Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Pursuant to a plea bargain agreement, Bahm pled guilty to aggravated sexual assault of a child. The trial court accepted Bahm’s plea and deferred adjudication of his guilt. The court also ordered that Bahm be placed on community supervision for eight years. Approximately five months later, the state filed its motion to adjudicate guilt and to revoke community supervision. The state alleged that Bahm committed 11 violations of his community supervision order. At the revocation hearing, Bahm pled “true” to six alleged violations and “not true” to the remaining five allegations. Following Bahm’s untimely filing of a motion for new trial and an appeal, Bahm successfully petitioned the Court of Criminal Appeals for a writ of habeas corpus. The court granted Bahm an out-of-time appeal. Bahm then filed a second motion for new trial. The trial court denied Bahm’s second motion without holding a hearing. In this appeal, Bahm asserts the trial court erred in failing to hold an evidentiary hearing on his motion for new trial. HOLDING:Affirmed. Bahm’s motion for new trial is supported by three documents titled as affidavits. One document is signed by Bahm. The second is signed by his father, Dewitt Bahm. The third is signed by his aunt, Donna Klemme. Bahm’s “affidavit” is actually an unsworn declaration that an inmate may use in lieu of a verification or affidavit pursuant to the Texas Civil Practice and Remedies Code. Bahm uses the phrase “according to my belief” to qualify his declaration. As a result, it does not meet the statutory requirements of an unsworn declaration because it fails to attest to the truthfulness of the facts. Swearing that a fact is “true and correct according to one’s belief” is not substantially the same form as swearing that a fact is “true and correct.” Thus, the trial court was not required to consider Bahm’s affidavit in determining whether to conduct an evidentiary hearing on his motion for new trial. To be sufficient to require the trial court to hold an evidentiary hearing on Bahm’s claim of ineffective assistance of counsel asserted in his motion for new trial, Bahm’s other two supporting affidavits must specifically show that Bahm’s attorney failed to inform him of an offered plea bargain. See King, 29 S.W.3d at 569. Affidavits that are conclusory in nature and unsupported by facts are not sufficient to put the trial court on notice that reasonable grounds for relief exist. The affidavits submitted by Bahm in his motion for new trial were factually insufficient regarding Bahm’s claim of ineffective counsel, the court determines. OPINION:Horton, J.; McKeithen, CJ, Kreger and Horton, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.