Bakari Abdul Brown v. State ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-15-00003-CR
NO. 09-15-00004-CR
___________________
BAKARI ABDUL BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause Nos. CR30879 and CR30880
__________________________________________________________________
MEMORANDUM OPINION
Bakari Abdul Brown appeals his convictions for possessing a controlled
substance and unlawfully possessing a firearm. In his appeal, Brown argues that
(1) the trial court abused its discretion by hearing Brown’s motion for new trial
without issuing a bench warrant to compel the State to present Brown for the
hearing, (2) the evidence is insufficient to support the jury verdict convicting
Brown of possessing a controlled substance, (3) the evidence is insufficient to
1
support the jury’s verdict convicting Brown of illegally possessing a firearm, and
(4) the trial court erred by failing to grant Brown’s motion to suppress. See Tex.
Health & Safety Code Ann. § 481.115(a), (d) (West 2010); Tex. Penal Code Ann.
§ 46.04(a) (West 2011). With respect to issue one, we hold that the trial court
abused its discretion by hearing Brown’s motion for new trial without issuing the
bench warrant he requested that would have compelled the State to make him
personally available for the hearing. However, we overrule issues two and three, in
which Brown complains the evidence is insufficient to support the judgment. We
also overrule issue four, in which Brown argues the trial court should have granted
his motion to suppress. Nonetheless, in light of our ruling on issue one, we abate
the appeal and remand the cause to the trial court to allow it to conduct an
evidentiary hearing in which Brown is provided the opportunity to attend.
Background
In January 2014, based on a tip from a confidential informant, officers with
the Liberty County Sheriff’s Department obtained a warrant to search the home of
Judith Daniels. The warrant allowed the police to search the home for controlled
substances, including cocaine. The affidavit that police used to obtain the warrant
was signed by a sheriff’s department deputy. In his affidavit, the deputy claimed
that the house where the search was to be conducted was being used by Daniels
2
and Brown to conceal controlled substances, which included cocaine. When the
police arrived at Daniels’ home to execute the warrant, the deputy saw Brown
sitting in a car in the driveway. While some of the officers involved in the search
were serving the search warrant on Daniels, the deputy briefly notified Brown of
the impending search and then arrested Brown. Subsequently, the deputy informed
Brown of his Miranda 1 rights. Brown waived his right to remain silent, and agreed
to show the deputy where the police could find drugs in Daniels’ home.
After Brown entered Daniels’ house, Brown directed the deputy to one of
the back bedrooms. While standing near a bed in one of the bedrooms, Brown
nodded his head toward the bed, indicating to the deputy that the officers who were
searching the bedroom should look under a blanket that was on top of the bed.
Beneath the blanket, the officers recovered a cloth bag containing three plastic
baggies. The baggies contained approximately 44 grams of a hard off-white
substance. Through subsequent testing, the substance in the baggies was found to
contain cocaine. Under the same blanket, the police also found a yellow bag, which
contained a loaded handgun. In other parts of the house, the officers found
ammunition for the gun, mail that was addressed to Brown at the address where the
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
3
search warrant was executed, digital scales, and cooking utensils. The cooking
utensils contained a white-powdery residue.
In April 2014, a grand jury indicted Brown for possessing cocaine weighing
between four and two hundred grams with the intent to deliver. See Tex. Health &
Safety Code Ann. § 481.112(a), (d) (West 2010). The same grand jury indicted
Brown for illegally possessing the handgun that the police recovered from Daniels’
home. Tex. Penal Code Ann. § 46.04(a).
Prior to the trial, Brown asked the court to suppress evidence recovered
during the search of Daniels’ home. During the suppression hearing, Brown argued
that the deputy who conducted the search promised him leniency in return for his
agreement to assist in the search. According to Brown, the deputy told him before
he agreed to assist in the search that he would “go to bat” for him, and Brown
argues that the statement amounted to a promise of leniency. Brown argues that
had the deputy not implied that he would not be charged with a crime if he helped
them search the home, he would not have waived his Miranda rights. According to
Brown, the deputy’s representation of leniency was false, rendering all of the
statements he made to the police thereafter involuntary.
Brown and the deputy who arrested Brown were the only two witnesses who
testified during the hearing conducted on Brown’s motion to suppress. During the
4
hearing, the court admitted a video taken by a camera inside the deputy’s truck,
which recorded the deputy and Brown talking about the search warrant. At the
conclusion of the hearing, the trial court denied Brown’s motion.
