George Randall Gilchrist v. the State of Texas

NO. 12-23-00119-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GEORGE RANDALL GILCHRIST, § APPEAL FROM THE 145TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION
George Randall Gilchrist appeals his convictions for three counts of aggravated assault of
a child. In two issues, Appellant asserts the trial court erroneously failed to hold a hearing on his
motion for new trial and he was denied effective counsel. We affirm.

BACKGROUND
Appellant was charged by indictment with three counts of aggravated sexual assault of a
child. Appellant’s initial jury trial resulted in a mistrial when the jury could not reach a verdict.
Appellant was then tried before a different jury after pleading “not guilty.” The jury ultimately
found Appellant “guilty” of all three counts and sentenced him to imprisonment for life and a
$10,000 fine for each. Appellant filed a motion for new trial asserting that the evidence is
insufficient to support his conviction and he was denied effective assistance of counsel. The
motion was overruled by operation of law. This appeal followed.
HEARING ON MOTION FOR NEW TRIAL AND INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, Appellant contends that the trial court improperly denied a hearing on
his motion for new trial because he raised an ineffective assistance of counsel claim. In his
second issue, Appellant asserts he was denied effective assistance of counsel. We address these
issues together.
Standard of Review
A defendant has a right to move for a new trial. See TEX. R. APP. P. 21; Drew v. State,
743 S.W.2d 207, 223 (Tex. Crim. App. 1987); Cooks v. State, 190 S.W.3d 84, 86–87 (Tex.
App.—Houston [1st Dist.] 2005), aff’d, 240 S.W.3d 906 (Tex. Crim. App. 2007). A criminal
defendant does not, however, have an “absolute right” to a hearing on his motion for new trial.
Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). We review the denial of a hearing
on a motion for new trial for an abuse of discretion and will reverse only if the trial court’s ruling
falls outside the zone of reasonable disagreement. Smith v. State, 286 S.W.3d 333, 339 (Tex.
Crim. App. 2009). The failure to hear the motion constitutes an abuse of discretion only if the
motion and accompanying affidavits (1) raise matters which are not determinable from the
record, and (2) establish reasonable grounds showing that the defendant could potentially be
entitled to relief. Id. at 338–39.
The defendant must support the motion for new trial with one or more affidavits that set
forth the factual basis for the relief sought. Id.; see Wallace v. State, 106 S.W.3d 103, 108 (Tex.
Crim. App. 2003). The defendant need not establish a prima facie case for a new trial; a hearing
on the motion for new trial is warranted if the motion raises fact issues showing that reasonable
grounds exist for granting a new trial. Wallace, 106 S.W.3d at 107–08; see TEX. CODE CRIM.
PROC. ANN. art. 40.001 (West 2018); Hobbs, 298 S.W.3d at 201–02. The hearing’s purpose is to
give the defendant an opportunity to fully develop the issues raised in his motion (1) so that the
trial court can decide whether the case should be retried and (2) to prepare a record for
presenting issues on appeal if relief is denied. Smith, 286 S.W.3d at 338.
The issue is preserved by a timely filed and presented motion for new trial that requests a
hearing. See Rozell v. State, 176 S.W.3d 228, 230–31 (Tex. Crim. App. 2005) (issue of trial
court’s failure to hold hearing on motion for new trial not preserved where motion for new trial
did not request a hearing). Once a defendant has done that, he has told the trial court what he
wants at a time when the trial court is in a position to do something about it. See Pena v. State,

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285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see also Rozell, 176 S.W.3d at 230 (“Presenting
the motion, along with a request for a hearing, is required to let the court know that the defendant
wants the trial court to act on the motion and whether the defendant would like a hearing on the
motion.”).
Ineffective Assistance of Counsel
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must “show that
counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at
688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. The appellant must prove that his attorney’s errors, judged by the totality of the
representation and not by isolated instances of error, denied him a fair trial. Burruss v. State, 20
S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref’d).
It is not enough for the appellant to show that the errors had some conceivable effect on
the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but
for his attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the
extent of his punishment would have been less. See id.; see also Bone v. State, 77 S.W.3d 828,
837 (Tex. Crim. App. 2002). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. An appellant claiming ineffective assistance of counsel must affirmatively prove prejudice
from counsel’s deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App.

