Jimmy Harden v. the State of Texas

NOS. 12-23-00192-CR
12-23-00193-CR
12-23-00194-CR
12-23-00195-CR
12-23-00196-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JIMMY HARDEN, § APPEAL FROM THE 8TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § RAINS COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Jimmy Harden, appeals his convictions for aggravated assault with a deadly
weapon, assault of a family member by impeding breath or circulation, continuous violence
against the family, and two counts of injury to a child. In four issues, he challenges three of the
convictions as violative of double jeopardy, the jury’s receipt of allegedly new evidence after the
start of deliberations, the trial court’s failure to hold a hearing on his motion for new trial, and
the imposition of duplicative court costs in four of the cases. We modify the trial court’s
judgment to remove the erroneous court costs and affirm the trial court’s judgment as modified.
BACKGROUND

Appellant is the father of two children, J.H. and P.H. Appellant was charged in six
separate indictments with: (1) aggravated assault with a deadly weapon (against J.H.) (trial court
cause number 6260, appellate cause number 12-23-00192-CR); (2) assault of a family member
(J.H.) by impeding breath or circulation (trial cause number 6261, appellate cause number 12-23-
00193-CR); (3) continuous violence against the family (against J.H. and P.H., also a teenaged
child, on dates from February 12, 2021 to July 2, 2021) (trial cause number 6453, appellate cause
number 12-23-00194-CR); (4) injury to a child (J.H., alleged to have occurred on June 15, 2020)
(trial cause number 6454); (5) injury to a child (P.H., alleged to have occurred on March 1, 2013)
(trial cause number 6455, appellate cause number 12-23-00195-CR); and (6) injury to a child
(J.H., alleged to have occurred on March 1, 2013) (trial cause number 6456, appellate cause
number 12-23-00196-CR). Appellant pleaded “not guilty” to all six offenses, and all six cases
proceeded to a single jury trial.
During its opening statement, the State displayed a chart to the jury summarizing the
allegations against Appellant set forth in the six indictments, including the cause numbers, dates,
and alleged occurrences. Appellant did not then object to the State’s use of the chart. When the
State displayed the same chart during its closing argument, Appellant objected that the chart was
not admitted into evidence. The trial court overruled Appellant’s objection. 1 Thereafter, the jury
requested to view the chart during its deliberations at the guilt-innocence phase of trial.
Appellant’s counsel again objected that the chart was not admitted into evidence. The trial court
overruled this objection, stating, “[The chart] was used as demonstrative evidence, and all it does
is help them see all of the – what the charges are. So I’m going to allow it to go back into the
jury room at this time.”
The jury found Appellant “guilty” of aggravated assault with a deadly weapon, assault of
a family member, continuous violence against the family, and injury to a child in cause numbers
6455 and 6456, and “not guilty” of injury to a child in cause number 6454. 2 The jury assessed
punishment at five years’ imprisonment for the aggravated assault with a deadly weapon offense,
two years’ imprisonment for the assault of a family member offense, ten years’ imprisonment for

1
Appellant does not contend that the trial court abused its discretion in overruling his objection to the chart
during the State’s closing argument.
2
Appellant does not challenge the sufficiency of the evidence to support the jury’s verdicts of “guilty.”

2
the continuous violence against the family offense, and two years’ imprisonment for each
convicted offense of injury to a child.
Appellant timely filed a motion for new trial, which was subsequently overruled by
operation of law. This appeal followed.
DOUBLE JEOPARDY

