In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00328-CR NO. 09-23-00340-CR NO. 09-23-00341-CR ________________
MICHAEL BEE HODGE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 258th District Court Polk County, Texas Trial Cause Nos. CR23-0359, CR23-0362, and CR23-0363 ________________________________________________________________________
MEMORANDUM OPINION
Appellant Michael Bee Hodge appeals his convictions in trial cause number
CR23-0359 for evading arrest or detention with a vehicle, trial cause number CR23-
0363 for aggravated assault of a public servant, and trial cause number CR23-0362
for possession of a controlled substance. See Tex. Penal Code Ann. §§
1 22.02(b)(2)(B), 38.04(a), (b)(2)(A); 1 Tex. Health & Safety Code Ann. § 481.115(b).
In three separate briefs, Hodge complains about the sufficiency of the evidence
concerning identity, the State’s alleged Brady violation for failing to disclose
evidence, and harm due to lost portions of the punishment record. In this
consolidated opinion, we affirm the trial court’s judgments which resulted from two
separate jury trials.
BACKGROUND
First Jury Trial
A grand jury indicted Hodge for evading arrest with a vehicle, a third-degree
felony. See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A). The indictment alleged that
on or about April 22, 2023, Hodge “did then and there intentionally flee from Chris
Simmons, a person the Defendant knew was a peace officer who was attempting to
lawfully arrest or detain the Defendant, and the Defendant used a motor vehicle
while he was in flight[.]” The indictment included a Habitual Offender Notice
1 We note that the Legislature enacted two different versions of section 38.04(b) in 2011 and that an offense is a third-degree felony if an offender used a vehicle to evade arrest, regardless of whether he has a prior conviction for evading. See Copeland v. State, No. 09-19-00194-CR, 2020 WL 1280194, at *3 (Tex. App.— Beaumont Mar. 18, 2020, no pet.) (mem. op., not designated for publication); see also Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Sess. Law Serv. 2320, 2321; Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011 Tex. Sess. Law Serv. 2110, 2111; Act of May 23, 2011, 82nd Leg., R.S., ch. 391, § 1, 2011 Tex. Sess. Law Serv. 1046, 1046 (current version at Tex. Penal Code Ann. § 38.04). 2 alleging Hodge had two prior felony convictions. See id. § 12.42(a) (providing
enhanced punishment for habitual offenders).
During the jury trial, Detective Chris Simmons (“Simmons”) with the
Livingston Police Department, testified that he was about to go on general patrol on
April 22, 2023, when he heard “dispatch call for a flock hit,” and he explained that
their flock hit system is a camera system set up around town that reads license plates
and reports the location of stolen cars. Simmons testified that after the flock hit
detected a purple Harley Davidson motorcycle, he drove to the location, encountered
the stolen motorcycle, and verified the license plate. The jury viewed video from
Simmons’s dash camera during his testimony, and Simmons explained that after he
turned on his lights and “bumped” his siren, the motorcycle driver pulled over to the
side of the road but then took off when Simmons stepped out of his marked patrol
unit wearing his police uniform. Simmons identified Hodge as the motorcycle driver
and testified that Hodge looked at him as Hodge “takes off.”
Simmons explained that his siren and lights were activated as he pursued
Hodge, who ran stop signs and went down a steep embankment to travel along the
railroad tracks. Simmons testified that he followed Hodge on foot, advised other
officers of Hodge’s location, and returned to his unit and continued his pursuit.
Simmons testified that Hodge fled while Simmons was trying to lawfully detain him
for possessing a stolen motorcycle. Simmons explained that he continued to search
3 for Hodge, who wrecked the motorcycle and fled on foot, and he observed Hodge,
who had lost his hat and mask, running through lots and “stripping off his jacket.”
After locating Hodge in a wooded area, Simmons continued his pursuit with his gun
drawn and arrested Hodge, whom he recognized.
While the record shows that when asked on direct if there was any doubt that
Hodge is the actual person, Simmons stated “Yes, 100 percent[,]” based on
Simmons’s entire testimony, it appears Simmons misunderstood the question. The
video from Simmons’s dash and body cameras support Simmons’s testimony that
Hodge evaded arrest or detention with a vehicle. Simmons explained that although
Hodge’s hair color had changed, that did not affect his identification of Hodge, who
Simmons testified “still ha[d] the same face.”
