State v. Hart

• Decision Date: 14 July 2011
• Docket Number: 14–09–00659–CR.,Nos. 14–09–00658–CR,s. 14–09–00658–CR
• Citation: 342 S.W.3d 659
• Parties: The STATE of Texas, Appellant,v.Jerry M. HART, Appellee.The State of Texas, Appellant,v.Wynonne T. Hart, Appellee.
• Court: Texas Court of Appeals

342 S.W.3d 659

The STATE of Texas, Appellant,

v.Jerry M. HART, Appellee.The State of Texas, Appellant,

v.Wynonne T. Hart, Appellee.

Nos. 14–09–00658–CR

14–09–00659–CR.

Court of Appeals of Texas, Houston (14th Dist.).

April 5, 2011.Rehearing Overruled July 14, 2011.

Zachary B. Fertita, Houston, for Appellant in No. 14-09-00658-CR.Ali R. Fazel, Houston, for Appellant in No. 14-09-00659-CR.Dan McCrory, Houston, for Appellee.Panel consists of Justices ANDERSON, BOYCE, and BROWN.

OPINION

JEFFREY V. BROWN, Justice.

This is a State's appeal from an order granting a joint motion for new trial filed by a husband and wife who had pleaded guilty to misapplication of fiduciary property and been sentenced. The trial court found various grounds in the motion for new trial to be meritorious, including some grounds affecting the finding of guilt and some grounds affecting only the assessment of punishment. We conclude that the trial court abused its discretion by granting this motion for new trial. Accordingly, we reverse the trial court's order granting a new trial, and we remand with instructions to reinstate the judgments of conviction and the sentences for both spouses.

I

A

Appellees Jerry M. Hart and Wynonne T. Hart were indicted for misapplication of fiduciary property, theft, and money laundering. In exchange for dismissal of the latter two charges, they both pleaded guilty to misapplication of fiduciary property from a long list of complainants, without any recommendation from the State as to punishment. The misappropriated property had a value of more than $3 million. The Harts were eligible for probation and the range of punishment was 5–99 years or confinement for life. The Harts requested probation and the State asked for an unspecified number of years of confinement. After considering a presentence-investigation report (“PSI report”) for each defendant, various documents, and the arguments of counsel, Judge Randy Roll assessed punishment for each spouse at fourteen years' confinement.

After sentencing, the Harts obtained information indicating that, before assessing the Harts' punishment, Judge Roll had consulted with Judge Jim Wallace, judge of the 263rd Criminal District Court in Harris County, and that Judge Wallace had given Judge Roll a recommendation as to the assessment of punishment for the Harts. Judge Roll had not disclosed to the Harts that he had received any recommendation from Judge Wallace. The Harts filed a motion to recuse Judge Roll asserting several grounds, including Judge Roll's status as a witness regarding his conversation with Judge Wallace about the Harts' punishment. Judge Roll declined to recuse himself and referred the motion to the presiding judge of the administrative judicial district, Judge Olen Underwood. Judge Underwood assigned himself to hear the recusal motion. After hearing the motion, Judge Underwood granted it. He then appointed Judge Vann Culp to hear the Harts' motion for new trial or in the alternative motion for new trial as to punishment. After a two-day evidentiary hearing, Judge Culp granted a new trial. In his findings of fact and conclusions of law, Judge Culp found various grounds asserted by the Harts to be meritorious, including some grounds affecting the finding of guilt and some grounds affecting only the assessment of punishment.

Due to the recusal of Judge Roll, the Harts' cases were transferred to the 180th Criminal District Court of Harris County after Judge Culp granted a new trial. The State appealed the order granting new trial. In these consolidated appeals, the State asserts that none of the grounds are meritorious and that the trial court abused its discretion by granting the Harts a new trial.

