remanding 

with instructions to abate appeal and remand cause to trial court to conduct hearing 

on new-trial motion); Taylor v. State, 163 S.W.3d 277, 284 (Tex. App.—Austin 

2005, pet. dism’d) (concluding that Texas Rule of Appellate Procedure 25.2(g) did 

not prohibit trial court from holding hearing on timely-filed new-trial motion, 

abating appeal, and remanding for evidentiary hearing); Reyes v. State, 82 S.W.3d 
11

351, 353 (Tex. App.—Houston [1st Dist.] 2001, order) (“We agree that an 

abatement is proper to conduct a hearing to present the evidence that would have 

been introduced had a hearing on the motion for new trial been held.”).

Conclusion

We grant appellant’s motion, abate this appeal, and remand the case to the 

trial court. On remand, the trial court shall conduct an evidentiary hearing on 

appellant’s new-trial motion within thirty days of the date of this order and at 

which a representative of the Harris County District Attorney’s Office and 

appellant’s counsel on appeal, Mark C. Kratovil, shall be present. Appellant shall 

also be present for the hearing in person or, if he is incarcerated, at the trial court’s 

discretion, he may participate in the hearing by the use of a closed-circuit video 

teleconferencing system that provides for a simultaneous compressed full motion 

video and interactive communication of image and sound.5 

If the trial court grants the motion, appellant’s appeal will be dismissed. If 

the motion is overruled, the reporter’s record is to be supplemented, and the parties 

will be permitted to brief any issues relating to the overruling of the motion that 

have not already been addressed in this opinion. Any ruling is to be included in a 

supplemental clerk’s record and transmitted to this Court within thirty-one days 

 

5 On request of appellant, he and his counsel shall be able to communicate privately 

without being recorded or heard by the trial court or the attorney representing the 

State. 
12

from the date of this order. This appeal is abated, treated as a closed case, and 

removed from this Court’s active docket. The appeal will be reinstated on this 

Court’s active docket when the supplemental clerk’s record and the reporter’s 

record of the hearing on the new-trial motion are filed with the Clerk of this Court.

It is so ORDERED.

Per Curiam

Panel consists of Justices Jennings, Bland, and Massengale.

Date: May 8, 2013