On cross-examination, when asked if he could “definitively tell this jury, that
the person who got off the motorcycle is the same person sitting here in the
courtroom today,” Simmons stated, “I can.” Simmons agreed that there were points
during the pursuit where he lost sight of the motorcycle driver, but he testified that
he knew that the motorcycle driver and the person he arrested were the same person.
Officer Chad Lilly (“Lilly”) with the Livingston Police Department testified
that on April 22, 2023, he was on patrol when he heard a flock hit over the radio.
Lilly explained that after learning the motorcycle failed to stop for Simmons, he
continued his pursuit with his lights and siren activated. After Lilly observed the
4 motorcycle wreck into the ditch and the driver flee on foot, Lilly followed the driver
and searched under homes. Lilly found a hat and jacket, which appeared to be the
same one the driver was wearing, just off the roadway. Lilly guarded the jacket, did
not touch it, and turned it over to a detective, who took it into evidence, and he did
not know whether anything was found in the jacket. Lilly was unable to identify the
driver. Lilly’s dash cam video, which was admitted into evidence and played to the
jury, supports Lilly’s testimony.
Detective Kaleb Barker (“Barker”) with the Livingston Police Department
testified that he investigated the case and recovered the leather jacket Lilly located
at the scene. Barker testified that the jacket was found in the woods a couple of
hundred feet from where the motorcycle crashed and approximately two and a half
blocks from where Hodge was taken into custody. Barker explained that he
inventoried the jacket that they believed belonged to Hodge and found an abandoned
cell phone inside a pocket. Barker testified that he opened the home screen on the
cell phone, which was unlocked, and located the name “Michael Hodge.” Barker did
not see who discarded the jacket or know whether the jacket belonged to the person
on the motorcycle, but he testified that the other officers involved stated Hodge was
wearing the jacket during the pursuit.
The State recalled Simmons, who explained that while he was pursuing Hodge
in his patrol unit, he saw Hodge run through the field and strip off the jacket, but he
5 did not find the jacket at the scene. Simmons examined the jacket that had been
admitted into evidence at trial and testified that he recognized the jacket and that it
was the same jacket the motorcycle driver was wearing. Simmons also testified
regarding two still shots from his dash cam video that were taken as Hodge was
fleeing, and he explained they showed Hodge on the motorcycle wearing his jacket.
Roggan Stanzel (“Stanzel”), a Texas Ranger with the Texas Department of
Public Safety, testified that he investigated Hodge’s case. Stanzel testified that he
interviewed Hodge, who waived his Miranda rights and admitted that he evaded
arrest from the police on a motorcycle because he did not have a motorcycle license.
The jury found Hodge guilty of evading arrest or detention with a vehicle.
During the punishment phase of the trial, the jury found the accusations of two prior
convictions in the indictment to be true, assessed Hodge’s punishment as a habitual
offender at seventy-five years of confinement, and assessed a $10,000 fine.
Hodge filed a Motion for New Trial, arguing there is insufficient evidence that
he is the same person the police chased and later arrested; evidence tending to
establish his innocence–brass knuckles found in the jacket–has been intentionally
destroyed or withheld due to the police failing to inventory the property. Hodge
attached the affidavits of the deputy court clerk for the 258th and 411th Judicial
District Courts and the court reporter for Judge Kitchens of the 258th Judicial
District Court. In his Motion, Hodge argued the police failed to properly inventory
6 the evidence and that after the trial ended, the trial court’s deputy court clerk and
court reporter discovered the “hidden weapon[,]” which he claims shows that he is
not the same person the police initially chased. In her affidavit, Katey Nelson
(“Nelson”), the deputy court clerk for the 258th and 411th Judicial District Courts,
stated that after the trial, the court reporter came to the office and took photographs
of the jacket in lieu of checking out the exhibit, and when the court reporter placed
the jacket back into the bag, Nelson heard a “loud thud.” Nelson stated that when
she looked into the bag, she found a set of brass knuckles, which the court reporter
photographed. The court reporter, Michelle Kipina (“Kipina”), stated in her affidavit
that when she pulled the leather jacket out of the evidence bag “something fell out.”