B

Texas courts consistently have held that a trial judge has authority to grant a new trial “in the interest of justice” and that the judge's decision to grant or deny a defendant's motion for new trial is reviewed only for an abuse of discretion. See State v. Herndon, 215 S.W.3d 901, 906 (Tex.Crim.App.2007). But that discretion is not unbounded; “justice” means in accordance with the law. See id. at 907. A trial judge does not have authority to grant a new trial unless the first proceeding was not in accordance with the law. Id. He cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is innocent or “received a raw deal.” Id. On the other hand, a trial judge is not limited to the mandatory new-trial grounds listed in Rule 21.3. See Tex.R.App. P. 21.3. That list is illustrative, not exclusive, and a trial court may grant a motion for new trial on other legal grounds as well. See Herndon, 215 S.W.3d at 907. Id. In the federal courts, any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial. Id. Even errors that would not inevitably require reversal on appeal may form the basis for the grant of a new trial if the trial judge concludes that the proceeding has resulted in “a miscarriage of justice.” Id. Although not all of the grounds for which a trial court may grant a motion for new trial need be listed in a statute or a rule, the trial court does not have discretion to grant a new trial unless the defendant shows that he is entitled to one under the law. Id. To grant a new trial for a non-legal or legally invalid reason is an abuse of discretion. Id.

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the trial court acted without reference to any guiding principles or in an arbitrary or unreasonable manner. See id.; Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004), superseded in part on other grounds by Tex.R.App. P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905 n. 5 (Tex.Crim.App.2007). We view the evidence in the light most favorable to the trial court's ruling; defer to its credibility determinations; and presume all reasonable factual findings that could have been made in support of the court's ruling. Charles, 146 S.W.3d at 208. A trial court abuses its discretion only when no reasonable view of the record could support its ruling. Id. The mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court would decide it does not demonstrate an abuse of discretion. Herndon, 215 S.W.3d at 907–08.

While a trial court has wide discretion in ruling on a motion for new trial which sets out a valid legal claim, it should exercise that discretion by balancing a defendant's “interest of justice” claim against the interests of the public in finality and the harmless-error standards set out in Rule 44.2. See Tex.R.App. P. 44.2; Herndon, 215 S.W.3d at 908. Trial courts should not grant a new trial if the defendant's substantial rights were not affected. Herndon, 215 S.W.3d at 908. Otherwise, the phrase “interest of justice” would have no substantive legal content; it would be a mere platitude covering a multitude of unreviewable rulings. Herndon, 215 S.W.3d at 908.

Though the Court of Criminal Appeals has not set out bright-line rules concerning appellate review of a trial court's granting of a motion for new trial, our high court has concluded that a trial court generally would not abuse its discretion in granting a motion for new trial if the defendant: (1) articulated a valid legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim; and (3) showed prejudice to his substantial rights under the standards in Rule 44.2 of the Texas Rules of Appellate Procedure. Id. at 909. The defendant need not establish reversible error as a matter of law before the trial court may exercise its discretion in granting a motion for new trial. Id. And there is no requirement that, before a trial court may grant a motion for new trial, the moving party must show that he has timely preserved his claim of error for appeal. Id. Nevertheless, trial courts lack the discretion to grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that the flaws adversely affected his substantial rights to a fair trial. Id.

II

Judge Culp granted a new trial based on many, but not all, of the grounds asserted by the Harts in the trial court. Judge Culp also granted a new trial based on grounds not asserted by the Harts in the trial court. We will address all of the grounds asserted by the Harts in the trial court or cited by Judge Culp as a basis for granting a new trial. These grounds may be grouped in the following categories: (1) alleged conflicts of interest, (2) alleged misconduct by the grand-jury foreman, (3) alleged involuntary guilty pleas, (4) alleged errors relating to extraneous offenses, (5) allegedly improper discussion between Judge Roll and Judge Wallace, and (6) absence of witness testimony at the punishment hearing.

A. Alleged Conflicts of Interest

Up until the trial court's assessment of punishment, Jerry and Wynonne were represented by the same law firm. The Harts asserted in their motion for new trial that their representation by the same law firm created two conflicts of interest. One allegedly arose from incriminating statements made by Jerry during the bankruptcy case for the Harts' businesses. The second conflict of interest allegedly arose from the different business roles played by Jerry and Wynonne; according to the Harts, these different roles would have allowed Jerry to argue that he had no knowledge of the accounting procedures of his business and therefore had less culpability than his wife. The trial court concluded that there was an actual conflict of interest based on the joint representation, but that the Harts waived this conflict of interest.

To obtain a new trial based on their trial...