Bakari Abdul Brown v. State

• Court: Court of Appeals of Texas
• Decided: October 5, 2016
• Docket: 09-15-00003-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

___________________

NO. 09-15-00003-CR NO. 09-15-00004-CR ___________________

BAKARI ABDUL BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 253rd District Court Liberty County, Texas Trial Cause Nos. CR30879 and CR30880 __________________________________________________________________

MEMORANDUM OPINION

Bakari Abdul Brown appeals his convictions for possessing a controlled

substance and unlawfully possessing a firearm. In his appeal, Brown argues that

(1) the trial court abused its discretion by hearing Brown’s motion for new trial

without issuing a bench warrant to compel the State to present Brown for the

hearing, (2) the evidence is insufficient to support the jury verdict convicting

Brown of possessing a controlled substance, (3) the evidence is insufficient to 1 support the jury’s verdict convicting Brown of illegally possessing a firearm, and

(4) the trial court erred by failing to grant Brown’s motion to suppress. See Tex.

Health & Safety Code Ann. § 481.115(a), (d) (West 2010); Tex. Penal Code Ann.

§ 46.04(a) (West 2011). With respect to issue one, we hold that the trial court

abused its discretion by hearing Brown’s motion for new trial without issuing the

bench warrant he requested that would have compelled the State to make him

personally available for the hearing. However, we overrule issues two and three, in

which Brown complains the evidence is insufficient to support the judgment. We

also overrule issue four, in which Brown argues the trial court should have granted

his motion to suppress. Nonetheless, in light of our ruling on issue one, we abate

the appeal and remand the cause to the trial court to allow it to conduct an

evidentiary hearing in which Brown is provided the opportunity to attend.

Background

In January 2014, based on a tip from a confidential informant, officers with

the Liberty County Sheriff’s Department obtained a warrant to search the home of

Judith Daniels. The warrant allowed the police to search the home for controlled

substances, including cocaine. The affidavit that police used to obtain the warrant

was signed by a sheriff’s department deputy. In his affidavit, the deputy claimed

that the house where the search was to be conducted was being used by Daniels

2 and Brown to conceal controlled substances, which included cocaine. When the

police arrived at Daniels’ home to execute the warrant, the deputy saw Brown

sitting in a car in the driveway. While some of the officers involved in the search

were serving the search warrant on Daniels, the deputy briefly notified Brown of

the impending search and then arrested Brown. Subsequently, the deputy informed

Brown of his Miranda 1 rights. Brown waived his right to remain silent, and agreed

to show the deputy where the police could find drugs in Daniels’ home.

After Brown entered Daniels’ house, Brown directed the deputy to one of

the back bedrooms. While standing near a bed in one of the bedrooms, Brown

nodded his head toward the bed, indicating to the deputy that the officers who were

searching the bedroom should look under a blanket that was on top of the bed.

Beneath the blanket, the officers recovered a cloth bag containing three plastic

baggies. The baggies contained approximately 44 grams of a hard off-white

substance. Through subsequent testing, the substance in the baggies was found to

contain cocaine. Under the same blanket, the police also found a yellow bag, which

contained a loaded handgun. In other parts of the house, the officers found

ammunition for the gun, mail that was addressed to Brown at the address where the

1 See Miranda v. Arizona, 384 U.S. 436 (1966). 3 search warrant was executed, digital scales, and cooking utensils. The cooking

utensils contained a white-powdery residue.

In April 2014, a grand jury indicted Brown for possessing cocaine weighing

between four and two hundred grams with the intent to deliver. See Tex. Health &

Safety Code Ann. § 481.112(a), (d) (West 2010). The same grand jury indicted

Brown for illegally possessing the handgun that the police recovered from Daniels’

home. Tex. Penal Code Ann. § 46.04(a).

Prior to the trial, Brown asked the court to suppress evidence recovered

during the search of Daniels’ home. During the suppression hearing, Brown argued

that the deputy who conducted the search promised him leniency in return for his

agreement to assist in the search. According to Brown, the deputy told him before

he agreed to assist in the search that he would “go to bat” for him, and Brown

argues that the statement amounted to a promise of leniency. Brown argues that

had the deputy not implied that he would not be charged with a crime if he helped

them search the home, he would not have waived his Miranda rights. According to

Brown, the deputy’s representation of leniency was false, rendering all of the

statements he made to the police thereafter involuntary.