Kipina explained that she looked “in the bag and it was a brass knuckle.” Kipina also
stated that “[t]here may be something else in one of the pockets – looked like a
tissue/napkin type of material.” Although the clerk’s record shows the trial court set
the Motion for New Trial for a hearing, there is no reporter’s record or other
indication that the trial court conducted a hearing or ruled on the Motion.
Second Jury Trial
A grand jury indicted Hodge for the offense of possession of a controlled
substance. See Tex. Health & Safety Code Ann. § 481.115(b). The indictment
alleged that on or about April 22, 2023, Hodge “did then and there intentionally or
knowingly possess a controlled substance, to wit: METHAMPHETAMINE in an
7 amount by aggregate weight, including any adulterants and dilutants, of less than
one gram[.]” The indictment included a Habitual Offender Notice alleging Hodge
had two prior felony convictions. See Tex. Penal Code Ann. § 12.42(a).
A grand jury also indicted Hodge for aggravated assault against a public
servant. See Tex. Penal Code Ann. § 22.02(b)(2)(B). The indictment alleged that
Hodge
did then and there intentionally, knowingly, or recklessly threaten to cause serious bodily injury to Chris Simmons by threatening Chris Simmons by displaying a gun, and the Defendant did then and there know that the said Chris Simmons was a public servant, to-wit: Livingston Police Officer, in the lawful discharge of an official duty of attempting to detain Defendant[.]”
The State filed a Notice of Enhancement and Habitualization, alleging Hodge had
two prior felony convictions. See id. § 12.42(a). The State filed a Motion to
Consolidate Cases, which the trial court granted and ordered the cases be
consolidated into one criminal action and tried in a single trial.
During the jury trial, Detective Simmons testified that on April 22, 2023, he
had probable cause when he attempted to stop Hodge, who was driving a motorcycle,
to question him about the ownership of the motorcycle. Simmons testified that
Hodge pulled over when he activated his lights and “bumped” his siren, but then
took off when Simmons stepped out of his marked patrol unit wearing his patrol
uniform. Simmons explained that he and other officers pursued Hodge, who
eventually crashed the motorcycle and fled on foot. At one point, Simmons observed 8 Hodge running through a yard and stripping off his jacket. Simmons testified that
when he found Hodge hiding behind a truck, he warned him that he did not want to
use deadly force because “[s]omebody had told me something.”
Simmons explained that he was concerned Hodge had a gun, because he
observed Hodge “reaching down to his boot[]” and “pulling a gun out.” Simmons
testified that he saw Hodge “pull the gun from his pants leg[]” and “[s]witch it to his
right hand.” At that point, Simmons explained he believed Hodge was “reaching for
a gun[,]” and when Simmons saw Hodge switch the gun to his right hand and point
it at him, Simmons drew his firearm, fired four rounds at Hodge, and “stopped the
threat.” Simmons testified that when he was shooting, Hodge “still had his weapon
in my direction.” Simmons explained that when he saw Hodge’s “weapon coming
out, I was in fear for my safety, my fellow partner safety, and anybody in the area[,]”
and he believed Hodge was going to shoot him. Simmons believed he had “no other
option other than to use deadly force.” Simmons testified that Hodge’s weapon had
a live round in the chamber and a fully loaded magazine.
On cross-examination, Simmons testified that when he saw Hodge make a
furtive gesture, he shot Hodge with his taser, and Hodge pulled the leads out.
Simmons explained that he shot Hodge with his gun “as soon as he puts [the weapon]
in his right hand[]” and before Hodge pointed the weapon at him. When asked about
his prior testimony that he shot Hodge because he was pointing the weapon at him,
9 Simmons stated “[a]nd it will be.” Simmons testified that when Hodge transferred
the weapon to his right hand, “he had the opportunity to drop the weapon at that
point, and did not.” The videos from Simmons’s dash and body cameras support
Simmons’s testimony.
