Opinion issued August 27, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00197-CR ——————————— DESHAWN FORTEE BROWN, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1630565
MEMORANDUM OPINION
Deshawn Fortee Brown was convicted of felony murder for the death of Devin
Francis. Both Brown and Francis were in a car that ran a red light in front of a deputy
constable and sped away to evade arrest, stopping only when their car hit another
car and crashed into a concrete pillar under a highway overpass. Francis died from the injuries he sustained in the crash. Brown maintained that he was not driving the
car and that he did not see the deputy constable attempting to pull the car over.
After Brown’s conviction, his appellate attorney filed a motion for new trial
but inadvertently scheduled the hearing on the motion 76 days after the trial court
imposed Brown’s sentence, which was after the trial court lost jurisdiction. Brown
now appeals his conviction based on errors that occurred with the failed motion for
new trial. For the reasons explained below, we affirm.
BACKGROUND
According to Harris County Deputy Constable M. Buenrostro, who testified
at trial, he saw a black Ford Fusion run a red light through an intersection. Buenrostro
turned on his emergency lights and siren, followed the car, and tried to make a traffic
stop. The car “took off at a very high rate of speed.” Although the speed limit in that
zone was 35 miles per hour, Buenrostro reached a speed of 80 miles per hour trying
to catch up with the Ford Fusion. The Ford Fusion continued to speed away and ran
another red light through an intersection, where it collided with an SUV driving
through the same intersection. The Ford Fusion finally stopped when it hit a concrete
pillar underneath a highway overpass.
Buenrostro exited his car and walked up to the Ford Fusion to render aid. He
saw Brown, the defendant, in the driver’s seat of the Ford Fusion. He then saw
Brown crawl from the driver’s seat to the backseat of the car and exit the car from
2 the rear driver’s side window, with help from a bystander and another deputy at the
scene.
Buenrostro saw Francis, the complainant, in the passenger’s seat of the Ford
Fusion, with his head and back against the passenger’s side door and his legs across
the center console. Francis was not able to exit the car on his own as he appeared to
be slipping in and out of consciousness, and he was extracted from the car by EMS
responders. Francis later died from his injuries.
The Harris County District Attorney’s office indicted Brown for the offense
of felony murder. See TEX. PENAL CODE § 19.02(b). The indictment alleged that,
while Brown was committing the felony offense of evading arrest in a motor vehicle,
he committed an act clearly dangerous to human life—running a red light—and
caused Francis’s death.
Brown pleaded not guilty, and his case was tried to a jury over two days. The
jury found Brown guilty of the charged offense, and the trial court sentenced him to
30 years in prison.
After Brown’s sentencing, he was appointed new counsel to represent him on
appeal. His appellate counsel timely filed a motion for new trial based on the
3 ineffective assistance of Brown’s trial counsel for failing to properly investigate the
case, prepare for trial, or advance the defense that Brown was not driving.1
Brown’s appellate counsel scheduled a hearing on the motion for new trial on
the 76th day after the trial court imposed Brown’s sentence—one day after the trial
court lost jurisdiction to rule on the motion. See TEX. R. APP. P. 21.8(a), (c); Flores
v. State, 679 S.W.3d 695, 697 (Tex. Crim. App. 2023). Counsel explained the
scheduling error was inadvertent:
I’d like to make clear that if I’m in error in my math—and I may have been in agreeing to this date as the hearing date—then I’ve been ineffective. All right. And I provided deficient performance by agreeing to this date. And I want to make that clear on the record that that’s my failure to agree to this date which I—I had originally wanted the date set a week earlier. We agreed to set [the hearing] to this week because the State had scheduling issues last week.
But my understanding at the time was that we were within jurisdictional boundaries today; and if I miscounted, then that’s my failure. The trial court concluded that it was without jurisdiction to rule on the motion
for new trial. Brown’s appellate counsel asked multiple times to make an offer of
1 Brown raised two other grounds in his motion, but he has not raised those issues on appeal, and therefore, he has waived those issues. See, e.g., Thomas v. State, 615 S.W.3d 552, 558 n.3 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (noting that, because appellant did not raise on appeal certain issues stated in her motion for new trial, she waived those issues). 4 proof to show the witnesses he would have called and what their testimony would
have been. The trial court denied each request.
Brown now appeals his conviction in three issues based on the failed motion
for new trial. He claims: (1) the trial court erred in denying his motion for new trial
without a hearing; (2) he received ineffective assistance of counsel because his
counsel inadvertently set the new-trial hearing on a date after the trial court lost
jurisdiction to rule on the motion; and (3) the trial court erred by denying his
counsel’s request to make an offer of proof to make a record for appeal.
