Alford v. State
807 S.W.2d 840
Tex. App.
1991
Check Treatment

*1 process their ramifications of legal certainly right Rice to be legally

aware. We hold the evidence both factually support sufficient findings of DTPA viola-

jury’s affirmative Moreover, damage

tions. award range damages

well within shown Alviar,

the evidence. See Garza (Tex.1965); Hycel, Inc. v.

Wittstruck, dism’d).

—Waco, writ is affirmed. ALFORD, Douglas Appellant,

Winifred Texas, Appellee.

The STATE of

No. 10-90-097-CR.

Court

Waco. 28, 1991. March Cleburne, Whitworth, ap- D. Thomas

pellant. Cleburne, Boulware, Atty.,

Dan M. Dist. for appellee. THOMAS, C.J., and

Before VANCE, JJ. CUMMINGS OPINION CUMMINGS, Justice.

juryA convicted occurred on burglary of a habitation which March 1989. See Tex.Penal Ann. Code 30.02(a)(1). was assessed Punishment § complains years prison. Appellant seven when it its discretion that the court abused based new a new trial refused in prison ly from discovered evidence re from criminal absolved him mate which sponsibility. We will affirm. defense called At trial serving Owens, who was Roosevelt witness prison fifteen-year sentence *2 the March 3 nothing to do with 1989. Ow- had ry which occurred on March he, Randy Lynn follows: claimed that ry. ens testified as Owens McKnight had committed the Richard Q you anything Do about ... know Crowley Appellant had been con- burglary up burglary around about for which year? 3rd of March of that the motion for a The court denied victed. No, new trial. A sir. Q anybody Okay. you Did ever talk to grant must a new burglary? that about ac favorable to the when new evidence Yes, They me about it.

A sir. asked the trial. cused has been discovered since Q you asked about it? Who Tex.R.App.P. 30(b)(6). mo The denial of a A Detectives. on’ a claim tion for based Q Okay. you And what did tell them? re newly discovered evidence must be nothing A I don’t know about it... . an abuse of discretion. viewed for Van Q there Okay. Mrs. Riddle has told us (Tex. Byrd v. burglary at on March was a her house 1980). Crim.App. Op.] When a court [Panel up up Crowley, three black 3rd near on— newly discover grants a new trial based on you anything that men. Do know about record must reflect that: ed evidence the at all? (1) evidence was A I would like not to answer discovered would—I question. that unavailable to the movant at unknown or trial; (2) Q time of his the movant’s Why is that? discover or obtain the evidence failure to might myself. A Because I incriminate (3) the diligence; due to a lack of was not Q Okay. you feel You like answer and is not new evidence is admissible question, might it lead some sort cumulative, corroborative, collat- prosecution you? of criminal eral, impeaching; and the new evi- Yes, A sir. probably dence is true will Q Okay. you anybody Do know —do bring result on another about a different in- you may know who else have been trial. in that volved offense? No,

A sir. 847, 849 Eddlemon v. Q Okay. [Appellant] Was involved in (Tex.Crim.App.1980). that? cumula- Clearly, Owens’ was No, up A I sir. never—I was raised mere- testimony at the trial. He tive of his him, with and I never knew of him bur- was ly repeated his claim glarizing no house. burglary. in the March 3 Sec- not involved Q Okay. you When were arrested back ond, testimo- probable truth of Owens’ year, did in the middle of March of last determine. ny for the court to See you sign admitting the a statement at 267-68. Owens Byrd, 605 S.W.2d Van burglary over off of 917? 13] [March anything he knew about denied at trial that Yes, A sir. and, hearing burglary at the the March 3 Q Okay. you absolutely positive Are trial, claimed to on the motion for new nothing [Appellant] had to do with it. the circum- know all about Under burglaries? either one of these stances, faced with Owens’ the court was No, A sir. Furthermore, testimony. inconsistent Q positive positive you Are he didn’t vic- testimony conflicted with the Owens’ he did? unequivocal identification tim’s he didn’t. positive A I’m burglars who one of the lant at trial as Q Did not. For burglary. the March 3 committed A Yeah. reasons, abuse its the court did not these it refused when on discretion also testified Owens evidence. discovered based for a new trial the motion bility judge. not for What we Appellant’s points of error are is us to have See id. is affirmed. overruled to determine whether the trial court accepting in not abused discretion THOMAS, Justice, concurring. Chief *3 true. testimony Owens’s as dissenting the opinion contains fol- Why accept the trial had to court lowing: mys- remains a testimony as true Owens’s prima When a facie case has been tery positively to me. The identified victim made, accept- the new evidence should be burglar at Appellant as the 3 the March presents if ed as true the whole record Apparently, trial. the victim’s cause the good credibility no to doubt nothing. for counts of the witnesses whose consti- evidence, by Moreover, tutes the new either reason would allow even the dissent proven the facts the trial or at the of at newly if deny to new trial the court the motion or otherwise.... of the evidence is cumulative discovered If it is clear evidence is that the new not As presented trial. the evidence that true or the new notes, already jury had heard dissent the result, the change would not the motion did not com- Owens’s claim that denied; should be if it is doubtful as but burglary: March “Roosevelt mit the 3 verdict, it the the to how would affect jury trial that Owens testified at the granted. motion should be burglary.... the At lant did commit added). (Emphasis reiterated that posttrial hearing, the Owens in the part did not take recognizes