Officer Lilly testified that he was on routine patrol when he heard Simmons
was involved in a pursuit, so he assisted in the search. Lilly testified that he saw
Hodge drop the motorcycle in a ditch and flee on foot. Lilly explained that after he
heard Simmons discharge his weapon, he went to the scene, searched the wooded
area, and found Hodge’s jacket that Simmons reported he had taken off, along with
a ball cap and one glove. Lilly testified that he called Detective Barker to the scene
to collect the evidence.
Barker testified that he photographed the scene and assisted in collecting the
evidence from the scene, including Hodge’s pistol, magazine, ammunition,
discarded jacket, glove, and baseball cap. Barker explained that Lilly directed him
to where he found the jacket in the woods near the scene. Barker testified that when
he checked the jacket’s pockets, he found a bag containing a “clearish white crystal-
like substance[]” that he believed to be methamphetamine. Barker explained that he
collected the narcotics into evidence, and the evidence technician sent it to the crime
lab. Barker also found a cell phone in the jacket, and he observed the name “Micheal
Hodge[]” in the cell phone.
10 Billie Henderson Gardner (“Gardner”) testified that on April 22, 2023, there
was an altercation in her driveway, and she observed a gentleman “ducking in-
between vehicles[]” and “the law was coming around the other side of the vehicle,
they were kind of going back and forth.” Gardner identified Hodge as the man she
saw in her yard. Gardner explained that Hodge asked her daughter and son-in-law
for help, and when her son-in-law told him to “keep going[,]” Hodge disappeared
and then returned and was “ducking in-between” the trucks. Gardner testified that
when an officer came, she observed Hodge reach inside his pocket or groin area and
pull out a clip and then reach down into his boot and “pull out something.” At that
point, Gardner testified that she yelled to her kids to “get in the house. He has a gun.”
Gardner explained that she did not see the actual gun, but she saw the clip and Hodge
“[l]oading it.” Gardner testified that when the officers were circling in front of the
vehicle and “kind of playing chase[,]” she told the officer Hodge had a gun.
On cross-examination, Gardner testified she had a Vivint camera on the front
door of her house that recorded the incident in her front yard, and she also recorded
the incident with her cell phone. Gardner testified that the police collected both video
recordings, and defense counsel played the recordings for the jury. Gardner
explained that she only saw Hodge pull a clip out of his groin or pocket area and that
he “appeared to be taking something out of his boot area[,]” but she did not know if
it was a gun.
11 Ranger Stanzel testified that he assisted with the police use of force
investigation, which is generally done in cases with officer-involved shootings, and
he determined that Simmons’s use of force was lawful, justified, and necessary.
Stanzel identified Hodge as the person who threatened Simmons with a gun, and he
explained that he believed Simmons feared for both his own life and other innocents
and law enforcement who were present. Stanzel testified that during his
investigation, he interviewed Hodge and determined Hodge’s actions were unlawful
and a threat to cause serious bodily injury or death.
Tayfun Sahin (“Sahin”), a forensic scientist who works with the Department
of Public Safety at the Houston Regional Crime Lab, testified that in this case, he
performed screening tests and determined the unknown substance was
methamphetamine. Sahin testified that the methamphetamine weighted .72 grams.
Nicole Groshon (“Groshon”), a firearm and toolmark examiner with the Texas
Department of Public Safety, testified that she tested State’s exhibit 58, which is
Hodge’s pistol Barker collected from the scene, and determined it was functional.
After the trial court denied defense counsel’s motion for directed verdict in
both cases, the jury found Hodge guilty of the offenses of possession of a controlled
substance and aggravated assault against a public servant. During the punishment
phase of the trial, the jury found the accusations of two prior convictions to be true
in both cases. For the offense of possession of a controlled substance case, the jury
12 assessed Hodge’s punishment at twenty years of confinement. For aggravated
assault against a public servant, the jury assessed Hodge’s punishment at life in
prison.
In each case, Hodge filed the same Motion for New Trial he filed in the first
trial, alleging he was entitled to a new trial because the evidence was insufficient to
establish his identity as the same person the police pursued at the beginning of the
chase and that the State intentionally destroyed or withheld evidence–the set of brass
knuckles–which tended to establish his innocence. Hodge attached Nelson’s and
Kipina’s affidavits explaining how they discovered the brass knuckles after the trial.
