Alexander Flores Escobar v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-96-00606-CR Alexander Flores Escobar, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B-95-0518-S, HONORABLE BARBARA WALTHER, JUDGE PRESIDING Appellant Alexander Flores Escobar was indicted for aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West 1994). The jury found appellant guilty and also found that he had been previously convicted of two prior felony offenses as alleged in the indictment. The jury assessed punishment at fifty years' imprisonment. Point of Error Appellant advances a sole point of error. He contends that the trial court erred in overruling his motion for new trial based on newly discovered evidence. He argues that the evidence, previously unknown to him, was admissible and material, was not cumulative, corroborative, collateral or impeaching, and would probably produce a different result on a new trial. Background The record shows that on June 23, 1995, appellant attacked and cut Jose Luis Torres in the face with a knife. Torres testified that when he first moved to San Angelo appellant was his next door neighbor on Concho Street. Torres later moved to apartment #8 on the second floor at 218 Abe Street. Torres related that he came home from work on the afternoon of June 23rd. He had no air conditioning so he left the door to his apartment open as it was hot. Torres then went downstairs because his downstairs neighbors had asked him to have supper with them. They were barbequing, apparently outside. Torres revealed that Ajelia, who was appellant's girlfriend or wife, appeared in the alley and asked to use a restroom. Someone took her to a restroom. Later Torres's son, Richard, arrived at the neighbors' apartment and was invited to join them for supper. Still later, Torres's nephew, Jesse, appeared on the scene and informed Torres that a man and a woman were in his apartment upstairs and they were arguing. Torres, Richard, and Jesse went upstairs and found the door locked or chained on the inside. Torres heard a woman screaming. He knocked on the door and demanded that it be opened. Appellant opened the door and Torres saw Ajelia, whose last name he did not know, in the room behind appellant. Torres asked appellant what he was doing in Torres' apartment. Appellant accused Torres of having an affair with Ajelia. Torres denied the accusation and told appellant that he did not know that she was in his apartment. An argument ensued and appellant took his knife and cut Torres in the face. While Torres tried to stop the flow of blood, appellant went downstairs and left the building. Ajelia followed him. Richard and Jesse in their testimony expressly denied that they or any one else blocked or tried to block appellant's exit. Richard stated that once outside the building appellant continued to beat Ajelia, threw her against a truck, and then stabbed her. When someone said the police had been called, appellant fled the scene. Richard and Jesse followed him. Another confrontation was about to occur when the police arrived and arrested appellant. Motion for New Trial Appellant filed a motion for new trial claiming that he had the newly discovered testimony of Ajelia Palacio, who had not testified at trial. At the hearing on the motion for new trial, Ajelia testified that she had lived with appellant for about four years; that on June 23, 1995, she had gone to a store to use the pay phone to call her sister to ask to be picked up as she was leaving appellant; and that Joe Torres had followed her to the store. She explained that she knew Torres as a former neighbor and was a good friend of his ex-wife. Torres opened the door to his apartment because she did not have any other place to go. Ajelia revealed that appellant came to the apartment and they were about to leave together when Torres, Richard, and another man blocked their way; that Richard pushed appellant; and that Torres cut appellant with a knife on the back of appellant's hand. She did not see appellant cut Torres, but claimed appellant acted in self-defense. She denied that appellant had mistreated her, hit her, or stabbed her. She claimed that Torres and the other men were intoxicated. She admitted that she and appellant were also intoxicated, "but not that much." Ajelia acknowledged that she told appellant's first attorney in February 1996 that appellant had started the fight with Torres. She explained that at the time she and appellant were separated and she was "mad" at him. She declared that she lied to the attorney. (1) She knew that there was to be a trial but did not know when it was to occur. The record is not clear as to just when Ajelia Palacio learned that appellant had been tried and convicted. She related that at all pertinent times she lived with her sister on Volney Street in San Angelo. She acknowledged that she read newspaper accounts of the trial and knew the State's witnesses were not telling the truth. David Elliott, a former employer and friend, later informed her of appellant's conviction. Thereafter, she came forward to testify at the hearing on the motion for new trial. The State asked the trial court to take "judicial notice" of the photographs introduced at trial which showed no cuts on the back of appellant's hands. The trial court agreed to examine the photographs. No objection was offered. At the conclusion of the hearing, appellant argued that the requirements of a motion for new trial based on newly discovered evidence had been met. He urged that Ajelia Palacio's testimony raised the issue of self-defense which had not been presented at trial and that it could probably produce a different result at a new trial. (2) The motion was overruled. Applicable Law Motions for new trial based on newly discovered evidence are not favored by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225-26 (Tex. Crim. App. 1987), cert. denied, 114 S. Ct. 1207 (1994); State v. Davenport; 866 S.W.2d 767, 771 (Tex. App.--San Antonio 1993, no pet.). The standard of review for the denial of a motion for new trial based on newly discovered evidence is abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzales, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). An appellate court does not substitute its judgment for that of the trial court, but rather decides whether the trial court's decision was arbitrary or unreasonable. Drew, 743 S.W.2d at 225-26; Ashcraft v. State, 918 S.W.2d 648, 652 (Tex. App.--Waco 1996, pet. ref'd). The requirements for obtaining a new trial based on newly discovered evidence are: (1) the newly discovered evidence was unknown to the movant at the time of his trial; (2) the movant's failure to discover the evidence was not due to his want of diligence; (3) the evidence was admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence was probably true and would probably bring about a different result in another trial. See Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994); Driggers v. State, 940 S.W.2d 699, 708 (Tex. App.