Gonzalez, Eric Christopher A/K/A Eric Christobal Gonzalez
PD-1172-14
| Tex. App. | Feb 12, 2015Background
- Appellant Gonzalez was convicted of felony murder, aggravated assault, felony evading arrest, and possession of marijuana with concurrent sentences.
- He filed a motion for new trial alleging ineffective assistance of counsel; the trial court denied without a hearing after rescinding a prior hearing order.
- The Thirteenth Court of Appeal issued a published 2014 decision denying relief; no rehearing was filed.
- Gonzalez petitioned for discretionary review; the Texas Court of Criminal Appeals denied it on January 28, 2015.
- Gonzalez filed this pro se motion for re-hearing arguing intervening circumstances and requesting an evidentiary hearing on ineffective assistance claims, standing for Art. 38.23, and the admissibility of evidence.
- The motion asserts the court misapplied controlling authorities and seeks further disposition on three grounds related to trial counsel effectiveness, standing to challenge consent, and the admissibility of marijuana evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Evidentiary hearing on ineffective assistance | Gonzalez contends trial court abused discretion; affidavit suffices for a hearing. | State contends affidavit with legal conclusions is insufficient to warrant a hearing. | Gonzalez entitled to an evidentiary hearing on his motion for new trial |
| Standing to obtain Art.38.23 instruction | Gonzalez had standing to challenge Flores' consent and seek Art.38.23 instruction. | Court of Appeals erred in granting standing to Gonzalez. | Gonzalez entitled to re-hearing and discretionary review on standing |
| Effect of marijuana evidence on substantial rights | Erroneous admission of marijuana and related photos affected substantial rights and merits review. | Court concluded error harmless or not determinative of substantial rights. | Re-hearing appropriate; issue merits re-evaluation |
Key Cases Cited
- Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) (trail to hearing when record silent on counsel motives; mandatory hearing)
- Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007) (guides evaluating claims on silent records)
- Barnett v. State, 338 S.W.3d 680 (Tex. App.-Texarkana 2011) (affirms need to assess ineffective assistance with record context)
- Rozell v. State, 137 S.W.3d 106 (Tex. App.-Houston [1st Dist.] 2004) (silent record requires evidentiary hearing; later AB'd)
- Hale v. State, 140 S.W.3d 381 (Tex. App.-Fort Worth 2004) (motion for new trial proper vehicle for ineffective assistance claims)
- Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008) (Art.38.23 when evidence contested raises jury instruction issue)
- Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996) (distinguishes legal admissibility versus factual dispute for jury instruction)
- Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) (recognizes jury instruction scope regarding illegally obtained evidence)
- Barnett v. State, 338 S.W.3d 680 (Tex. App.-Texarkana 2011) (per curiam on point of ineffective assistance context)