Michael Bee Hodge v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00328-CR
NO. 09-23-00340-CR
NO. 09-23-00341-CR
________________

MICHAEL BEE HODGE, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 258th District Court
Polk County, Texas
Trial Cause Nos. CR23-0359, CR23-0362, and CR23-0363
________________________________________________________________________

MEMORANDUM OPINION

Appellant Michael Bee Hodge appeals his convictions in trial cause number

CR23-0359 for evading arrest or detention with a vehicle, trial cause number CR23-

0363 for aggravated assault of a public servant, and trial cause number CR23-0362

for possession of a controlled substance. See Tex. Penal Code Ann. §§

1
22.02(b)(2)(B), 38.04(a), (b)(2)(A); 1 Tex. Health & Safety Code Ann. § 481.115(b).

In three separate briefs, Hodge complains about the sufficiency of the evidence

concerning identity, the State’s alleged Brady violation for failing to disclose

evidence, and harm due to lost portions of the punishment record. In this

consolidated opinion, we affirm the trial court’s judgments which resulted from two

separate jury trials.

BACKGROUND

First Jury Trial

A grand jury indicted Hodge for evading arrest with a vehicle, a third-degree

felony. See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A). The indictment alleged that

on or about April 22, 2023, Hodge “did then and there intentionally flee from Chris

Simmons, a person the Defendant knew was a peace officer who was attempting to

lawfully arrest or detain the Defendant, and the Defendant used a motor vehicle

while he was in flight[.]” The indictment included a Habitual Offender Notice

1
We note that the Legislature enacted two different versions of section
38.04(b) in 2011 and that an offense is a third-degree felony if an offender used a
vehicle to evade arrest, regardless of whether he has a prior conviction for evading.
See Copeland v. State, No. 09-19-00194-CR, 2020 WL 1280194, at *3 (Tex. App.—
Beaumont Mar. 18, 2020, no pet.) (mem. op., not designated for publication); see
also Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Sess. Law Serv.
2320, 2321; Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011 Tex. Sess.
Law Serv. 2110, 2111; Act of May 23, 2011, 82nd Leg., R.S., ch. 391, § 1, 2011
Tex. Sess. Law Serv. 1046, 1046 (current version at Tex. Penal Code Ann. § 38.04).
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alleging Hodge had two prior felony convictions. See id. § 12.42(a) (providing

enhanced punishment for habitual offenders).

During the jury trial, Detective Chris Simmons (“Simmons”) with the

Livingston Police Department, testified that he was about to go on general patrol on

April 22, 2023, when he heard “dispatch call for a flock hit,” and he explained that

their flock hit system is a camera system set up around town that reads license plates

and reports the location of stolen cars. Simmons testified that after the flock hit

detected a purple Harley Davidson motorcycle, he drove to the location, encountered

the stolen motorcycle, and verified the license plate. The jury viewed video from

Simmons’s dash camera during his testimony, and Simmons explained that after he

turned on his lights and “bumped” his siren, the motorcycle driver pulled over to the

side of the road but then took off when Simmons stepped out of his marked patrol

unit wearing his police uniform. Simmons identified Hodge as the motorcycle driver

and testified that Hodge looked at him as Hodge “takes off.”

Simmons explained that his siren and lights were activated as he pursued

Hodge, who ran stop signs and went down a steep embankment to travel along the

railroad tracks. Simmons testified that he followed Hodge on foot, advised other

officers of Hodge’s location, and returned to his unit and continued his pursuit.

Simmons testified that Hodge fled while Simmons was trying to lawfully detain him

for possessing a stolen motorcycle. Simmons explained that he continued to search

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for Hodge, who wrecked the motorcycle and fled on foot, and he observed Hodge,

who had lost his hat and mask, running through lots and “stripping off his jacket.”

After locating Hodge in a wooded area, Simmons continued his pursuit with his gun

drawn and arrested Hodge, whom he recognized.

While the record shows that when asked on direct if there was any doubt that

Hodge is the actual person, Simmons stated “Yes, 100 percent[,]” based on

Simmons’s entire testimony, it appears Simmons misunderstood the question. The

video from Simmons’s dash and body cameras support Simmons’s testimony that

Hodge evaded arrest or detention with a vehicle. Simmons explained that although

Hodge’s hair color had changed, that did not affect his identification of Hodge, who

Simmons testified “still ha[d] the same face.”

