Matthew Douglas Hayes v. State ( 2015 )

ACCEPTED
04-14-00878-CR & 04-14-00879-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/20/2015 5:01:42 PM
KEITH HOTTLE
CLERK
No. 04-14-00878-CR
No. 04-14-00879-CR
FILED IN
4th COURT OF APPEALS
In the SAN ANTONIO, TEXAS
Court of Appeals 3/20/2015 5:01:42 PM
for the KEITH E. HOTTLE
Clerk
Fourth District of Texas
at San Antonio

No. 2013CR10841W
No. 2013CR10842W
In the 437th District Court
Bexar County, Texas

MATTHEW DOUGLAS HAYES
Appellant
V.
THE STATE OF TEXAS
Appellee

APPELLANT’S BRIEF

MANDY MILLER
Attorney for Matthew Douglas Hayes
State Bar No: 24055561
2910 Commercial Ctr. Blvd., Ste. 103-201
Katy, TX 77494
(832) 900-9884
Fax: (877) 904-6846
mandy@mandymillerlegal.com
APPELLANT REQUESTS ORAL ARGUMENT
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Counsel for the State:
Nicholas LaHood  District Attorney of Bexar County
Rico Valdez  Assistant District Attorney on appeal
Miguel Najera  Assistant District Attorney at trial
Appellant or criminal defendant:
Matthew Douglas Hayes
Counsel for Appellant:
L. Michael Cohen  Counsel at trial
Mandy Miller  Counsel on appeal
Trial Judge:
Hon. Lori Valenzuela
TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES ............................................................................1
INDEX OF AUTHORITIES.............................................................................................................4
STATEMENT OF THE CASE............................................................................................6
STATEMENT OF FACTS...................................................................................................6
SUMMARY OF THE ARGUMENT ...................................................................................9
APPELLANT’S FIRST POINT OF ERROR.......................................................................9
PRESERVATION ..................................................................................................................................10
THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON APPELLANT’S MOTION FOR
NEW TRIAL ............................................................................................................................................ 11
APPELLANT’S SECOND POINT OF ERROR...............................................................12
THERE WAS NO EVIDENCE TO SUBSTANTIATE APPELLANT’S GUILTY PLEA TO
AGGRAVATED ROBBERY, AS REQUIRED BY ARTICLE 1.15 OF THE TEXAS PENAL CODE .......13
THERE IS NO EVIDENCE TO SUPPORT THE TRIAL COURT’S AFFIRMATIVE FINDING THAT A
DEADLY WEAPON WAS USED TO COMMIT THE OFFENSE .............................................................18
APPELLANT IS ENTITLED TO A NEW TRIAL IN THE INTEREST OF JUSTICE..............................19
CONCLUSION..................................................................................................................25
CERTIFICATE OF COMPLIANCE.................................................................................26
CERTIFICATE OF SERVICE ..........................................................................................26
2
INDEX OF AUTHORITIES
CASES
Appleman v. State,
531 S.W.2d 806 (Tex. Crim. App. 1976) .........................................................................12
Carranza v. State,
960 S.W.2d 76 (Tex. Crim. App. 1998)..............................................................................9
Ex parte Martin,
747 S.W.2d 789 (Tex. Crim. App. 1988) .........................................................................13
Ex parte Williams,
703 S.W.2d 674 (Tex. Crim. App. 1986) .........................................................................12
Keeter v. State,
74 S.W.3d 31 (Tex. Crim. App. 2002)..............................................................................22
King v. State,
29 S.W.3d 556 (Tex. Crim. App. 2000)..............................................................................8
McGill v. State,
200 S.W.3d 325 (Tex. App.--Dallas 2006, no pet.) ........................................................13
Menefee v. State,
287 S.W.3d 9 (Tex. Crim. App. 2009) .......................................................................12, 13
Mullins v. State,
37 Tex. 337 (1872) ..............................................................................................................18
Plummer v. State,
410 S.W.3d 855 (Tex. Crim. App. 2013) .........................................................................17
Reyes v. State,
849 S.W.2d 812 (Tex. Crim. App. 1993)............................................................................9
Rozell v. State,