Appellant argues in his first issue that three of his convictions constitute multiple
punishments for the same offense and therefore violate the Constitutional prohibition against
double jeopardy.
Preservation of Error
A defendant may forfeit a potential multiple-punishment double jeopardy claim by failing
to properly preserve that claim. Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006).
When offenses, one of which could give rise to a multiple-punishment double-jeopardy violation,
are listed disjunctively in a jury charge, the burden is upon the defendant to “preserve, in some
fashion a double jeopardy objection at or before the time the charge is submitted to the jury.” Id.
at 686. However, a double jeopardy claim may be raised for the first time on appeal when “the
undisputed facts show the double jeopardy violation is clearly apparent on the face of the record
and when enforcement of the usual rules of procedural default serve no legitimate state
interests.” See Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). An appellant
must satisfy both prongs of the Gonzalez test in order to raise his complaint for the first time on
appeal. Roy v. State, 76 S.W.3d 87, 93 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (citing
Gonzalez, 8 S.W.3d at 643). A double jeopardy claim is apparent on the face of the trial record
if resolution of the claim does not require further proceedings for the purpose of introducing
additional evidence to support the claim. Ex parte Knipp, 236 S.W.3d 214, 216, n. 3 (Tex. Crim.
App. 2007).
Appellant raises his double-jeopardy complaint for the first time on appeal but contends
that preservation of this complaint for appellate review was not necessary under Gonzalez. With
regard to the first prong, an appellant is burdened with “presenting the necessary record rather
than meeting the burden of demonstrating from the face of the record already before the
appellate court that an undisputed double jeopardy violation was involved.” Ellison v. State, 425
S.W.3d 637, 643 (Tex. App.—Houston 2014, no pet.). We conclude that the first prong has been
met here. Appellant was tried for all of the offenses at issue; all three were before the trial court,

3
and the court knew or should have known of a potential jeopardy issue. We can resolve
Appellant’s claim based on the record before us, and there is no need for further proceedings to
add new evidence to the record. See id. If a double jeopardy violation exists, it can be
determined from the undisputed facts clearly apparent on the face of the record.
We also conclude that the second prong has been met. If Appellant is successful on his
double jeopardy claim, the appropriate remedy is to retain the conviction with the most serious
punishment and vacate any remaining convictions that are the same for double jeopardy
purposes. Id. (citing Ball v. United States, 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L.Ed.2d 740
(1985), Landers v. State, 957 S.W.2d 558, 559 (Tex. Crim. App. 1997)). A successful double
jeopardy challenge will not require a retrial or remand to the trial court. See id. As a result,
there are no legitimate state interests that would be negatively impacted by allowing appellant to
raise his double jeopardy claim for the first time on appeal. See id. at 94–95. Therefore, we
consider the merits of Appellant’s double jeopardy claim.
Multiple Punishments
The Double Jeopardy Clause of the United States Constitution provides that no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST.
amend. V. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater punishment than
the legislature intended. Zuliani v. State, 383 S.W.3d 289, 294–95 (Tex. App.—Austin 2012,
pet. ref’d) (citing Gonzales v. State, 304 S.W.3d 838, 845 (Tex. Crim. App. 2010)). There are
three distinct types of double jeopardy claims: (1) a second prosecution for the same offense
after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple
punishments for the same offense. Langs, 183 S.W.3d at 685. A multiple punishments claim
can arise in two contexts: (1) the lesser included context, in which the same conduct is punished
twice, once for basic conduct and a second time for that same conduct plus more; and (2)
punishing the same criminal act twice under two distinct statutes when the legislature intended
the conduct to be punished only once. Id. Here, Appellant alleges the latter— that his
conviction in cause number 6453, continuous violence against the family, in combination with
his convictions in cause number 6260, aggravated assault with a deadly weapon, and cause
number 6261, assault of a family member by impeding breath or circulation, constitute multiple
punishments for the same criminal act.

4
Relevant Offenses and Convictions
Appellant was convicted in cause number 6260 of aggravated assault with a deadly
weapon under Texas Penal Code Section 22.02(a)(2), which requires that a person (1) commit
assault as defined in Section 22.01 and (2) use or exhibit a deadly weapon during the
commission of the assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2023). The jury charge
asked whether, on or about June 1, 2021, Appellant intentionally, knowingly, or recklessly
caused bodily injury to J.H., and used or exhibited a deadly weapon (a metal pipe) during the
assault.
Appellant was convicted in cause number 6261 of assault by impeding breath or
circulation under Texas Penal Code Section 22.01(b)(2)(B) (the occlusion assault). An offense
under Section 22.01(a)(1) is a third-degree felony (rather than a misdemeanor) if the offense is
committed against a member of the defendant’s household or family unit, as described in specific
sections of the Texas Family Code, and committed by “intentionally, knowingly, or recklessly
impeding the normal breathing or circulation of the blood of the person by applying pressure to
the person's throat or neck or by blocking the person's nose or mouth.” 3 Id.§ 22.01(b)(2)(B)
(West 2023). The jury charge asked whether, on or about June 1, 2021, Appellant intentionally,
knowingly, or recklessly caused bodily injury to J.H. (a member of Appellant’s family) by
impeding his normal breathing or circulation of blood by applying pressure to the throat or neck.
Finally, Appellant was convicted in cause number 6453 of continuous violence against
the family (CFV), which occurs when “during a period that is 12 months or less in duration, the
person two or more times engages in conduct that constitutes an offense under Section
22.01(a)(1) against another person or persons” who are members of the defendant’s household or
family unit, as described in the specified sections of the Texas Family Code. 4 Id.§ 25.11(a)
(West 2023). The indictment and jury charge alleged seven specific acts by Appellant against
both J.H. and P.H., all occurring between February 12, 2021, and July 2, 2021, but did not
include the allegations set forth in cause numbers 6260 and 6261 (nor did it include any events
occurring on June 1, 2021). The jury charge asked whether Appellant committed at least two of