As in the first trial, there is no reporter’s record on the Motion for New Trial, but in
both clerk’s records there is an Order Setting Hearing and an entry on the trial court’s
docket sheet noting that Hodge’s attorney was present on December 12, 2023, for
the Motion for New Trial and the court reporter’s name and initials are also noted
on the docket. Since the clerk’s record does not indicate the trial court ruled on the
Motions for New Trial, they were overruled by operation of law.
ANALYSIS
First Trial - Evading Arrest or Detention with a Vehicle
Sufficiency of the Evidence
In issue one, Hodge complains there was insufficient evidence identifying him
as the man Simmons chased on the motorcycle. Hodge argues there is no evidence
13 that he is the man who fled from Simmons on the motorcycle. Hodge argues that
during the pursuit, Simmons lost track of the man he was chasing on the motorcycle,
and when Hodge was shot, he was not riding a motorcycle or wearing the same hat,
mask, sunglasses, and jacket as the motorcyclist.
In evaluating the legal sufficiency of the evidence, we review all the evidence
in the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). The jury is the ultimate authority on the credibility of the
witnesses and the weight to be given to their testimony. Penagraph v. State, 623
S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). An appellate court may not
sit as a thirteenth juror and substitute its judgment for that of the factfinder by re-
evaluating the weight and credibility of the evidence. Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. A reviewing
court must give full deference to the jury’s responsibility to fairly resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Hooper, 214 S.W.3d at 13 (citation omitted). If the
record contains conflicting inferences, we must presume the jury resolved such facts
in favor of the verdict and defer to that resolution. See Brooks, 323 S.W.3d at 899
14 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we
“determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most
favorable to the verdict.” Hooper, 214 S.W.3d at 16-17. We treat direct and
circumstantial evidence equally. Clayton, 235 S.W.3d at 778.
Under section 38.04 of the Texas Penal Code, a person commits the offense
of evading arrest or detention with a vehicle, a third-degree felony, if the actor
intentionally flees from a person he knows is a peace officer who is attempting to
lawfully arrest or detain him and the actor uses a vehicle while in flight, regardless
of whether he has been previously convicted under this section. See Tex. Penal Code
Ann. § 38.04(a), (b)(2)(A); Copeland v. State, No. 09-19-00194-CR, 2020 WL
1280194, at *3 (Tex. App.—Beaumont Mar. 18, 2020, no pet.) (mem. op., not
designated for publication). The identification of the defendant as the person who
committed the charged offense is part of the State’s burden of proof. Miller v. State,
667 S.W.2d 773, 775 (Tex. Crim. App. 1984). When the defendant contests the
identity element of the offense, we note that the State may prove the defendant’s
identity by either direct or circumstantial evidence or inferences. Gardner v. State,
306 S.W.3d 274, 285 (Tex. Crim. App. 2009) (citation omitted); Wiggins v. State,
255 S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.); Clark v. State, 47
S.W.3d 211, 214-15 (Tex. App.—Beaumont 2001, no pet.). A direct in-court
15 identification is the preferred procedure for identification, and the test for sufficiency
is whether we can conclude from a totality of the circumstance whether the jury was
adequately apprised that the witness was referring to the defendant. See Wiggins,
255 S.W.3d at 771. The testimony of a single eyewitness alone can support a
conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). Any
discrepancies concerning the defendant’s clothing or appearance go to the weight
and credibility of the witness. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App.
1986).
During trial, Simmons identified Hodge as the motorcycle driver who fled
while he was trying to lawfully detain him for possessing a stolen motorcycle.
Simmons explained that after the motorcycle driver wrecked and fled on foot, he
observed the motorcycle driver had lost his hat and mask and was running and
“stripping off his jacket.” Simmons admitted that there were times during the pursuit
when he lost sight of the motorcycle driver, but he testified that he knew Hodge was
the motorcycle driver because he recognized Hodge when he arrested him.
Additionally, the jury viewed the video recordings from Simmons’s dash and body
cameras as well as a still picture taken from his body camera and could compare the
person in the recordings and picture with the person in the courtroom and decide if
he was the same person. Simmons explained that his identification was not affected
by the change of Hodge’s hair color because Hodge “still ha[d] the same face.”
