Thomas George Griswold, III v. the State of Texas ( 2023 )

AFFIRMED and Opinion Filed June 13, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01561-CR
THOMAS GEORGE GRISWOLD, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-19-0884
MEMORANDUM OPINION ON REMAND
Before Justices Molberg, Goldstein, and Smith
Opinion by Justice Goldstein
Thomas George Griswold, III appeals his conviction for the third-degree
felony offense of stalking. A jury convicted Griswold and sentenced him to ten
years’ confinement. In three issues, Griswold asserts (1) the evidence is legally
insufficient to support his conviction, (2) the trial court abused its discretion by
denying his motion for new trial without conducting an evidentiary hearing, and (3)
the trial court erred by denying his motion to quash the indictment because the
stalking statute is unconstitutionally overbroad and vague on its face.
On original submission, this Court determined that the stalking statute, section
42.072(a) of the penal code, was unconstitutionally overbroad and vague on its face
to the extent it incorporates section 42.07(a)(7) and includes the terms “harass,
annoy, alarm, abuse, torment, embarrass, or offend”; reversed the trial court’s
judgment; and remanded to the trial court to dismiss the indictment.
The Texas Court of Criminal Appeals vacated this Court’s judgment and
remanded this case for further consideration in light of its opinions in Ex parte
Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), cert denied, 143 S. Ct. 774(February 21, 2023), and Ex parte Sanders, 663 S.W.3d 197 (Tex. Crim. App. 2022),
in which the court of criminal appeals upheld the facial constitutionality of a
previous version of section 42.07(a)(7). See Acts 2001, 77th Leg., ch. 1222 (S.B.
139), § 1, eff. Sept. 1, 2001.1 The Texas Court of Criminal Appeals recognized that
“[t]he indictment in this case alleged conduct that occurred on or about January 1,
2007 through April 24, 2018” and “[t]herefore, at least a portion of Appellant’s case
involves a challenge to the version of section 42.07 that became effective after being
amended by the legislature in 2017” See Acts 2017, 85th Leg., ch. 522 (S.B. 179),
1
See also State v Chen, 2022 WL 3641038, Tex. Crim. App., Aug. 24, 2022, withdrawn and superseded
on rehearing by.Ex parte Chen 665 S.W.3d 448 (Tex. Crim. App. 2022) writ of cert dismissed pursuant to
Rule 46, February 16, 2023 (143 S. Ct. 649).
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§ 13, 14, eff. Sept. 1, 2017.2 Griswold v. State, 662 S.W.3d 864–65 (Tex. Crim.
App. 2022).
Background
Griswold was indicted for stalking under section 42.072 of the penal code for
conduct beginning on or about January 1, 2007 and ending on April 24, 2018.
Specifically, the indictment alleged that Griswold:
did then and there on more than one occasion and pursuant to the same
scheme or course of conduct directed specifically toward [the
complainant] that [Griswold] knowingly engaged in conduct that
constituted an offence under section 42.07 and/or conduct that
[Griswold] knew or reasonably should have known [the complainant]
would regard as threatening bodily injury for [the complainant] and or
bodily injury or death, and did cause [the complainant] to be placed in
fear of bodily injury or death, to-wit:
The Defendant repeatedly communicated with [the complainant]
that God had made the two of them one flesh, that she was his wife, and
made repeated requests for sexual contact with [the complainant];
The Defendant repeatedly made public declarations on Facebook
that God had made the two of them one flesh, that [the complainant]
was his wife, and made repeated requests for sexual contact with [the
complainant]
2
We note that Section 42.07 was amended three times during the time frames relevant here. Acts 2001,
77th Leg., ch. 1222, § 1, eff. Sept. 1, 2001; Acts 2013, 83rd Leg., ch. 1278 (H.B. 1606), § 1, eff. Sept. 1,
2013; Acts 2017, 85th Leg., ch. 522 (S.B. 179), §§ 13, 14, eff. Sept. 1, 2017. For purposes of our opinion
on remand, the amendments do not require additional analysis of the terms “harass, annoy, alarm, abuse,
torment, embarrass, or offend.” Barton was charged with harassment, alleged offenses that occurred in
2012, under the definition of electronic communication analyzed under the 2001 version noting the current
version is at Texas Penal Code section 42.07(a)(1). Sanders was governed by the 2013 version of the
electronic harassment statute. The definition of electronic communication was expanded relative to the
method or medium of transmission in 2017 and the 2013 amendments principally amended the stalking
statute to incorporate the offense of harassment. The 2001 version defined electronic communication as “a
communication initiated by electronic mail, instant message, network call or facsimile machine” and “to a
pager.” Barton, 662 S.W.3d at 878 n.1, 2; see also Sanders, 663 S.W.3d at 201 n.1, 2. Here the expansive
mode of the transmission raised in Presiding Judge Keller’s dissent are directly at issue, as the indictment
asserts five specific allegations of repeated communications, public declarations on Facebook, public
statements, and public threats. The majority opinions in Barton and Sanders focus on the non-speech
conduct, the act of sending the communication, rather than, or irrespective of, the mode of transmission.