On cross-examination, when asked if he could “definitively tell this jury, that

the person who got off the motorcycle is the same person sitting here in the

courtroom today,” Simmons stated, “I can.” Simmons agreed that there were points

during the pursuit where he lost sight of the motorcycle driver, but he testified that

he knew that the motorcycle driver and the person he arrested were the same person.

Officer Chad Lilly (“Lilly”) with the Livingston Police Department testified

that on April 22, 2023, he was on patrol when he heard a flock hit over the radio.

Lilly explained that after learning the motorcycle failed to stop for Simmons, he

continued his pursuit with his lights and siren activated. After Lilly observed the

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motorcycle wreck into the ditch and the driver flee on foot, Lilly followed the driver

and searched under homes. Lilly found a hat and jacket, which appeared to be the

same one the driver was wearing, just off the roadway. Lilly guarded the jacket, did

not touch it, and turned it over to a detective, who took it into evidence, and he did

not know whether anything was found in the jacket. Lilly was unable to identify the

driver. Lilly’s dash cam video, which was admitted into evidence and played to the

jury, supports Lilly’s testimony.

Detective Kaleb Barker (“Barker”) with the Livingston Police Department

testified that he investigated the case and recovered the leather jacket Lilly located

at the scene. Barker testified that the jacket was found in the woods a couple of

hundred feet from where the motorcycle crashed and approximately two and a half

blocks from where Hodge was taken into custody. Barker explained that he

inventoried the jacket that they believed belonged to Hodge and found an abandoned

cell phone inside a pocket. Barker testified that he opened the home screen on the

cell phone, which was unlocked, and located the name “Michael Hodge.” Barker did

not see who discarded the jacket or know whether the jacket belonged to the person

on the motorcycle, but he testified that the other officers involved stated Hodge was

wearing the jacket during the pursuit.

The State recalled Simmons, who explained that while he was pursuing Hodge

in his patrol unit, he saw Hodge run through the field and strip off the jacket, but he

5
did not find the jacket at the scene. Simmons examined the jacket that had been

admitted into evidence at trial and testified that he recognized the jacket and that it

was the same jacket the motorcycle driver was wearing. Simmons also testified

regarding two still shots from his dash cam video that were taken as Hodge was

fleeing, and he explained they showed Hodge on the motorcycle wearing his jacket.

Roggan Stanzel (“Stanzel”), a Texas Ranger with the Texas Department of

Public Safety, testified that he investigated Hodge’s case. Stanzel testified that he

interviewed Hodge, who waived his Miranda rights and admitted that he evaded

arrest from the police on a motorcycle because he did not have a motorcycle license.

The jury found Hodge guilty of evading arrest or detention with a vehicle.

During the punishment phase of the trial, the jury found the accusations of two prior

convictions in the indictment to be true, assessed Hodge’s punishment as a habitual

offender at seventy-five years of confinement, and assessed a $10,000 fine.

Hodge filed a Motion for New Trial, arguing there is insufficient evidence that

he is the same person the police chased and later arrested; evidence tending to

establish his innocence–brass knuckles found in the jacket–has been intentionally

destroyed or withheld due to the police failing to inventory the property. Hodge

attached the affidavits of the deputy court clerk for the 258th and 411th Judicial

District Courts and the court reporter for Judge Kitchens of the 258th Judicial

District Court. In his Motion, Hodge argued the police failed to properly inventory

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the evidence and that after the trial ended, the trial court’s deputy court clerk and

court reporter discovered the “hidden weapon[,]” which he claims shows that he is

not the same person the police initially chased. In her affidavit, Katey Nelson

(“Nelson”), the deputy court clerk for the 258th and 411th Judicial District Courts,

stated that after the trial, the court reporter came to the office and took photographs

of the jacket in lieu of checking out the exhibit, and when the court reporter placed

the jacket back into the bag, Nelson heard a “loud thud.” Nelson stated that when

she looked into the bag, she found a set of brass knuckles, which the court reporter

photographed. The court reporter, Michelle Kipina (“Kipina”), stated in her affidavit

that when she pulled the leather jacket out of the evidence bag “something fell out.”