DISCUSSION
Ineffective Assistance of Counsel
The Sixth Amendment of the United States Constitution guarantees an
accused the right to reasonably effective assistance of counsel in criminal
prosecutions. U.S. CONST. amend. VI; Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011) (stating that right to counsel “does not provide a right to errorless
counsel, but rather to objectively reasonable representation”). To show ineffective
assistance of counsel, a defendant must demonstrate that both: (1) his counsel’s
performance fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–
88, 694 (1984); Lopez, 343 S.W.3d at 142. Reasonable probability is a “probability
5 sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The
defendant bears the burden to establish both prongs, and failure to establish one
prong prohibits a finding that the representation was ineffective. Lopez, 343 S.W.3d
at 142; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
An ineffective-assistance claim can be raised in a motion for new trial or for
the first time on appeal. See Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.
2009); Robinson v. State, 16 S.W.3d 808, 812–13 (Tex. Crim. App. 2000).
A. Denying Motion for New Trial without Hearing
In his first issue, Brown claims the trial court erred by denying his motion for
new trial without a hearing. In his motion for new trial, he argued that his trial
counsel was ineffective for failing to properly investigate his case, specifically by
failing to investigate his defense that he was not driving the car at the time of the
accident.
Applicable Law and Standard of Review
“A defendant has a right to file a motion for a new trial.” Cooks v. State, 190
S.W.3d 84, 86 (Tex. App.—Houston [1st Dist.] 2005), aff’d, 240 S.W.3d 906 (Tex.
Crim. App. 2007); see also TEX. R. APP. P. 21.4. But a defendant does not have an
absolute right to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812,
815 (Tex. Crim. App. 1993).
6 A defendant is entitled to a hearing on his motion for new trial if the motion
and any accompanying affidavits “rais[e] matters not determinable from the record,
upon which the accused could be entitled to relief.” Wallace v. State, 106 S.W.3d
103, 108 (Tex. Crim. App. 2003) (quoting Reyes, 849 S.W.2d at 816). The motion
and affidavits do not need to establish a prima facie case for a new trial, only that
“reasonable grounds exist” for granting a new trial. Id. (quoting Martinez v. State,
74 S.W.3d 19, 22 (Tex. Crim. App. 2002)).
We review the denial of a hearing on a motion for new trial for an abuse of
discretion. Id. “When an accused presents a motion for new trial raising matters not
determinable from the record, which could entitle him to relief, the trial judge abuses
his discretion in failing to hold a hearing.” Martinez, 74 S.W.3d at 21 (quoting King
v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000)).
To obtain a hearing on a new-trial motion based on the ineffective assistance
of counsel, a defendant must allege sufficient facts that could reasonably show both
prongs of the Strickland test, that: (1) his counsel’s performance fell below an
objective standard of reasonableness; and (2) there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 687–88, 694; Smith, 286 S.W.3d at 341; Riggins v.
State, No. 01-22-00334-CR, 2023 WL 5616199, at *7 (Tex. App.—Houston [1st
Dist.] Aug. 31, 2023, no pet.).
7 To establish the first Strickland prong for an ineffective-assistance claim
based on the failure to investigate, the defendant must show counsel violated his
duty to make reasonable investigations or to reasonably determine that a particular
investigation is unnecessary. See Strickland, 466 U.S. at 691; Caballero v. State, No.
01-19-00878-CR, 2023 WL 2718466, at *11 (Tex. App.—Houston [1st Dist.] Mar.
31, 2023, pet. ref’d). We assess counsel’s decision not to conduct a particular
investigation for “reasonableness in all the circumstances,” giving a “heavy measure
of deference to counsel’s judgments.” Strickland, 466 U.S. at 691.
To establish the second Strickland prong for an ineffective-assistance claim
based on the failure to investigate, the appellant must show what the investigation
would have revealed that reasonably could have changed the outcome. See
Caballero, 2023 WL 2718466, at *11. We compare the evidence presented at trial
with the evidence the jury did not hear because of counsel’s failure to investigate.
Id.
Analysis
In his motion for new trial, Brown claimed he received ineffective assistance
of counsel based on his counsel’s failure to properly investigate his case. Brown
attached to the motion affidavits from a friend and several family members who
offered their opinions that Brown was not driving at the time of the accident, mainly
based on photos taken after the accident. He argued the affidavits showed that
8 several witnesses could have testified at trial and advanced the defense that he was
not driving, instead of the ultimately unsuccessful defense his trial counsel chose—
that Brown was driving but not seeking to evade the police.