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The Defendant repeatedly made public statements about
Gamma-Hydroxybutyrate, a common date rape drug;
The Defendant made public statements that he needed "to kill
people over" [the complainant];
The Defendant made public threats involving killing people,
specifically anyone that touches [the complainant] and direct threats to
the complainant’s] boyfriend;
The indictment continued by alleging Griswold’s conduct caused the complainant
“to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended”
and “would cause a reasonable person to feel harassed, annoyed, alarmed, abused,
tormented, embarrassed, or offended.”
At the time Griswold was indicted, section 42.072 of the penal code, entitled
“Stalking” provided:
(a) A person commits an offense if the person, on more than
one occasion and pursuant to the same scheme or course of
conduct that is directed specifically at another person, knowingly
engages in conduct that:
(1) constitutes an offense under Section 42.07, or that the actor
knows or reasonably should know the other person will
regard as threatening:
(A) bodily injury or death for the other person;
(B) bodily injury or death for a member of the other
person’s family or household or for an individual with
whom the other person has a dating relationship; or
(C) that an offense will be committed against the other
person’s property;
(2) causes the other person . . . to feel harassed, annoyed,
alarmed, abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to:
....
(D) feel harassed, annoyed, alarmed, abused, tormented,
embarrassed, or offended.
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TEX. PENAL CODE ANN. § 42.072(a). Section 42.07, the “electronic-
communications-harassment statute,” provided:
(a) A person commits an offense if, with intent to harass, annoy,
alarm, abuse, torment, or embarrass another, the person:
...
(7) sends repeated electronic communications in a manner
reasonably likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another.
TEX. PENAL CODE ANN. § 42.07(a)(7). Also, at the time of the indictment, the
definition of electronic communication encompasses current forms of
communication and means:
a transfer of signs, signals, writing, images, sounds, data, or intelligence
of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic, or photo-optical system. The term
includes:
(A) a communication initiated through the use of electronic mail,
instant message, network call, a cellular or other type of telephone, a
computer, a camera, text message, a social media platform or
application, an Internet website, any other Internet-based
communication tool, or facsimile machine; and
(B) a communication made to a pager.
TEX. PENAL CODE ANN. § 42.07(b)(1).
Prior to trial, Griswold filed a motion to quash the indictment alleging the
stalking statute was unconstitutionally vague and overbroad, to the extent it
incorporates the harassment statute, section 42.07(a)(7), and includes the terms
harass, annoy, alarm, abuse, torment, embarrass, or offend, relying upon Ex parte
Barton, 586 S.W.3d 573, 583‒85 (Tex. App.—Fort Worth 2019) (op. on reh’g),
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rev’d, 662 S.W.3d 876 (Tex. Crim. App. 2022). After a hearing, the trial court
denied the motion and proceeded to trial.
C.F., the complainant, testified that, after graduating from Rockwall High
School with Griswold in 2006, Griswold began a pattern of frequent text, voicemail,
email, and social media messaging to her. C.F. had never kissed or dated Griswold
and had not “been intimate in any way whatsoever” with Griswold. There was “not
initially” anything troubling with Griswold’s communications, and C.F. “was trying
to just be nice to him.” However, within a few months, the frequency of the contact
started to scare C.F. C.F. changed her Summer 2006 plans from being a church
camp counselor because she found out Griswold signed on to attend. In Spring of
2007, Griswold’s letters began stating that Griswold was a prophet and God was
telling him that C.F. was meant to be his wife. C.F. never spoke with Griswold after
June 2007.
In Fall 2007, Griswold transferred to West Point. Griswold told C.F. he would
kill for her, which scared C.F. because Griswold was at West Point “training to be
able to use weapons.” In one letter, Griswold told C.F. “Please don’t be afraid of
me,” apologized for “the stress this has caused” C.F., and wrote that he was
“begging” C.F. “please don’t get me in trouble for this.” In November 2007, C.F.’s
father (Father) flew to West Point with Griswold’s father and left with the
understanding that Griswold’s commanding officer would order Griswold to end
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communication with C.F. However, Griswold did not stop communicating with C.F.
