Affirmed and Memorandum Opinion filed July 9, 2015

In The

Fourteenth Court of Appeals

NO. 14-14-00498-CR

MARK SOLIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1392000

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

Appellant Mark Soliz appeals his conviction for aggravated robbery. 

Following a jury trial, appellant pleaded “true” to an enhancement allegation and

the trial court assessed punishment at thirty years in prison. In a single issue,

appellant contends that the trial court erred by denying his motion for new trial on 

the basis of newly discovered alibi evidence. 
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BACKGROUND

On June 4, 2013, the complainant Esperanza Tabares was working the front 

entrance at a game room when a male wearing a hat and sunglasses and an 

unknown female approached her under the pretense of picking up a game room 

member’s card. Once the complainant let them inside the building, appellant hit the 

complainant in the head with a gun, causing her to fall to the ground. While the 

complainant was lying on the ground, appellant stole her purse and a pouch full of 

money that she was carrying to provide money to game room patrons. Appellant 

then broke the office window with a hammer and the female suspect unlocked the

office door from the outside. Appellant stole more money from the office and also 

removed security equipment. The complainant saw the man who robbed her and 

described him to the police. A few hours after the robbery, the complainant 

realized that she recognized the man as the game room security guard whom she 

had previously met. The complainant identified appellant from a photo array and in 

court as the man who robbed her. 

Appellant was indicted for the felony offense of aggravated robbery with a 

deadly weapon. See Tex. Penal Code § 29.03(a)(2). Appellant pleaded not guilty to 

the indictment. On June 4, 2014, a jury found appellant guilty as charged in the 

indictment. Appellant pleaded “true” to the State’s enhancement allegation and the 

trial court sentenced appellant to thirty years in prison. Appellant timely filed a 

motion for new trial with supporting affidavits from two alibi witnesses. The trial 

court held a hearing on appellant’s motion for new trial on August 7, 2014. 

At the hearing on the motion for new trial, appellant testified first. Appellant 

stated that during the time of the offense, he was attending a picnic with his family 

at Texas Battleship Park from approximately 12:00 p.m. to 5:00 p.m. Appellant 

claimed that he provided his trial counsel with multiple alibi witnesses, including 
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his brother, brother’s girlfriend, and two sisters, who were with him at the park that 

day. He stated that his trial counsel informed him that his brother Ruben could not 

testify because he was not a citizen and that his younger sister, Julie, could not 

testify because she had a criminal record. Appellant stated that trial counsel refused 

to allow his older sister Dolores to testify because she had not been subpoenaed. 

Appellant stated that he wanted to testify during the guilt-innocence phase of 

trial but he was unaware that he had the right to testify and was scared to inform 

the trial judge that he wanted to testify. Appellant stated that his trial counsel did 

not explain to him that he had the right to testify and did not explain how trial 

worked. He stated that he told his trial counsel that he wanted to testify but his 

counsel said he refused. Appellant did, however, testify during the punishment 

phase of trial. Appellant claimed that he did not recall the moment in which his 

trial counsel turned to him at trial and appellant shook his head, indicating that he 

did not want to testify. 

Dolores also testified at the hearing and provided an affidavit. In her

affidavit, Dolores stated that appellant’s trial counsel asked her to assist with 

appellant’s case, but she did not expect appellant to lose and “did not take [her]

alibi testimony as seriously as [she] should have.” At the hearing, she explained 

that she was present at the trial, but appellant’s counsel refused to let her testify. 

She also stated that appellant’s trial counsel asked her about alibi witnesses and she 

provided herself and her brother and sister. Dolores corroborated appellant’s 

testimony and stated that on the date of the offense, they had a picnic at Texas 

Battleship Park along with other family members. 

Julie testified at the hearing and also explained that she, appellant, and their 

family were at a picnic at Texas Battleship Park during the time of the offense. 

Julie similarly stated in her affidavit that appellant’s trial lawyer asked her to assist 
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but she did not expect appellant to lose and did not take her alibi testimony 

seriously. She further stated that she was not present at trial, but if appellant’s trial 

counsel had asked her to testify, she would have testified. At the hearing, she stated 

that she never had a conversation with appellant’s trial counsel.

Appellant’s trial counsel testified that he spoke to appellant at every court 

appearance, visited him in jail, and spoke to Dolores on at least eight different 

occasions. He also spoke with appellant’s mother several times. Trial counsel 

explained that he discussed appellant’s defense with appellant and his family and 

informed them that alibi evidence was needed to “strengthen the case.” He stated 

that when he started the case, appellant and Dolores informed him that they were at 

a picnic near the San Jacinto Monument on the date of the offense. He asked them 

for the names, telephone numbers, and addresses of people at the picnic so he

could develop them as alibi witnesses. He stated that every time he spoke with 

Dolores, he asked for this information but she never provided it. Trial counsel 

further admitted that even if Dolores volunteered to testify, he was leery of putting 

her on the stand due to her continued failure to provide the alibi witness

information. Trial counsel testified that he advised appellant against testifying 

because of his criminal history and that appellant chose not to testify after he 

explained all of the options to him. He explained that if he had alibi witnesses that 

he was confident in, he would have tried to get them to testify. 

The trial judge described his own recollections of the trial. He recalled 

extensively explaining appellant’s right to testify during voir dire, in which he 

noted that “if the defendant was paying attention at all during that, then he would 

know that he has the right to testify.” The trial judge remembered stating that if 

any witnesses in the courtroom would be testifying, they needed to wait outside the 

courtroom. The trial judge recalled that Dolores remained in the courtroom after he 
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made this statement. He remembered discussing appellant’s prior convictions and 

appellant’s trial counsel looking at appellant asking him if he was going to testify 

and appellant shaking his head, indicating “no.” The trial judge stated that he did 

not believe that trial counsel went through the expense to provide expert testimony, 

yet denied the alibi witnesses the ability to testify. Lastly, the trial judge found 

appellant’s trial counsel credible in seeking the alibi witness information from 

appellant and appellant’s family and that it was never given to him. At the 

conclusion of the hearing, the trial court denied appellant’s motion for new trial. 

