Opinion
NO. 09-15-00003-CR NO. 09-15-00004-CR
03-15-2017
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
In separate causes, Bakari Abdul Brown was convicted by a jury of possessing a controlled substance and unlawfully possessing a firearm, and then, in each case, the jury assessed life sentences. Brown appealed his convictions, and while we overruled all but one of Brown's issues, we concluded the trial court erred by conducting a hearing on Brown's motion for new trial in Brown's absence, given that Brown did not voluntarily refuse to attend the hearing and that Brown's attorney objected to the trial court's decision to hear the motion without giving Brown the opportunity to attend. Brown v. State, No. 09-15-00003-CR, No. 09-15-00004-CR, 2016 Tex. App. LEXIS 10824 (Tex. App.—Beaumont, Oct. 5, 2016, no pet.). With respect to Brown's complaint that the trial court erred by proceeding on the motion in his absence, we abated the appeals, and required the trial court to conduct another hearing. Id. at *23.
On November 10, 2016, the trial court conducted another hearing on Brown's motion for new trial. The transcript of the hearing reflects that Brown was present, but also reflects that neither party offered any oral testimony from any witnesses during the hearing. During the hearing, Brown offered the affidavit of Jose Delgado to support his motion for new trial, but no other evidence to support his motion was introduced. At the conclusion of the hearing, the trial court denied Brown's motion.
After we reinstated Brown's appeal, Brown filed a supplemental brief in which he argues the trial court abused its discretion by denying his motion for new trial. According to Brown, Delgado's affidavit demonstrates that Delgado could have testified that an individual named Judith Daniels was the person who possessed the drugs and the handgun that the jury found Brown guilty of having in his possession. Brown argues that when he was tried, he was unaware that Delgado could have testified that shortly before Brown was arrested, he saw Daniels with these items while she was in the house. Brown argues that he was not aware, before his trial, that he could have used Delgado to connect the handgun and cocaine to Daniels. Brown argues that the trial court should have treated Delgado as a newly discovered witness.
Delgado's affidavit reflects that Brown came to Daniels' house to pick Delgado up. Delgado's affidavit also reflects that when Brown came to pick Delgado up at Daniels' house, both Daniels and Delgado were inside. Therefore, the trial court could reasonably infer from the affidavit that prior to trial, Brown was aware that Delgado had knowledge of facts that were relevant to the charges the State would be required to prove in his trial.
Appellate courts review a trial court's decision denying a defendant's motion for new trial using an abuse-of-discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). "We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable." Id. (quoting Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)). An abuse of discretion occurs if no reasonable view of the record could support the trial court's ruling. Id. The evidence the trial court reviewed in ruling on the motion is examined on appeal in the light most favorable to the trial court's ruling. Id. "In the absence of express findings, as here, we presume that the trial court made all findings, express and implied, in favor of the prevailing party." Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). Appellate courts must also defer to the determinations the trial court made regarding the credibility that it assigned to the testimony that it considered when it heard the defendant's motion. See State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014).
The record reflects that Brown was present at the hearing but that he did not testify. While Brown argues that the trial court was required to consider the information Delgado provided in his affidavit as new evidence, the trial court could have reasonably decided from Delgado's affidavit that Brown knew that Delgado possessed relevant information about Brown's case before Brown was tried. See Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012) (noting that a deferential standard of review applies to a trial court's determination of historical facts even when its determination was "based solely on affidavits, regardless of whether the affidavits are controverted"). On the record before us, we conclude the trial court was entitled to find that Delgado was not a newly discovered witness, or to find that Delgado's affidavit was wholly unreliable, given that neither Delgado nor Brown were cross-examined about the information that is in Delgado's affidavit. Consequently, we overrule Brown's argument that asserts the trial court abused its discretion by denying his motion for new trial. Colyer, 428 S.W.3d at 122.
We previously explained the reasons that we overruled the other three issues Brown raised in his appeal in Brown, 2016 Tex. App. LEXIS 10824, at *13, *20. Because we have now overruled Brown's last issue, we affirm the judgments in trial court cause numbers CR30879 and CR30880.
AFFIRMED.
/s/_________
HOLLIS HORTON
Justice Submitted on March 8, 2017
Opinion Delivered March 15, 2017
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.