Griswold also ignored a cease and desist letter from an attorney.
At the end of 2007, Griswold resigned from West Point, and “things did go
quiet for a little while.” Griswold began contacting C.F. again when she started
dating B.D., the man she eventually married. C.F. made her social media private,
but Griswold used “different Facebook profiles” to get in. As a result, C.F. and her
friends all had to continually block Griswold’s different accounts to prevent
Griswold from obtaining information about what C.F. was doing. At that time, C.F.
was scared that Griswold would “do whatever he needs to to actually physically get
to” C.F. but C.F.’s “bigger fear” was that Griswold “would hurt someone [C.F.]
loved to get to” C.F. C.F. also feared that Griswold might sexually assault her.
C.F. knew Griswold had dabbled in drugs in high school and college, and
Griswold told her he was high on LSD when he “baptized himself in his parents’
pool” and “Jesus came down and told him that [C.F.] was his wife.” In 2015 and
2016, C.F. became more frightened when Griswold mentioned “injecting
methamphetamine.” As a medical professional, C.F. knew that particular drug
“makes you more reckless.” On Facebook, Griswold posted “open discussions”
about the date rape drug GHB. When Father again attempted to intervene to stop
Griswold, Griswold directed some of his anger toward Father, saying Father was
“keeping [C.F.] from him.” On March 2, 2016, Griswold sent a message saying
“Burn [C.F.] with unquenchable fire for the literal expanse of eternity if I do not get
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to be with my wife ([C.F.]) in the next three months.” This “time limit” scared C.F.
“a lot more” because it indicated that Griswold had “some kind of a plan in place”
and “there might be something harmful at the end of that for [C.F.] or [her] family”
if Griswold did not get what he wanted.
In March 2016, Father met with Detective Burks of the Rockwall Police
Department. Burks filed harassment charges against Griswold, who lived in
Rockwall County. Griswold pled guilty to harassment based upon his conduct that
was directed towards Father, did not claim insanity, and was placed on probation on
February 16, 2017 for 24 months. Griswold violated his probation by drinking
alcohol and contacting C.F. through Facebook six times.
After C.F.’s divorce from B.D. was finalized in 2018, Griswold’s
communications toward her became more focused on sex. In a series of posts on
Facebook, Griswold wrote about C.F. living as his “sex slave” and said he would
not “overly stalk you babies if you’ll still be my friend.” Griswold also sent C.F.
“video after video” directly. C.F. immediately turned off her social media.
The jury convicted Griswold of stalking as charged in the indictment and
sentenced him to ten years in prison. He then filed a motion for new trial, which the
trial court denied. This appeal followed.
DISCUSSION
A. Third Issue on Remand
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We first address Griswold’s third issue, in which he challenges the
constitutionality of the stalking statute.3 In particular, he contends the harassment
statute, which is incorporated by direct reference into the stalking statute, is
unconstitutionally vague and overbroad because the words “harass, annoy, alarm,
abuse, torment, or embarrass” “leaves the electronic-communications subsection
open to various ‘uncertainties of meaning.’” In two recent opinions, the Texas Court
of Criminal Appeals disagreed.
In Barton, the appellant was charged with violating penal code section
42.07(a)(7). Appellant filed a motion to quash the information arguing that the
statute was unconstitutional and that the information failed to provide adequate
notice because it lacked specificity. The motion was denied after a hearing.
Appellant then filed a pre-trial application for habeas corpus relief again raising the
constitutionality of the statute. The trial court denied relief, but the court of appeals
held section 42.07(a)(7) unconstitutional and reversed. Ex parte Barton, 586 S.W.3d
at 585. The court of criminal appeals determined that, for First Amendment
purposes, the conduct regulated by section 42.07(a)(7) is non-speech conduct that
3
Griswold’s Motion to Quash the Indictment was based solely on the provisions of the stalking statute
that incorporate the harassment statute. To the extent Griswold seeks to challenge the constitutionality of
the stalking statute on another basis on appeal, the constitutional challenge was not presented to the trial
court and therefore is not preserved for our review. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.