3
Appellant does not dispute that the relationships between J.H. and P.H., respectively, and himself satisfy
the requirements of Sections 22.01(b)(2) or 25.11(a).

Section 22.01(a) of the Texas Penal Code provides the basic definition for the offense of assault involving
4

infliction of bodily injury. A person commits assault if he “intentionally, knowingly, or recklessly causes bodily
injury to another[.]” TEX. PENAL CODE ANN. § 22.01(a)(1).

5
the alleged acts within a twelve-month time period. The written jury instructions for the CFV
charge directed the jurors not to consider “the separate allegations of abuse alleged in Cause
Numbers 6260 and 6261[.]”
Analysis
“In the multiple punishments double jeopardy arena, legislative intent is the key.” Lopez
v. State, 108 S.W.3d 293, 302 (Tex. Crim. App. 2003). The question is whether the defendant
was convicted of more offenses than the legislature intended. Id. In conducting this inquiry, we
should examine the structure and language of the statute in question. Id. When construing a
statute, we begin with its language, drawing the legislature’s intent from the words chosen when
possible. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We begin with the plain
language of the statute in order to discern its meaning because we “presume that the legislature
meant what it said.” State v. Vasilas, 187 S.W.3d 486, 488 (Tex. Crim. App. 2006). “We
further try to give effect to all the words of a statute, treating none of its language as surplusage
when reasonably possible.” Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex. 2009). We
interpret words and phrases in context and construe them according to the rules of grammar and
common usage. TEX. GOV’T CODE ANN. § 311.011 (West 2023).
Appellant does not contend that the instances of conduct which form the basis for his
aggravated assault and occlusion assault convictions are actually included as predicate acts in the
CFV portion of the jury charge. Rather, Appellant appears to argue that because the two
separately-charged offenses are both bodily injury assaults that occurred against the same
victim(s) and during the same time period as the acts that formed the basis of the CFV offense,
they are necessarily part of the CFV offense, for which the legislature only intended a single
punishment. Therefore, convicting him of both CFV and the two discrete offenses amounts to
multiple punishments for the same conduct.
In support of this contention, Appellant cites to jurisprudence in which our sister courts
found double jeopardy violations in instances where a defendant was convicted of both CFV and,
separately, another bodily injury assault offense. See Ellison, 425 S.W.3d at 647–48; Aguilar v.
State, No. 02-22-00271-CR, 2023 WL 6631526, at *4–5 (Tex. App.—Fort Worth Oct. 12, 2023,
pet. ref’d) (mem. op., not designated for publication); Birdo v. State, No. 02-22-00142-CR, 2023
WL 4630627, at *5 (Tex. App.—Fort Worth July 20, 2023, no pet.) (mem. op., not designated
for publication); Rachal v. State, No. 02-18-00500-CR, 2019 WL 5996985, at *3 (Tex. App.—

