Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00246-CR
Jekierin Toiken WALKER,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2023CR10469 Honorable Benjamin Robertson, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Rebeca C. Martinez, Chief Justice Adrian A. Spears II, Justice H. Todd McCray, Justice
Delivered and Filed: August 12, 2026 AFFIRMED Jekierin Tokien Walker was charged with murder and, after a jury trial, was convicted of the lesser-included offense of manslaughter and sentenced to twenty years of imprisonment. On appeal, he argues the evidence is insufficient to support the jury’s rejection of his self-defense claim. He further argues the trial court abused its discretion in denying his motion for new trial. We affirm.
SELF-DEFENSE
On August 21, 2023, at around 3:00 p.m., Walker was in the parking lot of a convenience store and shot the complainant two times, which resulted in the complainant’s death. Although Walker claimed he shot the complainant in self-defense, the jury rejected his self-defense claim and found him guilty of manslaughter. On appeal, he argues that the evidence is insufficient to support the jury’s rejection of his self-defense claim.
Under the Texas Penal Code, deadly force used in self-defense or in defense of another is a defense to prosecution for murder if the use of force is “justified.” See TEX. PENAL CODE §§ 9.02 (“It is a defense to prosecution that the conduct in question is justified under this chapter.”); 9.31- 33 (setting forth the requirements for establishing a claim of self-defense or defense of a third person). Section 9.31 provides that, subject to certain exceptions, a person is justified in using force against another “when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” TEX. PENAL CODE § 9.31(a). The use of force is not justified in response to verbal provocation alone, or if the actor provoked the other’s use or attempted use of unlawful force. TEX. PENAL CODE § 9.31(b). A “reasonable belief” in this context is defined as “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL CODE § 1.07(a)(42).
A person is justified in using deadly force against another (1) if he would be justified in using force against the other under section 9.31, and (2) “when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other’s use or attempted use of unlawful deadly force, or (B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery,
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or aggravated robbery.” Id. § 9.32(a). The actor’s belief that the deadly force was immediately necessary is presumed to be reasonable under certain circumstances, including that the actor “knew or had reason to believe that the person against whom the deadly force was used” was committing or attempting to commit one of several enumerated serious felony offenses, and that the actor did not provoke the person against whom the force was used and was not otherwise engaged in criminal activity, other than a Class C misdemeanor traffic violation. Id. § 9.32(b).
“In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” 1 Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). “We measure the sufficiency of the evidence against the hypothetically- correct jury charge, defined by the statutory elements as modified by the charging instrument.” Edward v. State, 635 S.W.3d 649, 656 (Tex. Crim. App. 2021).
“The jury is the sole judge of the weight and credibility of the evidence.” Id. at 655. “When considering a claim of evidentiary insufficiency, we must keep in mind that a juror may choose to believe or disbelieve all, some, or none of the evidence presented.” Id. “Further, while jurors may not base their decision on mere speculation or unsupported inferences, they may draw reasonable inferences from the evidence.” Id. “The evidence is sufficient to support a conviction, and thus the jury’s verdict is not irrational, if ‘the inferences necessary to establish guilt are reasonable based
1 We note that Walker also argues that the evidence is factually insufficient to support the jury’s rejection of his self- defense claim and asserts that a reviewing court may evaluate an affirmative defense for both legal and factual sufficiency. “However, contrary to” Walker’s “assertion, ‘[s]elf-defense is a defense, not an affirmative defense.’” Borton v. State, 683 S.W.3d 459, 467 (Tex. App.—San Antonio 2023, no pet.) (citation omitted) (alteration in original). “Therefore, ‘both legal and factual sufficiency challenges to the jury’s rejection of self-defense [are reviewed] under the Jackson v. Virginia standard.’” Borton, 683 S.W.3d at 467 (quoting Rankin v. State, 617 S.W.3d 169, 182 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d)) (alteration in original). Accordingly, we overrule Walker’s factual sufficiency complaint.