16 Detective Barker testified that Hodge’s name was in the cell phone that he
found in the discarded jacket that was located a couple of hundred feet from the crash
site and approximately two and a half blocks from where Hodge was apprehended.
Simmons examined the jacket at trial and explained that it was the same jacket the
motorcycle driver was wearing. The jury viewed two still shots from Simmons’s
dash cam video showing the motorcycle driver wearing a jacket. The jury also heard
Ranger Stanzel testify that during his interview, Hodge admitted he evaded arrest
from the police on his motorcycle because he did not have a motorcycle license.
Based on this record, we conclude the evidence is sufficient to prove Hodge
was the man who evaded arrest or detention from Simmons with a vehicle. We
overrule issue one.
Brady Violation
In issue two, Hodge argues that after the trial ended, the State failed to disclose
it found a set of brass knuckles in the jacket the State alleged Hodge was wearing
during the police chase. The State contends that Hodge failed to cite any evidence
in the record to support his Brady violation claim. See Brady v. Maryland, 373 U.S.
83 (1963).
The State has the duty to disclose “any exculpatory, impeachment, or
mitigating document, item, or information in the possession, custody, or control of
the state that tends to negate the guilt of the defendant or would tend to reduce the
17 punishment for the offense charged.” Tex. Code Crim. Proc. Ann. art. 39.14(h). A
Brady violation occurs when the State willfully or inadvertently suppresses evidence
that is favorable to the defendant. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.
App. 2006); Hanks v. State, No. 09-23-00132-CR, 2024 WL 4142839, at *16 (Tex.
App.—Beaumont Sept. 11, 2024, pet ref’d) (mem. op.). The State’s Brady obligation
“‘does not require prosecuting authorities to disclose exculpatory information to
defendants that the State does not have in its possession and that is not known to
exist.’” State v. Heath, 696 S.W.3d 677, 699 (Tex. Crim. App. 2024) (citation
omitted); Hanks, 2024 WL 4142839, at *16. That said, for Brady purposes, the State,
which includes the prosecutor and members of law enforcement, is not relieved of
its duty to disclose even if the prosecutor was not personally aware the evidence
existed. Harm, 183 S.W.3d at 406-07.
The record shows that Hodge’s Motion for New Trial included affidavits from
the trial court’s deputy court clerk and court reporter, but those affidavits were not
offered into evidence during trial or a post-trial hearing. The record shows the trial
court did not conduct a hearing on Hodge’s Motion for New Trial to allow the State
an opportunity to respond to the Motion, which was overruled by operation of law.
“[P]ost-trial motions [] are not self-proving and any allegations made in support of
them by way of affidavit or otherwise must be offered into evidence at a hearing.”
Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009); see McIntire v. State,
18 698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (stating a hearing is required to
introduce an affidavit supporting a new trial into evidence); Lamb v. State, 680
S.W.2d 11, 13 (Tex. Crim. App. 1984) (concluding there was no evidence to support
appellant’s claim the State failed to disclose exculpatory evidence because appellant
failed to properly present his motion and offer his supporting affidavits into
evidence). The rule requiring affidavits to be admitted into evidence permits the non-
moving party an opportunity to respond to the allegations in affidavits before a
conviction can be reversed on that basis. See Rouse, 300 S.W.3d at 762-63. The rule
also applies to new trial motions that implicate federal constitutional issues. See id.
Since Hodge failed to properly present his Motion for New Trial and offer his
supporting affidavits into evidence at a hearing on his Motion, we cannot consider
the affidavits as evidence. See Rouse, 300 S.W.3d at 762; McIntire, 698 S.W.2d at
658; Lamb, 680 S.W.2d at 13. Additionally, Hodge failed to point to any evidence
in the record showing the State knew the set of brass knuckles existed during trial
and that the State willfully or inadvertently suppressed the evidence. We hold there
is no evidence in the record supporting Hodge’s Brady claim. See Tex. R. App. P.
38.1(i) (stating issues must be based on the trial record). Accordingly, we overrule
issue two.
