Barnett v. State, 338 S.W.3d 680

Barnett was convicted of aggravated assault with a deadly weapon, with two sentence enhancements, and sentenced to 50 years' imprisonment.
Barnett moved for new trial alleging ineffective-assistance claims: failure to object to testimony about past criminal history, failure to object to extraneous-offense evidence, failure to locate a crucial witness, failure to challenge alleged assault by Barnett on a witness, failure to request a lesser-included offense instruction, failure to present mitigating evidence, and failure to call a witness who could impeach a key witness.
Barnett sought a hearing on the motion for new trial, supported by an affidavit.
The State indicated Rowland could be located and did not want to testify; Rowland’s affidavit contradicted some trial testimony but did not render her unavailable.
The court abated the appeal to permit a hearing on the motion for new trial, holding that the grounds alleged could not be determinable from the record and warranted a hearing for potential relief.
The opinion explains the standards for when a new-trial hearing is mandatory and identifies two dispositive ineffective-assistance theories (failure to subpoena/locate Rowland and failure to present mitigating evidence) as needing development at a hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Barnett was entitled to a new-trial hearing on ineffective-assistance claims	Barnett (Barnett) argues the motion raised non-record facts warranting a hearing	State contends no hearing necessary absent determinable record issues	Hearing mandated; the motion raised non-record, reasonable grounds requiring development at a hearing.
Whether counsel's failure to subpoena Rowland or locate her entitles relief	Rowland could have testified favorably; continuance sought but not granted	Rowland was available but did not want to testify; counsel’s strategy unassessed	Record insufficient; a hearing is required to develop whether counsel’s actions were deficient and prejudiced the defense.
Whether counsel's failure to present mitigating evidence at punishment entitles relief	Counsel failed to investigate/present mental-health mitigating evidence	Counsel’s decision not to introduce mitigating evidence was reasonable given trial context	Motion raises reasonable grounds for relief; a hearing is required to determine deficiency and prejudice.

Gonzales v. State, 304 S.W.3d 838 (Tex.Crim.App.2010) (abuse of discretion standard for new-trial hearings; mandatory hearing if non-record issues arise)
Smith v. State, 286 S.W.3d 333 (Tex.Crim.App.2009) (hearing required when grounds are not determinable from the record; discretion limits)
Martinez v. State, 74 S.W.3d 19 (Tex.Crim.App.2002) (test for when a hearing on new-trial is appropriate)
Reyes v. State, 849 S.W.2d 812 (Tex.Crim.App.1993) (affidavit-based threshold for new-trial hearing)
Stokes v. State, 298 S.W.3d 428 (Tex.App.-Houston [14th Dist.] 2009) (affidavit sufficiency to warrant a hearing)
Hobbs v. State, 298 S.W.3d 193 (Tex.Crim.App.2009) (purposes of new-trial hearing; three-prong test for entitlement)
Smith v. State, 286 S.W.3d 341 (Tex.Crim.App.2009) (equates to evaluating Strickland prejudice in record-less claims)
Williams v. Taylor, 529 U.S. 362 (2000) (mitigation evidence and reasonable-strict-strickland analysis; relevance to punishment)
Freeman v. State, 167 S.W.3d 114 (Tex.App.-Waco 2005) (mitigating evidence may be admissible and impactful; counsel's investigation discussed)