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upon the cumulative force of all the evidence when considered in the light most favorable to the verdict.’” Id. at 655-56 (quoting Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)). “When faced with conflicts in the evidence, a reviewing court shall presume that the fact finder resolved those conflicts in favor of the verdict and defer to that determination.” Id. at 656. As a reviewing court, we “may not re-evaluate the weight and credibility of the record evidence in the record and thereby substitute our judgment for that of the fact finder.” Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Further, “[a]lthough the parties may disagree about the logical inferences that flow from undisputed facts, ‘[w]here there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.’” Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)). “However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions.” Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007). “Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018).
“[I]n a claim of self-defense . . . that would justify a defendant’s use of force against another, the defendant bears the burden to produce evidence supporting the defense, while the State bears the burden of persuasion to disprove the raised issues.” Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). “The defendant’s burden of production requires him to adduce some evidence that would support a rational finding in his favor on the defensive issue.” Id. “By contrast, the State’s burden of persuasion ‘is not one that requires the production of evidence; rather it requires only that the State prove its case beyond a reasonable doubt.’” Id. (quoting Zuliani
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v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)). “Thus, ‘[i]n resolving the sufficiency of the evidence issue, we look not to whether the State presented evidence which refuted appellant’s self- defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the self- defense issue beyond a reasonable doubt.’” Id. at 609 (quoting Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). “[T]he issue of self-defense is an issue of fact to be determined by the jury,” and a “‘jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory.’” Id. (quoting Saxton, 804 S.W.2d at 914).
Walker argues that the evidence “conclusively proves” self-defense. He emphasizes that the complainant, at six-foot-one-inch in height and 334 pounds in weight, was about twice Walker’s size. Walker also points to his testimony where he stated that the complainant was agitated and behaving irrationally and to the evidence that the complainant had methamphetamine in his system. Walker further emphasizes (1) his testimony that he was backing up after the initial encounter with the complainant; (2) his testimony that the complainant continued to follow him and was threatening him; and (3) his cooperation with the police after the shooting. According to Walker, he was “justified in using deadly force against the raging complainant who continued to pursue and threatened [Walker] to believe that he would suffer serious bodily injury or death.”
Admitted in evidence at trial was video surveillance footage in which Walker is seen approaching multiple patrons of the convenience store, appearing at times to request or receive items, and gesturing in apparent frustration after an interaction. The surveillance footage has three different vantage points. The first vantage point is from a camera at the convenience store that shows Pumps 5 through 8. The footage from this vantage point is not clear as about a third of the
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frame is overexposed by sunlight. The convenience store manager who authenticated the surveillance footage testified that the shooting occurred in the part of the frame overexposed to sunlight. In the video, a young black man, identified as Walker, is seen walking out of the part of the video that is overexposed toward the front entrance of the convenience store. A heavyset man, identified as the complainant, is also seen walking out of the part of the video that is overexposed toward Pumps 1 through 4.
The second vantage point is from a camera at the convenience store that shows part of the convenience store’s parking lot and Pumps 1 through 4. In the footage, the complainant stops near Pump 4 when he sees Walker walk toward him from the front of the convenience store. The complainant then leans over a car stopped at the pump, squats down behind the car, and then falls over and collapses.
The clearest, but farthest, video surveillance footage is from a camera located at a business across the street from the convenience store. At minute 1:50 of the footage, the complainant is seen walking down the public sidewalk in front of the convenience store. In a lumbering walk, the complainant passes the convenience store and continues down the sidewalk. At minute 2:29, Walker is seen walking purposefully from the front of the convenience store to the far side of the parking lot. Walker begins jogging to intercept the complainant. At minute 2:40, Walker is at the far edge of the parking lot where there is grass between the parking lot and the sidewalk. Walker appears to yell something to the complainant to get his attention. The complainant turns around. At this point, Walker and the complainant are more than fifteen feet away from each other. The complainant then crosses the grass to the edge of the convenience store parking lot where Walker is standing. At minute 3:00, the men are at least six feet away from each other but the complainant is partially obstructed by a large bush. At minute 3:05, Walker drops his backpack. The
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complainant turns to walk away and then turns back. At minute 3:16, the men are a little more than an arms-length from each other, and Walker is holding his arm out like he is pointing at the complainant. At minute 3:20, Walker drops his arm and picks up his backpack. Walker turns away, and the complainant follows him. At minute 3:27, Walker turns away and walks a few steps away from the complainant but then turns back around. At this point, Walker and the complainant are blocked by another large bush. At minute 3:38, Walker can be seen walking nonchalantly back to the front of the convenience store. At this point, Walker had already shot the complainant. Thus, the period of time from when Walker yelled something to get the complainant’s attention to when Walker shot the complainant was one minute. The complainant did not have any weapons.
