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Redmond v. State11/8/2000
onsider the affidavits.
The appellant was represented by retained counsel throughout trial and appeal. Counsel did not tell the trial court why he failed to file affidavits within 30 days of sentencing, but argued he should be permitted to supplement the motions with affidavits. Assuming counsel's performance was deficient, Redmond failed to establish prejudice by demonstrating that the motion for new trial would have been granted had the trial court conducted the evidentiary hearing. See Bacey v. State, 990 S.W.2d 319, 333 (Tex. App.--Texarkana 1999, no pet.)(failure to set motion for new trial hearing within 75 days); Bryant v. State, 974 S.W.2d 395, 400 (Tex. App.--San Antonio 1998, pet. ref'd) (failure to file motion for new trial). Redmond's late-filed affidavit does not establish prejudice. See Flores v. State, 18 S.W.3d 796, 800 (Tex. App.--Austin 2000, no pet.) (refusing to consider late-filed affidavit in claim of ineffective assistance of counsel). The trial judge's offhand comment that she might grant a writ of habeas corpus does not establish a reasonable probability that, but for counsel's failure to file affidavits with the motions for new trial, the result of the proceeding probably would have been different. Issue seven is overruled.
Redmond presents a single argument for her remaining issues:
Issue Eight: Did the trial Court err in ruling that a motion for new trial alleging matters outside the record cannot be heard without an affidavit supporting the allegations?
Issue Nine: Did the trial court err in refusing to hear the motions for new trial on their merits since they were adequately supported by affidavits supplemented to, and not amending, the original motions for new trial?
Issue ten: Did the trial court err in failing to hear and grant the motions for new trial in the form originally filed in that they were not ineffective as originally presented without affidavit?
Redmond argues that motions for new trial, being governed by Texas Rule of Appellate Procedure 21, cannot be subject to a judicially imposed affidavit requirement. The basic premise for this argument, that the rules do not require the motion to be supported by an affidavit, is incorrect. The Rules of Appellate Procedure do impose an affidavit requirement. State v. Pilkinton, 7 S.W.3d 291, 293 (Tex. App.--Beaumont 1999, pet. ref'd); Tex. R. App. P. 10.2 ("A motion need not be verified unless it depends on ... [facts not in the record, not within the court's knowledge in its official capacity, or not within the personal knowledge of the attorney signing the motion], in which case the motion must be supported by affidavit or other satisfactory evidence.")
Redmond argues an affidavit requirement cannot be imposed by common law because the Rules of Appellate Procedure supply the sole procedure for the motion. This argument fails for several reasons. First of all, procedural rules are subject to judicial interpretation in general and the Code Construction Act in particular. See Castillo v. State, 865 S.W.2d 89, 96 (Tex. App.--Corpus Christi 1993, no pet.); McVickers v. State, 838 S.W.2d 651 (Tex. App.--Corpus Christi 1992), affirmed, 874 S.W.2d 662 (Tex. Crim. App. 1993) (applying the Code Construction Act to the Rules of Criminal Evidence); Tex. Gov't Code Ann. § 311.002(4) (Vernon 1998) (applying the Code Construction Act to "each rule adopted under a code"). The Code Construction Act permits considering "common law or former statutory provisions, including laws on the same or similar subjects[.]" Tex. Gov't Code Ann. § 311.023(4) (Vernon 1998). Secondly, Rule of Appellate Procedure 21 sets forth when a motion for new trial is required, when gran
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