176 S.W.3d 228 (Tex. Crim. App. 2005)............................................................................9
Smith v. State,
286 S.W.3d 333 (Tex. Crim. App. 2009)............................................................................8
State v. Dixon,
893 S.W.2d 286 (Tex. App.--Texarkana 1995, no pet.).................................................19
3
State v. Gonzalez,
820 S.W.2d 9 (Tex. App.--Dallas 1991), aff’d,
855 S.W.2d 692 (Tex. Crim. App. 1993) .........................................................................18
State v. Lyons,
820 S.W.2d 46 (Tex. App.--Fort Worth 1991, no pet.).................................................19
Waller v. State,
931 S.W.2d 640 (Tex. App.--Dallas 1996, no pet) .........................................................12
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005) ........................................................12
TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2010)....................................................22
TEX. PEN. CODE ANN. § 1.07(a)(46) (West 2011)..............................................................15
TEX. PEN. CODE ANN. § 29.02 (West 2005) .......................................................................13
TEX. PEN. CODE ANN. § 29.03 (West 2005).................................................................13, 14
RULES
TEX. R. APP. P. 21.6...................................................................................................................9
TEX. R. APP. P. 21.2 ................................................................................................................10
TEX. R. APP. P. 38.2(a)(1)(A)....................................................................................................1
4
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with four counts of aggravated robbery, all arising out
of one criminal transaction. (RR I1 5, 6). On December 4, 2013, appellant pled guilty
to two charges of aggravated robbery and submitted to a pre-sentence investigation
(PSI). (RR I 5, 6, 8). A hearing was held on January 28, 2014. (RR II). On
September 9, 2014, appellant was sentenced to seven years confinement in the
Institutional Division of the Texas Department of Criminal Justice. (RR III 8).
STATEMENT OF FACTS
Nathan Lawson, Nicholas Raden, Roxanne Cunningham, and Sabriya
Goldstone were drinking beer at Lawson and Raden’s apartment when someone
knocked on the door. (CR 32, 46; Appendix A). When Lawson answered the door,
Rakeem Boyd grabbed Lawson by the shirt and pushed him back into the apartment.
(CR 46). Boyd was followed by Jerrod Lanier and appellant. (CR 32, 46; Appendix
A). Lawson placed Boyd into a headlock until Boyd punched him in the face several
times. (CR 32). Boyd claimed he had a gun and threatened to kill everyone if Lawson
continued to fight. (CR 32, 46; Appendix A).
1 There are three reporter’s records. The record from the plea proceeding will be referred to as RR I. The
record from the pre-sentence investigation hearing will be referred to as RR II. Finally, the record from the
sentencing hearing will be referred to as RR III.
5
During this time, appellant was struggling with Raden. (CR 46, 49; Appendices
A, B). Lawson thought he saw the outline of a gun in appellant’s sweatshirt pocket.
(CR 46; Appendix A). Raden claims that appellant placed a hand to his side and
threatened to “blow him away.” (CR 49; Appendix B). Raden responded that he
knew what knuckles felt like and that it was not a gun. (CR 49; Appendix B).
Appellant then loosened his grip on Raden to allow him to breathe more easily. (CR
49; Appendix B).
After taking several items, appellant and the co-defendants ran from the
apartment. (CR 46, 49; Appendices A, B). Lawson grabbed his gun and chased the
perpetrators. (CR 47; Appendix A). Just a short while later, appellant was
apprehended .2 miles from the scene and Boyd and Lanier were located .3 miles away.
(CR 18). Despite a search by a law enforcement canine unit, no weapon was ever
found. (CR 19). Boyd and Lanier refused to cooperate with law enforcement and
immediately requested the assistance of counsel. (CR 19). Appellant fully cooperated
with the police and provided a statement regarding his involvement in the robbery.
(CR 20).
Just six weeks later, appellant pled guilty to two counts of aggravated robbery
and submitted to a PSI. (RR I 7, 8). The State agreed to a recommendation that
appellant would receive no more than ten years confinement in the Institutional
Division of the Texas Department of Criminal Justice. (RR I 5). In exchange,
6
appellant agreed to cooperate with the Bexar County District Attorney and testify
against his co-defendants. (CR 10).