In December 2014, the case was tried before a jury. Although the trial court
submitted a charge that allowed the jury to consider whether Brown was guilty of
possession with intent to deliver, the jury failed to find him guilty on that issue,
and instead, the jury found him guilty of simple possession of cocaine with an
aggregate weight of between four and two hundred grams. The jury also found
Brown guilty of unlawfully possessing the handgun recovered from Daniels’ home.
See Tex. Health & Safety Code Ann. § 481.115(a), (d); Tex. Penal Code Ann. §
46.04(a).
In the punishment phase of the trial, Brown pleaded true to the allegations
that he had previously been convicted of several other felonies. After considering
the punishment evidence, the jury assessed a life sentence on the possession of
cocaine case and life sentence on the firearm case. See Tex. Penal Code Ann. §
12.42(d) (West Supp. 2016). 2
2
We cite the current version of the statute, as the amendments do not affect
the outcome of this case.
5
Following the trial, Brown filed motions for a new trial that are relevant to
his convictions for possessing cocaine and unlawfully possessing a firearm. Each
motion was supported by the affidavit of Jose Delgado. In his affidavits, Delgado
stated that he was waiting in Daniels’ home when Brown came to the house to take
him to a store. According to Delgado’s affidavits, before Brown arrived, Daniels3
was with Delgado inside the home, and Daniels told him that she had some cocaine
in a cloth bag that she had purchased from a person that Delgado identified by
initials. Delgado’s affidavits state that he asked Daniels to call Brown to come pick
him up and take him to a store, and that after Daniels called Brown, he saw Daniels
take the bag that she had in her hand to a rear bedroom. Delgado’s affidavits
indicate that when Brown came to Daniels’ home, he saw Brown go toward the
bedroom where Daniels was, but when he subsequently saw Brown leave, Brown
did not have the cloth bag with him. According to Delgado’s affidavits, he and
Brown were sitting in Brown’s truck in Daniels’ driveway when the officers came
to Daniels’ home to conduct their search. While he was waiting for the officers to
search Daniels’ home, Delgado’s affidavit indicates that he saw an officer leaving
the home with a handgun, and that he knew the handgun belonged to Daniels.
3
Brown called Daniels to testify during his trial. Daniels answered one
question that indicates that she lives at the home where the police conducted the
search. However, Daniels then invoked her Fifth Amendment right not to answer
further questions. See U.S. Const. amend. V.
6
Delgado’s affidavits also reflect that Delgado saw an officer with the cloth bag that
he had seen Daniels with earlier in the house that day.
In his affidavits, Delgado infers that Brown was unaware that Delgado knew
the handgun and cocaine that police found in the house belonged to Daniels.
According to Delgado’s affidavits, he informed Brown’s father just before
Christmas, but after Brown’s trial, that he knew the cocaine and handgun that
police found in Daniels’ home belonged to Daniels.
Before ruling on Brown’s motion, the trial court conducted a hearing. Both
prior to and during the hearing, Brown’s attorney asked the trial court to issue a
bench warrant to allow Brown to leave jail and attend the hearing on his motion.
Brown’s attorney also requested that the court continue the hearing to a date when
Brown could attend, but the trial court indicated that it did not believe that Brown
needed to be present for the hearing. Brown’s attorney also suggests that she
wanted the hearing rescheduled so that she could call Delgado to testify about the
matters he had addressed in his affidavits. The reporter’s record from the hearing
on the motion to suppress indicates that the trial court thought that Delgado’s
testimony would not show that the jury could not have found that the drugs and
handgun were possessed jointly by Brown and Daniels. Therefore, because the trial
court concluded that the jury could have convicted Brown even if Delgado had
7
testified, it appears the trial court considered the failure to present Delgado’s
testimony as harmless. At the conclusion of the hearing, the trial judge stated that
he was “going to deny [Brown’s] motion[,]” but also indicated that the court would
not reduce its ruling to writing, which resulted in Brown’s motion being denied by
operation of law. See Tex. R. App. P. 21.8(a), (c) (deeming motions that are not
ruled on by written order denied if not ruled on within 75 days of the date the
defendant was sentenced).
Motion to Suppress
Because the trial court ruled on Brown’s motion to suppress before the trial
commenced, we address his complaints about the suppression ruling first.