Brown and the deputy who arrested Brown were the only two witnesses who

testified during the hearing conducted on Brown’s motion to suppress. During the

4 hearing, the court admitted a video taken by a camera inside the deputy’s truck,

which recorded the deputy and Brown talking about the search warrant. At the

conclusion of the hearing, the trial court denied Brown’s motion.

In December 2014, the case was tried before a jury. Although the trial court

submitted a charge that allowed the jury to consider whether Brown was guilty of

possession with intent to deliver, the jury failed to find him guilty on that issue,

and instead, the jury found him guilty of simple possession of cocaine with an

aggregate weight of between four and two hundred grams. The jury also found

Brown guilty of unlawfully possessing the handgun recovered from Daniels’ home.

See Tex. Health & Safety Code Ann. § 481.115(a), (d); Tex. Penal Code Ann. §

46.04(a).

In the punishment phase of the trial, Brown pleaded true to the allegations

that he had previously been convicted of several other felonies. After considering

the punishment evidence, the jury assessed a life sentence on the possession of

cocaine case and life sentence on the firearm case. See Tex. Penal Code Ann. §

12.42(d) (West Supp. 2016). 2

2 We cite the current version of the statute, as the amendments do not affect the outcome of this case.

5 Following the trial, Brown filed motions for a new trial that are relevant to

his convictions for possessing cocaine and unlawfully possessing a firearm. Each

motion was supported by the affidavit of Jose Delgado. In his affidavits, Delgado

stated that he was waiting in Daniels’ home when Brown came to the house to take

him to a store. According to Delgado’s affidavits, before Brown arrived, Daniels3

was with Delgado inside the home, and Daniels told him that she had some cocaine

in a cloth bag that she had purchased from a person that Delgado identified by

initials. Delgado’s affidavits state that he asked Daniels to call Brown to come pick

him up and take him to a store, and that after Daniels called Brown, he saw Daniels

take the bag that she had in her hand to a rear bedroom. Delgado’s affidavits

indicate that when Brown came to Daniels’ home, he saw Brown go toward the

bedroom where Daniels was, but when he subsequently saw Brown leave, Brown

did not have the cloth bag with him. According to Delgado’s affidavits, he and

Brown were sitting in Brown’s truck in Daniels’ driveway when the officers came

to Daniels’ home to conduct their search. While he was waiting for the officers to

search Daniels’ home, Delgado’s affidavit indicates that he saw an officer leaving

the home with a handgun, and that he knew the handgun belonged to Daniels. 3 Brown called Daniels to testify during his trial. Daniels answered one question that indicates that she lives at the home where the police conducted the search. However, Daniels then invoked her Fifth Amendment right not to answer further questions. See U.S. Const. amend. V. 6 Delgado’s affidavits also reflect that Delgado saw an officer with the cloth bag that

he had seen Daniels with earlier in the house that day.

In his affidavits, Delgado infers that Brown was unaware that Delgado knew

the handgun and cocaine that police found in the house belonged to Daniels.

According to Delgado’s affidavits, he informed Brown’s father just before

Christmas, but after Brown’s trial, that he knew the cocaine and handgun that

police found in Daniels’ home belonged to Daniels.

Before ruling on Brown’s motion, the trial court conducted a hearing. Both

prior to and during the hearing, Brown’s attorney asked the trial court to issue a

bench warrant to allow Brown to leave jail and attend the hearing on his motion.

Brown’s attorney also requested that the court continue the hearing to a date when

Brown could attend, but the trial court indicated that it did not believe that Brown

needed to be present for the hearing. Brown’s attorney also suggests that she

wanted the hearing rescheduled so that she could call Delgado to testify about the

matters he had addressed in his affidavits. The reporter’s record from the hearing

on the motion to suppress indicates that the trial court thought that Delgado’s

testimony would not show that the jury could not have found that the drugs and

handgun were possessed jointly by Brown and Daniels. Therefore, because the trial

court concluded that the jury could have convicted Brown even if Delgado had

7 testified, it appears the trial court considered the failure to present Delgado’s

testimony as harmless. At the conclusion of the hearing, the trial judge stated that

he was “going to deny [Brown’s] motion[,]” but also indicated that the court would

not reduce its ruling to writing, which resulted in Brown’s motion being denied by

operation of law. See Tex. R. App. P. 21.8(a), (c) (deeming motions that are not

ruled on by written order denied if not ruled on within 75 days of the date the

defendant was sentenced).

Motion to Suppress

Because the trial court ruled on Brown’s motion to suppress before the trial

commenced, we address his complaints about the suppression ruling first.