Officer Roman Martinez testified at trial about the surveillance footage. He testified that in viewing the footage, when Walker caught the attention of the complainant, the complainant made a gesture with his arm, like he was waving off Walker. Officer Martinez testified that the complainant then turned abruptly as though he found something Walker said to be offensive. According to Officer Martinez, Walker backed away but then turned back around to the complainant. In viewing the footage, Officer Martinez testified that Walker’s version of events did not make sense. Although Walker claimed to be fearful of the complainant, the video footage shows Walker bending down to pick up his bag when he was close to the complainant.
Officer Matthew Liska of the San Antonio Police Department was dispatched to the convenience store and secured the handgun used by Walker in the shooting. Office Liska gave Walker his Miranda warnings and asked Walker what had happened. According to Officer Liska, Walker was upset that the complainant had called him a racial slur. Officer Liska was asked “[o]ther than saying that the victim in the case was walking behind him, did [Walker] say anything about being in fear of serious bodily injury or death.” Officer Liska replied, “No.”
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One eyewitness, Davey Saravia, testified that he was at the convenience store on the day of the shooting, and a young African-American man, whom Saravia identified as Walker, approached him and asked him for money. Saravia gave Walker ten dollars. Saravia described Walker as looking “strange” with large pupils. After going back to his car, Saravia saw Walker staring in his direction. Saravia testified he thought Walker was going to come over to him, but Walker instead walked toward the complainant. Saravia testified that he heard Walker ask the complainant for money and the complainant refused. According to Saravia, Walker appeared to be angry. Saravia was asked what Walker was doing. Saravia replied, “He threatened him and turned. And like he turned, turned again. He turned three times. The fourth time he turned again, opened his backpack, and pulled out a weapon.” Saravia testified that it was a small, black handgun. Walker “pulled it out of the backpack. He put a chamber—he put a round in the chamber and then shot.” Saravia testified that he did not see the complainant make a threatening gesture toward Walker and that he did not see the complainant with a weapon or reaching for a weapon.
Another eyewitness, Celeste Ponce, testified that she was at Pump 8 when she saw two people arguing, one of whom she identified as Walker. She first saw Walker walking from the convenience store toward the complainant, and the complainant, who appeared to be angry, walking on the sidewalk adjacent to the street. She testified that the men met each other on the convenience store property, and the complainant “was upset for some odd reason.” She saw them arguing, and when they got close to Pump 8, she could hear them exchange “bad words.” Ponce heard the complainant call Walker “the n-word.” Walker then shot the complainant. She testified that the complainant and Walker were at least an arm’s length away from each other at the time of the shooting. When asked if the complainant was trying to strike or grab Walker, Ponce responded,
No. No. I did not see the white man strike or grab or nothing like that. He did walk kind of like fast at him, but not quite fast, because he was a heavy guy. So he just
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kind of walked like that, because that gentleman there [Walker] said, “Well, do it.”
Or “say it.” And, well he said it and did it. And then he did his bang, bang.
Ponce testified that at the time the complainant was shot, he was “throwing his finger” at Walker.
Q: The finger. Okay. So he’s throwing the finger at the younger individual, the black man?
A: Uh-huh.
Q: And he said, “Do it n-word”?
A: Yeah, because this guy was like, well, whatever.
