Raul Resendez Herrera, Appellant v. The State of Texas, State (2016)

ABATEMENT ORDER AND OPINION

I. Introduction

Appellant Raul Resendez Herrera appeals the trial court's sentence of twenty-five years' incarceration based on his open plea of guilty to the charged offense of aggravated sexual assault of a child under fourteen years of age.  In two points, Herrera argues that the trial court abused its discretion by not conducting a hearing on his motion for new trial and by denying his motion for new trial through the operation of law.  Because we conclude that the trial court should have conducted an evidentiary hearing on his motion for new trial on punishment, we will abate the appeal and remand the case back to the trial court for proceedings consistent with this opinion.

II. Discussion

“When an accused presents a motion for new trial raising matters not determinable from the record, which could entitle him to relief, the trial judge abuses his discretion in failing to hold a hearing.”  King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App.2000).  The purpose of the hearing is to fully develop the issues raised in the motion.  Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App.1994).  As a prerequisite to obtaining a hearing, the motion must be supported by an affidavit specifically showing the truth of the grounds for attack.  King, 29 S.W.3d at 569;  Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993).  The affidavit need not reflect each and every component legally required to establish relief but rather must merely reflect that reasonable grounds exist for holding that such relief could be granted.  Jordan, 883 S.W.2d at 665;  Reyes, 849 S.W.2d at 816.

Here, the State's principal witness at the punishment hearing, the complainant's father (Father), testified that the complainant felt “betrayed by the system” when Herrera made bail after being arrested.  Father further testified that the complainant was anxious about Herrera's possibly being placed on community supervision in lieu of incarceration and that it was her desire that Herrera be imprisoned.  Father also testified that the complainant had sent a letter to the district attorney which she had written “herself.”

In the presentence investigation report, which the trial court took judicial notice of at the beginning of the sentencing hearing, there is a well-written, compelling “Victim Impact Statement” allegedly written by the complainant which states that not just on her behalf, “but on [behalf of] others who may be a victim of abuse by [ ] Herrera,” he should go to prison.  Further, the statement reads that Herrera's punishment should be that he “go to prison, not just for [her] but for the safety of other girls it could possibly happen to.”  Moreover, the statement also reads that in addition to the count to which Herrera pleaded guilty, Herrera subjected her to sexual assault for “8 years of [her] life.”

In stark contrast, the new-trial affidavits of complainant and of two other family members tell of a scenario in which the complainant did not write the Victim Impact Statement, instead attempted to have the charge dismissed, and did not feel that Herrera should be imprisoned.  The dates within the affidavits suggest that the complainant herself was unaware of the Victim Impact Statement until after Herrera's punishment hearing.

Being able to cross-examine and question the author of a Victim Impact Statement is statutorily provided for.  See Tex.Code Crim. Proc. Ann. art. 56.03(e) (West Supp.2015).  Herrera specifically claimed in his motion for new trial that the complainant did not author the statement and that contrary to the contents of the statement, she did not wish Herrera to be in prison.  The particulars of precisely when Herrera learned that the complainant did not write the statement, whether she desired to have the charge dropped, and the assertion that she did not wish Herrera to serve time in prison are among the factual matters that should be fully developed at a hearing.  We conclude that Herrera's motion for new trial and accompanying affidavits were sufficient to put the trial judge on notice that reasonable grounds existed to believe that the complainant did not author or endorse the statement found in the PSI. Therefore, the trial court abused its discretion by failing to conduct a hearing on Herrera's motion for new trial.  We sustain Herrera's first point, that the trial court erred by not conducting a hearing on his new-trial motion.

III. Conclusion

Because Herrera was entitled to a hearing on his new-trial motion, we order that this case is abated to the trial court to conduct an evidentiary hearing on Herrera's motion for new trial.  See Carroll v. State, 418 S.W.3d 681, 684 (Tex.App.—Texarkana 2012, no pet.) (citing Martinez v. State, 74 S.W.3d 19, 22 (Tex.Crim.App.2002) (“The proper remedy ․ is to abate the appeal and remand to the trial court to conduct the required hearing.”).

I respectfully dissent.  In my view, the Majority Opinion misapplies the law and fails to apply the proper standard of review.

Appellant Raul Resendez Herrera entered an open plea of guilty to the offense of aggravated sexual assault of a child under fourteen years of age;  the victim was Herrera's own step-granddaughter A.O. The trial court conducted a punishment hearing.  The trial court took judicial notice of the presentence investigation report (PSI), which included an approximately half-page statement—entitled “victim impact statement”—from then sixteen-year-old A.O. In it, A.O. expressed the effect of her step-grandfather's abuse and her opinion that he should “go to prison.”  The trial court asked Herrera's counsel whether he had been given an opportunity to review the PSI, and he responded that he had.  Herrera did not object to any portion of the PSI. The State called the victim's father who testified without objection that the victim would be better off if Herrera was incarcerated.  Herrera called five witnesses who testified that if Herrera were placed on probation, they would help him successfully comply with the terms and conditions imposed.  The trial court sentenced Herrera to twenty-five years' confinement.