App. 2009) (holding appellant may not raise facial challenge to constitutionality of statute for first
time on appeal). Even if preserved, this Court has upheld the facial constitutionality of the stalking
statute. Taherzadeh v State, 648 S.W.3d 681 (Tex. App.—Dallas 2022); see also State v. Seibert,
156 S.W.3d 32 (Tex. App.—Dallas 2004).
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does not implicate the First Amendment. Barton, 662 S.W.3d at 885. The court of
criminal appeals held that section 42.07(a)(7), the electronic harassment statute, is
not facially unconstitutional. Id. The court reversed the judgment of the court of
appeals and remanded for further proceedings.
In Sanders, the appellant was also charged with violating penal code section
42.07(a)(7). The court held that, on its face, section 42.07(a)(7), the electronic
harassment statute, proscribes non-speech conduct that does not implicate the
protections of the First Amendment, although elements of speech may be employed
to commit the offense. Sanders, 663 S.W.3d at 216.
In light of these authorities, we are constrained to reject Griswold’s facial
constitutional challenge to the stalking statute insofar as it incorporates the
harassment statute. See Barton, 662 S.W.3d at 885; Sanders, 663 S.W.3d at 216.
We overrule Griswold’s third issue.4
B. First Issue: Legally Sufficiency
In his first issue, Griswold argues the evidence is legally insufficient to
support his conviction. Specifically, Griswold complains that, while the evidence
4
Griswold does not challenge the constitutionality of the statute as applied to the allegations in the
indictment nor does he seek First Amendment protections of the alleged content-based conduct. While
Barton and Sanders rely on non-communicative based conduct to support the facial constitutionality of the
harassment statute and, for our purposes, the stalking statute, we are not presented with an opportunity for
an as applied analysis, and we are therefore precluded from doing so. “The question of whether the statute
is vague will have to wait for a proper as-applied challenge.” Barton, 662 S.W.3d at 885. Further, while
this case illustrates the inability to divorce content from conduct in the harassment context, as incorporated
into the stalking statute, we are also not presented with an opportunity to conduct an overbreadth analysis
under the First Amendment as there is no contention that Griswold’s communications were protected
speech, either at the trial court or on appeal. See Barton, 662 W.W.3d at 886-87 (Keller, P.J., dissenting)
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was sufficient for the jury to reject his defense of insanity, the evidence was
nevertheless insufficient to establish that he acted knowingly when he committed
the alleged offenses.
We apply well-known standards when reviewing challenges to the legal
sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We view all of the
evidence in the light most favorable to the prosecution and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Villa v State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). We
measure the legal sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234,
239–40 (Tex. Crim. App. 1997). The hypothetically correct jury charge sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried. Id. at
240.
We must give deference to the responsibility of the trier of fact to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Villa, 514 S.W.3d at 232. Our role is
only to ensure that the jury reached a rational conclusion, not to re-evaluate the
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weight and credibility of the evidence. See Muniz v. State, 851 S.W.2d 238, 246
(Tex. Crim. App. 1993).
Circumstantial evidence is as probative as direct evidence in establishing the
accused’s guilt. Hooper v. State, 214 S.W.3d 9, 13 Tex. Crim App. 2007). Each
fact need not point directly and independently to the guilt of the appellant, as long
as the cumulative force of all the incriminating circumstances is sufficient to support
the conviction. See id. Juries are permitted to draw multiple reasonable inferences
as long as each inference is supported by the evidence presented at trial. Id. at 15.
Juries are not permitted to come to conclusions based on mere speculation or
factually unsupported inferences or presumptions. Id. An inference is a conclusion
reached by considering other facts and deducing a logical consequence from them,
while speculation is mere theorizing or guessing about the possible meaning of facts
and evidence presented. Id. at 16.
Griswold first concedes that the evidence is sufficient to establish that he
could not rely on his insanity defense. However, Griswold asserts that the evidence
is insufficient to show he had the required mental state when he committed the
alleged bad acts. Specifically, Griswold repeatedly argues there is no evidence that
he knew when he sent a message that the message “constituted an offense under
42.07” or that it would be interpreted as a threat of bodily injury or death to C.F. or
a member of her family or a person with whom she was in a dating relationship. In
making this argument, Griswold cites the testimony of the State’s expert, Dr.
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Mitchell Dunn, that mentally ill people like Griswold may know that an act is
criminal even when they do not “necessarily believe they were wrong.”
