Trial court did not abuse its discretion by failing to hold a
hearing on juvenile's motion for new trial based upon newly discovered
evidence.[In the Matter of A.C.](11-2-8)
On April 7, 2011, the Eastland Court of Appeals held that juvenile’s
motion for new trial did not establish that his failure to discover new
evidence was not owing to a want of due diligence.
¶ 11-2-8. In the Matter of A.C., No. 11-09-00164-CV, 2011 WL 1326275
(Tex.App.-Eastland, 4/7/2011).
Facts: T.N. lived in the same neighborhood as A.C. One evening, T.N. was
riding his bicycle home when he went down an alley behind A.C.'s house.
T.N. testified that A.C. and A.C.'s brother knocked him off his bicycle
and hit him repeatedly. Eventually, A.C. and his brother stopped and
went away. T.N. testified that he was bleeding a lot from his nose and
mouth and that he was missing a few teeth. T.N. got back on his bicycle
and rode home.
At home, T.N. told his grandmother that his injuries were caused by a
bicycle accident. T.N. explained that he lied to his grandmother because
he was afraid of being beaten up again but that his grandmother did not
believe him. She took him to the emergency room in Brownwood. Hospital
staff told them that T.N. would have to go to another hospital. They
then drove to Cook Children's Medical Center in Fort Worth. From there,
he was sent to John Peter Smith Hospital for surgery. As a result of the
assault, T.N. lost three teeth and had a broken nose and a cracked jaw.
T.N. told medical personnel at all three hospitals that he had been in a
bicycle accident.
A few days later, T.N. revealed to his family that A.C. and A.C.'s
brother assaulted him. They contacted the police. Officer Robert Mullins
of the Brownwood Police Department investigated. Although he could not
rule an accident out, Mullins did not think T .N.'s injuries were
consistent with a bicycle accident because they were too centralized.
T.N. told Officer Mullins that he was afraid of retaliation from A.C.
T.N. claimed that there were three other people in the alley at the time
of the assault. Two of these people testified at the adjudication
hearing. Both stated that they saw T.N. in the alley that night, but
they also testified that they did not see or hear T.N. being assaulted.
The defense called several witnesses to testify that T.N. had given
differing stories about the incident. T.N. admitted that he told several
people that his injuries were caused by a bicycle accident. He also
admitted telling people that his family forced him to say that his
injuries were caused by an assault. Finally, there was testimony that
T.N. was mentally slow and easily manipulated.
The jury found that A.C. engaged in delinquent conduct by intentionally,
knowingly, or recklessly causing serious bodily injury to T.N. by
striking him in the face.
A.C. alleged he was entitled to a new trial because of newly discovered
evidence and provided three supporting affidavits. A.C. alleged that
this evidence was unknown to him at the time of trial, that his failure
to discover the evidence was not owing to a lack of due diligence, that
the evidence would probably bring about a different result at a new
trial, and that it was not cumulative, corroborative, impeaching, or
collateral.
Held: Affirmed
Memorandum Opinion: First, David Franklin Chamberlain, a neighbor of
A.C., testified by affidavit that, on the evening of the alleged
assault, he saw T.N. have a bicycle accident in the alley in which he
flew over the bicycle's handlebars and hit the ground face first.
Chamberlain stated that he did not come forward sooner because he
learned only after the adjudication hearing that A.C. was on trial for
causing T.N.'s injuries.
Second, Arely Guadalupe Sandoval, a student at Brownwood High School and
a defense witness at the adjudication hearing, submitted an affidavit
alleging that, while he was waiting to testify, he saw T.N. exiting the
courthouse. T.N. met his brother at the door. Sandoval stated that
T.N.'s brother asked, "Did you lie?" T.N. responded, "Yes, but it's not
working." Sandoval believed that T.N. meant that he had lied in court.
Sandoval immediately told A.C.'s father what he had heard but did not
tell the county attorney or A.C.'s attorney because he did not know that
he was allowed to do so.
Third, Anthony Sanchez Sr., the father of a defense witness, submitted
an affidavit stating that his former girlfriend, Sherry Nichols, was
T.N.'s aunt. Sanchez and Nichols have a daughter. Their daughter is
married and has a daughter of her own. After Sanchez separated from
Nichols, he claimed that she accused him of molesting their daughter.