Q: And at that point, when he said, you know, “Do it n-word,” was the younger individual, the black man holding a weapon?
A: Yes. It came out of a backpack.
Q: Okay.
A: A backpack. A Lilo & Stitch backpack. I don’t know if you all are familiar with Disney.
Q: Sure. So Lilo & Stitch backpack. That’s where the gun had come from?
A: Yeah.
Q: You said they were at least an arm’s length away?
A: Right. On the property of Valero.
Q: And that the white man wasn’t rushing at him or attacking him at that moment?
A: No. At that moment, no. Not until when he was like, “Eff you,” and like—
Q: Okay.
A: Everybody was like—well, each of them were like, “Well, do it,” and “Say it, and do it.” So I guess they were testing each other.
Q: Could you see any weapons on the white man?
A: No.
Q: And then did he, at any point, try to reach for his waistband—
A: No. No.
Ponce was asked if the complainant had said the n-word before Walker had drawn the gun. Ponce replied, “It was way before the gun had been drawn.”
The medical examiner testified that the complainant, who was 73 inches in height and weighed 334 lbs., died as a result of two gunshot wounds. According to the medical examiner, a toxicology report showed the complainant had 0.27mg/L of methamphetamine and 0.064mg/L of amphetamine in his system. Also present was ketamine, which was likely therapeutic. The medical examiner testified that the methamphetamine did not contribute to the complainant’s death. When asked if the methamphetamine could have affected the complainant’s behavior, the medical
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examiner responded, “It is very difficult to go just from a number on a page to a behavior. It’s certainly possible that the presence of that drug could have altered behavior. But again, that does fall somewhat outside of my mandate, which is to determine what cause and manner of death are in a case.”
Video of the police interview of Walker was admitted in evidence. At the beginning of the video, Walker is asked what happened. Walker replies, “This man’s racist as fuck—that’s what happened.” In the video, Walker claims that he walked up to the complainant to give him some money. Walker states that the complainant was racist toward him and kept coming at him. Walker states that he pulled the gun out of his backpack, pointed the gun at the complainant, and told him to back up. Walker then states in the video that the complainant said, “What are you going to do with a BB gun?” Walker states that he told the complainant to leave him alone but that when Walker turned around, the complainant kept “walking up” on him and “still talking shit” and calling him the n-word. Walker states in the video that the complainant tried to attack him, so he shot the complainant. The officer in the video asks Walker how the complainant tried to attack him. Walker replies that if he tells someone to back up and that person is calling him racial slurs and keeps coming toward him when his back is turned, that person is threatening him. The officer asks Walker again how the complainant was threatening him. Walker replies in the video that the complainant was saying that he was going to “beat [Walker’s] ass.” The police officer asks Walker why he pulled the gun. Walker replies that a bigger man was walking up to him and appeared to be angry. Walker states in the video that he “walked off twice” but the complainant kept following him to “engage him in a physical altercation.”
Walker testified in his own defense at trial. At the time of the shooting, he was almost twenty years old. According to Walker, he was not asking people for money at the convenience
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store but was instead trying to get someone to buy him a Black & Mild cigar, which he said he could not purchase himself because he was underage. Walker testified that one customer who could not speak English well did give him money but only did so because he did not understand what Walker was asking. Walker testified that when he saw the complainant, he had $3. Walker noticed that the complainant appeared to be hot. According to Walker, he thought he could get the complainant to buy him the cigar, which cost $1, and then give the complainant the rest of the money to buy himself a drink in the convenience store. Walker testified that he stopped at a distance from the complainant who told Walker to get away from him. Walker testified that from the beginning, the complainant started shouting racial slurs at him. Walker testified that he replied, “You’re trippin, Bro. I was just trying to give you some money,” and then walked away. When asked what he thought caused the complainant to walk towards him, Walker replied,
I guess he was mad because I told him he was trippin. Like I said, “Bro, you’re trippin. I was just trying to give you some money.” And then after that, I turned around. And from the corner of my eye, my peripheral, I seen him walking, like, down. They say it’s not a hill, but if you look from my angle, it slants and dips down. So what I mean is that he came from the other angle, and he came down towards me from my peripheral.
