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Click here for the full text of this decision FACTS:The appellant was chief clerk for a Harris County constable. Her responsibilities included issuing payroll checks and handling the accounts payable and receivable. An audit of the constable’s accounts showed that the office had paid about $80,000 to appellant, or to her relatives who also worked for the constable, for several hundred more hours than they actually had worked. The appellant pleaded no contest to an indictment that accused her of the second-degree felony of theft by a public servant. The trial court deferred sentencing and ordered a presentence investigation report. As part of the report, the appellant submitted a statement. She said that she never intended to commit theft but that she accepted responsibility for her mistakes. After the trial court sentenced her, the appellant retained new counsel. She filed a motion for new trial claiming that her former trial counsel was ineffective. The appellant and the trial counsel each submitted an affidavit. In her affidavit, the appellant said that her counsel failed to advise her that lack of intent was a defense to the theft charge. She claimed that if she had known of such a defense, she would have pleaded not guilty and gone to trial. The trial counsel said in his affidavit that he advised the appellant not to rely on a defense based on lack of intent or knowledge because, although she told him that she did not intend to commit theft, she offered no explanation of the facts other than that she made a mistake. The trial court held a hearing on the appellant’s motion for new trial. The appellant’s new counsel indicated that he was prepared to call the appellant’s trial counsel but was informed that the court wanted to proceed by affidavits. He objected to not being allowed to call witnesses. He particularly wanted to question the trial counsel about certain omissions from his affidavit. After considering the parties’ arguments and the affidavits submitted, the trial court denied the motion for new trial. On appeal, the appellant argued that the trial court erred in denying her motion without allowing witnesses to give testimony which would have fully developed significant omissions in her trial counsel’s affidavit. The 13th Court of Appeals noted that the trial court is given discretion by Rule of Appellate Procedure 21.7, which reads, “The court may receive evidence by affidavit or otherwise.” The court of appeals held that the trial court, which held a hearing and considered the affidavits, did not abuse its discretion in denying the appellant’s motion for new trial. The appellant argued that the court of appeals erred, because the affidavits were ambiguous and conflicting as to material facts. HOLDING:Affirmed. The Court of Criminal Appeals (CCA) stated that a trial court abuses its discretion in failing to hold a hearing when a defendant presents a motion for new trial raising matters not determinable from the record. But a trial court may rule based on sworn pleadings and affidavits without oral testimony; live testimony is not required. An appellate court reviews a trial court’s denial of a motion for new trial under an abuse of discretion standard. An appellate court does not substitute our judgment for that of the trial court; rather, it decides whether the trial court’s decision was arbitrary or unreasonable. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court’s ruling. The CCA cited as applicable precedent Manzi v. State, 88 S.W.3d 240 (Tex. Cr. App. 2002). There, dealing with a hearing on a motion to suppress evidence, the CCA held that the court of appeals correctly deferred to the trial court’s resolution of the facts from conflicting affidavits. The CCA in that decision also recognized the authority of the trial court to decide contested factual issues on affidavits. The appellant argued that in Manzi, “at least three judges of this Court recognized that affidavits are insufficient and oral testimony is necessary to make credibility determinations in certain circumstances.” Even if the appellant has read Manzi correctly, the CAA found that that case did not support her because the circumstances of this case were less favorable to her than the circumstances were to Manzi. The court reasoned that if the Manzi court’s determination of credibility was entitled to deference on appeal, then a fortiori is the trial court’s determination entitled to it in this case. The CAA concluded: “We do not accept a per se rule that a trial court must hear live testimony whenever there is a factual dispute in affidavits and a party asks for testimony. Here we hold that, in this case, the trial court did not abuse its discretion by deciding the motion on the affidavits.” OPINION:Womack, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Keasler, Hervey, and Cochran, J.J., joined. CONCURRENCE:Price and Johnson, J.J., concurred in the judgment. DISSENT:Holcomb, J., dissented.

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