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Wei v. State12/19/2000
Justice Morris
In this case, Tzu Chiang Wei appeals his conviction for felony driving while intoxicated. Appellant complains in one point of error that the trial court erred by not holding a hearing on his motion for new trial. Because we conclude appellant's complaint is without merit, we affirm the trial court's judgment.
Following his conviction, appellant timely filed a motion for new trial. The motion alleged that he received ineffective assistance of trial counsel based on four separate grounds:
(1) trial counsel failed to file a motion to suppress police testimony about appellant's refusal to submit to a breath or blood test when there was "substantial evidence" that appellant's "waivers" (presumably of his Miranda rights) were not made freely or voluntarily, (2) trial counsel failed to subpoena an expert to testify that appellant had only a limited understanding of the English language, (3) trial counsel failed to provide appellant with an interpreter to assist him with understanding the evidence at trial and to assist him in communicating with the trial court, and (4) trial counsel failed to subpoena several of appellant's co-workers to testify that they were certain appellant was not intoxicated before his arrest.
Two exhibits were attached to the motion. The first contained a business letter (supported by an affidavit for authentication) from a counselor, which stated that alcohol dependence testing performed on appellant "suggest that [appellant's] understanding of English is comparable to a second grade student." The second was an affidavit from one of appellant's co-workers stating that appellant's friends monitored his drinking because he had previous convictions for DWI and he "appeared to be fine" when he left a party before his arrest. The affidavit also stated that appellant's understanding of the English language is so limited that the co-worker had to interpret for appellant when he met with his lawyer. The trial court denied the motion for new trial without a hearing.
The right to an evidentiary hearing on a motion for new trial is not absolute. Harris v. State, 887 S.W.2d 482, 486 (Tex. App._Dallas 1994, no pet.). We review the trial court's refusal to hold an evidentiary hearing on the motion for new trial under an abuse of discretion standard. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). A trial court abuses its discretion in denying a hearing on a timely filed motion for new trial if the motion raises a matter outside the record upon which relief could be granted. Id. The motion in appellant's case did not raise any such matter.
First, the trial court observed appellant's Miranda warnings and refusal to submit to a breath or blood test on a videotape admitted into evidence. To the extent appellant's motion for new trial alleged facts outside the record in urging trial counsel should have filed a motion to suppress, he has failed to meet the requirement that he support the allegations with the affidavit of someone with knowledge of the facts. See id. Therefore, his argument on the suppression issue did not merit a hearing.
Next, the court was able to observe appellant's understanding of English through his participation in trial. Appellant's probation officer testified that she supervised him for approximately one year and never had a difficulty communicating with him. Appellant also testified in his defense and was cross-examined by the State. The complaints in appellant's motion for new trial alleging that appellant did not sufficiently understand English did not raise matters outside the record because appellant's knowledge of the English language was on display for th
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