Kipina explained that she looked “in the bag and it was a brass knuckle.” Kipina also

stated that “[t]here may be something else in one of the pockets – looked like a

tissue/napkin type of material.” Although the clerk’s record shows the trial court set

the Motion for New Trial for a hearing, there is no reporter’s record or other

indication that the trial court conducted a hearing or ruled on the Motion.

Second Jury Trial

A grand jury indicted Hodge for the offense of possession of a controlled

substance. See Tex. Health & Safety Code Ann. § 481.115(b). The indictment

alleged that on or about April 22, 2023, Hodge “did then and there intentionally or

knowingly possess a controlled substance, to wit: METHAMPHETAMINE in an

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amount by aggregate weight, including any adulterants and dilutants, of less than

one gram[.]” The indictment included a Habitual Offender Notice alleging Hodge

had two prior felony convictions. See Tex. Penal Code Ann. § 12.42(a).

A grand jury also indicted Hodge for aggravated assault against a public

servant. See Tex. Penal Code Ann. § 22.02(b)(2)(B). The indictment alleged that

Hodge

did then and there intentionally, knowingly, or recklessly threaten to
cause serious bodily injury to Chris Simmons by threatening Chris
Simmons by displaying a gun, and the Defendant did then and there
know that the said Chris Simmons was a public servant, to-wit:
Livingston Police Officer, in the lawful discharge of an official duty of
attempting to detain Defendant[.]”

The State filed a Notice of Enhancement and Habitualization, alleging Hodge had

two prior felony convictions. See id. § 12.42(a). The State filed a Motion to

Consolidate Cases, which the trial court granted and ordered the cases be

consolidated into one criminal action and tried in a single trial.

During the jury trial, Detective Simmons testified that on April 22, 2023, he

had probable cause when he attempted to stop Hodge, who was driving a motorcycle,

to question him about the ownership of the motorcycle. Simmons testified that

Hodge pulled over when he activated his lights and “bumped” his siren, but then

took off when Simmons stepped out of his marked patrol unit wearing his patrol

uniform. Simmons explained that he and other officers pursued Hodge, who

eventually crashed the motorcycle and fled on foot. At one point, Simmons observed
8
Hodge running through a yard and stripping off his jacket. Simmons testified that

when he found Hodge hiding behind a truck, he warned him that he did not want to

use deadly force because “[s]omebody had told me something.”

Simmons explained that he was concerned Hodge had a gun, because he

observed Hodge “reaching down to his boot[]” and “pulling a gun out.” Simmons

testified that he saw Hodge “pull the gun from his pants leg[]” and “[s]witch it to his

right hand.” At that point, Simmons explained he believed Hodge was “reaching for

a gun[,]” and when Simmons saw Hodge switch the gun to his right hand and point

it at him, Simmons drew his firearm, fired four rounds at Hodge, and “stopped the

threat.” Simmons testified that when he was shooting, Hodge “still had his weapon

in my direction.” Simmons explained that when he saw Hodge’s “weapon coming

out, I was in fear for my safety, my fellow partner safety, and anybody in the area[,]”

and he believed Hodge was going to shoot him. Simmons believed he had “no other

option other than to use deadly force.” Simmons testified that Hodge’s weapon had

a live round in the chamber and a fully loaded magazine.

On cross-examination, Simmons testified that when he saw Hodge make a

furtive gesture, he shot Hodge with his taser, and Hodge pulled the leads out.

Simmons explained that he shot Hodge with his gun “as soon as he puts [the weapon]

in his right hand[]” and before Hodge pointed the weapon at him. When asked about

his prior testimony that he shot Hodge because he was pointing the weapon at him,

9
Simmons stated “[a]nd it will be.” Simmons testified that when Hodge transferred

the weapon to his right hand, “he had the opportunity to drop the weapon at that

point, and did not.” The videos from Simmons’s dash and body cameras support

Simmons’s testimony.

Officer Lilly testified that he was on routine patrol when he heard Simmons

was involved in a pursuit, so he assisted in the search. Lilly testified that he saw

Hodge drop the motorcycle in a ditch and flee on foot. Lilly explained that after he

heard Simmons discharge his weapon, he went to the scene, searched the wooded

area, and found Hodge’s jacket that Simmons reported he had taken off, along with

a ball cap and one glove. Lilly testified that he called Detective Barker to the scene

to collect the evidence.