According to Brown, the trial court erred by failing to suppress the statements that
he made to the deputy who arrested him because the deputy promised, in return for
Brown’s assistance in searching the house, to help him avoid the consequences that
might result if he helped the officers search Daniels’ home. Brown claims that the
deputy’s representation that the deputy would “go to bat” for Brown amounted to a
promise that the deputy failed to fulfill. Brown suggests that the deputy did not
help him, but instead the deputy helped the State by providing the State with
material testimony that was used to convince the jury that Brown had exercised
care, custody, or control over the contraband found in Daniels’ home. According to
8
Brown, the deputy’s false promise to him made it impossible for him to
intelligently decide whether it was in his best interest to cooperate with the
deputy’s request that he assist in the search. Brown contends that all of the
evidence uncovered during the search of Daniels’ home is traceable to the decision
he made to assist the police in searching Daniels’ home.
We review a trial court’s ruling on a motion to suppress evidence for abuse
of discretion, using a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673
(Tex. Crim. App. 2007) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997)). In reviewing the suppression ruling, we give almost total deference to
the trial court’s findings of historical fact, when its findings are supported by the
record, and we also give the trial court almost total deference on any mixed
questions of law and fact when its resolution of those matters turned on evaluating
the credibility or demeanor of the witnesses who testified during the suppression
hearing. Id. However, we “review de novo ‘mixed questions of law and fact’ that
do not depend upon credibility and demeanor.” Id. (quoting Montanez v. State, 195
S.W.3d 101, 107 (Tex. Crim. App. 2006)); Guzman, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997). The arguments Brown advanced in support of his motion to
suppress required the trial court to decide whether Brown freely decided to assist
the police in searching Daniels’ home. As such, the trial court resolved a mixed
9
question of law and fact, as the trial court’s decision turned on the evaluation and
credibility of the witnesses who testified in the suppression hearing. See Amador,
221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App.
2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
Therefore, we review the trial court’s ruling by giving the trial court almost total
deference with respect to the ruling that is at issue on appeal. Amador, 221 S.W.3d
at 673.
During the hearing, the parties introduced evidence explaining the
circumstances that led to Brown’s decision to assist the officers in their search of
Daniels’ home. During the hearing, the trial judge also reviewed a video recording,
and the recording captured Brown’s conversation with the deputy about the
impending search of Daniels’ home. The video shows that Brown agreed to assist
the officers with the search only after the deputy informed Brown that any
statements that he gave to the police could be used against him. After Brown
agreed to assist the deputy, Brown went with the deputy and entered Daniels’
home. According to the deputy, who testified during the hearing, Brown led him to
the home’s rear bedroom, where Brown nodded in a manner indicating that the
officers should search the bed. Under a blanket on the bed, the police discovered
one yellow bag. The yellow bag contained a loaded handgun. Under the same
10
blanket, the police found a cloth bag. The cloth bag contained three baggies, which
contained an off-white substance that was later found through testing to contain
cocaine.
In the suppression hearing, the State had the burden of proving that Brown’s
statements were made voluntarily. See Gentry v. State, 770 S.W.2d 780, 789 (Tex.
Crim. App. 1988). Article 38.21 of the Texas Code of Criminal Procedure provides
that the statements of a person accused of a crime “may be used in evidence
against him if it appears that the same was freely and voluntarily made without
compulsion or persuasion[.]” Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005).
In determining whether a person made statements voluntarily, trial courts are
entitled to consider the circumstances under which the defendant made the
statements that are at issue in the appeal. See Delao v. State, 235 S.W.3d 235, 239
(Tex. Crim. App. 2007). In this case, the evidence introduced during the
suppression hearing shows that the deputy warned Brown that his statements could
be used against him before he made the statements at issue in the appeal.
Additionally, the video recording does not show that the deputy told Brown that he
had control over what the district attorney might charge Brown with if he assisted
them in the search, and it does not show that the deputy told Brown he would not
11
be charged. Instead, the recording shows the deputy told Brown that he could not
tell the district attorney to drop any charges.