According to Brown, the trial court erred by failing to suppress the statements that

he made to the deputy who arrested him because the deputy promised, in return for

Brown’s assistance in searching the house, to help him avoid the consequences that

might result if he helped the officers search Daniels’ home. Brown claims that the

deputy’s representation that the deputy would “go to bat” for Brown amounted to a

promise that the deputy failed to fulfill. Brown suggests that the deputy did not

help him, but instead the deputy helped the State by providing the State with

material testimony that was used to convince the jury that Brown had exercised

care, custody, or control over the contraband found in Daniels’ home. According to

8 Brown, the deputy’s false promise to him made it impossible for him to

intelligently decide whether it was in his best interest to cooperate with the

deputy’s request that he assist in the search. Brown contends that all of the

evidence uncovered during the search of Daniels’ home is traceable to the decision

he made to assist the police in searching Daniels’ home.

We review a trial court’s ruling on a motion to suppress evidence for abuse

of discretion, using a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673

(Tex. Crim. App. 2007) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997)). In reviewing the suppression ruling, we give almost total deference to

the trial court’s findings of historical fact, when its findings are supported by the

record, and we also give the trial court almost total deference on any mixed

questions of law and fact when its resolution of those matters turned on evaluating

the credibility or demeanor of the witnesses who testified during the suppression

hearing. Id. However, we “review de novo ‘mixed questions of law and fact’ that

do not depend upon credibility and demeanor.” Id. (quoting Montanez v. State, 195

S.W.3d 101, 107 (Tex. Crim. App. 2006)); Guzman, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). The arguments Brown advanced in support of his motion to

suppress required the trial court to decide whether Brown freely decided to assist

the police in searching Daniels’ home. As such, the trial court resolved a mixed

9 question of law and fact, as the trial court’s decision turned on the evaluation and

credibility of the witnesses who testified in the suppression hearing. See Amador,

221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App.

2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

Therefore, we review the trial court’s ruling by giving the trial court almost total

deference with respect to the ruling that is at issue on appeal. Amador, 221 S.W.3d

at 673.

During the hearing, the parties introduced evidence explaining the

circumstances that led to Brown’s decision to assist the officers in their search of

Daniels’ home. During the hearing, the trial judge also reviewed a video recording,

and the recording captured Brown’s conversation with the deputy about the

impending search of Daniels’ home. The video shows that Brown agreed to assist

the officers with the search only after the deputy informed Brown that any

statements that he gave to the police could be used against him. After Brown

agreed to assist the deputy, Brown went with the deputy and entered Daniels’

home. According to the deputy, who testified during the hearing, Brown led him to

the home’s rear bedroom, where Brown nodded in a manner indicating that the

officers should search the bed. Under a blanket on the bed, the police discovered

one yellow bag. The yellow bag contained a loaded handgun. Under the same

10 blanket, the police found a cloth bag. The cloth bag contained three baggies, which

contained an off-white substance that was later found through testing to contain

cocaine.

In the suppression hearing, the State had the burden of proving that Brown’s

statements were made voluntarily. See Gentry v. State, 770 S.W.2d 780, 789 (Tex.

Crim. App. 1988). Article 38.21 of the Texas Code of Criminal Procedure provides

that the statements of a person accused of a crime “may be used in evidence

against him if it appears that the same was freely and voluntarily made without

compulsion or persuasion[.]” Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005).

In determining whether a person made statements voluntarily, trial courts are

entitled to consider the circumstances under which the defendant made the

statements that are at issue in the appeal. See Delao v. State, 235 S.W.3d 235, 239

(Tex. Crim. App. 2007). In this case, the evidence introduced during the

suppression hearing shows that the deputy warned Brown that his statements could

be used against him before he made the statements at issue in the appeal.

Additionally, the video recording does not show that the deputy told Brown that he

had control over what the district attorney might charge Brown with if he assisted

them in the search, and it does not show that the deputy told Brown he would not

11 be charged. Instead, the recording shows the deputy told Brown that he could not

tell the district attorney to drop any charges.