On January 28, 2014, a brief punishment hearing was conducted. In addition
to the evidence contained in the PSI report, appellant presented testimony from
appellant’s family and a forensic psychologist, Dr. Ferrell. (RR II 23-28). Dr. Ferrell
met with appellant twice in the county jail, shortly before the hearing. (RR II 24).
The doctor testified briefly that appellant’s tests scores reflected features of PTSD and
depression. (RR II 25, 26).
After the hearing, the trial court postponed sentencing in the event appellant
had to testify against his co-defendants. (RR II 6, 34). The court also allowed
appellant to travel to his home state of Atlanta until he could be sentenced in
September. (RR II 32, 33).
On September 9, 2014, the court sentenced appellant to seven years
confinement in the Institutional Division of the Texas Department of Criminal Justice
on two counts of aggravated robbery. (RR III 8). Rakeen Boyd and Jerrod Lanier
were charged with aggravated robbery. (Appendix C). But, despite their failure to
cooperate with law enforcement, they both pled to robbery. (Appendix C). The same
judge who presided over appellant’s case sentenced Boyd to eight years confinement
and Lanier to six years confinement. (Appendix C).
7
SUMMARY OF THE ARGUMENT
The trial court abused its discretion in failing to conduct a hearing on
appellant’s motion for new trial. The motion raises issues not determinable simply by
examining the record; and those issues could have entitled appellant to relief.
The trial court abused its discretion in overruling appellant’s motion for new
trial by operation of law because appellant has established, by a preponderance of the
evidence, appellant’s plea of guilty to aggravated robbery was not substantiated by the
evidence, as required by Texas Code of Criminal Procedure article 1.15. The motion
also established that the evidence was insufficient to support the trial court’s
affirmative finding that a deadly weapon was used during the course of the robbery.
Finally, appellant established that a new trial should be granted in the interest of
justice due to newly discovered evidence regarding appellant’s s diagnosed post-
traumatic stress disorder (PTSD).
APPELLANT’S FIRST POINT OF ERROR
The trial court abused its discretion in failing to conduct a hearing on
appellant’s motion for new trial. A hearing on a motion for new trial serves a two-
fold purpose. It permits the trial court to decide whether the cause shall be retried;
and it prepares a record for presenting issues on appeal in the event the motion is
denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009).
8
A trial court’s decision not to hold a hearing on a motion for new trial is
reviewed for an abuse of discretion. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim.
App. 1993). To be entitled to a hearing on a motion for new trial, the defendant must
present a motion for new trial “raising matters [that are] not determinable from the
record, which could entitle him to relief[.]” King v. State, 29 S.W.3d 556, 569 (Tex.
Crim. App. 2000). The motion must “be supported by [an] affidavit specifically
showing the truth of the grounds” asserted in the motion. Id.; Reyes, 849 S.W.2d at
815.
PRESERVATION
In order to preserve error for appellate review, the defendant “must present the
motion for new trial to the trial court within 10 days of filing it.” TEX. R. APP. P. 21.6;
see also Id. To “present” the motion means to do something to bring it directly to the
attention of the trial court or someone authorized to act on the court’s behalf.
Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). The presentation can be
signified by a ruling on the motion, a signature or notation on the proposed order, a
hearing date, or some other indication that the movant actually notified the trial court
of the existence of the motion and did not simply file the motion with the clerk. Id.
“[A] reviewing court does not reach the question of whether a trial court abused its
discretion in failing to hold a hearing if no request for a hearing was presented to it.”
Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).
9
The clerk’s record contains a version of appellant’s motion for new trial that
does not show that the page indicating presentment was signed by the trial court. (CR
82). Appellant has filed a motion to supplement the record with a supporting
affidavit evidencing that appellant’s motion for new trial was properly preserved.
(Appendix D).
THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON APPELLANT’S MOTION
FOR NEW TRIAL
In his motion for new trial, appellant alleged that there was no evidence to
substantiate appellant’s guilty plea to aggravated robbery, as required by article 1.15 of
the Texas Penal Code, to support the trial court’s affirmative finding of a deadly
weapon. (CR 67-74). Appellant also alleged that a new trial should be granted in the
interest of justice. (CR 74-79). As previously noted, a trial court should hold a
hearing on a motion for new trial if the motion and attached affidavit raise matters
not determinable from the record and when such matters could entitle the movant to
relief. Id.; see also TEX. R. APP. P. 21.2.