Herrera filed a motion for new trial asserting newly-discovered evidence.  The evidence he asserts is newly discovered is a change in A.O.'s opinion that he should be imprisoned to an opinion that he should be placed on probation.  A.O.'s handwritten statement to this effect is attached to his motion for new trial;  it also asserts that she tried to drop the charges against Herrera but was unable to do so.

The Majority Opinion misapplies the law because although A.O.'s statement in the PSI is entitled “victim impact statement,” it was not generated under the victim-impact statute but instead was obtained under the PSI statute.  Compare Tex.Code Crim. Proc. Ann. art. 56.03 (West Supp.2015) (governing victim-impact statements), with id. art. 42.12, § 9(a) (West Supp.2015) (governing PSIs), and Carr v. State, No. 12–04–00165–CR, 2005 WL 2461147, at *1–2 (Tex.App.—Tyler Oct. 5, 2005, no pet.) (mem. op., not designated for publication) (rejecting notion that victim's letter to trial court judge was improperly considered as part of the PSI).  The law is well-settled that the PSI statute is broadly worded to allow inclusion in the PSI of any information relating to the defendant or the offense.  See, e.g., Fryer v. State, 68 S.W.3d 628, 632 (Tex.Crim.App.2002).  And, contrary to the Majority Opinion's holding, the right of confrontation does not apply to information contained in a PSI. See Stringer v. State, 309 S.W.3d 42, 48 (Tex.Crim.App.2010) (holding that when a PSI is used in a noncapital case in which the defendant has elected to have the judge determine sentencing, Crawford ¹ does not apply).  The Texas Court of Criminal Appeals explained in Stringer that to hold otherwise would “require a trial judge to hold a mini-trial for sentencing and would thwart the purpose of the PSI as a tool for the court to use in determining punishment.”  Id. Thus, Herrera possessed no right to cross-examine the victim of his offense concerning her punishment opinion set forth in the PSI;  his remedy was to object to her punishment opinion's being included in the PSI and to request that the trial court not consider it.  He did not do so.  Because—contrary to the majority's holding—Herrera possessed no right to cross-examine the victim concerning the information she provided in the PSI, it is nonsensical to hold that he is entitled to a hearing to do so.

The Majority Opinion also fails to apply the proper standard of review because when examining a trial court's denial of a hearing on a motion for new trial, we review for an abuse of discretion.  See, e.g., Smith v. State, 286 S.W.3d 333, 339 (Tex.Crim.App.2009);  Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App.1993).  We will reverse for a hearing on a motion for new trial only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.  Smith, 286 S.W.3d at 339.  A hearing on a motion for new trial is “not an absolute right,” and a trial court does not abuse its discretion by denying a motion-for-new-trial hearing when the motion fails to establish “the existence of reasonable grounds showing that the defendant could be entitled to relief.”  Id.

Many courts, including this court, have held that a victim's testimony regarding what punishment should be assessed may be properly excluded from evidence.  See Hines v. State, 396 S.W.3d 706, 710 (Tex.App.—Houston [14th Dist.] 2013, no pet.) (holding that testimony was not relevant to jury's punishment determination);  Wright v. State, 962 S.W.2d 661, 663 (Tex.App.—Fort Worth 1998, no pet.) (same);  Hughes v. State, 787 S.W.2d 193, 196 (Tex.App.— Corpus Christi 1990, pet. ref'd) (same);  Gross v. State, 730 S.W.2d 104, 105–06 (Tex.App.—Texarkana 1987, no pet.) (holding that testimony was beyond scope of permissible lay opinion testimony).  In light of this body of case law, the trial court did not abuse its discretion by determining that Herrera's motion for new trial—claiming newly-discovered evidence consisting of A.O.'s changed opinion as to his punishment—did not establish the existence of reasonable grounds showing that Herrera could be entitled to relief.  That is, because the changed punishment-opinion testimony proffered by A.O. could be properly excluded at any subsequent new trial hearing, it cannot establish grounds showing Herrera's right to relief.  See Lopez v. State, No. 04–13–00300–CR, 2014 WL 5353627, at *7 (Tex.App.—San Antonio Oct. 22, 2014, pet. ref'd) (mem. op., not designated for publication).

Because Herrera did not object to A.D.'s punishment opinion included in the PSI, because Herrera possesses no right under article 56.03(e) to crossexamine A.O. on her punishment opinion included in the PSI, and because the trial court did not abuse its discretion by denying Herrera a hearing on his motion for new trial based on newly discovered evidence, I would overrule Herrera's first issue.  The Majority Opinion does not, so I respectfully dissent.

FOOTNOTES

1.   Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

BILL MEIER, JUSTICE

WALKER, J., filed a dissenting opinion.