ACCEPTED 13-14-00044-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 1/12/2015 11:41:03 AM DORIAN RAMIREZ CLERK
NO. 13-14-00044-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THIRTEENTH COURT OF APPEALS DISTRICT 1/12/2015 11:41:03 AM DORIAN E. RAMIREZ CORPUS CHRISTI, TEXAS Clerk _________________________________________________
JOHN HALL Appellant, vs.
THE STATE OF TEXAS,
Appellee, _________________________________________________
ON APPEAL FROM CAUSE NO. 36772 IN THE 66TH JUDICIAL DISTRICT COURT OF HILL COUNTY, TEXAS ________________________________________________________________________
BRIEF FOR THE STATE OF TEXAS _______________________________________________________________________
Mark F. Pratt District Attorney Hill County, Texas Oral Argument is requested. Nicole M. Crain Assistant District Attorney State Bar No. 24034548 Post Office Box 400 Hillsboro, Texas 76645 (254) 582-4070 FAX (254) 582-4036 ncrain@co.hill.tx.us
i TABLE OF CONTENTS Page
Index of Authorities……………………………………………………………….iii
Statement of the Case…………………………………………………………........2
Issue Presented…………………………………………………………….……….2
Statement of Facts…………………………………………………………….....…2
Summary of Argument………………………………………………..……………2
Argument and Authorities……………………………………………………….…3
Conclusions and Prayer…………………………………………….…….….……..6
Certificate of Compliance……………………………………………………..……6
Certification of Service……………………………………………………..……....7
ii INDEX OF AUTHORITIES
STATUTES: PAGE
Tex. R. App. Pro 21.4 (Vernon 2009)……………………………………………...5
Tex. R. App. Pro. 33.1 (Vernon 2009)………………………………………….4, 5
CASES
Bumpus v. State, 509 S.W.2d 359 (Tex. Crim. App. 1974)………………………...3
Cabala v. State, 6 S.W.3d 543 (Tex. Crim. App. 1999)……………………………5
Powell v. State, 304 S.W.3d 630 (Tex. App. - Beaumont 2010)…………………...3
Reyes. v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993)………………………….3
Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009)…………………………..3
iii NO. 13-14-00044-CR
IN THE COURT OF APPEALS THIRTEENTH COURT OF APPEALS DISTRICT CORPUS CHRISTI, TEXAS _________________________________________________
ON APPEAL FROM CAUSE NO. 36772 IN THE 66TH JUDICIAL DISTRICT COURT OF HILL COUNTY, TEXAS _________________________________________________________________
BRIEF FOR THE STATE OF TEXAS _________________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:
COMES NOW the State of Texas, in the above referenced matter and files
this it’s brief in response to the brief filed by John Hall seeking reversal of the
judgment of the trial court.
1 STATEMENT OF THE CASE
The State is not dissatisfied with the Appellant’s Statement of the Case.
ISSUE PRESENTED
The State is not dissatisfied with the recitation of the Issue Presented.
STATEMENT OF FACTS
The State is not dissatisfied with the Appellant’s Statement of Facts.
SUMMARY OF ARGUMENT
Evidence of bankruptcy was not presented to the trial court, and therefore
the trial court was not given the opportunity to rule on its admissibility, which can
be determined from the record. Therefore the trial court did not abuse its
discretion by denying a hearing on the motion for new trial.
The appellant raises for the first time on appeal the issue of whether the trial
court should have granted a hearing on the motion for new trial to determine the
principal motivation of the prosecutor in prosecuting the case. The issue was not
timely filed for consideration by the court, nor is the principal motivation test one
that has been found to be applicable in the State of Texas. Therefore the trial court
did not abuse its discretion in denying a hearing on the motion for new trail.
2 ARGUMENT AND AUTHORITIES
Issue
Did the trial court abuse its discretion by failing to hold an evidentiary
hearing on the appellant’s motion for new trial?
Standard of Review
When a trial court denies a hearing on a motion for new trial, the decision is
reviewed under an abuse of discretion standard. Powell v. State, 304 S.W.3d 630,
634 (Tex. App. - Beaumont 2010); Reyes. v. State, 849 S.W.2d 812, 815 ( Tex.
Crim. App. 1993).
Response to Argument
As there was not any evidence that the defendant filed for bankruptcy
offered before the trial court at the trial on the merits, no error was committed by
the trial court, which can be determined from the record. Therefore, it was not an
abuse of discretion to deny a hearing on the motion for new trial. A hearing on a
motion for new trial is not an absolute right. Bumpus v. State, 509 S.W.2d 359,
363 (Tex. Crim. App. 1974); Reyes. v. State, 849 S.W.2d 812, 815 (Tex. Crim.
App. 1993). While a hearing is critical if matters cannot be determined from the
record, when they can be determined from the record or the defendant does not
establish the existence of reasonable grounds for relief, a hearing is not required.
Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). The motion for new
3 trial in this case complains that the trial court erred in excluding evidence that the
debt in question had been discharged in bankruptcy. (C.R. at 40). To preserve a
complaint for appellate review the record must show that a complaint was made to
the trial court by timely request, objection, or motion that stated the grounds for the
ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, that the complaint
complied with the rules, and that the court ruled on the objection or motion
expressly or implicitly or refused to rule, and the complaining party objected to the
refusal to rule. Tex. R. App. Pro. 33.1 (2013). In this case, the state filed a motion
in limine requesting that the defense approach the bench prior to offering any
testimony regarding bankruptcy. (C.R. at 12). The court held a hearing on the
state’s motion in limine, ultimately granting the motion in limine, stating: “From a
motion in limine standpoint, I’ll grant it. As the evidence comes out, I’m certainly
willing to revisit with you.” (II R.R. at 103-108). When the appellant was
testifying, he began to state that he was in the process of.., at which time the state
objected. (III R.R. at 185). Counsel approached the bench, and appellant’s
counsel agreed to rephrase the question, without interaction from the court. The
court asked whether counsel required the court, to which the defense again
responded that they would rephrase the question. (III R.R. at 185-186). Therefore,
no request was made to the trial court to offer the bankruptcy testimony, nor was
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ACCEPTED 13-14-00044-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 1/12/2015 11:41:03 AM DORIAN RAMIREZ CLERK
NO. 13-14-00044-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THIRTEENTH COURT OF APPEALS DISTRICT 1/12/2015 11:41:03 AM DORIAN E. RAMIREZ CORPUS CHRISTI, TEXAS Clerk _________________________________________________
JOHN HALL Appellant, vs.
THE STATE OF TEXAS,
Appellee, _________________________________________________
ON APPEAL FROM CAUSE NO. 36772 IN THE 66TH JUDICIAL DISTRICT COURT OF HILL COUNTY, TEXAS ________________________________________________________________________
BRIEF FOR THE STATE OF TEXAS _______________________________________________________________________
Mark F. Pratt District Attorney Hill County, Texas Oral Argument is requested. Nicole M. Crain Assistant District Attorney State Bar No. 24034548 Post Office Box 400 Hillsboro, Texas 76645 (254) 582-4070 FAX (254) 582-4036 ncrain@co.hill.tx.us
i TABLE OF CONTENTS Page
Index of Authorities……………………………………………………………….iii
Statement of the Case…………………………………………………………........2
Issue Presented…………………………………………………………….……….2
Statement of Facts…………………………………………………………….....…2
Summary of Argument………………………………………………..……………2
Argument and Authorities……………………………………………………….…3
Conclusions and Prayer…………………………………………….…….….……..6
Certificate of Compliance……………………………………………………..……6
Certification of Service……………………………………………………..……....7
ii INDEX OF AUTHORITIES
STATUTES: PAGE
Tex. R. App. Pro 21.4 (Vernon 2009)……………………………………………...5
Tex. R. App. Pro. 33.1 (Vernon 2009)………………………………………….4, 5
CASES
Bumpus v. State, 509 S.W.2d 359 (Tex. Crim. App. 1974)………………………...3
Cabala v. State, 6 S.W.3d 543 (Tex. Crim. App. 1999)……………………………5
Powell v. State, 304 S.W.3d 630 (Tex. App. - Beaumont 2010)…………………...3
Reyes. v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993)………………………….3
Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009)…………………………..3
iii NO. 13-14-00044-CR
IN THE COURT OF APPEALS THIRTEENTH COURT OF APPEALS DISTRICT CORPUS CHRISTI, TEXAS _________________________________________________
ON APPEAL FROM CAUSE NO. 36772 IN THE 66TH JUDICIAL DISTRICT COURT OF HILL COUNTY, TEXAS _________________________________________________________________
BRIEF FOR THE STATE OF TEXAS _________________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:
COMES NOW the State of Texas, in the above referenced matter and files
this it’s brief in response to the brief filed by John Hall seeking reversal of the
judgment of the trial court.
1 STATEMENT OF THE CASE
The State is not dissatisfied with the Appellant’s Statement of the Case.
ISSUE PRESENTED
The State is not dissatisfied with the recitation of the Issue Presented.
STATEMENT OF FACTS
The State is not dissatisfied with the Appellant’s Statement of Facts.
SUMMARY OF ARGUMENT
Evidence of bankruptcy was not presented to the trial court, and therefore
the trial court was not given the opportunity to rule on its admissibility, which can
be determined from the record. Therefore the trial court did not abuse its
discretion by denying a hearing on the motion for new trial.
The appellant raises for the first time on appeal the issue of whether the trial
court should have granted a hearing on the motion for new trial to determine the
principal motivation of the prosecutor in prosecuting the case. The issue was not
timely filed for consideration by the court, nor is the principal motivation test one
that has been found to be applicable in the State of Texas. Therefore the trial court
did not abuse its discretion in denying a hearing on the motion for new trail.