A hearing was necessary to determine whether the State had met its statutory
burden to substantiate appellant’s pleas to aggravated robbery. There is a significant
factual question as to whether a deadly weapon, namely a firearm, was used or
exhibited during the course of the robbery. This issue is crucial in order to
substantiate not only appellant’s pleas, but the court’s affirmative finding of a deadly
weapon. Should the court find that the State did not meet its burden to substantiating
10
appellant’s pleas to aggravated robbery, or the court’s deadly weapon finding,
appellant’s convictions could be conformed to robbery. This would allow appellant
to apply for shock probation under article 42.12 § 15(f)(3) of the Texas Code of
Criminal Procedure. It would also greatly impact appellant’s parole eligibility.
A hearing was also necessary to develop appellant’s experiences in the military
that led to his PTSD and how that manifested into his daily life. A hearing would
have further developed evidence regarding appellant’s PTSD diagnosis, his treatment
plan, and prognosis. While the trial court had some information regarding appellant’s
PTSD, it was limited to the very brief testimony of Dr. Ferrell. The doctor had only
limited interaction with appellant prior to the pleas. However, upon returning home
after the PSI hearing, appellant began receiving extensive treatment through the
Veterans Affairs hospital in Atlanta. (CR 115-118; Appendix H). Appellant’s treating
physician in Atlanta is now able to present a more thorough explanation of appellant’s
illness.
Because there were issues raised in appellant’s motion for new trial that
contained matters not determinable from the record that could have entitled appellant
to relief, the trial court abused its discretion in failing to conduct a hearing.
Accordingly, this cause should be remanded to the trial court in order to conduct a
hearing to further develop the issues raised in the motion for new trial.
11
APPELLANT’S SECOND POINT OF ERROR
The trial court abused its discretion in overruling appellant’s motion for new
trial by operation of law because appellant has established, by a preponderance of the
evidence, that his plea of guilty to aggravated robbery was not substantiated by the
evidence, as required by Texas Code of Criminal Procedure article 1.15. The motion
also established that the evidence was insufficient to support the trial court’s
affirmative finding that a deadly weapon was used during the course of the robbery.
Finally, appellant established that a new trial should be granted in the interest of
justice due to newly discovered evidence regarding his diagnosed PTSD.
It is within the trial court’s sound discretion to grant or deny a motion for new
trial. Waller v. State, 931 S.W.2d 640, 644 (Tex. App.--Dallas 1996, no pet). Therefore,
a trial court’s denial of a motion for new trial is reviewed for an abuse of discretion.
Id.; Appleman v. State, 531 S.W.2d 806, 810 (Tex. Crim. App. 1976).
THERE WAS NO EVIDENCE TO SUBSTANTIATE APPELLANT’S GUILTY PLEA TO
AGGRAVATED ROBBERY, AS REQUIRED BY ARTICLE 1.15 OF THE TEXAS PENAL CODE
When a defendant enters a plea of guilty to a non-capital felony offense, article
1.15 of the Texas Code of Criminal Procedure requires the State to offer evidence of
guilt in support of the plea. TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005).
And, according to article 1.15, a trial court is not permitted to render a conviction
without evidence establishing a defendant’s guilt even if he has entered a plea of guilty
12
or no contest. Id.; Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). This
statute is an additional procedural safeguard afforded those charged with crimes in the
State of Texas. Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986);
Menefee, 287 S.W.3d at 13.
After appellant pled guilty to aggravated robbery, the State was no longer
required to prove every element of the offenses beyond a reasonable doubt. Ex parte
Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988); McGill v. State, 200 S.W.3d
325, 330 (Tex. App.--Dallas 2006, no pet.). But article 1.15 does require
substantiation of the pleas. Menefee, 287 S.W.3d at 14. “By its plain terms [1.15]
requires evidence in addition to, and independent of, the plea itself to establish the
defendant’s guilt.” Id. If the State fails to introduce sufficient evidence under the
standard set forth in article 1.15, the trial court is not authorized to convict. Id. And
a conviction rendered without sufficient evidence to support the no contest or guilty
plea constitutes error. Id.
