Affirmed and Memorandum Opinion filed May 31, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00534-CR

JONATHAN CALEB FERNANDEZ, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 212th District Court 

Galveston County, Texas 

Trial Court Cause No. 13-CR-2333 

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

Appellant Jonathan Caleb Fernandez appeals his conviction and sentence for 

aggravated sexual assault of a child. In two related issues, he contends that the trial 

court abused its discretion in allowing his motion for new trial to be overruled by 

operation of law without conducting a hearing. Because we conclude that appellant 

has not shown he was entitled to a hearing on his motion, we hold that the trial court 

did not abuse its discretion and we affirm. 
2

Background 

A Galveston County grand jury indicted appellant for aggravated sexual 

assault of a child. Appellant pleaded guilty. The trial court deferred a finding of 

guilt and placed appellant on community supervision for ten years. Alleging that 

appellant had violated certain terms and conditions of his community supervision, 

the State subsequently moved to revoke appellant’s community supervision and 

adjudicate appellant’s guilt. After a hearing, the trial court revoked appellant’s 

community supervision, found appellant guilty of the charged offense, and assessed 

appellant’s punishment at 80 years’ confinement. 

Appellant filed a motion for new trial, raising several grounds purportedly 

requiring development of facts outside the existing record; appellant did not include 

a supporting affidavit. The trial court did not hold a hearing on the motion, which 

was subsequently overruled by operation of law. Appellant now appeals. 

Analysis 

In two related issues, appellant argues that the trial court abused its discretion 

in not conducting a hearing on the motion for new trial, because the grounds asserted 

purportedly required development of facts outside the record. 

We review a trial court’s ruling on whether to grant 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 reverse only when the trial court’s decision was 

so clearly wrong as to lie outside that zone within which reasonable persons might 

disagree. Id.

The purpose of a hearing on a motion for new trial is to enable the trial court 

to decide whether the case should be retried and to enable the defendant to develop

a record for presenting issues on appeal in the event the motion is denied. Id. at 338.
3

A hearing on a motion for new trial is mandatory when the motion and 

accompanying affidavits raise matters that are not determinable from the record, and 

the defendant establishes the existence of reasonable grounds showing that he could 

be entitled to relief. Id. at 338-39. The right to a hearing on a motion for new trial

under these circumstances, however, is not absolute. Id. at 338. 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 specifically setting out a 

sufficient factual basis for the claims made. Id. at 339 (stating that, as prerequisite 

to hearing when grounds in motion for new trial are based on matters not already in 

record, motion must be supported by affidavit, either from defendant or someone 

else); see also Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994).1

Appellant filed a motion for new trial, asserting that: (1) he had insufficient 

time to consider a plea bargain offer prior to the hearing on the State’s motion to 

revoke; and (2) his punishment was unconstitutionally cruel and unusual.2 On 

appeal, appellant argues that his entitlement to relief on these grounds could not be 

determined from the record and thus the trial court was required to hold an 

evidentiary hearing.3 

Although appellant supported his motion with a number of letters from friends 

or acquaintances attesting to the “good person Mr. Fernandez has become,” he did 

 

1

“The affidavit requirement for claims grounded on facts outside the appellate record is a 

product of case law and is not a creature of statute or rule.” Smith, 286 S.W.3d at 339 n.16.

2 Appellant also argued that the trial court should grant a new trial in the interest of justice. 

He acknowledges in his appellate brief that this ground does not require facts to be developed that 

are outside the record, and he does not assign any error regarding this ground.

3 Accord, e.g., Pantoja v. State, 496 S.W.3d 186, 193 n.4 (Tex. App.—Fort Worth 2016, 

pet. ref’d) (appellate court unable to determine whether punishment constituted grossly 

disproportionate sentence or cruel and unusual punishment when record contained no evidence 

regarding other sentences imposed for same offense).
4

not file supporting affidavits specifically setting out the factual bases for his claims. 

Accordingly, we hold that the trial court did not abuse its discretion in not conducting 

an evidentiary hearing on appellant’s motion for new trial. See Perales v. State, No. 

14-04-00853-CR, 2005 WL 1639076, at *3 (Tex. App.—Houston [14th Dist.] July 

14, 2005, no pet.) (mem. op., not designated for publication) (per curiam); see also

Smith v. State, No. 14-03-00514-CR, 2004 WL 1171821, at *1 (Tex. App.—Houston 

[14th Dist.] May 27, 2004, no pet.) (mem. op., not designated for publication) 

(overruling appellant’s issue contending trial court erred in not conducting a hearing 

“[b]ecause appellant’s motion is not accompanied by an affidavit”); Robinson v. 

State, 514 S.W.3d 816, 826 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d)

(“Because appellant did not support his motion for new trial with any affidavits 

specifically setting out the factual basis for his claims, he was not entitled to a 

hearing on his motion.”); Klapesky v. State, 256 S.W.3d 442, 454 (Tex. App.—

Austin 2008, pet. ref’d) (“A motion for new trial alleging facts outside the record 

without supporting affidavits is not a proper pleading and is defective; a trial court 

does not err in refusing to grant a hearing on such a motion.”).

We overrule appellant’s two issues on appeal. 

Conclusion 

We affirm the trial court’s judgment. 

 

 /s/ Kevin Jewell

 Justice 

Panel consists of Justices Busby, Brown, and Jewell.

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