Sanchez met with Brownwood Police Department officers and established
that he had no access to his daughter during the time period in which
the molestation allegedly occurred. Sanchez claimed that he learned
Nichols accused him of molestation because her mother, T.N.'s
grandmother, told her to do so. Thus, while he had no knowledge of the
case, he was wary of any allegations coming from T.N.'s family.
Moreover, just before trial, his daughter threatened to prohibit any
visitation with his granddaughter if he allowed his son to testify at
A.C.'s adjudication hearing. This threat reinforced his belief that T.N.
may have been influenced to make false allegations against A.C.
In 2009, the legislature amended TEX. FAM.CODE ANN. §§ 51.17(a) and
56.01 (Vernon Supp.2010) to provide that motions for new trials are
governed by Tex.R.App. P. 21. Act of June 19, 2009, 81st Leg., R.S., §§
1-2, 2009 Tex. Gen. Laws 642 (relating to the rules governing a motion
for new trial in juvenile cases). This amendment applies to all juvenile
proceedings whose disposition takes place after September 1, 2009. Id.
§§ 3-4. A.C.'s disposition order was signed on March 6, 2009. His motion
for new trial is, therefore, not subject to the amendment. Under prior
law, a motion for new trial was governed by the Texas Rules of Civil
Procedure. See In re M.R., 858 S.W.2d 365, 366 (Tex.1993) (juveniles are
required to file a motion for new trial to assert evidentiary and
procedural errors, including factual sufficiency and jury misconduct).
When a motion alleges facts that, if true, would entitle the movant to a
new trial, a trial court is obligated to hear such evidence. Hensley v.
Salinas, 583 S.W.2d 617, 618 (Tex.1979). To obtain a new trial based on
newly discovered evidence, a defendant must show that (1) the evidence
was unknown to the defendant at the time of trial, (2) the failure to
discover the evidence was not due to defendant's want of diligence, (3)
the evidence has materiality in that it would probably bring about a
different result in another trial, and (4) the evidence is admissible
and not merely cumulative, corroborative, collateral, or impeaching.
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983), overruled on
other grounds by Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex.2003).
Each of these elements must be established by an affidavit of the party.
In re Thoma, 873 S.W.2d 477, 512 (Tex. Rev. Trib.1994, no appeal);
Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 844
(Tex.App.-Dallas 2008, no pet.). Except when jury misconduct is alleged,
the trial court's decision to hold an evidentiary hearing on a motion
for new trial is reviewed for abuse of discretion. See Tex.R. Civ. P.
327(a); Hamilton v. Williams, 298 S.W.3d 334, 338 (Tex.App.-Fort Worth
2009, pet. denied). To determine whether the trial court abused its
discretion, we must decide ultimately whether the trial court acted
without reference to any guiding rules or principles. Goode v. Shoukfeh,
943 S.W.2d 441, 446 (Tex.1997).
A.C.'s motion for new trial did not establish that his failure to
discover the evidence was not owing to a want of due diligence. While
Chamberlain stated that he did not come forward earlier because he did
not know about the allegations against A.C., the motion for new trial
did not explain why A.C. could not have discovered Chamberlain's
testimony earlier with the exercise of due diligence. Likewise, there is
no explanation why the evidence provided by Sanchez, whose son was a
witness for A.C. at the adjudication hearing, could not have been
discovered before trial. In the absence of a showing of due diligence,
the trial court was not required to hold a hearing. See Neyland v.
Raymond, 324 S.W .3d 646, 652-53 (Tex.App.-Fort Worth 2010, no pet.).
Moreover, the facts alleged in Sandoval's and Sanchez's affidavits
primarily impeached the credibility of T.N. and, thus, would not be
grounds for a new trial. See Ski River Dev., Inc. v. McCalla, 167 S.W.3d
121, 132 (Tex.App.- Waco 2005, pet. denied) (newly discovered evidence
alleging that a witness committed perjury was cumulative, impeaching,
and not grounds for a new trial).
We cannot say that the trial court abused its discretion by failing to
hold a hearing on A.C.'s motion for new trial based upon newly
discovered evidence. A.C.'s first issue is overruled.
Conclusion: The judgment of the trial court is affirmed.