Affirm and Opinion Filed May 6, 2021
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01092-CR No. 05-19-01093-CR
REGINALD QUOMONE JORDAN, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F14-60840-Q and F14-60841-Q
MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Nowell Opinion by Justice Nowell Appellant pleaded guilty to two drug-related offenses in January 2016. In
each case, the court found the evidence sufficient to prove his guilt, found the deadly
weapon allegation to be true, deferred adjudication, and placed appellant on
community supervision. The State subsequently filed motions and amended motions
to adjudicate guilt and revoke appellant’s community supervision. In August 2019,
the trial court held a revocation hearing where appellant entered an open plea of true
to the allegations. After hearing testimony from appellant and his mother, the trial court found the allegations true, adjudicated guilt, revoked community supervision,
and set punishment at ten years’ incarceration in each case.
In four issues on appeal, appellant argues the trial court erred by not
conducting a hearing on his motion for new trial, violated his common law right to
allocution, and imposed a grossly disproportionate punishment that violated his
rights under the Texas Penal Code. We affirm the trial court’s judgments.
A. Motion for New Trial
In his first issue, appellant argues the trial court erred by failing to hold a
hearing on his motion for new trial, which was supported by his affidavit and raised
matters that could entitle him to relief and were not determinable from the then-
existing factual record. The State responds that the trial court did not abuse its
discretion by declining to hold a hearing on the motion because the facts related to
the issues alleged in the motion were thoroughly discussed during the revocation
hearing. We agree with the State.
We review the trial court’s denial of a hearing on an appellant’s motion for
new trial for an abuse of discretion. See Smith v. State, 286 S.W.3d 333, 339 (Tex.
Crim. App. 2009). “Our review, however, is limited to the trial judge’s
determination of whether the defendant has raised grounds that are both
undeterminable from the record and reasonable, meaning they could entitle the
defendant to relief.” Id. at 340. A defendant need not establish a prima facie case;
the motion is sufficient “if a fair reading of it gives rise to reasonable grounds in
–2– support of the claim.” Id. at 339. The purpose of the hearing is to give the defendant
the opportunity to develop fully the matters raised in his motion. Brantley v. State,
No. 05-13-01060-CR, 2015 WL 846749, at *4 (Tex. App.—Dallas Feb. 26, 2015,
no pet.) (mem. op., not designated for publication). A trial judge abuses his
discretion by failing to hold a hearing on a motion for new trial when the motion
“raises matters which are not determinable from the record.” Smith, 286 S.W.3d at
339.
Ineffective assistance of counsel may be raised in a motion for new trial. Id.
at 340. Under Strickland v. Washington, a defendant seeking to challenge counsel’s
representation must establish that his counsel’s performance (1) was deficient, and
(2) prejudiced his defense. Id. (discussing Strickland v. Washington, 466 U.S. 668
(1984)). To show deficiency “the appellant must prove by a preponderance of the
evidence that his counsel’s representation objectively fell below the standard of
professional norms.” Id. To show prejudice, an appellant must show there is a
reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. “Reasonable probability” is a
“probability sufficient to undermine confidence in the outcome,” meaning
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. “Before he will be entitled to a hearing on his motion
for new trial alleging ineffective assistance of counsel, a defendant must allege
sufficient facts from which a trial court could reasonably conclude both that counsel –3– failed to act as a reasonably competent attorney and that, but for counsel’s failure,
there is a reasonable likelihood that the outcome of his trial would have been
different.” Id. at 340-41.
Appellant filed the same motion for new trial in each case. The motion asserts
appellant’s pleas of true to the allegations in the State’s motion to revoke his
probation were involuntary because he suffered ineffective assistance of counsel.
An affidavit executed by appellant is attached to each motion. Exhibit 1 to the
affidavit lists reasons appellant was inadequately represented, including appellant
did not know he was entering an open plea and his lawyer told him his probation
would be reinstated. For purposes of this appeal, we will assume without deciding
that appellant’s affidavit is sufficient to satisfy the first Strickland prong. We will
then consider whether the trial court abused its discretion by concluding appellant
failed to allege sufficient facts from which the trial court could reasonably conclude
that, but for counsel’s alleged failures, there is a reasonable likelihood that the
outcome would have been different. See id.
At the beginning of the revocation hearing, the trial court judge recited the
case history, the charges to which appellant entered guilty pleas in January 2016, the
State’s allegations and requests in its motions to revoke, and the punishment range
applicable to each offense. Appellant confirmed he intended to enter pleas of true
to the State’s allegations in the motions to revoke. The judge then stated: “And you
understand that by entering that plea of true, the Court has a number of options. One, –4– I could continue you on community supervision, or I could find you guilty of these
offenses and set a term of confinement” for each offense. Appellant confirmed he
understood and his lawyer had explained the potential outcomes to him. Appellant
also confirmed he understood there were no guarantees as to the outcome of the
hearing. After his attorney entered his pleas of “true,” appellant confirmed those
were the pleas he desired to enter and the judge made inquiries to ensure the pleas
were voluntarily made. In each case, appellant also signed a “Plea Agreement
(Motion to Revoke or Adjudicate),” which shows appellant pleaded true and entered
an open plea.