The dissent thus under Yet, unexplained the 30(b)(6) ry.” for reason judge Rule the trial must still dissent, grant a hearing on trial had to new credibility the witnesses’ at a the a new on a claim motion for trial based of cummulative testi- trial based on Owens’s newly the dis- discovered evidence. Under mony. to postulation, sent’s someone has decide that a trial Finally, although recognizing good there is cause” to whether “no doubt if the deny trial court can a new credibility Obviously, of

the witnesses. change the would discovered evidence judge. that someone Dis- must be the result, require a new the dissent would weighing in necessarily cretion is involved testimony, which trial based on Owens's witness, credibility as the already rejected. the Consequent- simply quantified. be cannot to a new ly, the decision whether must, for always, as reviewed an be VANCE, Justice, dissenting.

abuse of discretion. change 1986 in discussing Without the Notwithstanding the trial court’s discre- new trial grounds for the motions tion, the dissent nevertheless re- would evidence based on discovered grant a new verse the citing before two cases decided accept- have ... “the court should because a denial change, the has affirmed majority new Roosevelt Ow- ed the evidence [from I believe trial which of a motion the dissent Apparently, as true.” ens] revised met the standard.1 judgment for would substitute our of Criminal court, Article 40.03 of the Code has approach always an the trial 1985, Procedure, pro- prior it in existed improper an always been and will be part: vided in Roosevelt Owens’s credi- review. State, 1988, v. pet.); no postrule Antonio Balderas which have not discussed Cortez 1. Other cases pet.). State, no (Tex.App. S.W.2d 294 are: v. 786 S.W.2d 74 735 the Wilson —Dallas State, rule but relies on these cites the (Tex.App. pet.); v. Each of cases Paso no Tate —El Dist.], citing test. No case prerule cases "material” (Tex.App. the 245 [1st 762 S.W.2d —Houston State, Court of Criminal found where the pet.); has been Chambers v. 755 S.W.2d no changed rule on dis- pet.); Appeals has reviewed the (Tex.App. [1st Dist.] —Houston State, cretionary review. v. Cevallos 755 S.W.2d 901 —San prima in trials, facie test Carlisle v. felony, New shall be element cases granted following predecessors defendant for the and its with the four-el State causes, and for no other: test v. ement of Eddlemon State the “not predecessors, wherein Where new evidence material evaluating been discovered since evi defendant has true” standard for crept trial. A motion for new trial on this for determin dence had into the test ground governed by rules shall be case had been ing whether facie suits;.... regulate civil 1013-15; Henson, made. See Eddlemon 40.03(6) (em- art. Tex.Code Crim.PROC.Ann. (Tex.Crim.App.1979); added). Carlisle phasis *4 698, (Tex.Crim.App.1977). 704 Sec S.W.2d 30, Appellate Texas Rule of Procedure ond, judge’s corral unbridled to the trial 40.03, states, replaced article in now to evidence as reject discretion the new not part: credible, being court does so that the (b) grant- Grounds. A new trial shall be “weigh testimony pronounce the and following ed an the accused for reasons: in is jury the because “it clear advance” (6) new evidence to Where favorable the the impulse behind Henson the accused has been discovered since shifting the notion that Court’s burden was trial; the ought the trial court not to be arbiter Tex.R.App.P. 30(b)(6) added). (emphasis weight testimony.” the new of the provision Under the judge the code trial 35, State, 711 37 n. 3 Jones v. S.W.2d prima if the defendant made determined a Third, (Tex.Crim.App.1986). to assure that facie a new trial. case for Henson v. convicting all of the has heard the State, 344, 1007, 200 150 Tex.Crim. S.W.2d favorable, defendant’s admissible so, (Tex.Crim.App.1947). 