6
Fort Worth Nov. 14, 2019, pet. ref’d) (mem. op., not designated for publication). With the
exception of Birdo, these cases are factually distinguishable because the convictions at issue
involve “overlap of two of the same underlying instances of bodily-injury assault against the
same victim during the same time period.” Rachal, 2019 WL 5996985 at *6 (emphasis added);
see also Ellison, 425 S.W.3d at 647 (“[A] double jeopardy violation results if the State attempts
to punish appellant for any underlying bodily-injury assault both under a separate assault count
and as part of a continuous family violence count.”).
Birdo is factually pertinent because (1) the appellant therein was convicted of both CFV
and occlusion assault, (2) the occlusion assault was not included as a basis for the CFV charge,
(3) the occlusion assault occurred against the same victim as the acts forming the basis for the
CFV charge, and (4) the occlusion assault occurred within the same twelve-month period as the
acts forming the basis for the CFV charge. 2023 WL 4630627 at *2-5. The court held that
Birdo’s right against multiple punishments was violated, stating that because of the
aforementioned factors, the occlusion assault “could have been charged as part of the continuous
count,” and was therefore “not available as a separate count upon which Birdo could be
additionally convicted.” 5 We must disagree with our sister court’s holding that double jeopardy
necessarily occurs when a defendant is convicted of a separate offense that “could have been”
included as part of a CFV charge. The court appears to have drawn its “could have been”
reasoning from the court’s discussion in Ellison of Section 21.02(e) of the Penal Code
(pertaining to continuous sexual abuse of a young child), which bars the State from “mixing a
section 21.02 count with a count for a discrete underlying sexual offense that could have served
as part of the section 21.02 count.” Ellison, 425 S.W.3d at 646–47 (citing Soliz v. State, 353
S.W.3d 850, 851–53 (Tex. Crim. App. 2011)). The Ellison court went on to specify that this
discussion related to legislative intent “in cases of continuous sexual abuse where the specific
underlying acts of sexual abuse for which the defendant was convicted occurred against the same
victim and within the period the continuous sexual abuse occurred.” Id. at 647.
Section 21.02(e) provides, in language the Ellison court found “substantially tracks”
Section 25.11(c), as follows:

5
The same court subsequently quoted Birdo’s “could have been charged” language in Aguilar. Aguilar v.
State, No. 02-22-00271-CR, 2023 WL 6631526, at *4–5 (Tex. App.—Fort Worth Oct. 12, 2023, pet. ref’d) (mem.
op., not designated for publication). However, Aguilar involved convictions for CFV and assault on a family
member where the same incident formed the basis for both.

7
A defendant may not be convicted in the same criminal action of an offense [defined as an act of
sexual abuse for purposes of the continuous sexual abuse offense] the victim of which is the same
victim as a victim of the [continuous sexual abuse offense] unless the [separate] offense …:
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged under Subsection (b) was
committed; or
(3) is considered by the trier of fact to be a lesser included offense of the offense alleged
under Subsection (b).

TEX. PENAL CODE ANN. § 21.02 (West 2023). Although the language of the two sections is
similar, Section 25.11(c) contains one significant addition:

A defendant may not be convicted in the same criminal action of another offense the victim of
which is an alleged victim of the [continuous family violence offense] and an element of which
is any conduct that is alleged as an element of the [continuous family violence] offense …
unless the other offense:
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged under Subsection (a) was
committed; or
(3) is considered by the trier of fact to be a lesser included offense of the offense alleged
under Subsection (a).

Id. § 25.11(c) (emphasis added).
As we are charged to effectuate all words and phrases of a statute where possible, we are
not free to ignore the emphasized portion. Phillips, 288 S.W.3d at 880. We have located no
Texas jurisprudence considering the impact of this phrase on the issue of double jeopardy
involving the offense of continuous violence against the family. However, the United States
District Court for the Western District of Texas examined this language when reviewing a habeas
corpus petition based in part on double jeopardy allegations, holding, “Under subsection (c), a
defendant may be convicted of another offense against the same victim, as long as that offense
was not alleged as an element of the continuous violence against family offense.” McBride v.
Lumpkin, No. SA-20-CV-0401-OLG, 2022 WL 585151, at *7–8 (W.D. Tex. Feb. 25, 2022),
certificate of appealability denied, No. 22-50238, 2022 WL 19335608 (5th Cir. Oct. 20, 2022).
In McBride, the defendant was previously convicted of CFV (based on a jury charge including
five discrete acts), assault family violence by impeding breath, and aggravated assault with a
deadly weapon. Id. at *8. Both separately-charged offenses occurred on the same date and
against the same victim as other conduct alleged under the CFV offense; the court acknowledged