Barker testified that he photographed the scene and assisted in collecting the

evidence from the scene, including Hodge’s pistol, magazine, ammunition,

discarded jacket, glove, and baseball cap. Barker explained that Lilly directed him

to where he found the jacket in the woods near the scene. Barker testified that when

he checked the jacket’s pockets, he found a bag containing a “clearish white crystal-

like substance[]” that he believed to be methamphetamine. Barker explained that he

collected the narcotics into evidence, and the evidence technician sent it to the crime

lab. Barker also found a cell phone in the jacket, and he observed the name “Micheal

Hodge[]” in the cell phone.

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Billie Henderson Gardner (“Gardner”) testified that on April 22, 2023, there

was an altercation in her driveway, and she observed a gentleman “ducking in-

between vehicles[]” and “the law was coming around the other side of the vehicle,

they were kind of going back and forth.” Gardner identified Hodge as the man she

saw in her yard. Gardner explained that Hodge asked her daughter and son-in-law

for help, and when her son-in-law told him to “keep going[,]” Hodge disappeared

and then returned and was “ducking in-between” the trucks. Gardner testified that

when an officer came, she observed Hodge reach inside his pocket or groin area and

pull out a clip and then reach down into his boot and “pull out something.” At that

point, Gardner testified that she yelled to her kids to “get in the house. He has a gun.”

Gardner explained that she did not see the actual gun, but she saw the clip and Hodge

“[l]oading it.” Gardner testified that when the officers were circling in front of the

vehicle and “kind of playing chase[,]” she told the officer Hodge had a gun.

On cross-examination, Gardner testified she had a Vivint camera on the front

door of her house that recorded the incident in her front yard, and she also recorded

the incident with her cell phone. Gardner testified that the police collected both video

recordings, and defense counsel played the recordings for the jury. Gardner

explained that she only saw Hodge pull a clip out of his groin or pocket area and that

he “appeared to be taking something out of his boot area[,]” but she did not know if

it was a gun.

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Ranger Stanzel testified that he assisted with the police use of force

investigation, which is generally done in cases with officer-involved shootings, and

he determined that Simmons’s use of force was lawful, justified, and necessary.

Stanzel identified Hodge as the person who threatened Simmons with a gun, and he

explained that he believed Simmons feared for both his own life and other innocents

and law enforcement who were present. Stanzel testified that during his

investigation, he interviewed Hodge and determined Hodge’s actions were unlawful

and a threat to cause serious bodily injury or death.

Tayfun Sahin (“Sahin”), a forensic scientist who works with the Department

of Public Safety at the Houston Regional Crime Lab, testified that in this case, he

performed screening tests and determined the unknown substance was

methamphetamine. Sahin testified that the methamphetamine weighted .72 grams.

Nicole Groshon (“Groshon”), a firearm and toolmark examiner with the Texas

Department of Public Safety, testified that she tested State’s exhibit 58, which is

Hodge’s pistol Barker collected from the scene, and determined it was functional.

After the trial court denied defense counsel’s motion for directed verdict in

both cases, the jury found Hodge guilty of the offenses of possession of a controlled

substance and aggravated assault against a public servant. During the punishment

phase of the trial, the jury found the accusations of two prior convictions to be true

in both cases. For the offense of possession of a controlled substance case, the jury

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assessed Hodge’s punishment at twenty years of confinement. For aggravated

assault against a public servant, the jury assessed Hodge’s punishment at life in

prison.

In each case, Hodge filed the same Motion for New Trial he filed in the first

trial, alleging he was entitled to a new trial because the evidence was insufficient to

establish his identity as the same person the police pursued at the beginning of the

chase and that the State intentionally destroyed or withheld evidence–the set of brass

knuckles–which tended to establish his innocence. Hodge attached Nelson’s and

Kipina’s affidavits explaining how they discovered the brass knuckles after the trial.

