Rodriguez v. State
| Decision Date | 07 March 2001 |
| Docket Number | No. 04-99-00131-CR.,04-99-00131-CR. |
| Citation | 82 S.W.3d 1 |
| Parties | Ernestina RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Page 1
v.
The STATE of Texas, Appellee.
Page 2
Adrienne Urrutia, San Antonio, for appellant.
Lucy Cavazos, Assistant District Attorney, Kerrville, for appellee.
Sitting: TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice, SARAH B. DUNCAN, Justice.
Opinion by: SARAH B. DUNCAN, Justice.
Ernestina Rodriguez was convicted and sentenced to life in prison for the capital murder of her two and a half month old baby by starvation. On appeal, Rodriguez complains that her trial counsel's deficient performance violated her constitutional right to effective assistance of counsel. Among Rodriguez's arguments is that although credible qualified medical testimony controverting starvation as the cause of the baby's death was readily available,1 her trial counsel "failed to controvert, in any meaningful way, the State's medical expert testimony." In response, the State argues Rodriguez's allegation of ineffective assistance must be rejected because it is not "firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim. App.1999). Rodriguez counters that, if this is so, it is because the district court abused its discretion by failing to grant her an evidentiary hearing on her motion for new trial. We agree and therefore abate this appeal and remand the cause to the trial court for an evidentiary hearing on Rodriguez's motion for new trial.
Given its apparent availability, we are unable to discern any plausible trial strategy for failing to introduce credible controverting expert testimony on the causation issue. However, because the trial court did not conduct a hearing on Rodriguez's motion, we are without the benefit of trial counsel's explanation. On this record, we are unwilling to hold the allegation of ineffective assistance is "firmly founded" in the record. We must therefore determine whether the record should be supplemented by a hearing on Rodriguez's motion for new trial.
"[T]he right to a hearing on a motion for new trial is not truly an `absolute right.'" Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App.1993). "[A] hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record." Id. at 816. "On the other hand, ..., in certain instances the trial judge abuses his discretion in failing to hold a hearing on a motion for new trial that raises matters which are not determinable from the record." Id. "`[A]s a prerequisite to obtaining a hearing' and `as a matter of pleading,' motions for new trial [must] be supported by affidavit, either of the accused or someone else specifically showing the truth of the grounds of attack." Id. (quoting Hicks v. State, 75 Tex.Crim. 461, 171 S.W. 755, 763 (1913)). Requiring an affidavit is designed "to limit the parameters
Page 3
of the hearing that is sought" and prevent "limitless fishing expeditions." McIntire v. State, 698 S.W.2d 652, 659 (Tex.Crim.App.1985); Vyvial v. State, 111 Tex.Crim. 111, 10 S.W.2d 83, 84-85 (1928).
Rodriguez's verified motion for new trial plainly does not constitute a "fishing expedition." Rather, it raises a particular matter not determinable from the record — trial counsel's deficient performance in failing to investigate the causation issue adequately and, as a result, in failing to controvert the State's expert medical testimony. In addition, the motion details the probable testimony of the Chair of the Department of Human Ecology at the University of Texas at Austin, Dr. Steven D. Clarke; and it attaches correspondence from Dr. Clarke to Rodriguez's appellate counsel. In this correspondence, Dr. Clarke concludes that "[t]here is every possibility that [Rodriguez's baby] died of ... an in-born error of metabolism" and that it is the opinion of his colleague, Dr. Margarita Teran, a pediatrician from Mexico City, "that although the baby did not grow from birth until death, the baby did maintain body weight which indicates that the child did not likely die from starvation" and "the mom would not realize there might be a problem with the baby until it was too late."2
Citing Reyes, however, the State argues Dr. Clarke's unsworn correspondence is insufficient to mandate a hearing. We agree. But the affidavit requirement — and the policies underlying it — are met by the level of detail contained in Rodriguez's motion and its verification by her appellate counsel. The verified motion plainly sets forth trial counsel's statements regarding his minimal efforts to investigate the cause of death, appellate counsel's ease in locating and securing controverting expert testimony, and Dr. Clarke's proposed testimony. Because Rodriguez's verified motion for new trial raises a particular matter that cannot be determined by the record and upon which relief...
To continue reading
Request your trial
-
Gonzalez v. State
...testimony would have contradicted the State's theory of causation in her trial for the murder of her infant child. 82 S.W.3d 1, 3 (Tex.App.-San Antonio 2001, pet. dism'd).Similarly, in Mendoza v. State, the defendant alleged that she suffered prejudice from trial counsel's failure to object......
-
Fisher v. State
...the requested expert, and explain why the expert is necessary in the particular case. See id.; compare Rodriguez v. State, 82 S.W.3d 1, 2-4 (Tex. App.—San Antonio 2001, pet. dism'd) (holding defendant was entitled to a hearing on her motion for new trial alleging that trial counsel was inef......
-
Gonzales v. State, No. 07-07-0036-CR (Tex. App. 2/27/2009)
...from the record, there is no error in overruling the motion without conducting an evidentiary hearing.Rodriguez v. State, 82 S.W.3d 1, 2 (Tex.App.-San Antonio 2001, pet. dism'd). As noted herein, all of the allegations raised in appellant's motion for new trial were determinable from the tr......
-
Deckard v. State, No. 04-03-00852-CR (TX 6/2/2004)
...is fatally defective, and a trial court does not err in denying the motion without a hearing. Id.; Rodriguez v. State, 82 S.W.3d 1, 2 (Tex. App.—San Antonio 2001, pet. dism'd). In his motion for new trial, Deckard alleges that he "was blatantly threatened and railroaded into making the no c......