Seth Michael Davis v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00253-CR

SETH MICHAEL DAVIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 64th District Court
Swisher County, Texas
Trial Court No. A-4935-22-05, Honorable Danah L. Zirpoli, Presiding

July 3, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

Seth Michael Davis, appellant, was convicted of murder and sentenced to fifty

years imprisonment. He shot the decedent at a party, as the decedent approached him.

Allegedly, he feared for his safety at the time, though he also purportedly did not intend

to shoot. Three issues pend for review. They involve the trial court’s failure to 1) hold a

hearing on his motion for a new trial, 2) instruct the jury on the lesser-included offense of

manslaughter, and 3) grant his motion for mistrial due to a courthouse demonstration by

the victim’s family. We affirm.
Issue One

Appellant first asserts the trial court erred by denying his motion for a new trial

because his motion raised matters that were not determinable from the record. The

matters, as expressed in his appellant’s brief, were: 1) “specific essential, relevant, and

material witnesses were identified as not compelled to appear”; 2) “[t]he voir dire process

was indelibly tainted by the actions of the decedent’s family in the presence of the Jury

Pool”; 3) “[t]he Jury panel presumption of innocence was undermined by Jury Pool

members being allowed to view the Defendant ‘transported back and forth’ shackled by

Jailers”; 4) “[a] member of the Jury Pool was Appellant’s jailer” who “ate lunch with the

appellant and discussed the case”; 5) “[t]he [appellant] wished to raise a useful claim of

ineffective assistance of Counsel against Trial Counsel”; and 6) “[t]he Trial Court refused

to include absolutely required jury instructions for lesser-included offenses.” We overrule

the issue.

A hearing on a motion for new trial serves two purposes: 1) to determine whether

the case should be retried and 2) to complete the record for presenting issues on appeal.

Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). One has no absolute right

to such a hearing, though. Id. Rather, it is dependent upon filing a motion for new trial

with accompanying affidavits that 1) raise matters which are not determinable from the

record and 2) establish reasonable grounds showing that the defendant could potentially

be entitled to relief. Id. Furthermore, the affidavits must include sufficient facts showing

reasonable grounds to demonstrate that he could prevail. Id. at 199–200; see Dora v.

State, No. 07-21-00293-CR, 2023 Tex. App. LEXIS 9081, at *6 (Tex. App.—Amarillo Dec.

5, 2023, pet. granted in part) (mem. op., not designated for publication) (requiring the

affidavits to reveal the factual basis for the claim; accord Grant v. State, 172 S.W.3d 98,
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101 (Tex. App.—Texarkana 2005, no pet.) (stating that when factual matters asserted in

a motion for new trial are outside the record, an affidavit “specifically showing the truth of

the grounds of attack” is necessary). Furthermore, if the affidavit is conclusory,

unsupported by the facts, or fails to provide the requisite notice of the basis for claimed

relief, no hearing is required. Dora, 2023 Tex. App. LEXIS 9081, at *6.

Regarding the allegation pertaining to missing witnesses, it is bereft of attested

factual support. Appellant failed to reveal facts depicting the content and relevance, if

any, of their testimony. Rather, we and the trial court were left to speculate on whether

their testimony would be of any consequence. Thus, appellant did not satisfy the second

prong; that is, he did not provide facts illustrating reasonable grounds showing potential

entitlement to relief.

As for the allegation of ineffective assistance, appellant did not state his attorney

was ineffective in any particular matter. Instead, he asserted that he “may wish to contend

that the Trial Counsel’s performance was deficient” and “an evidentiary hearing on the

motion for a new trial will allow the Defendant to develop” the matter. Such effort is

nothing more than the fishing expedition for which a hearing is unnecessary. See Hobbs,

298 S.W.3d at 199 (stating that the second prong to the test limits and prevents “‘fishing

expeditions’”). Nor did appellant endeavor to establish reasonable grounds

demonstrating any supposed ineffectiveness by counsel caused prejudice. That too

relieved the trial court from convening an evidentiary hearing on the matter. Id.

As for the allegation of a jury pool member having eaten lunch and discussed the

case, the member was not selected to sit on the jury. How that circumstance prejudiced

him went unexplained. Nor was the matter of prejudice supported by factual development

in either the amended motion for new trial or rather terse affidavit. Thus, again, appellant
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did not satisfy the second prong, that relating to establishing reasonable grounds showing

potential relief.