Brown’s motion raised a matter not determinable from the record: whether his
counsel failed to properly investigate his case. See Wallace, 106 S.W.3d at 108
(stating defendant is entitled to hearing on motion for new trial when he raises
matters not determinable from record that could entitle him to relief). We must
determine whether this matter could entitle him to relief by establishing that
reasonable grounds existed for the trial court to grant a new trial based on the
ineffective assistance of counsel. See id. We conclude his motion for new trial failed
to do so.
We begin with the second prong of the Strickland ineffective-assistance test
because it is determinative. See Caballero, 2023 WL 2718466, at *11 (to establish
second prong of Strickland test based on failure to investigate, appellant must show
what facts investigation would have revealed that reasonably could have changed
outcome of trial). Brown argued in his motion that the attached affidavits from
several potential witnesses showed these witnesses could have testified that he was
not driving when the car crashed. We must compare this potential evidence with the
evidence the State presented at trial. See id.
9 Brown attached four affidavits to his motion for new trial: one from a friend,
one from his sister, one from his wife, and one from his mother. Each affidavit stated
the affiant had reviewed photos of the inside of the car after the crash, and each
affiant identified Brown’s shoes and cell phone on the passenger side of the car.
Each affiant stated these details were consistent with what the affiant understood
about the car crash: the Ford Fusion belonged to Francis and Brown never drove it.
Additionally, Brown’s friend said that he saw Francis driving the car earlier on the
day of the crash, and he also saw Brown get into the passenger side of the car that
day. Altogether, the affidavits presented opinion testimony about the facts of the car
crash from laypersons who did not witness the event.
In contrast, at trial the State presented strong evidence that Brown was driving
at the time of the car crash.
Harris County Deputy Constable M. Buenrostro testified at trial. He saw the
Ford Fusion run a red light, and he attempted to pull the car over. He pursued the car
when it did not pull over, and he saw the fatal car crash. He testified that immediately
after the crash, he walked over to the car and saw Brown in the driver’s seat. His
dash cam video confirmed that Brown appeared to be in the driver’s seat and exited
the car through the rear driver’s side window. Buenrostro also testified that he
walked over to the other side of the car and saw Francis in the passenger’s seat, with
his back to the passenger’s side door.
10 Deputy Constable T. Fields, who responded to the scene, also testified at trial.
He said that when he approached the car after the crash, he saw Brown in the driver’s
seat trying to climb out the back window and Francis in the passenger’s seat, with
his back to the passenger’s side door. He testified that Francis was unconscious.
Marcel Weigel, a forensic analyst, testified and provided a DNA analysis of
the blood stains on the car’s airbags. Brown’s DNA, along with that of three other
people, was found on the driver’s steering wheel airbag. Brown’s DNA was also
found on two of the driver’s side curtain airbags. However, Brown’s DNA, along
with that of at least three others, was also found on the passenger’s side airbag. But
on another part of the passenger’s side airbag, as well as on the two passenger’s side
curtain airbags, there was DNA from a single, unknown male contributor. Brown
was excluded as a possible contributor to the DNA on those passenger’s side airbags.
Weigel testified this evidence was consistent with Brown being in the driver’s seat
and Francis being in the passenger’s seat. He acknowledged the other contributors
to the driver’s side airbags may have been the people who helped pull Brown out of
the car. He also acknowledged that Brown may have touched the passenger’s side
airbag as he was climbing out of the car.
The jury also heard testimony from O. Bledsoe, an investigator at the Harris
County District Attorney’s office, former law enforcement officer, and accident
reconstruction expert. He explained that, even though neither Brown nor Francis was
11 wearing a seatbelt, it was not possible for them to have switched seats during or after
the crash. During the crash, it was possible they were moved around, but there could
not have been “a swapping of seats.” The driver could have landed on top of the
passenger, but they could not have both switched seats. After the crash, Bledsoe
observed in the dash cam video that the person moving out of the driver’s seat was
moving so slowly there was no time for him to have switched seats with the
passenger in the approximately 20 seconds before Deputy Buenrostro arrived at the
car and saw Brown in the driver’s seat. He also testified that, based on the dash cam
video, which shows Brown looking out of the driver’s side window, “the only way
he could be looking out of it is by sitting in that driver’s seat.”
