Ramiro Felix Gonzales v. The State of Texas--Appeal from 216th Judicial District Court of Bandera County

MEMORANDUM OPINION

Nos. 04-03-00059-CR, 04-03-00060-CR, 04-03-00061-CR,

04-03-00062-CR & 04-03-00063-CR

Ramiro Felix GONZALES,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Bandera County, Texas
Trial Court Nos. 3221-00, 3235-01, 3236-01, 3283-01 & 3284-01
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 23, 2003

AFFIRMED

Ramiro Felix Gonzales ("Gonzales") complains on appeal that the trial court erred in denying his request for a hearing on his motion for new trial on the basis of newly discovered evidence. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgments in this memorandum opinion. See Tex. R. App. P. 47.4.

Background

Gonzales was charged by indictment for the offenses of aggravated kidnapping and aggravated sexual assault. The State also filed motions to revoke Gonzales's probation based in large part on the indictments. Gonzales pled guilty to the offenses and pled true to the motions to revoke probation. The trial court sentenced Gonzales to life imprisonment. Gonzales filed timely motions for new trial in all of the underlying cases alleging the discovery of new evidence and attached an affidavit from the witness who supplied the new evidence. Gonzales presented the motions for new trial to the trial court at the time they were filed and requested a hearing on the motions. The trial court denied Gonzales's motions for new trial without holding a hearing.

Discussion

Gonzales contends that subsequent to his pleas in these cases, new evidence was discovered in connection with the aggravated kidnapping and the aggravated sexual assault charges. Gonzales argues that the court abused its discretion when it denied his motions for new trial without a hearing.

The State responds that Gonzales incorrectly argues that the right to a hearing on a motion for new trial is absolute. The State argues that the trial court properly denied Gonzales's motions without a hearing because the referenced "newly discovered evidence" did not lend itself to any relevance or materiality regarding any of the convictions and would not have entitled Gonzales to a new trial. The State further argues that the allegations contained in the affidavit were not timely asserted. Finally, the State argues that even if the information could have been admitted at trial, the only conceivable use of this testimony would have been to impeach the victim.

Article 40.001 of the Texas Code of Criminal Procedure provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Pro. Ann. art. 40.001 (Vernon Supp. 2003). Under that statute, a defendant is entitled to have his motion for new trial granted if (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Wallace v. State, No. 937-02, 2003 WL 21184324, at *3 (Tex. Crim. App. 2003).

A defendant is entitled to a hearing on his motion for new trial if the motion and accompanying affidavit(s) "rais[e] matters not determinable from the record, upon which the accused could be entitled to relief." Id. at *4. To be sufficient to entitle the defendant to a hearing, the motion for new trial and accompanying affidavit(s) "need not establish a prima facie case" for a new trial. Id. Rather, they "must merely reflect that reasonable grounds exist for holding that such relief could be granted." Id. The purpose of the hearing is to give the defendant an opportunity to fully develop the matters raised in his motion. Id. If the trial court denies a hearing on the motion for new trial and the defendant appeals from that denial, the appellate court must review the trial court's decision for abuse of discretion. Id.

The new evidence at issue in the present case centers around an alleged telephone conversation between the affiant, David John ("John"), and the victim. John testified about information he knew about the victim and his now deceased roommate, Sonny. John alleged that Sonny used his computer to correspond with the victim over the internet and that the victim sent graphic, sexually explicit e-mail messages and nude photographs of herself to Sonny. John further stated that the victim would call his house and have sexually explicit conversations with Sonny and ultimately arranged to meet Sonny for a sexual encounter. John testified about an alleged telephone conversation that he had with the victim in which she allegedly identified herself and asked John not to tell anyone about her internet activities because she was afraid of losing her job. John stated that he decided to come forward with this information after learning that Gonzales had been convicted. John suspected that the victim might have had similar communications with Gonzales, indicating that the encounter between Gonzales and the victim may have been consensual sex, or that the victim "had somehow lured Gonzales to have sex with her."

After reviewing the entire record, we hold that the trial court did not err in refusing to grant a hearing on Gonzales's motions for new trial based on John's testimony. First, it is not clear that John's hearsay statement would be admissible at trial. In addition, John's testimony concerning what the victim purportedly told him and what he suspected the victim might have done consisted of impeachment and character evidence to attack the credibility of the victim. See Wallace v. State, 2003 WL 21184324, at *3 (new evidence must not merely be impeaching). Finally, by pleading guilty, Gonzales advised the court that he had no defense to the charge of sexual assault; therefore, his motion for new trial based upon newly discovered evidence is inconsistent with his plea of guilty. See Tate v. State, 834 S.W.2d 566, 571 (Tex. App.--Houston [1st. Dist.] 1992, pet. ref'd); Beard v. State, 703 S.W.2d 273, 274-75 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd). Accordingly, we affirm the judgment of the trial court.

Alma L. L pez, Chief Justice

DO NOT PUBLISH