Joe REYES, Appellant, v. The STATE of Texas, Appellee.
No. 1176-91.
Court of Criminal Appeals of Texas, En Banc.
Feb. 3, 1993.
Rehearing Denied March 17, 1993.
812 S.W.2d 812
BAIRD, Judge.
Section 51.014(5) provides that the denial of a motion for summary judgment may be appealed if it “is based on an assertion of” qualified immunity.1 (Emphasis added.) Under the Texas Tort Claims Act,
In the present case, however, the City‘s motion for summary judgment contends only that the City is not liable because of sovеreign immunity. City employee Bugg has never asserted the affirmative defense of qualified immunity, nor filed his own motion for summary judgment on the issue of qualified immunity. Consequently, under the procedural posture of this case, the City‘s attempt to appeal must fail. In denying the application for writ оf error, though, we should not be viewed as approving the court of appeals’ assertion that a political subdivision of the state has no right under section 51.014(5) to appeal the denial of a motion for summary judgment.
Jack Stern, Dist. Atty. and Fred M. Felcman, Asst. Dist. Atty., Richmond, Robert Huttash, Statе‘s Atty., Austin, for the State.
Before the Court en banc.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
BAIRD, Judge.
Appellant was convicted of possession of marihuana in excess of four ounces and less than five pounds pursuant to
I.
Thе indictment alleged the primary offense of possession of marijuana and further alleged two enhancements counts. The jury found appellant guilty of the charged offense, found the enhancement counts true and assessed punishment at confinement for life.
On direct appeal, appellant contendеd the trial judge erred in failing to hold an evidentiary hearing on his motion for new trial.1 The Court of Appeals affirmed, holding:
Under the applicable rule, a new trial, or a hearing, is not required on the ground of ineffective assistance of counsel. Jiminez v. State, 727 S.W.2d 327, 328 (Tex.App.--Houston [1st Dist.] 1987, no. pet. (citing
Tex.R.App.P. 30(d) ). Whether or not to grant a new trial on ineffective assistance of counsel grounds lies within the discretion of the trial court. Messer v. State, 757 S.W.2d 820, 827 (Tex.App.--Houston [1st Dist.] 1988, pet. ref‘d) (op. on reh‘g); Jiminez, 727 S.W.2d at 328. The Rules of Appellate Procedure provide that the ‘court is authorized to hear evidence by affidavit or otherwise and to determine the issues.’Tex.R.App.P. 31(d) . (Emphаsis added.) Nothing in the Rules mandates a hearing by the court. We find no abuse of dis-
cretion on the part of the trial court and overrule appellant‘s first point of error. Slip op. pg. 2. (Emphasis in original.)
We granted appellant‘s petition for discretionary review to detеrmine whether a trial judge is required to hold an evidentiary hearing on a motion for new trial alleging ineffective assistance of counsel.2
II.
The threshold issue is whether ineffective assistance of counsel may be raised in a motion for new trial. The State contends an aсcused may raise only those grounds specifically enumerated in
On September 1, 1986, subsequent to our holding in Butler, the Legislature repealed arts. 40.01-40.08 and we promulgated
(a) Definition. A “new trial” is the rehearing of a criminal action after a finding or verdict of guilt has been set aside on motion of an accused. Except to adduce facts of a matter not otherwise shown on the record, a motion for new trial is not a requisite to presenting a point of error on appeal.
(b) Grounds. A new trial shall be granted an accused for the following reasоns:
(1) Except in a misdemeanor case when maximum punishment may be by fine only, where the accused is an individual who has been tried in his absence, unless authorized by law, or has been denied counsel;
(2) Where the court has misdirected the jury as to the law or has committed some othеr material error calculated to injure the rights of the accused;
(3) Where the verdict has been decided by lot or in any other manner than by a fair expression of opinion by the jurors;
(4) Where a juror has received a bribe to convict or has been guilty of any other сorrupt conduct;
(5) Where any material witness of the defendant has by force, threats or fraud been prevented from attending the court, or where any evidence tending to establish the innocence of the accused has been intentionally destroyed or withheld preventing its production at trial;
(6) Where new evidence favorable to the accused has been discovered since trial;
(7) Where after retiring to deliberate the jury has received other evidence; or where a juror has conversed with any other person in regard to the case; or where a juror became so intoxicated as to render it probable that his verdict was influenced thereby;
(8) Where the court finds the jury has engaged in such misconduct that the accused has not received a fair and impartial trial; and
(9) Where the verdict is contrary to the law and evidence.
Rule 30(a) spеcifically provides for a “new trial” after a finding or verdict of guilt has been set aside on motion of the accused. Rule 30(a) does not limit the grounds under which a motion for new trial may be granted but rather provides the
In Evans the defendant filed a motion seeking to withdraw his plea оf nolo contendere. The trial judge granted the motion and ordered a new trial. The State appealed. The court of appeals held Rule 30(b) provided an exclusive list of the grounds for a new trial and reversed because the ground relied upon by the defendant was not authorized under Rule 30(b). Evans v. State, 817 S.W.2d 807, 809 (Tex.App.--Waco 1991). We disagreed and held the deletion of the proviso “and for no other” evidenced the intent of the drafters of Rule 30(b) to change the exhaustive character of art. 40.03 and to allow a trial judge the discretion to consider grounds for granting a new trial not enumerated in Rule 30(b). Id., 843 S.W.2d at 578-79.