The disruption caused by protesting family members was broached to the court

during trial and formed the basis of appellant’s motion for mistrial. The same is true of

the request for an instruction on the lesser-included offense of manslaughter; it too was

raised and rejected at trial. Consequently, the matter was determinable from the existing

record, thereby dispensing with the need for a post-trial evidentiary hearing.

As for the jury pool’s seeing appellant being “‘transported back and forth’ shackled

by Jailers,” no facts accompanied the allegation which suggested that the purported

viewing was more than momentary, inadvertent, or fortuitous. This is of import since

“[b]rief views of a restrained or jail-clothed defendant do not require reversal.” Medellin

v. State, No. 07-16-00243-CR, 2017 Tex. App. LEXIS 6656, at *6 (Tex. App.—Amarillo

July 18, 2017, no pet.) (mem. op., not designated for publication) (quoting Young v. State,

No. 09-06-00429-CR, 2007 Tex. App. LEXIS 5864 (Tex. App.—Beaumont July 25, 2007,

pet. ref’d) (mem. op., not designated for publication)). The need to reverse arises only

when the accused is restrained or forced to wear jail clothing throughout trial or the

restraint hampers communication with counsel. Id. at *6–7. So, again, the allegations

within the amended new trial motion and accompanying affidavit failed to establish

reasonable grounds showing potential relief.

Issue Two

Appellant next contends that the trial court erred by failing to include a lesser-

included offense, manslaughter, in the jury charge. We overrule the issue.

The record reflects appellant’s trial strategy was that he was justified in shooting

the decedent in self-defense. Indeed, he sought and received an instruction on self-
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defense. “[T]he justification of self-defense is inconsistent with a claim that the defendant

acted only recklessly,” for purposes of receiving a lesser-included offense charge on

manslaughter. Nevarez v. State, 270 S.W.3d 691, 694–95 (Tex. App.—Amarillo 2008,

no pet.); see Guerra v. State, No. 07-21-00305-CR, 2022 Tex. App. LEXIS 8828, at *3

(Tex. App.—Amarillo Dec. 1, 2022, no pet.) (mem. op., not designated for publication)

(stating same). Consequently, the trial court did not err in withholding the instruction

sought. See Nevarez, 270 S.W.3d at 695.

Issue Three

Finally, appellant decries the trial court’s rejection of his motion for mistrial. The

motion was made during trial and after members of the decedent’s family purportedly

engaged in a protest outside the courtroom. We overrule the issue.

We preliminarily note that appellant supported his issue with photographs of the

interior halls outside the 64th District courtroom in Swisher County. Those pictures were

attached to his brief. They are not part of the appellate record. Because we cannot

consider any item that is not a part of the record on appeal, see Johnson v. State, 624

S.W.3d 579, 585 (Tex. Crim. App. 2021), the pictures are beyond our purview.

Second, after the disruption occurred, appellant broached it and moved for a

mistrial. No lesser form of relief, such as an instruction to disregard, was sought. This is

problematic. Where a party’s first action is to move for mistrial, the scope of appellate

review is limited to the question whether the trial court erred in not taking the most serious

action of ending the trial. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). In

other words, an event that could have been prevented by timely objection or cured by

instruction to the jury will not lead an appellate court to reverse a judgment on an appeal

by the party who did not request these lesser remedies, like an instruction to disregard.
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Id. So, in that situation if a curative instruction would have sufficed, it cannot be said that

the trial court abused its discretion to deny mistrial. See Lee v. State, 549 S.W.3d 138,

145 (Tex. Crim. App. 2018). Indeed, the burden then lies with the appellant to establish

that an instruction to disregard would not have cured any potential prejudice. See Cruz-

Banegas v. State, No. 05-21-00256-CR, 2022 Tex. App. LEXIS 4322, at *13–14 (Tex.

App.—Dallas June 23, 2022, pet. ref’d) (mem. op., not designated for publication).

Moreover, an instruction to disregard generally suffices to cure impropriety caused by

outbursts. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).

Again, appellant did not ask for lesser relief. Nor did he brief, on appeal, whether

lesser relief such as a timely instruction to disregard would have cured any prejudice

caused by the family outbursts. Rather, he seems to criticize the trial court for not sua

sponte instructing the jury to disregard it. Given these circumstances, we cannot say he

carried his burden to show the trial court erred.

The judgment is affirmed.

Brian Quinn
Chief Justice

Do not publish.

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