8
that both share an element with the CFV charge, namely that McBride intentionally, knowingly,
or recklessly caused bodily injury to the victim. Id. at *7-8. However, the court noted that the
separate assaultive offenses “were not elements of the continuous violence against family offense
alleged in count 1,” specifically because “each of those [separate] counts relied on conduct
which was different from the specific conduct alleged under [the CFV charge].” Id. Thus,
McBride had not received multiple punishments for the same conduct, and no double jeopardy
violation existed. Id. at *9. We find this holding persuasive, particularly in light of our own
examination of the statutory language.
The legislature’s choice to use the words “is alleged” in the present tense in Section
25.11(c) indicates an intent to bar additional convictions only for conduct actually included as
part of the basis of a continuous family violence charge, not for all acts that could have been
included. TEX. GOV’T CODE ANN. § 311.011 (courts must construe statutory language according
to the rules of grammar). Unlike Section 21.02(e), which prohibits additional convictions for all
acts of sexual abuse occurring against the same victim and within the same time period as those
underlying a continuous sexual abuse conviction, the offense underlying a prohibited conviction
under Section 25.11(c) must: (1) be committed against one of the same victims as the CFV
offense, (2) have occurred within the same time period as the CFV offense, and (3) have as an
element “any conduct that is alleged as an element of the [continuous family violence] offense.”
TEX. PENAL CODE ANN. § 25.11(c). It is clear from the face of the record that the instances of
Appellant’s conduct underlying the charges for occlusion assault and aggravated assault were
separate and distinct from the instances of conduct alleged as elements of the continuous family
violence offense herein. See id.; Ellison, 425 S.W.3d at 648 (scope of double jeopardy
protection afforded by CFV conviction does not reach conduct “for which appellant had not
already been punished.”). Therefore, Appellant has not been subjected to multiple punishments
for the same offense. Accordingly, the trial court’s judgments of conviction and sentences for
assault of a family member by impeding breath or circulation and aggravated assault with a
deadly weapon do not violate Appellant’s constitutional protections against double jeopardy.
We overrule Appellant’s first issue.

MOTION FOR NEW TRIAL
Appellant’s second and third issues both center on his motion for new trial, which was

9
overruled by operation of law without an evidentiary hearing.
Jury’s Receipt of Additional Evidence

Appellant alleges in his second issue that he is entitled to a new trial because the jury
received additional evidence during deliberations. In his brief, Appellant frames this point of
error as a challenge to the trial court’s decision to admit the chart into evidence. However, he
does not argue that the chart was itself inadmissible and seeks relief in the form of a new trial on
the merits. Further, he argued this point of error, referencing Rule 21.3(f) of the Texas Rules of
Appellate Procedure, in his motion for new trial. Both a trial court’s denial of a motion for new
trial and a trial court’s allegedly erroneous admission of evidence are reviewed for abuse of
discretion. See Briggs v. State, 560 S.W.3d 176, 183–84 (Tex. Crim. App. 2018). We construe
this point of error as a challenge to the trial court’s overruling of Appellant’s motion for new trial
by operation of law.
Standard of Review and Applicable Law
We review a trial judge’s ruling on a motion for new trial under an abuse of discretion
standard. Id. at 183–84. “This is a deferential standard of review that requires appellate courts
to view the evidence in the light most favorable to the trial court’s ruling.” Id. at 184 (citing
Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017)). A trial court abuses its discretion
only when no reasonable view of the record could support its ruling. Id. A trial court’s ruling
will be upheld if it is correct on any applicable legal theory, even if the trial court articulated an
invalid basis. Id.
Texas Rule of Appellate Procedure 21.3(f) provides that a defendant must be granted a
new trial “when, after retiring to deliberate, the jury has received other evidence.” TEX. R. APP.
P. 21.3(f). In such cases, a two-prong test must be satisfied for the defendant to obtain a new
trial: (1) other evidence must have been received by the jury, and (2) the evidence must be
detrimental or adverse to the defendant. Bustamante v. State, 106 S.W.3d 738, 743 (Tex. Crim.
App. 2003). We determine whether the jury “received” other evidence by considering how
extensively the jury examined the evidence and whether the jury was instructed to disregard the
evidence. Id. The second prong focuses on the character of the “other evidence” in light of the
issues before the jury; the actual effect of the evidence on the jury is irrelevant. Hayes v. State,
484 S.W.3d 554, 557 (Tex. App.—Amarillo 2016, pet. ref’d).