In sum, Brown’s new-trial motion presented lay testimony from friends and
family who did not witness the car crash and their opinions that Brown was not
driving based on photos taken after the crash. In contrast, the State presented
evidence from multiple law enforcement officers who either witnessed the accident
or responded immediately after, along with forensic and reconstruction experts, all
of whom testified Brown was driving. In light of the State’s evidence presented at
trial, Brown’s evidence attached to his new-trial motion, even if it had been
introduced at trial, likely would not have changed the outcome. See id. at *11. Thus,
Brown has not alleged facts to show the second prong of the Strickland test, that but
12 for his trial counsel’s errors, the result of his trial would have been different. See
Strickland, 466 U.S. at 694.
Because he failed to allege facts to show the second prong of the Strickland
test, Brown’s new-trial motion did not establish reasonable grounds to grant a new
trial based on ineffective assistance of counsel. See Wallace, 106 S.W.3d at 108.
Therefore, Brown was not entitled to a hearing on his new-trial motion, and the trial
court did not abuse its discretion in failing to hold one, even though the failure was
inadvertent. See id.; cf. Martinez, 74 S.W.3d at 21 (stating trial court abuses its
discretion in failing to hold hearing on new-trial motion when accused presents
motion that could entitle him to relief). We overrule Brown’s first issue.
B. Ineffective Assistance of Counsel Based on Scheduling Error
In his second issue, Brown alleges his appellate counsel was ineffective for
inadvertently setting the hearing on his motion for new trial for a date after the trial
court lost jurisdiction to rule on the motion.
An appellant may raise for the first time on appeal a claim for ineffective
assistance of counsel. See Robinson, 16 S.W.3d at 812–13; Brooks v. State, 357
S.W.3d 777, 790 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). An allegation
of ineffectiveness “must be firmly founded in the record,” and the record must
“affirmatively demonstrate” the alleged ineffectiveness. Brooks, 357 S.W.3d at 791.
13 As with other ineffective-assistance claims, the appellant must establish both prongs
of the Strickland test. Id. at 790; see also Strickland, 466 U.S. at 687–88, 694.
When a defendant files a motion for new trial, the trial court must rule on the
motion within 75 days after imposing or suspending the defendant’s sentence in open
court. TEX. R. APP. P. 21.8(a). If the trial court does not do so, the motion is overruled
by operation of law when the 75-day period expires. TEX. R. APP. P. 21.8(c). Once
the motion is overruled by operation of law, the trial court loses jurisdiction to rule
on it. Flores, 679 S.W.3d at 697. Because jurisdiction is a systemic requirement, any
action a trial court takes without jurisdiction is void. Id.
Brown’s appellate counsel scheduled the hearing on the motion for new trial
on the 76th day after the trial court imposed Brown’s sentence, after the motion had
been overruled by operation of law and the trial court lost jurisdiction to rule on it.
See TEX. R. APP. P. 21.8(c); Flores, 679 S.W.3d at 697. Brown’s counsel admitted
on the record that he miscounted and mistakenly agreed to that date. He admitted the
error was his mistake and that he had provided ineffective counsel as a result. Even
assuming his admission established the first prong of the Strickland test,2 we
2 See Belcher v. State, 93 S.W.3d 593, 596–97 (Tex. App.—Houston [14th Dist.] 2002, pet. dism’d) (concluding counsel’s performance was deficient, and thus first prong of Strickland test was satisfied, when counsel failed to speak up or correct trial court when trial court announced it was planning to rule on motion for new trial on date that fell after 75-day deadline). 14 conclude the record does not affirmatively demonstrate the second prong of the
Strickland test, that there is a reasonable probability that but for counsel’s errors, the
result of the proceeding would have been different. See Strickland, 466 U.S. at 694;
Brooks, 357 S.W.3d at 791.
As we concluded above, Brown’s motion for new trial and supporting
affidavits did not establish reasonable grounds to grant a new trial. Thus, the record
does not affirmatively show the trial court would have granted Brown a new trial if
the hearing had been held before the expiration of the 75-day deadline. Cf. Belcher
v. State, 93 S.W.3d 593, 596–97 (Tex. App.—Houston [14th Dist.] 2002, pet.
dism’d) (concluding appellant established second Strickland prong where record
showed trial court granted new trial but inadvertently did so after 75-day deadline).
Therefore, Brown did not establish the second prong of the Strickland test, and his
ineffective-assistance claim fails. See Brooks, 357 S.W.3d at 790 (explaining
appellant must establish both prongs of Strickland test to establish ineffective
assistance). We overrule Brown’s second issue.
