Ramos, Ezekiel v. State

In The Court of Appeals For The First District of Texas ____________ NO. 01-01-00980-CR NO. 01-01-00981-CR ____________ EZEKIEL RAMOS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 208th District Court Harris County, Texas Trial Court Cause Nos. 855442 & 855443 MEMORANDUM OPINION Appellant, Ezekial Ramos, pled guilty to two separate offenses of aggravated assault with a deadly weapon, and the trial court assessed punishment for each offense at 20 years’ confinement in prison. In his sole point of error, appellant contends that the trial court erred by not conducting a hearing on appellant’s motion for new trial based on ineffective assistance of counsel. We affirm. Background Appellant’s assault convictions resulted from a September 2000 shooting. Appellant and an accomplice broke a residence window, inserted a firearm through the window, and fired multiple rounds into the residence. The rounds struck and injured two occupants of the residence. As a result of the shootings, appellant was charged with and pled guilty to two separate offenses of aggravated assault with a deadly weapon. After conducting a presentence investigation (PSI) hearing, the trial court sentenced appellant. Appellant then timely filed his motion for new trial. Appellant’s Motion for New Trial In his motion for new trial, appellant contended that his trial counsel was ineffective for not presenting mitigating evidence at the PSI hearing. Accompanying appellant’s motion for new trial were affidavits indicating that appellant’s accomplice, and not appellant, fired the rounds into the residence. Appellant argued that, had trial counsel presented this evidence at his PSI hearing, the trial court would not have assessed the maximum punishment. After examining the motion and accompanying affidavits, the trial court denied appellant’s motion for new trial without holding a hearing. In contending that the trial court abused its discretion in not holding a hearing on his motion for new trial, appellant relies on Martinez v. State, in which the Court of Criminal Appeals held that a trial court abuses its discretion in failing to hold a hearing when an accused presents a motion for new trial raising issues not determinable from the record that could entitle the accused to relief. 74 S.W.3d 19, 21 (Tex. Crim. App. 2002) (citing King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000)). Appellant argues that his motion for new trial raised ineffective assistance of counsel, that ineffective assistance of counsel is a claim not determinable from the record, and that affidavits attached to his motion showed that reasonable grounds existed to support a claim that trial counsel’s representation may have been ineffective. Appellant’s reliance on Martinez is misplaced. In Martinez, the appellant filed a “Motion for a New Trial and Hearing Thereon,” requesting not only that the trial court grant his motion for new trial, but that the trial court also hold a hearing on his motion. Martinez, 74 S.W.3d at 20. In this case, nothing in the record suggests that appellant wanted or requested a hearing on his motion. Furthermore, the motion itself makes no request for a hearing and simply seeks a new trial. Under circumstances such as these, when the movant does not request a hearing, the trial court is not required to convene a hearing on a motion for new trial. See Gallegos v. State, 76 S.W.3d 224, 228 (Tex. App.—Dallas 2002, pet. ref’d); Brooks v. State, 894 S.W.2d 843, 847 (Tex. App.—Tyler 1995, no pet.). Because appellant did not request a hearing on his motion for new trial, we hold that the trial court did not abuse its discretion in declining to hold one. We overrule appellant’s sole point of error. Conclusion We affirm the judgment of the trial court. Elsa Alcala Justice Panel consists of Justices Hedges, Jennings, and Alcala. Do not publish. Tex. R. App. P. 47.4.