2 ARGUMENT AND AUTHORITIES
Issue
Did the trial court abuse its discretion by failing to hold an evidentiary
hearing on the appellant’s motion for new trial?
Standard of Review
When a trial court denies a hearing on a motion for new trial, the decision is
reviewed under an abuse of discretion standard. Powell v. State, 304 S.W.3d 630,
634 (Tex. App. - Beaumont 2010); Reyes. v. State, 849 S.W.2d 812, 815 ( Tex.
Crim. App. 1993).
Response to Argument
As there was not any evidence that the defendant filed for bankruptcy
offered before the trial court at the trial on the merits, no error was committed by
the trial court, which can be determined from the record. Therefore, it was not an
abuse of discretion to deny a hearing on the motion for new trial. A hearing on a
motion for new trial is not an absolute right. Bumpus v. State, 509 S.W.2d 359,
363 (Tex. Crim. App. 1974); Reyes. v. State, 849 S.W.2d 812, 815 (Tex. Crim.
App. 1993). While a hearing is critical if matters cannot be determined from the
record, when they can be determined from the record or the defendant does not
establish the existence of reasonable grounds for relief, a hearing is not required.
Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). The motion for new
3 trial in this case complains that the trial court erred in excluding evidence that the
debt in question had been discharged in bankruptcy. (C.R. at 40). To preserve a
complaint for appellate review the record must show that a complaint was made to
the trial court by timely request, objection, or motion that stated the grounds for the
ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, that the complaint
complied with the rules, and that the court ruled on the objection or motion
expressly or implicitly or refused to rule, and the complaining party objected to the
refusal to rule. Tex. R. App. Pro. 33.1 (2013). In this case, the state filed a motion
in limine requesting that the defense approach the bench prior to offering any
testimony regarding bankruptcy. (C.R. at 12). The court held a hearing on the
state’s motion in limine, ultimately granting the motion in limine, stating: “From a
motion in limine standpoint, I’ll grant it. As the evidence comes out, I’m certainly
willing to revisit with you.” (II R.R. at 103-108). When the appellant was
testifying, he began to state that he was in the process of.., at which time the state
objected. (III R.R. at 185). Counsel approached the bench, and appellant’s
counsel agreed to rephrase the question, without interaction from the court. The
court asked whether counsel required the court, to which the defense again
responded that they would rephrase the question. (III R.R. at 185-186). Therefore,
no request was made to the trial court to offer the bankruptcy testimony, nor was
4 the trial court requested to make a ruling, therefore there was no error shown in the
record. Tex. R. App. Pro. 33.1. As the issue raised in the motion for new trial
was determinable from the record, and the motion for new trial did not establish
reasonable grounds for relief as no complaint was preserved for appeal, the trial
court did not abuse its discretion in denying a hearing on the motion for new trial.
The appellant states that a hearing on the motion for new trial should have
been granted to determine the state’s principal motivation for filing the case, be it
to collect a debt or prosecute a crime. Motions for new trial and amendments to
those motions must be presented within 30 days after the trial court imposes or
suspends sentence in open court. Tex. R. App. Pro. 21.4. The appellant raises the
principal motivation issue as a ground for hearing on the motion for new trial for
the first time on appeal to which the State objects.
In addition, the principal motivation test is part of the concurring opinion in
Cabala v. State to which the majority responds in footnote 5 that the principal
motivation test has little if any value in deciding whether bankruptcy has an effect
on restitution in a proven criminal case, and that determining the subjective
motivations of the prosecutor, defense attorney, victim, or trial court would be
extremely difficult if not impossible to carry out. Cabala v. State, 6 S.W.3d 543,
549, fn5 (Tex. Crim. App. 1999). Therefore the principal motivation test is not an
5 issue timely filed for hearing on the motion for new trial, nor is it a test given
application by the Court of Criminal Appeals in Texas.
CONCLUSION AND PRAYER
For the reasons herein alleged, the State prays that this Court uphold the
Respectfully Submitted,
/s/ Nicole M. Crain
Nicole M. Crain State Bar No. 24034548 Assistant District Attorney, Hill County, Texas Post Office Box 400 Hillsboro, Texas 76645 (254) 582-4070 Fax: (254) 582-4036 ncrain@co.hill.tx.us Attorney for Appellee
CERTIFICATE OF COMPLIANCE
I certify that the word count on the computer shows the number of words included in the brief to be 804, excluding the parts of the brief exempted by Tex.R.App.P. 9.4(e).
/s/ Nicole M. Crain Nicole M. Crain
6 CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief for the State was served on John Hall by and through his attorney of record, Patrick Davis by electronic transmission to lpatdavis@aol.com on January12 , 2015
Nicole M. Crain