As in the first trial, there is no reporter’s record on the Motion for New Trial, but in

both clerk’s records there is an Order Setting Hearing and an entry on the trial court’s

docket sheet noting that Hodge’s attorney was present on December 12, 2023, for

the Motion for New Trial and the court reporter’s name and initials are also noted

on the docket. Since the clerk’s record does not indicate the trial court ruled on the

Motions for New Trial, they were overruled by operation of law.

ANALYSIS

First Trial - Evading Arrest or Detention with a Vehicle

Sufficiency of the Evidence

In issue one, Hodge complains there was insufficient evidence identifying him

as the man Simmons chased on the motorcycle. Hodge argues there is no evidence

13
that he is the man who fled from Simmons on the motorcycle. Hodge argues that

during the pursuit, Simmons lost track of the man he was chasing on the motorcycle,

and when Hodge was shot, he was not riding a motorcycle or wearing the same hat,

mask, sunglasses, and jacket as the motorcyclist.

In evaluating the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson

v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). The jury is the ultimate authority on the credibility of the

witnesses and the weight to be given to their testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). An appellate court may not

sit as a thirteenth juror and substitute its judgment for that of the factfinder by re-

evaluating the weight and credibility of the evidence. Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. A reviewing

court must give full deference to the jury’s responsibility to fairly resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. Hooper, 214 S.W.3d at 13 (citation omitted). If the

record contains conflicting inferences, we must presume the jury resolved such facts

in favor of the verdict and defer to that resolution. See Brooks, 323 S.W.3d at 899

14
n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.” Hooper, 214 S.W.3d at 16-17. We treat direct and

circumstantial evidence equally. Clayton, 235 S.W.3d at 778.

Under section 38.04 of the Texas Penal Code, a person commits the offense

of evading arrest or detention with a vehicle, a third-degree felony, if the actor

intentionally flees from a person he knows is a peace officer who is attempting to

lawfully arrest or detain him and the actor uses a vehicle while in flight, regardless

of whether he has been previously convicted under this section. See Tex. Penal Code

Ann. § 38.04(a), (b)(2)(A); Copeland v. State, No. 09-19-00194-CR, 2020 WL

1280194, at *3 (Tex. App.—Beaumont Mar. 18, 2020, no pet.) (mem. op., not

designated for publication). The identification of the defendant as the person who

committed the charged offense is part of the State’s burden of proof. Miller v. State,

667 S.W.2d 773, 775 (Tex. Crim. App. 1984). When the defendant contests the

identity element of the offense, we note that the State may prove the defendant’s

identity by either direct or circumstantial evidence or inferences. Gardner v. State,

306 S.W.3d 274, 285 (Tex. Crim. App. 2009) (citation omitted); Wiggins v. State,

255 S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.); Clark v. State, 47

S.W.3d 211, 214-15 (Tex. App.—Beaumont 2001, no pet.). A direct in-court

15
identification is the preferred procedure for identification, and the test for sufficiency

is whether we can conclude from a totality of the circumstance whether the jury was

adequately apprised that the witness was referring to the defendant. See Wiggins,

255 S.W.3d at 771. The testimony of a single eyewitness alone can support a

conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). Any

discrepancies concerning the defendant’s clothing or appearance go to the weight

and credibility of the witness. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App.

1986).

During trial, Simmons identified Hodge as the motorcycle driver who fled

while he was trying to lawfully detain him for possessing a stolen motorcycle.

Simmons explained that after the motorcycle driver wrecked and fled on foot, he

observed the motorcycle driver had lost his hat and mask and was running and

“stripping off his jacket.” Simmons admitted that there were times during the pursuit

when he lost sight of the motorcycle driver, but he testified that he knew Hodge was

the motorcycle driver because he recognized Hodge when he arrested him.

Additionally, the jury viewed the video recordings from Simmons’s dash and body

cameras as well as a still picture taken from his body camera and could compare the

person in the recordings and picture with the person in the courtroom and decide if

he was the same person. Simmons explained that his identification was not affected

by the change of Hodge’s hair color because Hodge “still ha[d] the same face.”

16
Detective Barker testified that Hodge’s name was in the cell phone that he

found in the discarded jacket that was located a couple of hundred feet from the crash

site and approximately two and a half blocks from where Hodge was apprehended.