There is no evidence to substantiate appellant’s pleas to aggravated robbery. A
person commits robbery if, in the course of committing theft and with the intent to
obtain or maintain control of the property, he intentionally, knowingly, or recklessly
causes bodily injury to another or intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death. TEX. PEN. CODE ANN. § 29.02
(West 2005). On the other hand, a person commits aggravated robbery if he commits
13
robbery and he causes serious bodily injury to another, uses or exhibits a deadly
weapon, or causes bodily injury to another person or threatens or places another
person in fear of imminent bodily injury or death, if the other person is 65 years of
age or older, or a disabled person. TEX. PEN. CODE ANN. § 29.03 (West 2005).
The complainants’ statements indicate that Boyd announced that he had a gun
and threatened to kill everyone if Lawson continued to fight him. (CR 46; Appendix
A). The complainants also claimed that appellant stated “Don’t fight or I’ll put holes
in all of you.” (CR 46; Appendix A). Lawson thought that he saw the outline of a
gun in appellant’s sweatshirt pocket. (CR 46; Appendix A).
But Raden stated that appellant placed a hand to his side and threatened to
“blow him away.” (CR 49; Appendix B). Raden responded that he knew what
knuckles felt like and that it was not a gun. (CR 49; Appendix B). Raden never saw a
gun and was never in fear for his life. (CR 50; Appendix B).
Lawson and Raden reported that they suffered bruising on their faces as a
result of the attack. (CR 90, 91; Appendix F). Cunningham sustained a cut on her lip.
(CR 92; Appendix F). None of the complainants required medical treatment. (CR
90-93; Appendix F).
Because none of the complainants were over 65, appellant could have only
committed aggravated robbery if he, or a co-defendant, caused serious bodily injury to
the complainants or used or exhibited a deadly weapon during the course of the robbery.
14
See TEX. PEN. CODE ANN. § 29.03 (West 2005). Despite appellant’s pleas to
aggravated robbery, the evidence only supports a finding that he is guilty of robbery.
“Serious bodily injury” is “bodily injury that creates a substantial risk of death
or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” TEX. PEN. CODE ANN.
§ 1.07(a)(46) (West 2011). As evidenced by the PSI, the complainants reported their
injuries as bruising and a cut. Therefore, none of the complainants suffered serious
bodily injury.
The only evidence establishing that any of the perpetrators possessed a gun
during the robbery was from Boyd’s words that he had a gun and Lawson’s statement
that he thought he saw the outline of a weapon in appellant’s sweatshirt. But the
complainant who was nearest appellant established that appellant did not have a gun
and only used his knuckles to force Raden into compliance.
Appellant immediately admitted his role in the offenses, cooperated with law
enforcement, agreed to testify against the co-defendants, and has accepted
responsibility for his actions. However, he has consistently denied that anyone used a
weapon during the course of the robbery. (CR 98-100; Appendix E). And although
law enforcement responded to the scene shortly after the offense, and the suspects
were apprehended quickly, no weapon was ever found.
15
But even assuming that appellant or the co-defendants were carrying a weapon,
there is no evidence that the weapon was used or exhibited during the course of the
robbery. In Patterson v. State, the Court of Criminal Appeals decided that the term
“exhibited a deadly weapon” used in Texas Code of Criminal Procedure 42.12 § 3g
means that the weapon was consciously shown or displayed during the commission of
the offense. [Emphasis added] 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). And the
term “used a deadly weapon” means that “the deadly weapon was employed or
utilized in order to achieve its purpose.” Id. Therefore, the actor must use the object
as a deadly weapon, and not for some other purpose. The Court then explained that
“one can ‘use’ a deadly weapon without exhibiting it, but it is doubtful one can exhibit
a deadly weapon during the commission of a felony without using it.” Id.
In McCain v. State, the Court also found that a person “uses or exhibits a deadly
weapon” under the aggravated robbery statute if he employs the weapon in any
manner that “facilitates the associated felony.” 22 S.W.3d 497 (Tex. Crim. App.