The State’s motions to revoke alleged, among other things, appellant failed to
report to the supervision officer and he committed the offense of unlawful carrying
of a weapon. At the revocation hearing, appellant testified he stopped reporting to
his supervision officer in July 2016. He also testified his car was stopped by police
because of his outstanding warrant and he was carrying a Glock for which he did not
have a permit.
On this record, the trial court could have acted within its discretion by
concluding appellant failed to allege sufficient facts from which the trial court could
reasonably conclude that, but for counsel’s alleged failures, there is a reasonable
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Affirm and Opinion Filed May 6, 2021
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01092-CR No. 05-19-01093-CR
REGINALD QUOMONE JORDAN, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F14-60840-Q and F14-60841-Q
MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Nowell Opinion by Justice Nowell Appellant pleaded guilty to two drug-related offenses in January 2016. In
each case, the court found the evidence sufficient to prove his guilt, found the deadly
weapon allegation to be true, deferred adjudication, and placed appellant on
community supervision. The State subsequently filed motions and amended motions
to adjudicate guilt and revoke appellant’s community supervision. In August 2019,
the trial court held a revocation hearing where appellant entered an open plea of true
to the allegations. After hearing testimony from appellant and his mother, the trial court found the allegations true, adjudicated guilt, revoked community supervision,
and set punishment at ten years’ incarceration in each case.
In four issues on appeal, appellant argues the trial court erred by not
conducting a hearing on his motion for new trial, violated his common law right to
allocution, and imposed a grossly disproportionate punishment that violated his
rights under the Texas Penal Code. We affirm the trial court’s judgments.
A. Motion for New Trial
In his first issue, appellant argues the trial court erred by failing to hold a
hearing on his motion for new trial, which was supported by his affidavit and raised
matters that could entitle him to relief and were not determinable from the then-
existing factual record. The State responds that the trial court did not abuse its
discretion by declining to hold a hearing on the motion because the facts related to
the issues alleged in the motion were thoroughly discussed during the revocation
hearing. We agree with the State.
We review the trial court’s denial of a hearing on an appellant’s motion for
new trial for an abuse of discretion. See Smith v. State, 286 S.W.3d 333, 339 (Tex.
Crim. App. 2009). “Our review, however, is limited to the trial judge’s
determination of whether the defendant has raised grounds that are both
undeterminable from the record and reasonable, meaning they could entitle the
defendant to relief.” Id. at 340. A defendant need not establish a prima facie case;
the motion is sufficient “if a fair reading of it gives rise to reasonable grounds in
–2– support of the claim.” Id. at 339. The purpose of the hearing is to give the defendant
the opportunity to develop fully the matters raised in his motion. Brantley v. State,
No. 05-13-01060-CR, 2015 WL 846749, at *4 (Tex. App.—Dallas Feb. 26, 2015,
no pet.) (mem. op., not designated for publication). A trial judge abuses his
discretion by failing to hold a hearing on a motion for new trial when the motion
“raises matters which are not determinable from the record.” Smith, 286 S.W.3d at
339.
Ineffective assistance of counsel may be raised in a motion for new trial. Id.
at 340. Under Strickland v. Washington, a defendant seeking to challenge counsel’s
representation must establish that his counsel’s performance (1) was deficient, and
(2) prejudiced his defense. Id. (discussing Strickland v. Washington, 466 U.S. 668
(1984)). To show deficiency “the appellant must prove by a preponderance of the
evidence that his counsel’s representation objectively fell below the standard of
professional norms.” Id. To show prejudice, an appellant must show there is a
reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. “Reasonable probability” is a
“probability sufficient to undermine confidence in the outcome,” meaning
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. “Before he will be entitled to a hearing on his motion
for new trial alleging ineffective assistance of counsel, a defendant must allege
sufficient facts from which a trial court could reasonably conclude both that counsel –3– failed to act as a reasonably competent attorney and that, but for counsel’s failure,
there is a reasonable likelihood that the outcome of his trial would have been
different.” Id. at 340-41.
Appellant filed the same motion for new trial in each case. The motion asserts
appellant’s pleas of true to the allegations in the State’s motion to revoke his
probation were involuntary because he suffered ineffective assistance of counsel.
An affidavit executed by appellant is attached to each motion. Exhibit 1 to the
affidavit lists reasons appellant was inadequately represented, including appellant
did not know he was entering an open plea and his lawyer told him his probation
would be reinstated. For purposes of this appeal, we will assume without deciding
that appellant’s affidavit is sufficient to satisfy the first Strickland prong. We will
then consider whether the trial court abused its discretion by concluding appellant
failed to allege sufficient facts from which the trial court could reasonably conclude
that, but for counsel’s alleged failures, there is a reasonable likelihood that the
outcome would have been different. See id.
