Kalon Chandler Long v. the State of Texas ( 2024 )

Affirmed and Memorandum Opinion filed May 9, 2024.
In The
Fourteenth Court of Appeals
NO. 14-22-00516-CR
KALON CHANDLER LONG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 271st District Court
Wise County, Texas
Trial Court Cause No. CR21091
MEMORANDUM OPINION
In this case transferred from the Second Court of Appeals,1 a jury found
appellant guilty of felony driving while intoxicated. The trial court assessed
punishment at seven years’ confinement. In a single issue, appellant contends that
the trial court erred by failing to hold an evidentiary hearing on his motion for new
trial. Because appellant filed no affidavit with his motion, we affirm.
1
See Tex. R. App. P. 41.3.
Appellant filed a motion for new trial alleging ineffective assistance of
counsel for failing to assert appellant’s right to a speedy trial and failing to call two
potential witnesses—an expert in blood alcohol concentration (BAC) to testify
about the consumption necessary to reach a BAC of .254, and appellant’s father-in-
law to testify that he did not believe appellant was intoxicated. Appellant did not
file any affidavits with the motion.
Although a defendant need not plead a prima facie case in a motion for new
trial to be entitled to a hearing, the motion “must be supported by an affidavit
specifically setting out the factual basis for the claim.” Hobbs v. State, 298 S.W.3d
193, 199 (Tex. Crim. App. 2009); see also Smith v. State, 286 S.W.3d 333, 339
(Tex. Crim. App. 2009) (“Thus we require, as a prerequisite to a hearing when the
grounds in the motion are based on matters not already in the record, that the
motion be supported by an affidavit, either of the defendant or someone else,
specifically setting out the factual basis for the claim.”); Dotson v. State, 146
S.W.3d 285, 301 (Tex. App.—Fort Worth 2004, pet. ref’d) (“As a prerequisite to
obtaining a hearing, the motion must be supported by an affidavit that specifically
demonstrates the truth of the grounds for attack.”).
To demonstrate ineffective assistance of counsel based on a failure to call
witnesses, the defendant must show that the witnesses had been available to testify
and that the testimony would have been beneficial. See Ex parte Ramirez, 280
S.W.3d 848, 853 (Tex. Crim. App. 2007). Because appellant did not submit an
affidavit showing that the uncalled witnesses would have been available to testify,
appellant was not entitled to a hearing on this ground in his motion. See Stokes v.
State, 298 S.W.3d 428, 431–32 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)
(defendant not entitled to hearing on motion for new trial when he did not assert in
his declaration that an uncalled witness was available to testify).
2
Appellant contends that he was not required to submit an affidavit regarding
his claim of ineffectiveness for counsel’s failure to assert the right to a speedy trial
because the claim was “based on matters already in the record.” In particular,
appellant notes that one of the factors considered by courts in assessing a speedy
trial motion was apparent from the record—the length of delay—and another factor
was the State’s burden to show—the reason for the delay. See Shaw v. State, 117
S.W.3d 883, 889 n.3 (Tex. Crim. App. 2003) (“The State has the burden of
justifying the delay.”).
Yet, appellant made no attempt to explain in his motion how or why he was
prejudiced by the delay—an important factor to consider when assessing the right
to a speedy trial. See id. at 890–91 (reasoning that the defendant’s right to a
speedy trial was not violated when he failed to demonstrate any prejudice from the
delay; collecting similar cases). See generally State v. Munoz, 991 S.W.2d 818,
826–28 (Tex. Crim. App. 1999) (noting that although none of the factors are
necessarily more important than the others, the “most serious” consideration
regarding prejudice is the impairment to the defense; noting other prejudice
considerations of preventing oppressive pretrial incarceration and the anxiety or
concern of the accused). Before appellant would be entitled to a hearing on his
motion for new trial, he was required to “allege sufficient facts from which a trial
court could reasonably conclude both that counsel failed to act as a reasonably
competent attorney and that, but for counsel’s failure, there is a reasonable
likelihood that the outcome of his trial would have been different,” i.e., he suffered
some prejudice. Smith, 286 S.W.3d at 340–41. Appellant argued in the motion
that an evidentiary hearing was needed “so that Appellant can explain the prejudice
that he suffered,” but he attached no affidavit to support any factor related to the
analysis of prejudice in the context of a speedy trial or ineffective assistance claim.
3
In sum, the trial court did not err by failing to hold a hearing on appellant’s
motion for new trial because the motion was not supported by any affidavit. See
Hobbs, 298 S.W.3d at 199; Smith, 286 S.W.3d at 339; Dotson, 146 S.W.3d at 301.
Appellant’s sole issue is overruled. The trial court’s judgment is affirmed.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Zimmerer, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b)
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