2000). In McCain, the Court was asked to determine whether the evidence was
sufficient to support a jury’s finding that the defendant committed aggravated
robbery. The complainant was physically attacked and robbed by the defendant. Id.
at 499. The complainant testified that she saw a knife in the defendant’s back pocket
during the offense. Id. There was no evidence that McCain touched, brandished, or
16
referred to the knife during the robbery. Id. After the robbery, a butcher knife was
found on the defendant. Id.
Considering the standard set for determining the sufficiency of the evidence in
Jackson v. Virginia2, the Court found that any rational trier of fact could have found
that the knife was exhibited during the criminal transaction because the knife was
exposed and visible during the crime. Id. at 503. But the court was careful to point
out that it was not “equating mere possession with ‘use or exhibit.’” Id. And it
acknowledged that its decision may have differed if the knife had been completely
covered. Id. at 503 (“Had the knife been completely concealed by appellant’s clothing,
additional facts would have been needed to establish that the butcher knife was
used.”).
Lawson told law enforcement that he thought he saw the outline of a gun
under appellant’s sweatshirt. (CR 46; Appendix A). His own statement evidences his
uncertainty of its presence. Unlike in McCain, no weapon was found. And even if
there is sufficient evidence to believe that one of the suspects was carrying a gun,
there is no evidence that it was exposed or used to facilitate the commission of the
robbery. There is no evidence that the supposed gun was consciously exposed. And
none of the perpetrators touched or displayed a weapon.
2 Cite
17
THERE IS NO EVIDENCE TO SUPPORT THE TRIAL COURT’S AFFIRMATIVE FINDING THAT
A DEADLY WEAPON WAS USED TO COMMIT THE OFFENSE
The purpose of the deadly weapon provision is to discourage and deter felons
from taking and using deadly weapons with them as they commit their crimes.
Plummer v. State, 410 S.W.3d 855, 864 (Tex. Crim. App. 2013). But this deterrence
rationale works only if the actor makes a conscious decision to “use” or “exhibit” the
weapon to assist in committing the felony. Id. Thus, the mere possession of a deadly
weapon during a felony offense is not covered by the statute. Id. Had the Legislature
intended that mere possession could trigger a deadly-weapon finding, it could easily
have said so. Id. Because the Legislature did not do so, it is only when the possession
of the deadly weapon “facilitates the associated felony” that the factfinder may make
an affirmative finding. Id. at 864-65.
The evidence establishes Lawson believed that he observed the outline of a gun
in appellant’s sweatshirt. (CR 46; Appendix A). No description of the alleged gun
was given. (CR 46; Appendix A). None of the suspects pulled out a gun, or
consciously exposed a gun. (CR 46; Appendix A). And Raden stated that he was
never in fear for his life. (CR 50; Appendix B). Despite being apprehended shortly
after the robbery, no weapon was ever found. (CR 19).
When interviewed about the offense prior to sentencing, none of the
complainants alleged that a weapon was used or exhibited during the offense. (CR
86-96; Appendix F). The defendant has continually maintained that, although he
18
participated in the robbery, no one had a weapon during the offense. (Appendix E).
Thus, the evidence is insufficient to support the court’s affirmative finding of a deadly
weapon despite appellant’s plea to the charge set forth in the information.
APPELLANT IS ENTITLED TO A NEW TRIAL IN THE INTEREST OF JUSTICE
Trial courts have the authority to grant new trials in the interest of justice.
“The discretion of the Court, in granting new trials, is almost the only protection to
the citizen against illegal or oppressive verdicts of prejudiced, careless, or ignorant
juries, and we think the [trial] Court should never hesitate to use that discretion
whenever the ends of justice have not been attained by those verdicts.” Mullins v.
State, 37 Tex. 337, 339-340 (1872); see State v. Gonzalez, 820 S.W.2d 9, 12 (Tex. App.--
Dallas 1991), aff’d, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993) (trial judges have had
discretion to grant new trials in interest of justice for more than 120 years); see also
State v. Dixon, 893 S.W.2d 286, 288 (Tex. App.--Texarkana 1995, no pet.) (trial court
did not abuse its discretion in granting new trial in interest of justice); State v. Lyons,
820 S.W.2d 46, 48 (Tex. App.--Fort Worth 1991, no pet.) (trial court retains discretion
to grant new trial in the interest of justice, apparently on any ground justice requires).