1013-15 If the the including that discovered after trial judge credibility determined the of the new through no fault of his own from “wit A trial to grant- evidence. Id. was be mentally capa and physically ness who was proba- ed unless the new evidence was “not that he testifying to events ble bly true” or a different result would “not observed, personally testimony and whose probably be reached another trial.” Id. would have been relevant and material.” The showing state the burden of carried Compare v. 388 Washington U.S. that a probably different result would not 14, (1967); 1920, L.Ed.2d 1019 87 S.Ct. 18 be all were reached and doubts to be re- (Tex.Crim. State, 441 542 Cruz v. solved in of the defendant. favor Id. App.1969). time, however, Over the distinction be- prima tween the facie test and the credibili- favorable, just any say This is not to ty issue became blurred the in a new trial. new evidence result will judge’s sole determination of- proposition prerule support The the cases inquiry. E.g., ten v. ended the Wilson should, purposes judge that the State, (Tex.App. 786 S.W.2d 74 Paso motion, as true accept the the new evidence —El 1990, State, pet.); no Houston 667 it is the new witness unless: shown that S.W.2d 157 [14th position in a not or have been —Houston could not 1982, pet). no Dist.] know; the to the purports to know facts he hearing by impeached new witness is at the the Information from committee which statement; the prior inconsistent recommended the rules to the mass of contradicts either the reli- evidence Appeals Court of shows that Criminal testimony elicited at trial almost able change to the decision was made conscious ” physical circumstantial evidence conclusive Three word “material “favorable.” developed at the defendant’s own trial or apparent. the are reasons for trial; testimony at the new First, authority the two lines of reconcile inher- internally or otherwise inconsistent from in the developed which had Henson 37, Jones, n. suspect. ently the Court of Criminal decisions of consistently held cases also comparison of have the four- 4. evidenced public policy prevent will rights testify retrial and would not further. At where the new evidence is cumula- posttrial hearing, Owens reiterated that tive, corroborative, impeach- collateral or part in burglary, did not take Jones, ing. 37; Spencer S.W.2d at then part burglary, admitted his own in the 69 Tex.Crim. 153 S.W. car, saying that naming he drove the (Tex.Crim.App.1913); Sambrano v. participated two other individuals who (Tex.Civ.App. burglary, giving —San details about the If, pet.). Antonio based on these house, description location of the considerations, the trial determines burglary other facts about the consistent that the evidence is not his testimony. with the mass of reliable readily reasons can be appeal. reviewed on Owens, Randy The new evidence that Thus, rule 30 allows a defendant to es- Lynn McKnight, and Richard tablish a facie case on a motion for lant, burglary committed the was admissi- new trial based on discovered evi- posttrial ble. Owens’s by proof dence following of the factors: only extent was cumulative to the discovered evidence was again that he did testified *5 unknown or unavailable to the movant at that, burglary. Beyond not commit the his trial; the time of participants about (2) the movant’s failure to discover or direct, events was with the evi- consistent obtain the evidence was not due to a lack trial, dence adduced at adverse to his own diligence; interest, penal Appellant. and favorable to (3) the new evidence is admissible and is have, I believe that the should cumulative, corroborative, trial, purposes of the ac- motion for collateral, impeaching; and, cepted the new evidence as true fail- (4) the new evidence is favorable to the so, ing to do abused its discretion accused. Tex.R.App.P. granting a new trial. See Tex.R.App.P. 30(b)(6); Eddlemon, 591 30(b)(6). 849; Carlisle, at S.W.2d at 704. made,

When a facie case has been accepted

the new evidence should be presents

true if the whole good record

cause to doubt the of the wit-

nesses whose constitutes the evidence, either reason of the facts

proven at the trial or at the on the Jones,

motion or otherwise. 711 S.W.2d at STATE Texas on Behalf of Va If 37 n. 4. it is clear that the new evidence (Gossett), linda M. CLANTON not true or that the new if Appellant, result, would not the motion denied; should be but it is doubtful as to CLANTON, Larry Appellee. A. verdict, how it would affect the the motion Jones, granted. should be 711 S.W.2d at No. B14-90-329-CV. 37 n. 3. If the trial follows this Court of procedure, the defendant will have the ben- Dist.). (14th Houston any efit of reasonable doubt judge’s granting denying discretion in April 1991. appropriately preserved the motion will be Henson, review. 1013-15; Jones, 711 S.W.2d at 36.

Roosevelt Owens testified at the did not commit the

burglary, but invoked his Fifth Amendment