Having carefully reviewed the evidence from the suppression hearing, we

conclude that the trial court was authorized based on the evidence that was before

it to find that Brown made a voluntary decision to assist the police in conducting

the search of Daniels’ home. See Delao, 235 S.W.3d at 240 (rejecting the argument

that misrepresentations made by the investigating officer along with other factors

revealed the evidence lacked support for the appellant’s claim that the statements

he made to the officer rendered them involuntary); Frank v. State, 183 S.W.3d 63,

75 (Tex. App.―Fort Worth 2005, pet. ref’d) (rejecting the defendant’s claim that

his statement had been involuntary based, in part, on the fact that the statement was

made after the defendant had been informed of his Miranda rights). Under the

circumstances that led to Brown’s arrest, the statement the deputy made to Brown

that he would “go to bat” for him amounted to nothing more than a promise to

inform the district attorney that Brown had cooperated in the search of Daniels’

home. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993)

(concluding that the defendant, following a suppression ruling denying his motion

to suppress, had failed “to demonstrate that the party in authority positively and

unequivocally promised leniency in return for a confession”). Based on the

12 evidence from the suppression hearing, and the standard of review that applies to

mixed questions of law and fact, the trial court’s ruling is supported by the

evidence that was admitted during the suppression hearing. See Amador, 221

S.W.3d at 673; Muniz, 851 S.W.2d at 253. We overrule issue four.

Sufficiency of Evidence

In issues two and three, Brown contends the evidence is insufficient to

support his convictions for possessing the cocaine and the handgun discovered in

the search of Daniels’ home. In his brief, Brown argues that the circumstantial

evidence linking him with the cocaine and handgun was insufficient to support the

jury’s conclusion that he possessed those items. In support of the arguments that

Brown makes to support issues two and three, Brown points to the testimony of

Vernice Beasley, the grandmother of Brown’s daughter, who testified that on the

date Daniels’ house was searched, Brown was living in her apartment. According

to Beasley, Brown started living at the apartment she rented in October 2013,

Brown kept his clothes at her apartment, Brown received mail there, and Brown

paid the apartment’s cable bill. A letter, dated February 10, 2014, and addressed to

Brown at the address for the apartment that Beasley rented, was admitted in the

hearing. The letter indicates that the account was past due, and it shows Brown as

the accountholder for the account.

13 Brown also notes that the evidence did not show that he had an exclusive

right of control over the contraband that police found in Daniels’ home. The

evidence from the hearing shows that the home belonged to Daniels. In the

hearing, Daniels testified that she still lives in the home that police searched, but

she then invoked her Fifth Amendment rights and declined to answer any further

questions. Brown suggests that the remaining evidence linking him to the drugs

and the handgun recovered from the home was insufficient to prove that he had

possessed those items. We note that Brown does argue that the evidence was

insufficient to prove the baggies contained cocaine, or to prove that the contents in

the baggies weighed approximately 44 grams. With respect to Brown’s firearm

offense, we also note that Brown does not argue that the evidence was insufficient

to show that he had previously been convicted of a felony, or that he had been

released from confinement or the conditions of supervision more than five years

before the police searched Daniels’ home. See Tex. Penal Code Ann. § 46.04(a)(1)

(West 2011).

In his appeal, Brown argues that the evidence was insufficient to support the

jury’s conclusion that he possessed the cocaine and the handgun that were

recovered from Daniels’ home. Possession is defined by the Penal Code as “actual

care, custody, control, or management.” Tex. Penal Code Ann. § 1.07(a)(39) (West

14 2011). In a sufficiency review, we review the evidence admitted during the

defendant’s trial in the light that most favors the jury’s verdict. See Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 894-95

(Tex. Crim. App. 2010). In reviewing the evidence, we do not substitute our

judgment for the factfinder’s; instead, we give deference to the jury to exercise its

responsibility to fairly resolve any conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from the facts. See Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In conducting a sufficiency review,

we are to uphold the jury’s verdict “unless a reasonable juror must have had a

reasonable doubt as to at least one of the elements of the offense.” Runningwolf v.

State, 360 S.W.3d 490, 494 (Tex. Crim. App. 2012).

When the evidence does not show that the defendant had an exclusive right

to possess the place where the police found contraband, the State is required to

demonstrate that either direct or circumstantial evidence affirmatively links the

defendant to the contraband. See Smith v. State, 176 S.W.3d 907, 916 (Tex.

App.―Dallas 2005, pet ref’d); Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim.

