Winifred Douglas Alford v. The State of Texas--Appeal from 249th District Court of Johnson County

NO. 10-90-097-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

WINIFRED DOUGLAS ALFORD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 249th Judicial District Court

Johnson County, Texas

Trial Court # 27108

* * * * * * * * * * * * *

CONCURRING OPINION

* * * * * * *

The dissenting opinion contains the following:

When a prima facia case has been made, the new evidence should be accepted as true if the whole record presents no good cause to doubt the credibility of the witnesses whose testimony constitutes the new evidence, either by reason of the facts proven at the trial or at the hearing on the motion or otherwise. . . . If it is clear that the new evidence is not true or that the new evidence, if true, would not change the result, the motion should be denied; but if it is doubtful as to how it would affect the verdict, the motion should be granted.

(Emphasis added).

The dissent thus recognizes that under Rule 30(b)(6) the trial judge must still judge the witnesses' credibility at a hearing on a motion for a new trial based on a claim of newly discovered evidence. Under the dissent's postulation, someone has to decide whether there is "no good cause" to doubt the credibility of witnesses. Obviously, that someone must be the trial judge. Discretion is necessarily involved in weighing the credibility of a witness, as credibility simply cannot be quantified. Consequently, the decision of whether to grant a new trial must, as always, be reviewed for an abuse of discretion.

Notwithstanding the trial court's discretion, the dissent would nevertheless reverse the judgement and grant a new trial because "the court should have . . . accepted the new evidence [from Roosevelt Owens] as true." Apparently, the dissent would substitute our judgment for that of the trial court, an approach that has always been and will always be improper in an appellate review. Roosevelt Owens's credibility is not for us to judge. What we have to determine is whether the trial court abused its discretion in not accepting Owens's testimony as true.

Why the trial court had to accept Owens's testimony as true remains a mystery to me. The victim positively identified Appellant as the March 3 burglar at the trial. Apparently, the victim's testimony counts for nothing.

Moreover, even the dissent would allow the court to deny a new trial if newly discovered evidence is cumulative of the evidence presented at the trial. As the dissent notes, the jury had already heard Owens's claim that Appellant did not commit the March 3 burglary: "Roosevelt Owens testified at the jury trial that Appellant did not commit the burglary . . . . At the posttrial hearing, Owens reiterated that Appellant did not take part in the burglary." Yet, for a reason unexplained by the dissent, the trial court had to grant a new trial based on Owens's cumulative testimony.

Finally, although recognizing that a trial court can deny a new trial if the newly discovered evidence would not change the result, the dissent would require a new trial based on Owens's testimony, which the jury had already rejected.

BOB L. THOMAS

Chief Justice

Opinion delivered and filed March 28, 1991

Publish