Walker testified that the complainant looked “erratic” and like “he wasn’t in his right mind.” According to Walker, he was not trying to escalate the situation. Walker testified the complainant said he was going to “beat up” Walker. Walker dropped his bag and pulled his gun out.
Q: And why did you pull your gun out?
A: I pulled my gun out, because he told me he was gonna beat me up, and I seen he was, like, twice my size, and I seen him rushing towards me. And he had already told me he was planning on beating me up from the initial encounter already. So I was really surprised to come from my peripheral, because I though he was just going to keep going. Because I had already turned my back. So once he said he was going to beat me up and I seen him out of the corner of my eye, he was coming down the hill. I had backed up.
And my gun wasn’t—like, if you watch the video, my gun, I didn’t already take it out. It was just in my bag at first, because I was like, I don’t want to pull it out on him if he’s not trying to assault me. Because when he walked
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up on me, like, he was still, like, aggressive. So, I said, “Hey Bro. Like you trippin. Like, just back up.”
Q: And so what was going through your mind? Did you—were you in fear of anything at that time?
A: I was definitely in fear of his size and what he was saying to me.
Q: And what exactly were you afraid that he might do to you?
A: I felt like he was gonna choke me. He was gonna try to take my gun. I just felt like he is trying to wrestle me, probably slam me or something. I didn’t know what he was trying to get so close on me for. I felt like he was trying to attack me.
Q: Now this is before or after you had pulled the gun out on him?
A: This is before I pulled the gun out and after.
Walker testified that the complainant’s “demeanor was like he really didn’t care what [Walker] was talking about, and he wasn’t in the right mind state.” Walker testified,
He told me, “What are you going to do with that BB gun? Your gun isn’t real.”
Like, it’s useless. Like, I don’t care about you having a gun, basically. But he was, basically, telling me that he didn’t care that I pointed it at him and he was still gonna come towards me.
Walker testified that after he pointed his gun at the complainant, the complainant came towards Walker again. Walker testified, “And I wanted to leave the situation, so I quickly reached down and grabbed my bag and he tried to step on my hand. And once he did that, I backed up from him some more. And then I turned around, and he continued to follow me.” Walker testified, “When we walked away initially, he was within like two to three feet of me. And I kept walking, but the more I sped up, it’s like the more he kept speeding up. So it was like I couldn’t escape [the complainant] was trying to do.” Walker claimed that the complainant “lunged” at him and “reached out.” Walker then shot the complainant:
But when he reached out, I backed up aggressive. Like, I aggressively backed up, and then I shot him. But like—like yeah. I was—I was in shock, because I didn’t feel like he was gonna keep coming towards me. And once he lunged at me, I backed up and I lunged back—I told him to get back.
In reviewing all the evidence in the record, we note that the jury was free to find Walker’s testimony not credible and reject his version of events. See Edward, 635 S.W.3d at 655. The jury
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was also free to find other evidence credible, including evidence showing the following: (1) Walker moved quickly and with intent to intersect the complainant; (2) the complainant was immediately upset at something Walker said to him to get his attention; (3) Walker and the complainant were arguing and shouting obscenities at each other; (4) the encounter between Walker and the complainant lasted only one minute before Walker decided to use deadly force; (5) the complainant did not have any weapons; (6) the complainant was larger than Walker but moved slowly and awkwardly while Walker was young and moved quickly; (7) the complainant did not strike or grab Walker; (8) Walker walked away and turned around four times before shooting the complainant; (9) at the time the complainant was shot, he was throwing the middle finger at Walker; (10) Walker told police during his interview that the shooting happened because the complainant was racist and called Walker the n-word; (11) Walker told Officer Liska that he was upset the complainant had called him a racial slur; and (12) Walker did not mention to Officer Liska that he had been in fear of death or serious bodily injury other than to say the complainant was following him. See id. From all this evidence, a reasonable juror could reject Walker’s version of events and conclude Walker did not act reasonably in using deadly force against the complainant. We therefore hold the evidence is legally sufficient to support the jury’s rejection of Walker’s self-defense claim.