Having carefully reviewed the evidence from the suppression hearing, we
conclude that the trial court was authorized based on the evidence that was before
it to find that Brown made a voluntary decision to assist the police in conducting
the search of Daniels’ home. See Delao, 235 S.W.3d at 240 (rejecting the argument
that misrepresentations made by the investigating officer along with other factors
revealed the evidence lacked support for the appellant’s claim that the statements
he made to the officer rendered them involuntary); Frank v. State, 183 S.W.3d 63,
75 (Tex. App.―Fort Worth 2005, pet. ref’d) (rejecting the defendant’s claim that
his statement had been involuntary based, in part, on the fact that the statement was
made after the defendant had been informed of his Miranda rights). Under the
circumstances that led to Brown’s arrest, the statement the deputy made to Brown
that he would “go to bat” for him amounted to nothing more than a promise to
inform the district attorney that Brown had cooperated in the search of Daniels’
home. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993)
(concluding that the defendant, following a suppression ruling denying his motion
to suppress, had failed “to demonstrate that the party in authority positively and
unequivocally promised leniency in return for a confession”). Based on the
12
evidence from the suppression hearing, and the standard of review that applies to
mixed questions of law and fact, the trial court’s ruling is supported by the
evidence that was admitted during the suppression hearing. See Amador, 221
S.W.3d at 673; Muniz, 851 S.W.2d at 253. We overrule issue four.
Sufficiency of Evidence
In issues two and three, Brown contends the evidence is insufficient to
support his convictions for possessing the cocaine and the handgun discovered in
the search of Daniels’ home. In his brief, Brown argues that the circumstantial
evidence linking him with the cocaine and handgun was insufficient to support the
jury’s conclusion that he possessed those items. In support of the arguments that
Brown makes to support issues two and three, Brown points to the testimony of
Vernice Beasley, the grandmother of Brown’s daughter, who testified that on the
date Daniels’ house was searched, Brown was living in her apartment. According
to Beasley, Brown started living at the apartment she rented in October 2013,
Brown kept his clothes at her apartment, Brown received mail there, and Brown
paid the apartment’s cable bill. A letter, dated February 10, 2014, and addressed to
Brown at the address for the apartment that Beasley rented, was admitted in the
hearing. The letter indicates that the account was past due, and it shows Brown as
the accountholder for the account.
13
Brown also notes that the evidence did not show that he had an exclusive
right of control over the contraband that police found in Daniels’ home. The
evidence from the hearing shows that the home belonged to Daniels. In the
hearing, Daniels testified that she still lives in the home that police searched, but
she then invoked her Fifth Amendment rights and declined to answer any further
questions. Brown suggests that the remaining evidence linking him to the drugs
and the handgun recovered from the home was insufficient to prove that he had
possessed those items. We note that Brown does argue that the evidence was
insufficient to prove the baggies contained cocaine, or to prove that the contents in
the baggies weighed approximately 44 grams. With respect to Brown’s firearm
offense, we also note that Brown does not argue that the evidence was insufficient
to show that he had previously been convicted of a felony, or that he had been
released from confinement or the conditions of supervision more than five years
before the police searched Daniels’ home. See Tex. Penal Code Ann. § 46.04(a)(1)
(West 2011).
In his appeal, Brown argues that the evidence was insufficient to support the
jury’s conclusion that he possessed the cocaine and the handgun that were
recovered from Daniels’ home. Possession is defined by the Penal Code as “actual
care, custody, control, or management.” Tex. Penal Code Ann. § 1.07(a)(39) (West
14
2011). In a sufficiency review, we review the evidence admitted during the
defendant’s trial in the light that most favors the jury’s verdict. See Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 894-95
(Tex. Crim. App. 2010). In reviewing the evidence, we do not substitute our
judgment for the factfinder’s; instead, we give deference to the jury to exercise its
responsibility to fairly resolve any conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from the facts. See Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In conducting a sufficiency review,
we are to uphold the jury’s verdict “unless a reasonable juror must have had a
reasonable doubt as to at least one of the elements of the offense.” Runningwolf v.
State, 360 S.W.3d 490, 494 (Tex. Crim. App. 2012).
When the evidence does not show that the defendant had an exclusive right
to possess the place where the police found contraband, the State is required to
demonstrate that either direct or circumstantial evidence affirmatively links the
defendant to the contraband. See Smith v. State, 176 S.W.3d 907, 916 (Tex.
App.―Dallas 2005, pet ref’d); Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim.