Simmons examined the jacket at trial and explained that it was the same jacket the

motorcycle driver was wearing. The jury viewed two still shots from Simmons’s

dash cam video showing the motorcycle driver wearing a jacket. The jury also heard

Ranger Stanzel testify that during his interview, Hodge admitted he evaded arrest

from the police on his motorcycle because he did not have a motorcycle license.

Based on this record, we conclude the evidence is sufficient to prove Hodge

was the man who evaded arrest or detention from Simmons with a vehicle. We

overrule issue one.

Brady Violation

In issue two, Hodge argues that after the trial ended, the State failed to disclose

it found a set of brass knuckles in the jacket the State alleged Hodge was wearing

during the police chase. The State contends that Hodge failed to cite any evidence

in the record to support his Brady violation claim. See Brady v. Maryland, 373 U.S.

83 (1963).

The State has the duty to disclose “any exculpatory, impeachment, or

mitigating document, item, or information in the possession, custody, or control of

the state that tends to negate the guilt of the defendant or would tend to reduce the

17
punishment for the offense charged.” Tex. Code Crim. Proc. Ann. art. 39.14(h). A

Brady violation occurs when the State willfully or inadvertently suppresses evidence

that is favorable to the defendant. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.

App. 2006); Hanks v. State, No. 09-23-00132-CR, 2024 WL 4142839, at *16 (Tex.

App.—Beaumont Sept. 11, 2024, pet ref’d) (mem. op.). The State’s Brady obligation

“‘does not require prosecuting authorities to disclose exculpatory information to

defendants that the State does not have in its possession and that is not known to

exist.’” State v. Heath, 696 S.W.3d 677, 699 (Tex. Crim. App. 2024) (citation

omitted); Hanks, 2024 WL 4142839, at *16. That said, for Brady purposes, the State,

which includes the prosecutor and members of law enforcement, is not relieved of

its duty to disclose even if the prosecutor was not personally aware the evidence

existed. Harm, 183 S.W.3d at 406-07.

The record shows that Hodge’s Motion for New Trial included affidavits from

the trial court’s deputy court clerk and court reporter, but those affidavits were not

offered into evidence during trial or a post-trial hearing. The record shows the trial

court did not conduct a hearing on Hodge’s Motion for New Trial to allow the State

an opportunity to respond to the Motion, which was overruled by operation of law.

“[P]ost-trial motions [] are not self-proving and any allegations made in support of

them by way of affidavit or otherwise must be offered into evidence at a hearing.”

Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009); see McIntire v. State,

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698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (stating a hearing is required to

introduce an affidavit supporting a new trial into evidence); Lamb v. State, 680

S.W.2d 11, 13 (Tex. Crim. App. 1984) (concluding there was no evidence to support

appellant’s claim the State failed to disclose exculpatory evidence because appellant

failed to properly present his motion and offer his supporting affidavits into

evidence). The rule requiring affidavits to be admitted into evidence permits the non-

moving party an opportunity to respond to the allegations in affidavits before a

conviction can be reversed on that basis. See Rouse, 300 S.W.3d at 762-63. The rule

also applies to new trial motions that implicate federal constitutional issues. See id.

Since Hodge failed to properly present his Motion for New Trial and offer his

supporting affidavits into evidence at a hearing on his Motion, we cannot consider

the affidavits as evidence. See Rouse, 300 S.W.3d at 762; McIntire, 698 S.W.2d at

658; Lamb, 680 S.W.2d at 13. Additionally, Hodge failed to point to any evidence

in the record showing the State knew the set of brass knuckles existed during trial

and that the State willfully or inadvertently suppressed the evidence. We hold there

is no evidence in the record supporting Hodge’s Brady claim. See Tex. R. App. P.

38.1(i) (stating issues must be based on the trial record). Accordingly, we overrule

issue two.

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Second Trial - Possession of a Controlled Substance

Lost Punishment Record

In issue one, Hodge contends he is entitled to a new punishment trial because

“[p]ractically all” of the recording was lost or destroyed and cannot be replaced or

agreed upon. Hodge argues that during the punishment trial, defense counsel

“engaged in unusual behavior” by both stipulating to his prior convictions and

denying the enhancement allegations. According to Hodge, he was harmed by the

lost record because he cannot provide sufficient support for his claim of ineffective

assistance of counsel.