19 Second Trial - Possession of a Controlled Substance
Lost Punishment Record
In issue one, Hodge contends he is entitled to a new punishment trial because
“[p]ractically all” of the recording was lost or destroyed and cannot be replaced or
agreed upon. Hodge argues that during the punishment trial, defense counsel
“engaged in unusual behavior” by both stipulating to his prior convictions and
denying the enhancement allegations. According to Hodge, he was harmed by the
lost record because he cannot provide sufficient support for his claim of ineffective
assistance of counsel.
Rule 34.6(f) of the Texas Rules of Appellate Procedure provides that an
appellant is entitled to a new trial under the following circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or--if the proceedings were electronically recorded--a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record . . . is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties . . . .
Tex. R. App. P. 34.6(f) (Reporter’s Record Lost or Destroyed). “Whether a missing
portion of a reporter’s record is necessary to the appeal’s resolution is essentially a
20 harm analysis.” Foster v. State, 525 S.W.3d 898, 906 (Tex. App.—Dallas 2017, pet.
ref’d) (citing Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003)) (other
citation omitted).
The record shows during a bench conference outside the presence of the jury,
the parties were discussing whether to proceed with the punishment trial that
afternoon or the following day. During the bench conference, Hodge’s trial counsel
advised the State and the trial court that Hodge would stipulate to his prior judgments
that were entered in the first trial but would plead not true to the enhancement.
Hodge’s counsel explained that “it’s a credibility thing at that point[,]” and the trial
court stated, “Let me meet with both of you in the conference room. Off the record.”
When the parties returned, the trial court recalled the jury and the record shows there
was an “[a]udio malfunction from 2:37 p.m. to 3:36 p.m.; log notes attached[.]” The
court reporter’s log notes from 2:35 p.m. to 3:36 p.m. consist of twenty-five pages,
and the punishment trial concluded the following day.
While Hodge argues he was harmed by the lost record because he cannot
provide sufficient support for his claim of ineffective assistance of counsel, he failed
to even raise an ineffective assistance of counsel claim in his Motion for New Trial.
A bare assertion that a portion of a missing record may show ineffective assistance
of counsel is not sufficient to meeting the necessity requirement of rule 34.6(f)
because it is “nothing more than pure speculation that the missing record could
21 potentially assist him in his appeal.” See id. at 907. Moreover, in presenting an
ineffective assistance of counsel claim on appeal, absent direct evidence from trial
counsel concerning his trial strategy “in the decision-making process, appellate
courts are reluctant to the find the record sufficient to overcome the presumption of
competence.” See id. The record shows defense counsel explained that Hodge
stipulating to his prior judgments and pleading not true to the enhancement was a
“credibility thing[.]”
Based on this record, we conclude that Hodge’s bare assertation that the
missing portion of the punishment record could potentially assist a claim of
ineffective assistance of counsel fails to satisfy the requirement of Rule 34.6(f). See
Routier, 112 S.W.3d at 571-72. Since Hodge has failed to show that the missing
portion of the punishment record is necessary to his appeal, we overrule issue one.
In issue two, Hodge complains that the State’s failure to disclose it found a
set of brass knuckles in the jacket is some evidence that the jacket was not his. Hodge
complains that his defense counsel had no notice of the brass knuckles during trial
and that the State should have disclosed the evidence, which was favorable to him
and material to either his guilt or punishment. Having already determined that Hodge
presented no evidence from the record supporting his Brady claim, we overrule issue
two.
22 Second Trial - Aggravated Assault of a Public Servant
In his sole issue, Hodge again complains he deserves a new trial due to the
State’s alleged Brady violation of failing to disclose it found a set of brass knuckles
in the jacket. Since Hodge failed to present evidence to support his complaint, we
overrule his sole issue.
CONCLUSION
Having overruled all of Hodge’s issues in his three cases on appeal, we affirm
the trial court’s judgments in trial cause number CR23-0359 for evading arrest or
detention with a motor vehicle, trial cause number CR23-0363 for aggravated assault
of a public servant, and trial cause number CR23-0362 for possession of a controlled
substance.
AFFIRMED.
JAY WRIGHT Justice
Submitted on November 22, 2024 Opinion Delivered April 30, 2025 Do Not Publish
Before Golemon, C.J., Wright and Chambers, JJ.