App. 1995); Gabriel v. State, 842 S.W.2d 328, 331 (Tex. App.―Dallas

1992), aff’d, 900 S.W.2d 721 (Tex. Crim. App. 1995). Nevertheless, the State is

not required to prove that the defendant had an exclusive right of possession to link

15 him to contraband found in a location that is not subject to the defendant’s

exclusive right to control. See State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.—

Houston [1st Dist.] 1998, pet. ref’d); McGoldrick v. State, 682 S.W.2d 573, 578

(Tex. Crim. App. 1985). In evaluating whether sufficient evidence exists to support

a jury’s conclusion that a defendant possessed contraband found in locations not

under the defendant’s exclusive control, courts examine a number of factors, which

include:

• whether the defendant was present when the search was conducted,

• whether the contraband was in plain view,

• whether the defendant was in proximity to and had access to the

contraband,

• whether the defendant was under the influence of drugs when arrested,

• whether the defendant possessed other contraband or narcotics when

arrested,

• whether the defendant made incriminating statements when arrested,

• whether the defendant attempted to flee,

• whether the defendant made furtive gestures,

• whether there was an odor of contraband,

• whether other contraband or drug paraphernalia were present,

16 • whether the defendant owned or had the right to possess the place where

the drugs were found,

• whether the place where the drugs were found was enclosed,

• whether the defendant was found with a large amount of cash, and

• whether the conduct of the defendant indicated a consciousness of guilt.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); see also Nixon

v. State, 928 S.W.2d 212, 215 (Tex. App.—Beaumont 1996, no pet.). Nonetheless,

the State is not required to prove that all of these links are present; instead, the

“number of ... links is not as important as the logical force that they collectively

create.” Hubert v. State, 312 S.W.3d 687, 691 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d); see also Jones v. State, 338 S.W.3d 725, 742 (Tex. App.—

Houston [1st Dist.] 2011, aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).

Additionally, evidence that links a defendant to contraband can be direct or

circumstantial, but the logical force of the collective links must show the

defendant’s connection to the contraband was not merely fortuitous. See

Evans, 202 S.W.3d at 161; Smith, 176 S.W.3d at 916. In evaluating whether

sufficient evidence links the defendant to the contraband, “[t]he absence of various

affirmative links does not constitute evidence of innocence to be weighed against

the affirmative links present.” James v. State, 264 S.W.3d 215, 219 (Tex. App.—

17 Houston [1st Dist.] 2008, pet. ref’d); see also Williams v. State, 313 S.W.3d 393,

398 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Finally, the evidence about

the links need not exclude every theoretically reasonable innocent explanation that

might undercut the jury’s decision that tied the defendant to the contraband. See

Brown, 911 S.W.2d at 748.

In Brown’s case, the evidence shows that even before any contraband was

found, he began bargaining with the police in an effort to mitigate what he knew

they would likely discover during the impending search. The circumstantial

evidence shows that he knew where the contraband would be found inside Daniels’

home, as he led the police to the room where the cocaine and handgun was

recovered, and nodded at the bed indicating that the police should focus on the bed

in their search. After the officer found the bag that contained the cocaine and the

bag that contained the handgun under the blanket that was on top of bed, the

deputy asked Brown if any other drugs were in the home. Brown responded:

“That’s it[.]” The evidence allowed the jury to conclude that Brown not only knew

where the contraband would be found, but that he knew that no other illegal drugs

were being kept there. The evidence from the trial also shows that Brown told the

officers that no additional guns were in the home. The evidence allowed the jury to

conclude that Brown knew where the contraband was being hidden in the home,

18 indicating that his connection to the contraband was more than merely fortuitous.

Additionally, the officers who searched Daniels’ home found mail addressed to

Brown at the address of the house where the search occurred. The testimony of the

deputy in the trial indicates that objects found in another bedroom indicated to him

that Daniels used a bedroom other than the one where police found the contraband.

These facts offer additional circumstantial evidence that tend to link Brown with

the bedroom where the contraband was found.

In summary, the evidence linking Brown to the contraband found in the

bedroom of Daniels’ home was largely circumstantial. Nevertheless, the logical

force of the collective links show that Brown’s connection to the contraband was

not merely fortuitous. As the factfinder, the jury was entitled to infer from the

evidence that Brown had used the bedroom in Daniels’ home as a place to store the

cocaine and the firearm that they found there, and to conclude that he had a right of

control or management over the items that the police recovered there. See Johnson

v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). We hold that the evidence

authorized the jury to reasonably find that Brown knowingly possessed the cocaine

and the handgun that the police found in the bedroom of Daniels’ home. See

Williams, 235 S.W.3d at 750. We further hold that the evidence contains sufficient

affirmative links to establish that Brown was guilty of possession of cocaine and

19 illegal possession of a firearm. See Jackson, 443 U.S. at 319; see also Jones, 338

S.W.3d at 743.

