Alford v. State

• Decision Date: 28 March 1991
• Docket Number: No. 10-90-097-CR,10-90-097-CR
• Citation: 807 S.W.2d 840
• Parties: Winifred Douglas ALFORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 840

807 S.W.2d 840

Winifred Douglas ALFORD, Appellant, v. The STATE of Texas, Appellee.

No. 10-90-097-CR.

Court of Appeals of Texas Waco.

March 28, 1991.

Thomas D. Whitworth, Cleburne, for appellant.

Dan M. Boulware, Dist. Atty., Cleburne, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

A jury convicted Appellant of the burglary of a habitation which occurred on March 3, 1989. See TEX.PENAL CODE ANN. § 30.02(a)(1). Punishment was assessed at seven years in prison. Appellant complains that the court abused its discretion when it refused to grant a new trial based on newly discovered evidence from a prison inmate which absolved him from criminal responsibility. We will affirm.

At trial Appellant called as a defense witness Roosevelt Owens, who was serving a fifteen-year prison sentence for a burglary which occurred on March 13, 1989. Owens testified as follows:

Q ... Do you know anything about a burglary up around Crowley about the 3rd of March of that year?

A No, sir.

Q Okay. Did you ever talk to anybody about that burglary?

A Yes, sir. They asked me about it.

Q Who asked you about it?

A Detectives.

Q Okay. And what did you tell them?

A I don't know nothing about it....

Q Okay. Mrs. Riddle has told us there was a burglary at her house on March 3rd up on--up near Crowley, three black men. Do you know anything about that at all?

A I would--I would like not to answer that question.

Q Why is that?

A Because I might incriminate myself.

Q Okay. You feel like if you answer that question, it might lead to some sort of criminal prosecution of you?

A Yes, sir.

Q Okay. Do you know anybody--do you know who else may have been involved in that offense?

A No, sir.

Q Okay. Was [Appellant] involved in that?

A No, sir. I never--I was raised up with him, and I never knew of him burglarizing no house.

Q Okay. When you were arrested back in the middle of March of last year, did you sign a statement admitting the [March 13] burglary over off of 917?

A Yes, sir.

Q Okay. Are you absolutely positive that [Appellant] had nothing to do with either one of these burglaries?

A No, sir.

Q Are you positive he didn't or positive he did?

A I'm positive he didn't.

Q Did not.

A Yeah.

Owens also testified at the hearing on the motion for a new trial that Appellant had nothing to do with the March 3 burglary. Owens claimed that he, Randy Lynn and Richard McKnight had committed the burglary for which Appellant had been convicted. The court denied the motion for a new trial.

The court must grant a new trial when new evidence favorable to the accused has been discovered since the trial. TEX.R.APP.P. 30(b)(6). The denial of a motion for a new trial based on a claim of newly discovered evidence must be reviewed for an abuse of discretion. Van Byrd v. State, 605 S.W.2d 265, 267 (Tex.Crim.App. [Panel Op.] 1980). When a court grants a new trial based on newly discovered evidence the record must reflect that:

(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial.

Eddlemon v. State, 591 S.W.2d 847, 849 (Tex.Crim.App.1980).

Clearly, Owens' testimony was cumulative of his testimony at the trial. He merely repeated his claim that Appellant was not involved in the March 3 burglary. Second, the probable truth of Owens' testimony was for the court to determine. See Van Byrd, 605 S.W.2d at 267-68. Owens denied at trial that he knew anything about the March 3 burglary and, at the hearing on the motion for new trial, claimed to know all about it. Under the circumstances, the court was faced with Owens' inconsistent testimony. Furthermore, Owens' testimony conflicted with the victim's unequivocal identification of Appellant at trial as one of the burglars who committed the March 3 burglary. For these reasons, the court did not abuse its discretion when it refused to grant a new trial based on newly discovered evidence. See id. Appellant's points of error are overruled and the judgment is affirmed.

THOMAS, Chief Justice, concurring.

The dissenting opinion contains the following:

When a prima facie 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 judgment 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 cummulative 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.

VANCE, Justice, dissenting.

Without discussing the 1986 change in the grounds for motions for new trial based on newly discovered evidence and citing two cases decided before that change, the majority has affirmed a denial of a motion for new trial which I believe met the revised standard. ¹

Article 40.03 of the Code of Criminal Procedure, as it existed prior to 1985, provided in part New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other:

(6) Where new evidence material to the defendant has been discovered since the trial. A motion for new trial on this ground shall be governed by the rules which regulate civil suits;....

TEX.CODE CRIM.PROC.ANN. art. 40.03(6) (emphasis added).

Texas Rule of Appellate Procedure 30, which replaced article 40.03, now states, in part:

(b) Grounds. A new trial shall be granted an accused for the following reasons:

(6) Where new evidence favorable to the accused has been discovered since trial;

TEX.R.APP.P. 30(b)(6) (emphasis added).

Under the code provision the trial judge determined if the defendant made a prima facie case for a new trial. Henson v. State, 150 Tex.Crim. 344, 200 S.W.2d 1007, 1013-15 (Tex.Crim.App.1947). If so, the judge determined the credibility of the new evidence. Id. A new trial was to be granted unless the new evidence was "not probably true" or a different result would "not probably be reached on another trial." Id. The state carried the burden of showing that a different result would not probably be reached and all doubts were to be resolved in favor of the defendant. Id.

Over time, however, the distinction between the prima facie test and the credibility issue became blurred and the trial judge's sole determination of credibility often ended the inquiry. E.g., Wilson v. State, 786 S.W.2d 74 (Tex.App.--El Paso 1990, no pet.); Houston v. State, 667 S.W.2d 157 (Tex.App.--Houston [14th Dist.] 1982, no pet).

Information from the committee which recommended the appellate rules to the Court of Criminal Appeals shows that a conscious decision was made to change the word "material " to "favorable." Three reasons for the change are apparent. First, to reconcile the two lines of authority which had developed from Henson in the decisions of the Court of Criminal Appeals as evidenced by a comparison of the four-element prima facie test in Carlisle v. State and its predecessors with the four-element test of Eddlemon v. State and its predecessors, wherein the "not probably true" standard for evaluating the new evidence had crept into the test for determining whether a prima facie case had been made. See Henson, 200 S.W.2d at 1013-15; Eddlemon v. State, 591 S.W.2d 847, 849 (Tex.Crim.App.1979); Carlisle v. State, 549 S.W.2d 698, 704 (Tex.Crim.App.1977)....