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1999). Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
“We engage in a ‘strong presumption’ that counsel’s actions fell within the wide range of
reasonably professional assistance.” Id (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2052).
It is a defendant’s burden to overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Id. Moreover, any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). Absent an opportunity for counsel to explain his actions, an appellate court should
not find deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.
App. 2001). Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the claim of ineffective assistance. Thompson, 9 S.W.3d at 813.
To be entitled to a hearing on his motion for new trial alleging ineffective assistance of
counsel, Appellant “must 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 [punishment] trial
would have been different.” Smith, 286 S.W.3d at 340–41.
Analysis
Appellant timely filed a motion for new trial in which he alleged (1) the verdict is
contrary to the evidence, (2) he was denied his right to present his defense because the victim’s
mother was not subpoenaed to testify at the guilt/innocence phase, and (3) his trial counsel was
ineffective by failing to move for a continuance when the victim’s mother’s testimony was not
secured. 1 In support of his motion, Appellant attached the transcript of the initial trial and an

1
In his brief, Appellant claims he asserted that trial counsel was ineffective for failing to timely subpoena a
witness as well as failing to request a continuance. However, in his motion for new trial, Appellant’s argument
regarding securing the mother’s testimony states that his “right to present a defense was abrogated by the State not
filing a subpoena for” the mother. To the extent Appellant attempts to argue that his trial counsel failed to subpoena

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affidavit from trial counsel explaining how he attempted to secure the mother’s testimony and
why he did not seek a continuance. Appellant filed a request for an evidentiary hearing and
acknowledgement of presentment of his motion for new trial. After no ruling was made,
Appellant filed a second request for a hearing. Once the motion for new trial was overruled by
operation of law, the trial court filed an acknowledgement of presentment of the motion for new
trial. Therefore, Appellant preserved his issue by timely presenting the motion to the trial court.
As previously stated, before he will be entitled to a hearing on his motion for new trial
alleging ineffective assistance of counsel, a defendant must 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. Smith, 286 S.W.3d at 340–41. Because “[t]he
reasonableness of counsel’s choices often involves facts that do not appear in the appellate
record,” the record will generally “not be sufficient to show that counsel’s representation was so
deficient as to meet the first part of the Strickland standard.” Id. at 341. The same is true in the
instant case; whether counsel’s failures in fact show a deficiency that prejudiced Appellant’s
defense is not determinable from the record. Because Appellant’s claim is not determinable from
the record, we must decide whether his motion and affidavit show reasonable grounds that could
entitle him to relief. To do so, Appellant must allege facts that would reasonably show that his
counsel’s representation fell below the standard of professional norms and that there is a
reasonable probability that, but for his counsel’s conduct, the result of the proceeding would have
been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.
In support of his motion, Appellant attached an affidavit from trial counsel. Trial
counsel’s affidavit explains why he did not seek a continuance:

The rationale behind not asking for a continuance was the procedural history of the prosecution.
We first tried this case with Ms. Corrin present in November 2022, that case resulted in a hung
jury. The State wanted to retry the case in December. I asked for the retrial to be in January to give
me time to work on other cases. In January, the decision was made to move jury selection again,
because the week prior to jury selection only a limited number of jurors had responded. In
February, we attempted to pick a jury, but we busted that panel. The State again asked for a March
setting, but I asked for an April trial setting. I had broken my ankle in late November and in
March I begin physical therapy and wanted to have some time to improve my mobility. I did not

the mother, his motion for new trial specifically states the opposite: “Defense subpoenas were issued to secure her
presence.” And Appellant argued in his motion for new trial that the State assisted the mother in avoiding service
which prevented him from presenting a defense.

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ask for a continuance at the April trial setting because I did not think the Judge would have
entertained a continuance.

Trial counsel’s affidavit adequately explains his actions and does not support Appellant’s claim
of deficient performance.
There is no reasonable probability that had counsel moved for a continuance, the result of
trial would have been different. First, as trial counsel explained, the likelihood of the trial court
granting a continuance was quite slim under the procedural history of the case and Appellant
makes no argument that the denial of the motion for continuance would have been error.
Additionally, Appellant appears to believe that the mother’s testimony at the first trial is the
reason for the hung jury. But this is pure speculation. Moreover, the record indicates that
Appellant was able to present his defensive positions that the victim fabricated the sexual assault
claim and that the house (where the offense allegedly occurred) was under construction and the
family did not live there for a time, thereby undermining the victim’s account, through other
witnesses and exhibits. Accordingly, Appellant cannot prevail on his ineffective assistance
claim.
Conclusion
In summary, Appellant’s motion for new trial and supporting affidavit raised a matter
not determinable from the record, namely, that trial counsel was ineffective for failing to move
for a continuance to secure a witness’s testimony. Nevertheless, Appellant failed to establish
reasonable grounds to believe that he could, under Strickland, prevail on his claim of ineffective
assistance of counsel, entitling him to a new trial. Specifically, by failing to explain how
counsel’s allegedly unprofessional errors would have changed the verdict, the appellant failed to
show that but for counsel’s deficiency the result of the trial would have been different.
Consequently, Appellant did not present facts adequate to demonstrate reasonable grounds exist
to believe he could prove ineffective assistance of counsel at an evidentiary hearing. Under these
circumstances, the trial court did not abuse its discretion in failing to hold a hearing on
Appellant’s motion for new trial. Nor can Appellant prove he received ineffective assistance of
counsel. We overrule Appellant’s first and second issues.

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DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

BRIAN HOYLE
Justice

Opinion delivered March 28, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 28, 2024

NO. 12-23-00119-CR

GEORGE RANDALL GILCHRIST,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. F2326776)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.