STANDARD OF REVIEW

We review a trial court’s denial of a motion for new trial for an abuse of 

discretion. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). We 

do not substitute our judgment for that of the trial court; rather, we decide whether 

the trial court’s decision was arbitrary or unreasonable. Id. An appellate court 

views the evidence in the light most favorable to the trial court’s ruling, defers to 

the trial court regarding credibility determinations, and presumes that all 

reasonable fact findings in support of the ruling have been made. State v. Thomas, 

428 S.W.3d 99, 104 (Tex. Crim. App. 2014). A trial court abuses its discretion in 

denying a motion for a new trial when no reasonable view of the record could 

support the trial court’s ruling. McQuarrie, 380 S.W.3d at 150.

ANALYSIS OF APPELLANT’S ISSUE

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

by denying his motion for new trial. Appellant contends that his two alibi 

witnesses constitute “newly discovered evidence.” Appellant asserts that the 

witnesses did not understand the importance of asserting his alibi at trial and that 

appellant’s trial counsel denied the witnesses the ability to testify. 
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Motions for new trial based on newly discovered evidence are not favored 

by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 

225 (Tex. Crim. App. 1987). Article 40.001 of the Texas Code of Criminal 

Procedure provides that “[a] new trial shall be granted an accused where material 

evidence favorable to the accused has been discovered since trial.” Tex. Code 

Crim. Proc. art. 40.001. A defendant is entitled to have his motion for new trial

granted if (1) the newly discovered evidence was unknown to him at the time of 

trial; (2) his failure to discover the new evidence was not due to his lack of due 

diligence; (3) the new evidence is admissible and not merely cumulative, 

corroborative, collateral, or impeaching; and (4) the new evidence is probably true 

and will probably bring about a different result in a new trial. See Carsner v. State, 

444 S.W.3d 1, 2−3 (Tex. Crim. App. 2014); Wallace v. State, 106 S.W.3d 103, 108 

(Tex. Crim. App. 2003). If appellant fails to establish any one of the four required 

elements, a trial court is justified in denying a motion for new trial. See Jones v. 

State, 234 S.W.3d 151, 157 (Tex. App.—San Antonio 2007, no pet.). 

The requirement that appellant show the newly discovered evidence was 

unknown to him at the time of trial is fundamental. Tate v. State, 834 S.W.2d 566, 

571 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). A new trial is never allowed 

for the purpose of obtaining evidence that was known and accessible to the 

defendant at the time the cause was tried, even if the defendant had knowledge of 

the evidence but failed to communicate it to his attorney. Drew, 743 S.W.2d at 227 

n.14; Marines v. State, 292 S.W.3d 103, 110 (Tex. App.—Houston [14th Dist.] 

2008, pet ref’d). 

It is evident from the record that appellant was aware of his alibi and the 

potential alibi witnesses before trial. Appellant claimed that he informed his

counsel before trial that he did not commit the offense because he was at a park 
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with his family during the robbery. Appellant and Dolores both testified that they 

provided this alibi information to counsel before trial. Therefore, appellant was 

aware of where he was on the offense date and this information was known and 

available to him at the time of trial. The existence of Dolores and Julie as potential 

witnesses cannot be considered newly discovered evidence. Dolores and Julie both 

stated in their affidavits that although counsel asked them to assist in appellant’s 

case, they did not expect appellant to lose and did not take their alibi testimony 

seriously.

“Since appellant must have known prior to the trial where he was and what 

he was doing, and who he was with, the evidence of alibi presented by [the 

witness] could not have been considered as ‘newly discovered.’” Baker v. State, 

504 S.W.2d 872, 875 (Tex. Crim. App. 1974) (concluding potential alibi witness 

who was with appellant during the offense cannot be considered newly 

discovered); see also Drew, 743 S.W.2d at 227 (holding that appellant’s 

nonparticipation in the offense was known to him before trial); Yarbrough v. State, 

57 S.W.3d 611, 618 (Tex. App.—Texarkana 2001, pet. ref’d) (holding that 

appellant’s co-defendant’s testimony that appellant did not commit the offense 

could not be considered newly discovered evidence). Appellant fails the first prong 

because his alibi and alibi witnesses were known to him at the time of trial. 

Further, appellant’s failure to provide alibi witness testimony to his trial 

counsel was due to a lack of diligence. When appellant’s trial counsel repeatedly 

requested information regarding the alibi evidence, appellant failed to provide his 

trial counsel with that information. See Marines, 292 S.W.3d at 111−12 (finding 

that appellant’s failure to inform trial counsel of newly discovered evidence was 

due to appellant’s lack of diligence); Zamora v. State, 647 S.W.2d 90, 95 (Tex. 

App.—San Antonio 1983, no pet.) (holding that appellant’s failure to inform his 
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attorney about known witness showed lack of due diligence).

We conclude that the trial court did not abuse its discretion by denying 

appellant’s motion for new trial. Appellant has failed to show that this “newly 

discovered evidence” was either unknown or unavailable to him at the time of trial 

and that the failure to obtain this evidence was not due to a lack of diligence. We 

overrule appellant’s single issue. 

CONCLUSION

We overrule appellant’s issue and affirm the trial court’s denial of the 

motion for new trial. 

/s/ Ken Wise

 Justice

Panel consists of Justices Christopher, Brown, and Wise.

Do Not Publish — TEX. R. APP. P. 47.2(b).