10
Analysis
We note initially that whether the jury in this case received “other evidence” by viewing
the chart during deliberations is questionable. 6 Regarding the five offenses of which Appellant
was convicted, the chart contains only information readily apparent on the face of the
indictments—the alleged offense, the date or dates on which the alleged offense occurred, and a
brief recitation of Appellant’s specific acts comprising the alleged offense. 7 For example, for
cause number 6455, the chart states that the offense was “injury to child,” that the offense
occurred on March 1, 2013, and gives the description “[P.H.] hand on coals/embers.” In
comparison, the indictment lists the charge against Appellant as “injury child/elderly/disable
w/int bodily inj—22.04(c)PC—Third Degree Felony,” occurring on “the 01st day of March,
2013,” and alleges that Appellant “intentionally and knowingly caused bodily injury to [P.H.], a
child 14 years of age or younger, by physically taking the hand of said [P.H.] and making it
touch hot coals/embers.” Decisions from our sister courts suggest that when the alleged “other
evidence” was already disclosed to the jurors at the trial, the first prong of the test is not satisfied.
See, e.g., Saenz v. State, 976 S.W.2d 314, 323 (Tex. App.—Corpus Christi 1998, no pet.)
(discussing Shivers v. State, 756 S.W.2d 442 (Tex. App.—Houston [1st Dist.] 1988, no pet.))
(“other evidence” prong satisfied where juror obtained “knowledge not shown by or deducible
from the trial evidence” by independently visiting crime scene); Hines v. State, 942 S.W.2d 785,
787 (Tex. App.—Fort Worth 1997, no pet.) (jurors’ comments about geographic area of offense
were not “other evidence” where all jurors personally viewed the area and comments were
“subject to confirmation at the scene”); Flix v. State, 782 S.W.2d 1, 3 (Tex. App.—Houston
[14th Dist.] 1989, pet. ref’d) (no “other evidence” when jurors’ unsanctioned visit to crime scene
and subsequent comments “added nothing to the deliberations that was not already before the
jury in the form of photographs”).
However, assuming without deciding that the chart at issue herein was “other evidence”
within the meaning of Rule 21.3(f), Appellant is not entitled to a new trial because the chart was
not of such a character to be detrimental or adverse to him during jury deliberations. See
Bustamante, 106 S.W.3d at 743; Thomison v. State, No. 11-10-00368-CR, 2012 WL 5989193,

6
The State does not dispute that the jury “received” the chart within the meaning of Rule 21.3(f).
7
Because Appellant was acquitted in trial cause number 6454, the indictment for that offense is not before
us on appeal.

11
at *3–4 (Tex. App.—Eastland Nov. 29, 2012, no pet.) (mem. op., not designated for publication).
As aforementioned, the chart merely restated information present in the indictments (organized
by trial cause number) and contained nothing of a biased or inflammatory nature. See
Thomison, 2012 WL 5989193 at *4 (State’s annotated copy of jury charge not detrimental
because notes “did not add additional facts; they were merely shorthand for what had been
alleged,” and “the exact handwritten words and phrases … were contained within each adjacent
paragraph.”); see also Gilberto Juarez v. State, No. 13-02-00186-CR, 2003 WL 21686193, at *2
(Tex. App.—Corpus Christi July 18, 2003, no pet.) (mem. op., not designated for publication)
(“State’s worksheet, containing a checklist of the elements of appellant’s crime, which was
viewed throughout the trial but not admitted into evidence,” was not of detrimental character).
We conclude that the trial court did not abuse its discretion by failing to grant Appellant’s
motion for new trial. Consequently, we overrule Appellant’s second issue.
Hearing on Motion for New Trial