Appellant joined the United States Air Force in March 2009 and was honorably
discharged in March 2013. (CR 98-100, 113; Appendix E, G). During his time in the
service, he trained as a military police officer and received several commendations,
including the Good Conduct Medal, the Global War on Terrorism Expeditionary
19
Medal, the Longevity Service Award, and the Air Force Training Ribbon. (CR 98-
100, 113; Appendix E, G).
In 2011, appellant was deployed to Iraq. (CR 98-100; Appendix E). Prior to
this, he had never traveled outside of the country. (CR 98-100; Appendix E). During
his nearly six months in Iraq, appellant worked security for a base in an extremely
dangerous and volatile region. (CR 98-100; Appendix E). He describes his time as on
a constant state of alert. (CR 98-100; Appendix E). The base was mortared, on
average, three times a week. (CR 98-100; Appendix E). Appellant saw people die and
feels that he had to “get used to it.” (CR 98-100; Appendix E). He returned to San
Antonio during the summer of 2011, and attempted to reintegrate himself back into
society. (CR 98-100; Appendix E).
Shortly after returning home, appellant began experiencing severe anxiety and
anger. (CR 98-100; Appendix E). Not knowing why he was having these feelings,
appellant did not seek help. (CR 98-100; Appendix E). There is a stigma in the
military of weakness if you complain of service-related difficulties. (CR 98-100;
Appendix E). Appellant’s feelings of anxiety, anger, and depression progressed to the
point that he no longer enjoyed being in public or around other people. (CR 98-100;
Appendix E). He was honorably discharged from the service in March 2013. (CR 98-
100, 113; Appendix E, G).
Appellant’s anxiety in public prevented him from holding down steady
employment. (CR 98-100; Appendix E). When appellant would get in situations
20
where several people would be present, he would experience sweating, tunnel vision,
locked joints, and shaking. (CR 98-100; Appendix E). He would then become angry
at himself for feeling this way. (CR 98-100; Appendix E). In order to cope, appellant
began self-medicating with alcohol and marijuana. (CR 98-100; Appendix E). Prior
to committing the offenses, appellant engaged in drinking alcohol and smoking
marijuana with the co-defendants. (CR 98-100; Appendix E).
Immediately upon the appellant’s release on bond, he reported for treatment in
Atlanta, as directed by the trial court. (CR 98-100; Appendix E). On February 21,
2014, appellant was diagnosed with “sub-threshold Post Traumatic Stress Disorder
and PTSD.” (CR 115-118; Appendix H). Appellant was also referred to a counselor
for help with his depression and anxiety. (CR 115-118; Appendix H). Although
helpful, appellant’s symptoms continued to progress. (CR 115-118; Appendix H). As
a result, he was accepted into the Trauma Recovery Program on August 1, 2014. (CR
115-118; Appendix H). Appellant was scheduled to begin a psychoeducational and
treatment group on September 26, 2014. (CR 115-118; Appendix H).
On September 2, 2014, Dr. Belinda McIntosh, a staff psychiatrist at the Atlanta
VA Medical Center, confirmed appellant’s PTSD and Major Depressive Disorder
diagnoses. (CR 115-118; Appendix H). The doctor adjusted appellant’s medication
and scheduled a follow-up appointment. (CR 115-118; Appendix H).
The doctor confirms that studies establish that combat veterans with PTSD
“exhibit high rates of comorbidity with substance use disorders,” and that this “can
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exacerbate underlying symptoms.” (CR 115-118; Appendix H). Additionally, these
same veterans may also engage in impulsive and reckless behavior. (CR 115-118;
Appendix H). The behavioral changes in appellant after his deployment are
consistent with the pattern of behavior exhibited by some veterans with PTSD. (CR
115-118; Appendix H).
Dr. McIntosh, after close contact with appellant and his family, feels that
appellant’s mental illnesses are highly treatable. (CR 115-118; Appendix H). She feels
that appellant is highly motivated to get help and has the family support system to
ensure a good prognosis for recovery. (CR 115-118; Appendix H). However, should
he be prevented from receiving treatment and medications, his prognosis is “rather
grim.” (CR 115-118; Appendix H). The doctor also believes that “incarceration will
lead to a poor outcome” for appellant. (CR 115-118; Appendix H).
