Carroll v. State
Carroll v. State
Opinion of the Court
OPINION
Opinion by
Matthew George Carroll stands convicted by a Harrison County jury for the state jail felony of delivery of a controlled substance.
Direct appeals often present a limited record for review of the effectiveness of trial counsel. Id. at 430; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). One way to obtain evidence of counsel’s trial strategy or other matters in the direct appeal record is through a motion for new trial.
In this case, there is neither a record to indicate why counsel chose certain actions or declined to ask any particular questions
But counsel seeks to avoid the problem by obtaining a remand for a hearing of the nature typically provided in a habeas. Due to Carroll’s inventive tactic on appeal, the question arises whether he can now develop the record this way on direct appeal.
This Court has held that, when a motion for new trial and an accompanying affidavit demonstrate reasonable grounds that could entitle a defendant to relief, a hearing on the motion for new trial should be granted by the trial court — failing which the appeal should be abated to the trial court for a hearing on the motion for new trial. Barnett v. State, 338 S.W.3d 680, 687 (Tex.App.-Texarkana 2011, no pet.); see Stokes v. State, 298 S.W.3d 428, 431 (Tex.App.-Houston [14th Dist.] 2009, no pet.). As an example, in Hobbs v. State, 298 S.W.3d 193, 203 (Tex.Crim.App. 2009), the court held that an appellant’s verified motion to the trial court was sufficient to put the trial judge on notice that reason
The problem is that, here, Carroll filed with the trial court no motion for new trial or affidavits
We decline the invitation to expand our scope of authority by ordering evidentiary hearings on matters which have never been presented to the trial court, and which do not impact our determination of our own jurisdiction over the appeal.
We affirm the judgment.
. He was sentenced to twelve months’ confinement in a state jail facility.
. It is worth noting that the request is set up, not as a motion, but as the actual point of error in appellant's brief, asking solely for the hearing. If we dispose of the appeal by ordering such a hearing, the appeal is completed.
.Even if we granted the requested relief, it would send the matter back only for a hearing, and no other action. Thus, as presented, it could not qualify Carroll for any direct review beyond that point.
. Another way to develop a proper record is through a hearing in a habeas corpus collateral attack. See generally Tex.Code Crim. Proc. Ann. arts. 11.01-45 (West 2006 & West Supp. 2011).
. Defense counsel may rely on questions asked by the trial court or the prosecutor during voir dire. Armstrong v. State, 897 S.W.2d 361, 364 n. 1 (Tex.Crim.App. 1995); Garza v. State, 988 S.W.2d 352, 362 (Tex.App.-Fort Worth) rev'd on other grounds, 7 S.W.3d 164 (Tex.Crim.App. 1999). Here, too, the alleged derelictions are errors of omission rather than commission revealed in the trial record, and, in such a situation, collateral attack is the proper vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record. Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998).
. We cannot consider affidavits not part of the record except when they involve our determination of our own jurisdiction. See Yarbrough v. State, 57 S.W.3d 611, 615-16 (Tex. App.-Texarkana 2001, no pet.).
. No allegation is made that the trial court was obliged to hold a hearing sua sponte.
.We also recognize that Carroll now has counsel, appointed by the court, to represent him. In a habeas, he likely would not, and would likely be forced to attempt to represent himself, an outcome that makes matters more difficult for all entities involved.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.