Here, as limited by the indictment and a hypothetically correct jury charge,
the State had to prove that Griswold: (1) on more than one occasion; (2) pursuant to
the same scheme or course of conduct directed specifically toward C.F.; (3)
knowingly engaged in conduct that constituted an offense under section 42.07 and/or
conduct that Griswold knew or reasonably should have known that C.F. would
regard as threatening bodily injury for C.F. and or bodily injury or death; (4) did
cause C.F. to be placed in fear of bodily injury or death and would cause a reasonable
person to fear bodily injury or death for herself. See TEX. PENAL CODE ANN. §
42.072(a) (emphasis added). The indictment listed five specific allegations of
repeated communications, public declarations on Facebook, public statements, and
public threats. Thus, even if Griswold did not “know” that his decade-long barrage
of letters, messages, and contacts constituted an offense under section 42.07 or
would cause C.F. to be placed in fear of bodily injury or death, that does not end our
inquiry. The question before us is whether the evidence is legally sufficient to
establish that Griswold reasonably should have known that his behavior would have
such an effect. See id.
Griswold was charged with stalking over a decade-long period of time. The
undisputed evidence showed, among other things, that Griswold repeatedly sent
emails, letters, cds, and text messages during that time frame. The jury could
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rationally have believed that these actions constituted a course of conduct, occurring
on more than one occasion, that was directed specifically at C.F. There was evidence
from which the jury could have rationally concluded that C.F exhibited behavior
objectively demonstrating fear of Griswold’s conduct.
Critically, there is evidence from which the jury could have rationally
concluded that Griswold knew or reasonably should have known that C.F. would
regard his behavior as threatening bodily injury for C.F. and/or bodily injury or
death. Among the communications attributed to, or known by, Griswold, and before
the jury, were the following:
• Facebook message to C.F. and two others: “Can I get your
current phone numbers or get you to unblock Me on your
current phone numbers?
• A Facebook message “I have a real Facebook Account you
all have blocked. I won’t overly stalk you…. I’ll never be
sane again if I don’t get to have sex with C.F….”
• Numerous text messages where Griswold refers to C.F. as
his wife and he her husband, they are of “one flesh”
• “God made [C.F.] and I one flesh in 2007”
• “In 2007, God told Me to pursue her [C.F.] as I
would wisdom… and ‘the two became one flesh’”
• In an email to C.F. in August of 2007: “ I am going to kill
people for a living, i would kill any man that would touch
you (if we happen like I think we do). I would kill any one
that would touch our children (if that ever happened) I am
not afraid of any thing [C.F.]. There is nothing I fear.”
• In an October 11, 2007 text to C.F. Griswold stated “your
fear is unjust”
 Undated handwritten letter that states “Please don’t be afraid
of me.”
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• A December 20, 2007 Criminal Trespass Letter was sent to
Griswold putting him on notice that he is not welcome at
identified properties where CF or her family reside, along
with notification of the offense of Criminal Trespass.
• A Judgment and Order Granting Deferred Adjudication after
having pled guilty to the offense of Harassment signed
February 16, 2017, that included a condition that Griswold
“will have no contact, direct or indirect,” with C.F.’s Father,
or his family members, including C.F.
• In April 2018, Griswold posted Facebook messages relative
to his “need to have sex” with C.F.
• Undated statements in Facebook postings by Griswold:
 “I'm meant to love a woman and when the army
officers, the policemen, the angry fathers, my parents
and the medical professionals tell me to stop...I don't.
Not because it is hard for me to do. But because I can't
not.”
 “Do you realize the girl’s Fathers are ready to prosecute
you? Look… calm down… I hit on your daughter…
this is my third manic episode..just ignore the raucous
and kindly let me manifest my messiah complex… ”
 “sorry to embarrass you [C.F]….”
 “I need to kill people over [C.F.] to feel okay and I
never will so I'll never feel okay so just kill me.
Anybody. Please . “
 “Who is [B.D.] where did he take her why did he take
her from Tommy Griswold… I parade around
everything that knows I'm the Truth if you try to take
her from me I will kill everything I ever knew could
ever exist that could take her from me”
Thus, the record shows Griswold was subjected to repeated interventions attempting
to get him to cease and desist contacting C.F., including a court order to have no
direct or indirect contact with C.F.; nevertheless, Griswold’s public statements and
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contact with C.F. increased in frequency, escalated in sexually explicit content and
threats of harm. Given the evidence and the record, the jury rationally could have
concluded that Griswold knew or reasonably should have known that his constant
messaging would be regarded by C.F. as threatening bodily injury for C.F. and or
bodily injury or death, and did cause C.F. to be placed in fear of bodily injury or
death. On the record before us, we determine a rational trier of fact could have
found the essential elements of the offense as set out in the hypothetically correct
charge for stalking beyond a reasonable doubt. See Villa, 514 S.W.3d at 232; Malik,