App. 1995); Gabriel v. State, 842 S.W.2d 328, 331 (Tex. App.―Dallas
1992), aff’d, 900 S.W.2d 721 (Tex. Crim. App. 1995). Nevertheless, the State is
not required to prove that the defendant had an exclusive right of possession to link
15
him to contraband found in a location that is not subject to the defendant’s
exclusive right to control. See State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.—
Houston [1st Dist.] 1998, pet. ref’d); McGoldrick v. State, 682 S.W.2d 573, 578
(Tex. Crim. App. 1985). In evaluating whether sufficient evidence exists to support
a jury’s conclusion that a defendant possessed contraband found in locations not
under the defendant’s exclusive control, courts examine a number of factors, which
include:
• whether the defendant was present when the search was conducted,
• whether the contraband was in plain view,
• whether the defendant was in proximity to and had access to the
contraband,
• whether the defendant was under the influence of drugs when arrested,
• whether the defendant possessed other contraband or narcotics when
arrested,
• whether the defendant made incriminating statements when arrested,
• whether the defendant attempted to flee,
• whether the defendant made furtive gestures,
• whether there was an odor of contraband,
• whether other contraband or drug paraphernalia were present,
16
• whether the defendant owned or had the right to possess the place where
the drugs were found,
• whether the place where the drugs were found was enclosed,
• whether the defendant was found with a large amount of cash, and
• whether the conduct of the defendant indicated a consciousness of guilt.
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); see also Nixon
v. State, 928 S.W.2d 212, 215 (Tex. App.—Beaumont 1996, no pet.). Nonetheless,
the State is not required to prove that all of these links are present; instead, the
“number of ... links is not as important as the logical force that they collectively
create.” Hubert v. State, 312 S.W.3d 687, 691 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d); see also Jones v. State, 338 S.W.3d 725, 742 (Tex. App.—
Houston [1st Dist.] 2011, aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).
Additionally, evidence that links a defendant to contraband can be direct or
circumstantial, but the logical force of the collective links must show the
defendant’s connection to the contraband was not merely fortuitous. See
Evans, 202 S.W.3d at 161; Smith, 176 S.W.3d at 916. In evaluating whether
sufficient evidence links the defendant to the contraband, “[t]he absence of various
affirmative links does not constitute evidence of innocence to be weighed against
the affirmative links present.” James v. State, 264 S.W.3d 215, 219 (Tex. App.—
17
Houston [1st Dist.] 2008, pet. ref’d); see also Williams v. State, 313 S.W.3d 393,
398 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Finally, the evidence about
the links need not exclude every theoretically reasonable innocent explanation that
might undercut the jury’s decision that tied the defendant to the contraband. See
Brown, 911 S.W.2d at 748.
In Brown’s case, the evidence shows that even before any contraband was
found, he began bargaining with the police in an effort to mitigate what he knew
they would likely discover during the impending search. The circumstantial
evidence shows that he knew where the contraband would be found inside Daniels’
home, as he led the police to the room where the cocaine and handgun was
recovered, and nodded at the bed indicating that the police should focus on the bed
in their search. After the officer found the bag that contained the cocaine and the
bag that contained the handgun under the blanket that was on top of bed, the
deputy asked Brown if any other drugs were in the home. Brown responded:
“That’s it[.]” The evidence allowed the jury to conclude that Brown not only knew
where the contraband would be found, but that he knew that no other illegal drugs
were being kept there. The evidence from the trial also shows that Brown told the
officers that no additional guns were in the home. The evidence allowed the jury to
conclude that Brown knew where the contraband was being hidden in the home,
18
indicating that his connection to the contraband was more than merely fortuitous.
Additionally, the officers who searched Daniels’ home found mail addressed to
Brown at the address of the house where the search occurred. The testimony of the
deputy in the trial indicates that objects found in another bedroom indicated to him
that Daniels used a bedroom other than the one where police found the contraband.
These facts offer additional circumstantial evidence that tend to link Brown with
the bedroom where the contraband was found.
In summary, the evidence linking Brown to the contraband found in the
bedroom of Daniels’ home was largely circumstantial. Nevertheless, the logical
force of the collective links show that Brown’s connection to the contraband was
not merely fortuitous. As the factfinder, the jury was entitled to infer from the
evidence that Brown had used the bedroom in Daniels’ home as a place to store the
cocaine and the firearm that they found there, and to conclude that he had a right of
control or management over the items that the police recovered there. See Johnson
v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). We hold that the evidence
authorized the jury to reasonably find that Brown knowingly possessed the cocaine
and the handgun that the police found in the bedroom of Daniels’ home. See
Williams, 235 S.W.3d at 750. We further hold that the evidence contains sufficient
affirmative links to establish that Brown was guilty of possession of cocaine and
19
illegal possession of a firearm. See Jackson, 443 U.S. at 319; see also Jones, 338
S.W.3d at 743.