MOTION FOR NEW TRIAL
In his final issue, Walker argues that the trial court erred in not granting his motion for new trial because his trial counsel was ineffective for failing to investigate and produce enhanced surveillance video at trial. The State responds that Walker has failed to preserve this issue for appeal because his motion for new trial did not argue that his counsel was ineffective for failing to obtain the enhanced video.
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Texas Rule of Appellate Procedure 21.2 provides that a “motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record.” TEX. R. APP. P. 21.2. Generally, a motion for new trial is not necessary to bring a claim for ineffective assistance of counsel, and the failure to file such a motion does not procedurally prohibit an appellate claim of ineffective assistance of counsel. See Robinson v. State, 16 S.W.3d 808, 812-13 (Tex. Crim. App. 2000). However, when, as here, a defendant must develop evidence outside the trial record to support his claim that his trial counsel failed to adequately investigate and produce evidence, a motion for new trial is a critical procedural mechanism for developing facts outside the trial record. See Reyes v. State, 849 S.W.2d 812, 815-16 (Tex. Crim. App. 1993) (explaining that a claim for ineffective assistance of counsel can be brought in a motion for new trial and that a trial court abuses its discretion in failing to hold a hearing on a motion for new trial that raises matters not determinable from the record). Thus, Walker could have successfully raised an ineffective assistance of counsel claim that was firmly founded in the trial record for the first time on appeal. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”). However, because Walker’s allegations are based on actions outside the trial record, he filed a motion for new trial to develop evidence outside the trial record. See Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (explaining that a claim for ineffective assistance “may be raised in a motion for new trial”). Thus, he is bound by the procedural requirements for preserving an issue relating to any error by the trial court in failing to grant his motion for new trial.
Rule 21.4 provides that a defendant “may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.” TEX.
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R. APP. P. 21.4(a). “Such a motion is a prerequisite for the trial court to grant a new trial; the court may not do so on its own motion.” State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013). “The motion must state the ground on which the defendant seeks a new trial.” Shamin v. State, 443 S.W.3d 316, 325 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). The Texas Court of Criminal Appeals has explained that
[a]n essential element of [a motion for new trial] is that the matter of error relied upon for a new trial must be specifically set forth therein. The wisdom of that rule lies in the fact that reasonable notice should be given not only to the trial court but the State, as well, as to the misconduct relied upon and to prevent a purely fishing expedition on the part of the accused.
Zalman, 400 S.W.3d at 594 (quoting State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993)) (alteration in original). “The purpose of this requirement is to allow the court enough notice to prepare for the hearing and make informed rulings and to allow the State enough information to prepare a rebutting argument.” Id. “The motion must contain enough detail to give the other party notice of what is being complained of so that it can properly prepare for the hearing.” Id.
“A defendant’s motion may be amended without leave any time within the thirty-day limit so long as the trial court has not already ruled on the motion.” Id. at 593; see TEX. R. APP. P. 21.4(b) (“Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file on or more amended motions for new trial.”). The Texas Court of Criminal Appeals has interpreted Rule 21 “as barring amendments outside the thirty-day time limit, even with leave of the court, so long as the State properly objects.” Zalman, 400 S.W.3d at 593.
Here, Walker timely filed a motion for new trial within thirty days from imposition of his sentence. He did not amend his motion, and the motion for new trial hearing was held more than thirty days from imposition of his sentence. In his motion for new trial, Walker argued that “[n]ew
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evidence in the form of enhanced video confirms the testimony of the Defendant that the complaining witness lunged at the Defendant immediately before the Defendant fired in self- defense.” According to Walker, this “video supports the legal claim of self-defense.” Thus, Walker brought his motion for new trial on the basis of newly discovered evidence. Walker did not argue anywhere in his motion that his trial counsel was ineffective for failing to investigate and obtain the enhanced video.