953 S.W.2d at 239–40. We overrule Griswold’s first issue.
C. Second Issue: Motion for New Trial
In his second issue, Griswold complains that the trial court erred in denying
his motion for new trial without conducting an evidentiary hearing. The purpose of
a hearing on a motion for new trial is to: (1) decide whether the cause shall be retried
and (2) prepare 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). Such a hearing
is not an absolute right. Id. A hearing is not required when the matters raised in the
motion for new trial are subject to being determined from the record. Id.Conversely, a trial judge abuses his discretion in failing to hold a hearing on a motion
for new trial when that motion raises matters which are not determinable from the
record. Id. To hold otherwise would deny the accused meaningful appellate review.
Id.–16–
Recognizing that an unrestricted requirement of a hearing on matters not
determinable from the record could lead to “fishing expeditions,” the court of
criminal appeals has also held that even a defendant who has raised such matters is
not entitled to a hearing on his motion for new trial unless he establishes the
existence of reasonable grounds showing that the defendant could be entitled to
relief. Id. at 339. Thus, as a prerequisite to a hearing when the grounds in the motion
are based on matters not already in the record, the motion must be supported by an
affidavit, either of the defendant or someone else, specifically setting out the factual
basis for the claim. Id. The affidavit need not establish a prima facie case, or even
reflect every component legally required to establish relief. Id. It is sufficient if a
fair reading of it gives rise to reasonable grounds in support of the claim. Id. But
affidavits that are conclusory in nature and unsupported by facts do not provide the
requisite notice of the basis for the relief claimed; thus, no hearing is required. Id.When examining a trial court’s denial of a hearing on a motion for new trial,
we review for an abuse of discretion. Id. In so doing, we reverse only when the trial
judge’s decision was so clearly wrong as to lie outside that zone within which
reasonable persons might disagree. Id. And in the absence of such an abuse of
discretion this Court would not be justified in reversing the judgment. Id. at 340.
Our review, however, is limited to the trial judge’s determination of whether the
defendant has raised grounds that are both undeterminable from the record and
reasonable, meaning they could entitle the defendant to relief. Id. This is because
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the trial judge’s discretion extends only to deciding whether these two requirements
are satisfied. Id. If the trial judge finds that the defendant has met the criteria, he
has no discretion to withhold a hearing. Id. In fact, under such circumstances the
trial judge abuses his discretion in failing to hold a hearing. Id.The record here shows that, during voir dire, the prosecutor projected an
image of Charles Manson on a screen for the jury to see. The prosecutor made the
point that Manson was “absolutely insane” but still criminally responsible for his
conduct and also mentioned Hinkley and other famous defendants who claimed
insanity as a defense before stating the standard in Texas to find insanity. Griswold
made no objection. On December 19, 2019, Griswold filed a motion for new trial in
which he alleged that the prosecutor, when showing the picture of Charles Manson,
sent an “unstated or non-verbal message” to the jurors that Griswold is comparable
“in a way that is harmful” to Manson. The motion was supported by the declaration
of Griswold’s mother who stated: (1) during jury selection the attorney for the State
projected an image of Charles Manson onto a screen for the jury to see and (2) as a
spectator this looked like her son being compared with Charles Manson.
Griswold did not object during voir dire when the State showed an image of
Charles Manson to the jury in the context of a discussion about insanity. The trial
in this case concluded on November 20, 2019 and Griswold filed his motion for new
trial on December 19, 2019. A defendant may not raise a matter for the first time in
a motion for new trial if he had the opportunity to raise it at trial. Colone v. State,
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573 S.W.3d 249, 260 (Tex. Crim. App. 2019); see TEX. R. APP. P. 33.1 (complaint
must be “timely”). We conclude that, by failing to object or otherwise challenge the
State’s use of Charles Manson’s image, Griswold could not raise the issue for the
first time in a motion for new trial. See Colone, 573 S.W.3d at 260. Accordingly,
the trial court did not abuse its discretion in neither holding the requested evidentiary
hearing nor denying Griswold’s motion for new trial. See Smith, 286 S.W.3d at 339.
We overrule Griswold’s second issue.
We affirm the trial court’s judgment.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
191561F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THOMAS GEORGE GRISWOLD, On Appeal from the 382nd Judicial
III, Appellant District Court, Rockwall County,
Texas
No. 05-19-01561-CR V. Trial Court Cause No. 2-19-0884.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Goldstein. Justices Molberg and
Smith participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered June 13, 2023
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