Dr. McIntosh’s opinion is newly discovered evidence that likely would have
had an impact on appellant’s sentence. To obtain a new trial based on newly
discovered evidence, appellant is required to show: (1) the evidence was unknown to
him at the time of trial; (2) his failure to discover the new evidence was not due to his
lack of due diligence; (3) the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and (4) the new evidence is probably true and
will probably bring about a different result in a new trial. Keeter v. State, 74 S.W.3d 31,
36-37 (Tex. Crim. App. 2002); TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2010).
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Appellant did not know the source of his anger and depression prior to
committing the offense. Appellant pled guilty to the two counts of aggravated
robbery within six weeks of the offense. Eight weeks later, the court conducted a
sentencing hearing. During the time between the pleas and the hearing, the court
appointed Dr. Ferrell to assist the defense. The doctor met briefly with appellant and
had him submit to testing. (RR II 24). The doctor’s testimony consisted of six pages
in the record. (RR II 23-28). He was not asked to detail the experiences appellant
endured in Iraq and how it affected his life back in the United States. The doctor
briefly discussed the symptoms associated with PTSD, but did not expound on
appellant’s specific symptoms and detail how long he had suffered from his affliction.
It was not until appellant received treatment from a hospital that specializes in issues
unique to veterans that it was learned the extent of appellant’s PTSD.
Appellant’s failure to discover this new evidence was not due to a lack of
diligence, but by the mental illness itself. Appellant suffered from PTSD for months
prior to the offense but did not have the tools to understand why he was experiencing
this and seek treatment. This new evidence would have been admissible at appellant’s
sentencing hearing and was not cumulative of Dr. Ferrell’s testimony. The doctor was
unable to provide the court with a complete picture of appellant’s PTSD because he
was not appellant’s treating physician and he did not spend a meaningful amount of
time with appellant.

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The trial court abused its discretion in allowing appellant’s motion for new trial
to be overruled by operation of law. The record establishes that the State did not
substantiate appellant’s plea in accordance with article 1.15 of the Texas Penal Code.
Additionally, the evidence does not support the trial court’s affirmative finding of a
deadly weapon. Finally, appellant was entitled to a new trial on punishment due to
newly discovered evidence regarding his PTSD. Appellant requests that his
conviction for aggravated robbery be reversed or reformed to robbery and his
sentence vacated. Appellant also requests that the cause be remanded and appellant
be granted a new punishment hearing.
CONCLUSION
Appellant respectfully urges this Court to sustain appellant’s points of error,
and reform appellant’s conviction to robbery and remand for a new trial as to
punishment.
/S/MANDY MILLER
Attorney for Matthew Douglas Hayes
2910 Commercial Center Blvd., Ste. 103-201
Katy, TX 77494
SBN 24055561
(832) 900-9884
FAX (877) 904-6846
mandy@mandymillerlegal.com
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CERTIFICATE OF COMPLIANCE
In accordance with the Texas Rules of Appellate Procedure, I hereby certify
that appellant’s supplemental brief, filed on February 11, 2015, has 5,572 words based
upon a word count under MS Word.
/S/MANDY MILLER
Attorney for Matthew Douglas Hayes
2910 Commercial Center Blvd., Ste. 103-201
Katy, TX 77494
SBN 24055561
(832) 900-9884
FAX (877) 904-6846
mandy@mandymillerlegal.com
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CERTIFICATE OF SERVICE
Appellant has mailed a copy of the foregoing instrument to counsel for the
State of Texas at the following address:
Rico Valdez
Bexar County District Attorney’s Office
101 W. Nueva, Fl. 4
San Antonio, Texas 78205
/s/MANDY MILLER
Attorney for Matthew Douglas Hayes
2910 Commercial Center Blvd., Ste. 103-201
Katy, TX 77494
SBN 24055561
(832) 900-9884
FAX (877) 904-6846
mandy@mandymillerlegal.com
Date: March 20, 2015
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