C. Denying Request to Make Offer of Proof
Lastly, Brown argues the trial court erred by denying his appellate counsel’s
request to make an offer of proof during what would have been the hearing on his
motion for new trial.
15 Applicable Law and Standard of Review
The Court of Criminal Appeals has said the right to make an offer of proof is
absolute. Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim. App. 1994); Spence v.
State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988). Thus, a trial court has no
discretion to refuse a request to make an offer of proof. Anderson v. State, 665
S.W.3d 743, 759 (Tex. App.—Houston [14th Dist.] 2023, pet. ref’d).
When the trial court does refuse, that error is subject to a non-constitutional
harm analysis. Id.; TEX. R. EVID. 103(a) (stating that party may claim error in ruling
to admit or exclude evidence “only if the error affects a substantial right of the party”
and party informs court of substance of excluded evidence by offer of proof); see
also TEX. R. APP. P. 44.2(b) (any error that does not affect substantial rights must be
disregarded); Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002)
(explaining that Texas Rule of Evidence 103(a) applies to error in admitting or
excluding evidence but standard of review under that rule is identical to non-
constitutional error analysis under Texas Rule of Appellate Procedure 44.2(b));
Williams v. State, 964 S.W.2d 747, 753 (Tex. App.—Houston [14th Dist.] 1998, pet.
ref’d) (applying harmless-error analysis to erroneous refusal to allow party to make
offer of proof). The remedy for this type of error, when it affects a defendant’s
substantial rights, is to abate the appeal to allow counsel to develop the appellate
16 record. See Spence, 758 S.W.2d at 599–600; Rodriguez v. State, 90 S.W.3d 340, 363
(Tex. App.—El Paso 2001, pet. ref’d).
Ordinarily, to preserve error in excluding evidence a party must make an offer
of proof, unless the substance of the evidence was apparent from the context. TEX.
R. EVID. 103(a)(2); Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009).
However, error is preserved and the defendant’s substantial rights are not affected
by the trial court’s refusal of an offer of proof when the record clearly shows the
substance of what the defendant wanted to preserve for appeal. See Fox v. State, 115
S.W.3d 550, 559 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating offer
of proof not necessary to preserve error when content of evidence is apparent from
context); Williams, 964 S.W.2d at 753 (holding trial court’s error in refusing offer
of proof “was harmless” because context made clear “exactly what [defendant]
wanted to preserve for appeal”).
Assuming the trial court’s refusal of Brown’s offer of proof was erroneous in
light of Brown’s absolute right to make an offer of proof, the error was harmless
because it is clear from the record what the offer of proof would have shown. See
Kipp, 876 S.W.2d at 333; Williams, 964 S.W.2d at 753. Brown sought a new trial on
three grounds, and he attached affidavits to his new-trial motion in support of those
grounds. The affidavits are included in the appellate record and show the evidence
17 Brown would have offered in support of his new-trial motion. And, as we have
already concluded, Brown’s motion for new trial and supporting affidavits did not
establish that he was entitled to a hearing on the motion—he did not establish
reasonable grounds to grant a new trial.
The record also indicates Brown had subpoenaed additional witnesses to
attend the hearing, but the record does not indicate the substance of these witnesses’
testimony. However, Brown would not have been allowed to present additional
evidence beyond the scope of his new-trial motion because he would not have been
allowed to amend his motion to add new evidence on that date. See TEX. R. APP. P.
21.4(a), (b) (stating that motion for new trial must be filed or amended within 30
days of date sentence is imposed); Klapesky v. State, 256 S.W.3d 442, 455 (Tex.
App.—Austin 2008, pet. ref’d) (filing new evidence in support of new-trial motion
more than 30 days after sentence imposed is untimely attempt to amend motion);
Licon v. State, 99 S.W.3d 918, 926 (Tex. App.—El Paso 2003, no pet.) (stating
evidence presented to trial court in support of untimely amended motion cannot be
considered part of record on appeal). Thus, any additional evidence Brown would
have presented beyond the scope of his new-trial motion could not be considered
part of the appellate record anyway.
Any error in refusing the offer of proof was harmless. See Williams, 964
S.W.2d at 753 (holding error in refusing offer of proof was harmless because context
18 made clear what evidence defendant intended to preserve). Therefore, we overrule
Brown’s third issue.
CONCLUSION
We affirm the trial court’s judgment.
Gordon Goodman Justice
Panel consists of Justices Goodman, Landau, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).