In his third issue, Appellant contends that the trial court abused its discretion by
overruling his motion for new trial (applicable to each of the five matters in which he was
convicted) by operation of law without conducting an evidentiary hearing.
Standard of Review and Applicable Law
The purpose of a hearing on a motion for new trial is to decide whether the cause should
be retried and to prepare a record for presenting issues on appeal in the event the motion is
denied. See Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). The opportunity to
prepare a record for appellate review makes a hearing on a motion for new trial a critical stage,
but such a hearing is not an absolute right. Id. We review a trial court’s denial of a hearing on a
motion for new trial for an abuse of discretion and reverse only when the trial judge’s decision
lies outside the zone of reasonable disagreement. Hobbs v. State, 298 S.W.3d 193, 200 (Tex.
Crim. App. 2009).
A hearing is not required when the matters raised in the motion for new trial are
determinable from the record. Id. at 199. Moreover, to prevent “fishing expeditions,” a
defendant who has raised matters not determinable from the record in a motion for new trial must
additionally establish the existence of reasonable grounds showing that the defendant could
potentially be entitled to relief. Id.; Smith, 286 S.W.3d at 339. A motion for new trial must be
supported by an affidavit specifically setting out the factual basis for the claim. Hobbs, 298

12
S.W.3d at 200. The affidavit need not reflect every legal component required to establish relief
but must reflect that reasonable grounds exist for the relief sought, and specifically show the
truth of the grounds alleged as the basis for a new trial. Martinez v. State, 74 S.W.3d 19, 21
(Tex. Crim. App. 2002). However, if the affidavit is conclusory, is unsupported by facts, or fails
to provide the requisite notice of the basis for claimed relief, no hearing is required. Hobbs, 298
S.W.3d at 200. Appellate review is limited to the trial judge’s determination of whether the
defendant raised grounds that are both undeterminable from the record and reasonable, meaning
they could entitle the defendant to relief. Smith, 286 S.W.3d at 340. This is because the trial
judge’s discretion extends only to deciding whether these two requirements are satisfied; if the
trial judge finds that the defendant has met the criteria, he has no discretion to withhold a
hearing. Id.
Analysis
As aforementioned, Appellant’s motion for new trial was based on the allegation that the
jury received other evidence during deliberations, namely the State’s chart summarizing the
indictments. Contrary to Appellant’s assertion, in this case, the issue Appellant raised was and is
determinable from the record. There was no dispute that the jury “received” the chart; therefore,
it was not necessary for the trial court to examine or receive evidence regarding how extensively
the jury reviewed same. Bustamante, 106 S.W.3d at 743. Moreover, in determining whether the
chart was detrimental or adverse to Appellant within the meaning of Rule 21.3(f), the trial court
was limited to examining the “character” of the chart in the context of the issues before the jury
and could not have considered any additional extrinsic evidence regarding the chart’s actual
impact on the jury. Hayes, 484 S.W.3d at 557. A finding by the trial court that Appellant failed
to fulfill the requirements necessary to entitle him to a hearing on his motion would lie within the
zone of reasonable disagreement.
We conclude that the trial court did not abuse its discretion by denying Appellant’s
motion for new trial without a hearing. Consequently, we overrule his third issue.

ASSESSMENT OF DUPLICATIVE COURT COSTS

Appellant claims in his fourth issue that the imposition of court costs in trial cause
numbers 6261, 6453, 6455, and 6456 is improper because said costs are duplicative of those

13
assessed in the first case. The State concedes that the assessment of court costs in these cases
was error.
Applicable Law

The Texas Code of Criminal Procedure provides as follows:

(a) In a single criminal action in which a defendant is convicted of two or more offenses
or of multiple counts of the same offense, the court may assess each court cost or fee only once
against the defendant.
(b) In a criminal action described by Subsection (a), each court cost or fee the amount of
which is determined according to the category of offense must be assessed using the highest
category of offense that is possible based on the defendant’s convictions.

