Charlie Julius Gonzales v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00309-CR

No. 10-03-00312-CR

Charlie Julius Gonzales,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2003-689-C

Trial Court # 2002-274-C

DISSENTING Opinion

          One of the most difficult standards of review to apply is the abuse-of-discretion standard.  It is an easy test to state and most people have some notion of what it means just by the label.  It becomes a bit more problematic, however, when you actually try to define the standard. It serves no useful purpose here to catalog all the different ways that the test has been described to try to actually define how to objectively test a trial court’s decision by an abuse-of-discretion standard.  Probably the most complex test is the one defined by Justice John Powers in Landon v. Jean-Paul Budinger, Inc., from the Austin Court of Appeals in 1987.  Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934-937 (Tex. App.—Austin 1987, no writ).  The test is cumbersome and time consuming.  Parties do not brief in light of this description of the test because courts seldom attempt to use it.  On the other end of the spectrum of descriptions for the abuse-of-discretion standard of review would be something like, the trial court’s decision is “within the zone of reasonable disagreement.”  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

          And unless the reviewer is really careful, it is so very easy to find an abuse-of-discretion when the reviewer simply disagrees with the trial court.  For example, in this case, the Court makes no effort to determine whether there was a need for a hearing on the motion for new trial; but the Court remands the case for a hearing.  If the Court has not evaluated whether there was charge error, the Court cannot properly determine if a hearing was necessary.  If there was no error in the charge, there can be no ineffective assistance of counsel for not objecting to it, and there would be no need to hold a hearing on the motion for new trial.  Thus, the trial court did not abuse its discretion by not holding a hearing on the motion.

          And if there is error in the charge and it was harmless when measured against the standard for a defective charge to which an objection was made, then there, too, is no need to know why there was no objection by counsel.  It would not matter.  And if the charge is defective, and it is egregious harm, then it still does not matter because the Court could resolve the merits of the issue.  So, only if it lies betwixt and between egregious harm and harmful error if it had been objected to, does the Court need to know why counsel did not object to the charge.  Because only then does it matter if there was an objection.  And only then would we need a record of the trial counsel’s reasons for not objecting to address the ineffective assistance of counsel issue.

          The Court stops far short of the analysis necessary to properly resolve the issue.  I would not.  The Court should perform its assigned task and determine whether the trial court abused its discretion.  But a single vote will not change the result, so I will yield to a more timely response and note my dissent and await the time with patience until the trial court makes its determination known and the answer returned.  In the Interest of S.A.P., 135 S.W.3d 165, 177-178 (Tex. App.—Waco 2004)(Gray, C.J., dissenting), rev’d, 2005 Tex. LEXIS 52, *1; 48 Tex. Sup. J. 368 (Tex. Jan. 21, 2005).

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed on February 23, 2005