Motion for New Trial

Following his trial, Brown filed motions for new trial in both of the trial

court cause numbers that are on appeal. In his motions, Brown asserted he had

discovered new evidence since his trial that was relevant and that tended to

exonerate him. Brown supported both motions with an affidavit executed by Jose

Delgado. On appeal, Brown contends the trial court abused its discretion by

denying his request to personally attend the hearing the trial court held on his

motions, and abused its discretion by failing to conduct an evidentiary hearing,

based on his argument that Delgado’s affidavits raised matters that could not be

determined solely from the information in Delgado’s affidavits. The trial court

indicated in the hearing that it considered Brown’s presence to be unnecessary. In

its brief, the State failed to address Brown’s claim that the trial court abused its

discretion by failing to grant Brown’s request for a bench warrant that would have

required the State to bring Brown to the hearing.

We review challenges to a trial court’s ruling on a motion for new trial using

an abuse-of-discretion standard. See Webb v. State, 232 S.W.3d 109, 112 (Tex.

Crim. App. 2007). Defendants in felony prosecutions have a statutory right to be

20 present at their trials. Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006); See

Routier v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003). This right includes

the right to be present at a hearing on a motion for new trial. See Phillips v. State,

288 S.W.2d 775, 776 (Tex. Crim. App. 1956); see also Coons v. State, 758 S.W.2d

330, 339 (Tex. App.―Houston [14th Dist.] 1988, pet. ref’d). We hold the trial

court abused its discretion by conducting the hearing on Brown’s motions for new

trial without requiring the State to bring Brown to the hearing.

Nonetheless, we must also determine if Brown was harmed because he was

not allowed to attend the hearing. See Tex. Code Crim. Proc. Ann. art. 33.03. In

evaluating harm, we must determine if the defendant’s “substantial rights” were

affected by the trial court’s violation of article 33.03. Id.; Tracy v. State, 14 S.W.3d

820, 827 (Tex. App.―Dallas 2000, pet. ref’d) (applying harm analysis under Rule

44.2(b) of the Texas Rules of Appellate Procedure to a violation of article 33.03).

In Brown’s case, Delgado’s affidavits, which accompanied Brown’s motions for

new trial, suggest that Brown was unaware that Delgado could have testified that

Daniels was the person that owned the handgun and cocaine that were recovered in

the search of Daniels’ home. When assessing harm, we consider whether Brown

could have provided relevant testimony that the court would have been required to

21 consider in deciding Brown’s motion. See Mares v. State, 571 S.W.2d 303, 307

(Tex. Crim. App. 1978).

In this case, Brown was unavailable to explain that he was unaware before

his trial that Delgado could have tied the handgun and the cocaine to Daniels, even

though the evidence at trial shows that prior to his arrest, he knew that Delgado

had been in Daniels’ home. Id. As questions regarding Brown’s knowledge about

what Delgado knew were material to whether Delgado’s affidavit constituted

newly discovered evidence, we are unable to conclude that Brown was not harmed

by the trial court’s decision refusing to grant Brown’s request asking the court to

issue a bench warrant so that he could attend the hearing. Id; see Tex. Code Crim.

Proc. Ann. art. 40.001 (West 2006) (granting a defendant a new trial when

favorable material evidence is discovered after trial); see also Wallace v. State, 106

S.W.3d 103, 108 (Tex. Crim. App. 2003) (explaining that a defendant must be

granted a new trial if the newly discovered evidence was not known to him at the

time of trial; if the defendant’s failure to discover the evidence was not from his

lack of due diligence; if the new evidence would be admissible and not cumulative,

corroborative, collateral, or impeaching; and if the new evidence is probably true

and would probably bring about a different trial result).

22 We abate the appeal and remand both of Brown’s cases to the trial court to

allow it to conduct an evidentiary hearing on Brown’s motion for new trial. The

trial court is directed to allow Brown to attend the hearing, and following the

hearing, to cause to be filed in this Court a supplemental clerk’s record that

contains the trial court’s order on Brown’s motions for new trial and a reporter’s

record that reports the hearing. We direct the court to conduct the hearing on

Brown’s motion within ninety days of the Court’s opinion.4

ABATED.

______________________________ HOLLIS HORTON Justice

Submitted on January 13, 2016 Opinion Delivered October 5, 2016 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

4 In light of our resolution of Brown’s motion for new trial hearing, we need not address Brown’s argument that the trial court erred in failing to conduct an evidentiary hearing on his motion. See Tex. R. App. P. 47.1. 23