TEX. CODE CRIM. PROC. ANN. art. 102.073(a), (b) (West 2023). In this context, we construe the
phrase “[i]n a single criminal action” to mean in a single trial or plea proceeding. Hurlburt v.
State, 506 S.W.3d 199, 203 (Tex. App.—Waco 2016, no pet.).
Analysis

In this case, the record shows that the allegations and evidence of all the charged offenses
were presented in a single plea proceeding, or “criminal action.” See id. at 203-04. Therefore,
the trial court was authorized to assess each court cost and fee only once against Appellant. See
TEX. CODE CRIM. PROC. ANN. art. 102.073(a). The judgments in trial cause numbers 6260, 6261,
6453, 6455, and 6456 each show a court cost assessment of $290.00. Additionally, the bills of
cost in each matter contain identical costs. We conclude that the trial court erred by assessing
the same fees five times against Appellant. See id. Furthermore, Article 102.073(b) provides
that costs must be assessed using the highest category of offense based on Appellant’s
convictions. See id. art. 102.073(b). Here, trial cause number 6260, as a second-degree felony,
bore the highest category of offense. Accordingly, the court costs should be based on the case
bearing trial cause number 6260.
We sustain Appellant’s issue as to the duplicative court costs assessed against him in trial
cause numbers 6261, 6453, 6455, and 6456. We have the authority to correct a trial court’s
judgment to make the record speak the truth when we have the necessary data and information.
Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Because we have
the necessary data and information to correct the amount of court costs in trial cause numbers
6261, 6453, 6455, and 6456, we conclude that the judgments, the attached orders to withdraw
funds, and the bills of costs in those cases (i.e., appellate cause numbers 12-23-00193-CR, 12-

14
23-00194-CR, 12-23-00195-CR, and 12-23-00196-CR) should be modified to remove the
duplicate court costs totaling $290.00. See id.; see also TEX. R. APP. P. 43.2(b).

DISPOSITION

Having overruled Appellant’s first, second and third issues, but sustained Appellant’s
fourth issue as to trial cause numbers 6261, 6453, 6455, and 6456 (appellate cause numbers 12-
23-00193-CR, 12-23-00194-CR, 12-23-00195-CR, and 12-23-00196-CR), we modify the trial
court’s judgment, order to withdraw funds, and bill of costs in each of those cases to reflect that
the amount of court costs is $0.00. See TEX. R. APP. P. 43.2(b). We affirm the trial court’s
judgment in trial court cause numbers 6261, 6453, 6455, and 6456 as modified. We affirm the
trial court’s judgment in trial court cause number 6260 (appellate cause number 12-23-00192-
CR).

GREG NEELEY
Justice

Opinion delivered June 21, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

15
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 21, 2024

NO. 12-23-00192-CR

JIMMY HARDEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 8th District Court
of Rains County, Texas (Tr.Ct.No. 6260)

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.

Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 21, 2024

NO. 12-23-00193-CR

JIMMY HARDEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 8th District Court
of Rains County, Texas (Tr.Ct.No. 6261)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment, Order to
Withdraw Funds, and bill of costs of the court below should be modified and as modified,
affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment,
Order to Withdraw Funds, and bill of costs of the court below be modified to reflect that the
amount of court costs is $0.00; in all other respects the judgment of the trial court is affirmed;
and that this decision be certified to the court below for observance.

Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 21, 2024

NO. 12-23-00194-CR

JIMMY HARDEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 8th District Court
of Rains County, Texas (Tr.Ct.No. 6453)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment, Order to
Withdraw Funds, and bill of costs of the court below should be modified and as modified,
affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment,
Order to Withdraw Funds, and bill of costs of the court below be modified to reflect that the
amount of court costs is $0.00; in all other respects the judgment of the trial court is affirmed;
and that this decision be certified to the court below for observance.

Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 21, 2024

NO. 12-23-00195-CR

JIMMY HARDEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 8th District Court
of Rains County, Texas (Tr.Ct.No. 6455)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment, Order to
Withdraw Funds, and bill of costs of the court below should be modified and as modified,
affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment,
Order to Withdraw Funds, and bill of costs of the court below be modified to reflect that the
amount of court costs is $0.00; in all other respects the judgment of the trial court is affirmed;
and that this decision be certified to the court below for observance.

Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 21, 2024

NO. 12-23-00196-CR

JIMMY HARDEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 8th District Court
of Rains County, Texas (Tr.Ct.No. 6456)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment, Order to
Withdraw Funds, and bill of costs of the court below should be modified and as modified,
affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment,
Order to Withdraw Funds, and bill of costs of the court below be modified to reflect that the
amount of court costs is $0.00; in all other respects the judgment of the trial court is affirmed;
and that this decision be certified to the court below for observance.

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