Moreover, in Rosales v. State, 841 S.W.2d 368, 378 (Tex.Cr.App.1992), we addressed a point of error raising ineffective assistance of counsel. In disposing of that point we considered evidence developed at the evidentiary hearing on the motion for new trial. Additionally, the courts of appеals have, since the promulgation of Rule 30(b), routinely addressed points of error alleging ineffective assistance of counsel when the issue was raised in a motion for new trial. Messer v. State, 757 S.W.2d 820, 822 (Tex.App.--Houston [1st Dist.] 1988); State v. Thomas, 768 S.W.2d 335, 337 (Tex.App.--Houston [14th Dist.] 1989); and Jordan v. State, 786 S.W.2d 1, 2 (Tex.App.--Houston [1st Dist.] 1989).
Today, we reaffirm our holding in Evans. The grounds listed in Rule 30(b) are illustrative, not exhaustive; the trial judge has the discretion to consider additional grounds for granting a new trial. Evans, 843 S.W.2d at 578. Accordingly, we hold that ineffective assistance of counsel may be raised in a motion for new trial.
III.
Having determined ineffective assistance of counsel may be raised in a motion for new trial, we must now determine whether the trial judge abused his discretion in failing to hold a hearing on appellant‘s motion pursuant to
In Synagogue v. State, 122 Tex.Crim. 472, 55 S.W.2d 1052, 1053 (1932), we interpreted a predecessor to Rule 31, Code Cr.Proc.1925, art. 755, and held “[t]he right to have heard a motion for new trial is deemed absolute . . .” In Trevino v. State, 565 S.W.2d 938 (Tex.Cr.App.1978), we recognized:
Without doubt hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review. [citations omitted].
In McIntire v. State, 698 S.W.2d 652 (Tex.Cr.App.1985), we relied on Trevino, and held:
. . . In the face of a timely filed motion for new trial supported by sufficient affidavit, a trial court which denies an accused [a hearing] abdicates its fact finding function and denies the accused a meaningful appellate review. Such was the case here, and we find therefore, that the trial court in the instant cаuse abused its discretion in denying appellant a hearing on his motion for new trial.
Id., 698 S.W.2d at 660. See also, Kiser v. State, 788 S.W.2d 909, 914 (Tex.App.--Dallas 1990).
Further review of the relevant decisional authority leads us to conclude the right to a hearing on a motion for new trial is not truly an “absolute right.” In Bumpus v. State, 509 S.W.2d 359 (Tex.Cr.App.
On the other hand, we have held, in certain instances, the trial judge abuses his discretion in failing to hold a hearing on a motion for new trial that raises matters which are not determinable from the record. See, McIntire v. State, 698 S.W.2d 652, 658 (Tex.Cr.App.1985) (citing Hicks v. State, 75 Tex.Crim. 461, 171 S.W. 755, 763 (1914)); Fielding v. State, 719 S.W.2d 361, 364 (Tex.App.--Dallas 1986); and McMillan v. State, 769 S.W.2d 675, 676 (Tex.App.--Dallas 1989). To hold otherwise would deny the accused meaningful appellate review. McIntire, 698 S.W.2d at 660.4 However, we recognized that an unrestricted requirement of a heаring on matters not determinable from the record could lead to “fishing expeditions.” Id. at 658. Therefore, we required, “as a prerequisite to obtaining a hearing” and “as a matter of pleading,” motions for new trial be supported by affidavit, either of the accused or someone else specifically showing the truth of the grounds of attack. Id. (Quoting Hicks.) However, the affidavit is not required to “reflect every component legally required to establish” relief, but the motion for new trial or affidavit must reflect that reasonable grounds exist for holding that such relief could be granted. Id. We reaffirm that reasoning today and hold that when an accused presents a motion for new trial raising matters not determinable from the record, upon which the accused could be entitled to relief, the trial judge abuses his discretion in failing to hold a hearing pursuant to
IV.
Appellant‘s motion for new trial, supported by his affidavit, was filed in a timely manner.5 The motion raised a matter not determinable from the record, namely, that trial counsel was ineffective for failing to inform appellant of a plea bargain offered by the State. Because appellant‘s motion for new trial raised a matter not determinable from the record, upon which he could be entitled to relief, see, Ex parte Wilson, 724 S.W.2d 72, 74 (Tex.Cr.App.1987); and Randle v. State, 847 S.W.2d 576 (Tex.Cr.App.1993), we hold the trial judge abused his discretion in failing to hold a hearing pursuant to
MCCORMICK, P.J., joins Parts I., II. and III. of this opinion, but dissents to Part IV., believing the motion in this case does not rise to the level of reasonable grounds.
CAMPBELL and MEYERS, JJ., cоncur in the result only, believing that ineffective assistance of counsel is a specific ground for a new trial pursuant to
WHITE, J., concurs in the result.