Motion for New Trial
Following his trial, Brown filed motions for new trial in both of the trial
court cause numbers that are on appeal. In his motions, Brown asserted he had
discovered new evidence since his trial that was relevant and that tended to
exonerate him. Brown supported both motions with an affidavit executed by Jose
Delgado. On appeal, Brown contends the trial court abused its discretion by
denying his request to personally attend the hearing the trial court held on his
motions, and abused its discretion by failing to conduct an evidentiary hearing,
based on his argument that Delgado’s affidavits raised matters that could not be
determined solely from the information in Delgado’s affidavits. The trial court
indicated in the hearing that it considered Brown’s presence to be unnecessary. In
its brief, the State failed to address Brown’s claim that the trial court abused its
discretion by failing to grant Brown’s request for a bench warrant that would have
required the State to bring Brown to the hearing.
We review challenges to a trial court’s ruling on a motion for new trial using
an abuse-of-discretion standard. See Webb v. State, 232 S.W.3d 109, 112 (Tex.
Crim. App. 2007). Defendants in felony prosecutions have a statutory right to be
20
present at their trials. Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006); See
Routier v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003). This right includes
the right to be present at a hearing on a motion for new trial. See Phillips v. State,
288 S.W.2d 775, 776 (Tex. Crim. App. 1956); see also Coons v. State, 758 S.W.2d
330, 339 (Tex. App.―Houston [14th Dist.] 1988, pet. ref’d). We hold the trial
court abused its discretion by conducting the hearing on Brown’s motions for new
trial without requiring the State to bring Brown to the hearing.
Nonetheless, we must also determine if Brown was harmed because he was
not allowed to attend the hearing. See Tex. Code Crim. Proc. Ann. art. 33.03. In
evaluating harm, we must determine if the defendant’s “substantial rights” were
affected by the trial court’s violation of article 33.03. Id.; Tracy v. State, 14 S.W.3d
820, 827 (Tex. App.―Dallas 2000, pet. ref’d) (applying harm analysis under Rule
44.2(b) of the Texas Rules of Appellate Procedure to a violation of article 33.03).
In Brown’s case, Delgado’s affidavits, which accompanied Brown’s motions for
new trial, suggest that Brown was unaware that Delgado could have testified that
Daniels was the person that owned the handgun and cocaine that were recovered in
the search of Daniels’ home. When assessing harm, we consider whether Brown
could have provided relevant testimony that the court would have been required to
21
consider in deciding Brown’s motion. See Mares v. State, 571 S.W.2d 303, 307
(Tex. Crim. App. 1978).
In this case, Brown was unavailable to explain that he was unaware before
his trial that Delgado could have tied the handgun and the cocaine to Daniels, even
though the evidence at trial shows that prior to his arrest, he knew that Delgado
had been in Daniels’ home. Id. As questions regarding Brown’s knowledge about
what Delgado knew were material to whether Delgado’s affidavit constituted
newly discovered evidence, we are unable to conclude that Brown was not harmed
by the trial court’s decision refusing to grant Brown’s request asking the court to
issue a bench warrant so that he could attend the hearing. Id; see Tex. Code Crim.
Proc. Ann. art. 40.001 (West 2006) (granting a defendant a new trial when
favorable material evidence is discovered after trial); see also Wallace v. State, 106
S.W.3d 103, 108 (Tex. Crim. App. 2003) (explaining that a defendant must be
granted a new trial if the newly discovered evidence was not known to him at the
time of trial; if the defendant’s failure to discover the evidence was not from his
lack of due diligence; if the new evidence would be admissible and not cumulative,
corroborative, collateral, or impeaching; and if the new evidence is probably true
and would probably bring about a different trial result).
22
We abate the appeal and remand both of Brown’s cases to the trial court to
allow it to conduct an evidentiary hearing on Brown’s motion for new trial. The
trial court is directed to allow Brown to attend the hearing, and following the
hearing, to cause to be filed in this Court a supplemental clerk’s record that
contains the trial court’s order on Brown’s motions for new trial and a reporter’s
record that reports the hearing. We direct the court to conduct the hearing on
Brown’s motion within ninety days of the Court’s opinion.4
ABATED.
______________________________
HOLLIS HORTON
Justice
Submitted on January 13, 2016
Opinion Delivered October 5, 2016
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
4
In light of our resolution of Brown’s motion for new trial hearing, we need
not address Brown’s argument that the trial court erred in failing to conduct an
evidentiary hearing on his motion. See Tex. R. App. P. 47.1.
23