Rule 34.6(f) of the Texas Rules of Appellate Procedure provides that an

appellant is entitled to a new trial under the following circumstances:

(1) if the appellant has timely requested a reporter’s record;

(2) if, without the appellant’s fault, a significant exhibit or a significant
portion of the court reporter’s notes and records has been lost or
destroyed or--if the proceedings were electronically recorded--a
significant portion of the recording has been lost or destroyed or is
inaudible;

(3) if the lost, destroyed, or inaudible portion of the reporter’s
record . . . is necessary to the appeal’s resolution; and

(4) if the lost, destroyed or inaudible portion of the reporter’s record
cannot be replaced by agreement of the parties . . . .

Tex. R. App. P. 34.6(f) (Reporter’s Record Lost or Destroyed). “Whether a missing

portion of a reporter’s record is necessary to the appeal’s resolution is essentially a

20
harm analysis.” Foster v. State, 525 S.W.3d 898, 906 (Tex. App.—Dallas 2017, pet.

ref’d) (citing Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003)) (other

citation omitted).

The record shows during a bench conference outside the presence of the jury,

the parties were discussing whether to proceed with the punishment trial that

afternoon or the following day. During the bench conference, Hodge’s trial counsel

advised the State and the trial court that Hodge would stipulate to his prior judgments

that were entered in the first trial but would plead not true to the enhancement.

Hodge’s counsel explained that “it’s a credibility thing at that point[,]” and the trial

court stated, “Let me meet with both of you in the conference room. Off the record.”

When the parties returned, the trial court recalled the jury and the record shows there

was an “[a]udio malfunction from 2:37 p.m. to 3:36 p.m.; log notes attached[.]” The

court reporter’s log notes from 2:35 p.m. to 3:36 p.m. consist of twenty-five pages,

and the punishment trial concluded the following day.

While Hodge argues he was harmed by the lost record because he cannot

provide sufficient support for his claim of ineffective assistance of counsel, he failed

to even raise an ineffective assistance of counsel claim in his Motion for New Trial.

A bare assertion that a portion of a missing record may show ineffective assistance

of counsel is not sufficient to meeting the necessity requirement of rule 34.6(f)

because it is “nothing more than pure speculation that the missing record could

21
potentially assist him in his appeal.” See id. at 907. Moreover, in presenting an

ineffective assistance of counsel claim on appeal, absent direct evidence from trial

counsel concerning his trial strategy “in the decision-making process, appellate

courts are reluctant to the find the record sufficient to overcome the presumption of

competence.” See id. The record shows defense counsel explained that Hodge

stipulating to his prior judgments and pleading not true to the enhancement was a

“credibility thing[.]”

Based on this record, we conclude that Hodge’s bare assertation that the

missing portion of the punishment record could potentially assist a claim of

ineffective assistance of counsel fails to satisfy the requirement of Rule 34.6(f). See

Routier, 112 S.W.3d at 571-72. Since Hodge has failed to show that the missing

portion of the punishment record is necessary to his appeal, we overrule issue one.

Brady Violation

In issue two, Hodge complains that the State’s failure to disclose it found a

set of brass knuckles in the jacket is some evidence that the jacket was not his. Hodge

complains that his defense counsel had no notice of the brass knuckles during trial

and that the State should have disclosed the evidence, which was favorable to him

and material to either his guilt or punishment. Having already determined that Hodge

presented no evidence from the record supporting his Brady claim, we overrule issue

two.

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Second Trial - Aggravated Assault of a Public Servant

Brady Violation

In his sole issue, Hodge again complains he deserves a new trial due to the

State’s alleged Brady violation of failing to disclose it found a set of brass knuckles

in the jacket. Since Hodge failed to present evidence to support his complaint, we

overrule his sole issue.

CONCLUSION

Having overruled all of Hodge’s issues in his three cases on appeal, we affirm

the trial court’s judgments in trial cause number CR23-0359 for evading arrest or

detention with a motor vehicle, trial cause number CR23-0363 for aggravated assault

of a public servant, and trial cause number CR23-0362 for possession of a controlled

substance.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on November 22, 2024
Opinion Delivered April 30, 2025
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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