--Texarkana 1996, pet. ref'd); see also Tex. Code Crim. Proc. Ann. art. 40.001 (West Supp. 1998); cf. Drew, 743 S.W.2d at 226. In all "new evidence" cases, the credibility of the witnesses and the probable truth of the new evidence is primarily a determination for the trial court. Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984); Ashcraft, 918 S.W.2d at 653. With respect to the third and fourth requirements, (3) "should it appear to the trial court that under the circumstances of the particular case the credibility or weight of the new evidence is not such as would probably bring about a different result upon a new trial, it is within the trial court's discretion to deny the motion." Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986). Whether the newly discovered evidence would likely produce a different result at a new trial must be viewed in light of the whole case. Elledge v. State, 890 S.W.2d 843, 846 (Tex. App.--Austin 1994, pet. ref'd). Conclusion Ajelia Palacio told the trial court that she was telling the truth at the hearing and lied to appellant's first attorney when she spoke to him in February 1996. She was "mad" at appellant at that time, but was now willing to testify for the man with whom she lived for four years. She claimed that she did not know when appellant's trial occurred but recalled reading newspaper accounts thereof. Her earlier statements to appellant's counsel were consistent with the trial testimony of the State's witnesses. The State claims that her current testimony would largely be used for impeachment purposes in any new trial. Appellant states he did not raise the issue of self defense at trial but is entitled to a new trial so the issue can be raised by Ajelia Palacio's testimony. Appellant cites and relies upon Carlisle v. State, 549 S.W.2d 698 (Tex. Crim. App. 1977) and Crenshaw v. State, 208 S.W.2d 647 (Tex. Crim. App. 1948). These cases are clearly distinguishable on their facts from the instant case. Appellant's reliance is misplaced. The trial court, being the judge of the credibility of the witnesses and the weight of the testimony, had to determine whether the new evidence would likely produce a different result in a new trial. We conclude the trial court did not abuse its discretion. The sole point of error is overruled. The judgment is affirmed. John F. Onion, Jr., Justice Before Chief Justice Carroll, Justices Jones and Onion* Affirmed Filed: January 8, 1998 Do Not Publish * Before John F. Onion, Jr. Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). 1. The affidavit of Gonzalo Rios, appellant's first attorney, was attached to the new trial motion. It reflected that he had interviewed Ajelia Palacio on February 14, 1996, several months before appellant's July 1996 trial. She refused to help appellant, claimed that he was the aggressor in the fight in which he cut Torres, and that he had beaten her on the occasion in question. Jon Mark Hogg, appellant's trial counsel, stated in his affidavit that he had attorney Rios's case file and tried to locate Ajelia Palacio. She telephoned him on May 16, 1996, and stated that she did not want to be involved in the case. The next day she did not keep the appointment she made with Hogg, and he thereafter was unable to locate her. The affidavits of the two attorneys were attached to the motion for new trial and constituted a part of the pleadings. We do not find they were introduced into evidence. See Duggard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985). 2. On appeal, appellant explains that at trial he did not raise the issue of self defense by his own testimony because of his two prior felony convictions which could have been used for impeachment purposes. 3. Appellant knew of the witness prior to trial but not that her testimony would be favorable to appellant. In fact, the contrary appears. We need not, however, decide this case on the basis of the first two requirements. s not such as would probably bring about a different result upon a new trial, it is within the trial court's discretion to deny the motion." Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986). Whether the newly discovered evidence would likely produce a different result at a new trial must be viewed in light of the whole case. Elledge v. State, 890 S.W.2d 843, 846 (Tex. App.--Austin 1994, pet. ref'd). Conclusion Ajelia Palacio told the trial court that she was telling the truth at the hearing and lied to appellant's first attorney when she spoke to him in February 1996. She was "mad" at appellant at that time, but was now willing to testify for the man with whom she lived for four years. She claimed that she did not know when appellant's trial occurred but recalled reading newspaper accounts thereof. Her earlier statements to appellant's counsel were consistent with the trial testimony of the State's witnesses. The State claims that her current testimony would largely be used for impeachment purposes in any new trial. Appellant states he did not raise the issue of self defense at trial but is entitled to a new trial so the issue can be raised by Ajelia Palacio's testimony. Appellant cites and relies upon Carlisle v. State, 549 S.W.2d 698 (Tex. Crim. App. 1977) and Crenshaw v. State, 208 S.W.2d 647 (Tex. Crim. App. 1948). These cases are clearly distinguishable on their facts from the instant case. Appellant's reliance is misplaced. The trial court, being the judge of the credibility of the witnesses and the weight of the testimony, had to determine whether the new evidence would likely produce a different result in a new trial. We conclude the trial court did not abuse its discretion. The sole point of error is overruled. The judgment is affirmed. John F. Onion, Jr., Justice Before Chief Justice Carroll, Justices Jones and Onion* Affirmed Filed: January 8, 1998 Do Not Publish * Before John F. Onion, Jr. Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). 1. The affidavit of Gonzalo Rios, appellant's first attorney, was attached to the new trial motion. It reflected that he had interviewed Ajelia Palacio on February 14, 1996, several months before appellant's July 1996 trial. She refused to help appellant, claimed that he was the aggressor in the fight in which he cut Torres, and that he had beaten her on the occasion in question. Jon Mark Hogg, appellant's trial counsel, stated in his affidavit that he had attorney Rios's case file and tried to locate Ajelia Palacio. She telephoned him on May 16, 1996, and stated that she did not want to be involved in the case. The next day she did not keep the appointment she made with Hogg, and he thereafter was unable to locate her. The affidavits of the two