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Date: 02-18-2021
Case Style:
Arnoldo Medina, Jr. v. The State of Texas
Case Number: 05-19-01116-CR
Judge: ERIN A. NOWELL
Court: Court of Appeals
Fifth District of Texas at Dallas
Plaintiff's Attorney: Greg Willis
Sarah Preston
John R. Rolater Jr.
Defendant's Attorney:
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Description:
Dallas, TX - Criminal defense attorney represented Arnoldo Medina, Jr. with an Aggravated Assault charge.
Arnoldo Medina, Jr. pleaded guilty to the offense of aggravated assault
without the benefit of a plea bargain. He elected to have the trial court assess
punishment. After hearing evidence on punishment, the trial court sentenced him to
eight years in prison. The trial court certified Medina’s right to appeal as to
punishment only. Medina argues the trial court abused its discretion by not holding
a hearing on his motion for new trial and a portion of the costs assessed in the
judgment is unconstitutional. We modify the trial court’s judgment to delete the
contested amount of costs and affirm the judgment as modified.
–2–
Medina was indicted for aggravated assault of his wife by causing serious
bodily injury, using a deadly weapon, and while in a family or dating relationship
with the victim. He pleaded guilty to the offense and elected to have the trial court
assess punishment. The trial court heard evidence on punishment and sentenced
Medina on August 27, 2019. Medina filed a motion for new trial asserting
ineffective assistance of counsel on September 26, 2019. The motion was not
verified or supported by affidavit at the time it was filed. On October 4, 2019,
more than thirty days after his sentencing, Medina filed affidavits in support of his
motion for new trial and presented the motion to the trial court. The trial court did
not hold a hearing or rule on the motion. The motion was overruled by operation of
law seventy-five days after Medina was sentenced. TEX. R. APP. P. 21.8.
We review a trial court’s refusal to hold a hearing on a defendant’s motion
for new trial for an abuse of discretion. Hobbs v. State, 298 S.W.3d 193, 200 (Tex.
Crim. App. 2009). That discretion extends only to the determination of whether the
defendant has raised grounds that are not determinable from the record and the
grounds reasonably show he could potentially be entitled to relief. Id. at 199. A
motion for new trial based on matters not otherwise in the record must be
supported by affidavit specifically setting out the factual basis of the claim. Id. If
the affidavit is conclusory, is unsupported by facts, or fails to provide requisite
notice of the basis for the relief claimed, no hearing is required. Id.
–3–
A motion for new trial must be filed within thirty days after the trial court
imposes or suspends sentence in open court. TEX. R. APP. P. 21.4(a). Any
amendments to the motion must be filed within this thirty-day period and before
the trial court overrules any preceding motion for new trial. TEX. R. APP. P.
21.4(b). Filing affidavits in support of a motion for new trial more than thirty days
after sentencing is considered an untimely attempt to amend the motion. Dugard v.
State, 688 S.W.2d 524, 529–30 (Tex. Crim. App. 1985), overruled on other
grounds, Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989); Flores v.
State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.). A trial court does
not abuse its discretion if it denies a hearing on a timely motion for new trial that is
not supported by affidavits. Klapesky v. State, 256 S.W.3d 442, 455 (Tex. App.—
Austin 2008, pet. ref’d).
Here, Medina’s timely-filed motion for new trial relied on facts outside the
record but was not supported by a timely-filed affidavit. His affidavits were not
filed within thirty days of sentencing and were not properly before the court.
Klapesky, 256 S.W.3d at 455. Accordingly, the trial court did not abuse its
discretion by refusing to conduct a hearing on the motion and allowing it to be
overruled by operation of law. Id. We overrule Medina’s first issue.
Medina argues, and the State agrees, that a portion of the fees assessed
against him as court costs is unconstitutional. Medina was assessed a time payment
fee in the amount of $25.00 pursuant to local government code section 133.103.
–4–
TEX. LOC. GOV’T CODE § 133.103. This Court recently held that subsections (b)
and (d) of section 133.103 are unconstitutional. See Ovalle v. State, 492 S.W.3d
615, 618 (Tex. App.—Dallas 2020, pet. filed). The portion of the time payment fee
authorized by those subsections should be deducted from the costs assessed in the
judgment. Id. (deducting $22.50 from costs as the unconstitutional amount of the
time payment fee). We sustain Medina’s second issue.
Outcome: We modify the trial court’s judgment to reduce the total amount of court
costs by $22.50 to reflect the reduction in the time payment fee. As modified, we
affirm the trial court’s judgment.
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Defendant's Experts:
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