At the motion for new trial hearing, admitted into evidence was a version of the convenience store footage showing Pumps 5-8. Noting that newly discovered evidence in a motion for new trial proceeding must be evidence that could not have been previously discovered, the trial court asked defense counsel to explain how the enhanced video could not have been previously discovered as the video was the same video admitted at trial but “enhanced.” Defense counsel responded, “Well, it would have been ineffective assistance on my part.” The trial court then asked defense counsel if he wanted to create a record for appellate purposes for ineffective assistance of counsel. Defense counsel replied that he would. The State objected to defense counsel testifying as to any ineffective assistance of counsel claim because such a claim was “outside the scope of the motion.” Thus, the record reflects that Walker did not bring an ineffective assistance of counsel claim in his motion for new trial and, instead, raised it for the first time at the motion for new trial hearing, which occurred more than thirty days after his imposition of sentence. The record further reflects that the State objected to defense counsel asserting such a claim of ineffective assistance of counsel when Walker’s motion for new trial had not argued one. We hold that Walker has failed to preserve the issue that the trial court erred in not granting his motion for new trial. See Zalman, 400 S.W.3d at 595 (holding that it was an abuse of discretion for the trial court over the State’s objection to consider the defendant’s arguments contained in his untimely filed “memorandum of
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law” or asserted for the first time at the hearing on the motion for new trial); Shamin, 443 S.W.3d at 328 (holding that because the defendant did not include a certain claim in his motion for new trial and the State objected when he raised the argument at the motion for new trial hearing, “Rule 21 prohibit[ed the defendant] from obtaining a new trial based on a late-added argument to which the State timely objected”); see also State v. Frias, 511 S.W.3d 797, 809 (Tex. App.—El Paso 2016, pet. ref’d) (holding that arguments not brought in defendant’s motion for new trial but argued by the defendant at the motion for new trial hearing “could not support the grant of a new trial”).
Moreover, even if Walker had preserved this issue for appellate review, the trial court acted within its discretion in denying Walker’s motion for new trial. “When the trial court denies a motion for new trial alleging ineffective assistance of counsel, ‘we view the relevant legal standards through the prism of abuse of discretion.’” Lampkin v. State, 470 S.W.3d 876, 903 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Ramirez v. State, 301 S.W.3d 410, 415 (Tex. App.— Austin 2009, no pet.)). “The test for abuse of discretion is not whether, in the opinion of the appellate court, the facts present a suitable case for the trial court’s action, but rather, whether the trial court acted without reference to any guiding rules or principles.” State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016). “The bare fact that a trial court may decide a matter differently from an appellate court does not demonstrate an abuse of discretion.” Id. “Appellate courts view the evidence in the light most favorable to the trial court’s ruling, defer to the court’s credibility choices, and assume that all reasonable fact findings in support of the ruling have been made.” Id.
A person claiming that his counsel was ineffective must prove, by a preponderance of the evidence, that (1) his counsel’s performance was deficient, falling below an “objective standard of reasonableness,” and (2) the deficient performance prejudiced the defense such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
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would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); see Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test). The defendant has the burden to establish both prongs by a preponderance of the evidence; failure to make either showing defeats an ineffectiveness claim. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
As noted, at the motion for new trial hearing, Walker admitted a version of the convenience store surveillance footage. Walker argues the part of the video that was overexposed to sunlight has been “enhanced” so that one can now see the complainant lunge at Walker before the shooting. However, in reviewing the video, we conclude that Walker’s assertion is overstated and that the “enhanced” video remains overexposed, unclear, and inconclusive. We therefore conclude that Walker has not met his burden on appeal to show that he was prejudiced by his counsel’s failure to obtain the “enhanced” video. Accordingly, even if Walker had preserved this issue for appeal, there was no abuse of discretion by the trial court in denying the motion for new trial.
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Adrian A. Spears II, Justice DO NOT PUBLISH