At the beginning of the revocation hearing, the trial court judge recited the
case history, the charges to which appellant entered guilty pleas in January 2016, the
State’s allegations and requests in its motions to revoke, and the punishment range
applicable to each offense. Appellant confirmed he intended to enter pleas of true
to the State’s allegations in the motions to revoke. The judge then stated: “And you
understand that by entering that plea of true, the Court has a number of options. One, –4– I could continue you on community supervision, or I could find you guilty of these
offenses and set a term of confinement” for each offense. Appellant confirmed he
understood and his lawyer had explained the potential outcomes to him. Appellant
also confirmed he understood there were no guarantees as to the outcome of the
hearing. After his attorney entered his pleas of “true,” appellant confirmed those
were the pleas he desired to enter and the judge made inquiries to ensure the pleas
were voluntarily made. In each case, appellant also signed a “Plea Agreement
(Motion to Revoke or Adjudicate),” which shows appellant pleaded true and entered
an open plea.
The State’s motions to revoke alleged, among other things, appellant failed to
report to the supervision officer and he committed the offense of unlawful carrying
of a weapon. At the revocation hearing, appellant testified he stopped reporting to
his supervision officer in July 2016. He also testified his car was stopped by police
because of his outstanding warrant and he was carrying a Glock for which he did not
have a permit.
On this record, the trial court could have acted within its discretion by
concluding appellant failed to allege sufficient facts from which the trial court could
reasonably conclude that, but for counsel’s alleged failures, there is a reasonable
likelihood that the outcome would have been different. See id. Appellant testified
he failed to comply with the terms of community supervision by not reporting and
having an unauthorized handgun. Additionally, the record shows appellant –5– voluntarily intended to enter an open plea of true in each case and he understood the
range of potential punishment included incarceration. We conclude the trial court
did not abuse its discretion by denying appellant’s request for a hearing on his
motion for new trial. We overrule appellant’s first issue.
B. Right to Allocution
In his second issue, appellant argues the trial court violated his asserted
common law right to allocution and, as a result, he should receive a new punishment
hearing. The State responds appellant failed to preserve this issue for our review.
We agree with the State.
Any common law right to allocution must be preserved by making a timely
and specific objection in the trial court and obtaining a ruling. Nelson v. State, No.
05-18-00938-CR, 2019 WL 2121051, at *5 (Tex. App.—Dallas May 15, 2019, no
pet.) (mem. op., not designated for publication) (citing McClintick v. State, 508
S.W.2d 616, 618 (Tex. Crim. App. 1974) (op on reh’g) (concluding appellant failed
to preserve complaint trial court violated his right to “common law allocution” by
failing to object in trial court prior to imposition of sentence); TEX. R. APP. P.
33.1(a)(1)). The preservation requirement “ensures that trial courts are provided an
opportunity to correct their own mistakes at the most convenient and appropriate
time—when the mistakes are alleged to have been made.” Hull v. State, 67 S.W.3d
215, 217 (Tex. Crim. App. 2002); see also Nelson, 2019 WL 2121051, at *5.
–6– Appellant testified at the revocation hearing. Although he had an opportunity
to object that the trial court did not provide an opportunity for allocution before the
court imposed the sentences, he did not do so. Because appellant was required to
make a timely objection and obtain a ruling and he failed to do so, we conclude he
did not preserve the issue for our review. We overrule appellant’s second issue.
C. Punishment In his third issue, appellant asserts the trial court imposed grossly
disproportionate punishments, thereby violating his rights under the Eighth
Amendment. In his fourth issue, appellant asserts the terms of imprisonment violate
his rights under the Texas Penal Code. The State responds appellant failed to
preserve either of these issues for our review. We agree with the State.
Appellant failed to make a timely request, objection, or motion raising either
complaint he now asserts in his third and fourth issues. See Gitau v. State, No. 05-
19-00984-CR, 2020 WL 3055903, at *2 (Tex. App.—Dallas June 9, 2020, no pet.)
(mem. op., not designated for publication) (citing Rhoades v. State, 934 S.W.2d 113,
120 (Tex. Crim. App. 1996); TEX. R. APP. P. 33.1(a)(1)). Accordingly, we conclude
he failed to preserve these complaints for appellate review. We overrule appellant’s
third and fourth issues.
D. Conclusion
We affirm the trial court’s judgments.
–7– 191092f.u05 191093f.u05 Do Not Publish /Erin A. Nowell// TEX. R. APP. P. 47.2(b) ERIN A. NOWELL JUSTICE
–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
REGINALD QUOMONE JORDAN, On Appeal from the 204th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-1460840-Q. No. 05-19-01092-CR V. Opinion delivered by Justice Nowell. Justices Osborne and Pedersen, III THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 6th day of May, 2021.
–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
REGINALD QUOMONE JORDAN, On Appeal from the 204th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-1460841-Q. No. 05-19-01093-CR V. Opinion delivered by Justice Nowell. Justices Osborne and Pedersen, III THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–10–