In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-25-00208-CR
JASON GREGORY NOBLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F22-39549
MEMORANDUM OPINION
Jason Gregory Noble 1 (“Noble,” “Defendant,” or “Appellant”) appeals his
judgment of conviction for aggravated assault-family violence, a first-degree
felony.2 Tex. Pen. Code § 22.02(a), (b). After being indicted by a grand jury,
1
The record reflects that Jason Gregory Noble is also known as Jason Noble and Jason Gregory Nobles.
2
In our memorandum opinion we refer to the victim of the alleged aggravated assault-family violence by the initials KLK to protect the identity of the victim in this case, and we refer to KLK’s wife as AK. See Tex. Const. art. I, § 30(a)(1)
1
Appellant entered a plea of “not guilty” to the charge. The guilt-innocence phase of
the case was tried before a jury, and the jury found Jason Gregory Noble guilty of
aggravated assault-family violence as stated in the indictment. Appellant waived his
right to trial by jury for the punishment phase of the trial and elected for the trial
court to determine punishment. The court assessed punishment at thirty-five years
in the Institutional Division of the Texas Department of Criminal Justice. The trial
court certified that Appellant has the right of appeal. Appellant timely filed a notice
of appeal. Appellant also filed a motion for new trial in the trial court. On July 30,
2025, the trial court denied the motion for new trial.
Appellant raises two issues on appeal. In his first issue, Appellant argues that
the trial court erred in denying his motion for new trial because he presented the trial
court with newly discovered evidence favorable to him. In his second issue,
Appellant contends that the trial court erred in denying his motion for new trial
because KLK’s affidavit, which he attached to his motion, supports his argument
that the evidence produced at trial was false. For the reasons explained below, we
overrule both issues and affirm the trial court’s judgment.
(granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process[.]”). McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982). It is undisputed that KLK and Noble resided in the same household at the time of the incident.
2
Indictment
In the indictment, the grand jury alleged that
the Defendant, [Noble] committed an offense hereafter styled the
primary offense, on or about the 17TH day of MARCH, TWO
THOUSAND AND TWENTY-TWO, and anterior to the presentment
of this indictment, in the County of Jefferson and State of Texas, did
then and there intentionally and knowingly and recklessly cause bodily
injury to [KLK], hereafter styled the Complainant, a member of
Defendant’s household, by the use of a deadly weapon, namely, a
handgun, by striking [KLK] in the head with a handgun.3
Summary of the Trial and Evidence
Because both issues on appeal pertain to the trial court’s denial of the
Defendant’s post-trial motion for new trial, we only include a summary of the trial
and evidence at trial with an emphasis on details pertaining to the issues on appeal.
Opening Statements
The State’s attorney represented to the jury that the evidence would prove that
Noble committed aggravated assault on KLK. The State informed the jury that they
would hear testimony from a nurse practitioner and several law enforcement officers.
The State argued that the testimony and physical evidence including medical
records, statements, photographs, and bodycam footage would not match Noble’s
claim of self-defense in relation to KLK’s physical condition, which required the use
3
In the indictment the State also alleged a prior felony conviction of ArsonSecond Degree, and a prior felony conviction for Aggravated Assault-Second Degree in enhancement paragraphs. The Defendant pleaded true to both enhancement paragraphs.
3
of a prosthetic leg and numerous medications. The State specifically mentioned that
the jury would view evidence that would show KLK was either hit on his left cheek
with a pistol or that Noble hit KLK with his fists to cause a blood cast-off on the
wall by KLK’s recliner.
The Defense counsel argued that testimony and evidence would show that
Noble’s actions were justified and reasonable. The Defense stated that while the
evidence would show that Noble hit KLK, he did so when wrestling with KLK to
disarm KLK, who was intoxicated, high on methamphetamines, paranoid, and had
already fired a gun in the short time that Noble had resided with KLK and AK. The
Defense emphasized that both KLK and AK had changed their version of events
several times and that they had signed affidavits of nonprosecution.
Evidence and Witnesses at Trial
The State called five witnesses and introduced sixty-six exhibits during the
trial. The witnesses for the State included David Millich (a Nurse Practitioner from
the hospital where KLK was treated on the day of the alleged assault), Alton Baise
(a neighbor of the victim and a law enforcement officer), Jake Benoit (the first Port
Arthur police officer on the scene who responded to the call for backup), Marie
Thibault (a retired crime scene investigator for the Port Arthur Police Department),
and Aaron Taylor (another responding officer from the Port Arthur Police
Department). The victim, KLK, and his wife, AK, did not testify, even though the
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State issued subpoenas for both of them to be present at trial. The exhibits that were
admitted into evidence included the medical records from the hospital where KLK
received medical treatment on the evening of the assault, photos taken during the
investigation including photos of the scene where the assault occurred, photos of
KLK’s injuries, photos of the Defendant taken by the officers, body camera footage
from Officer Jake Benoit, and shell casings and bullet fragments obtained during the
investigation. The State rested after presenting testimony from its final witness,
Aaron Taylor. The defense recalled Jake Benoit in the defense case-in-chief,
introduced some exhibits, and called Phillip Jones to testify during the punishment
phase of the trial.
Testimony of David Millich
David Millich testified that he is a Nurse Practitioner, and he has an advanced
master’s degree in nursing, in addition to his bachelor’s degree in nursing. Millich
has worked in an emergency room setting for over sixteen years. Millich was
working at the emergency room of the Medical Center of Southeast Texas on March
17, 2022, when he provided treatment to the victim, KLK. Before trial, Millich
reviewed the medical records within State’s Exhibit #1, which contains the medical
records kept in the normal course of business of the Medical Center, which he
attested were accurate and trustworthy. The Defendant did not object and the records
were admitted into evidence. The records pertain to the emergency room visit of
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KLK who presented to the emergency room on March 17, 2022, with injuries to his
head, neck, and face, and Millich ordered CT scans of KLK’s head to rule out a brain
injury, as well as scans of his cervical spine and facial bones. Millich testified that
by just looking at KLK on arrival “he was quite beat up[]” with “bruising all about
the face, periorbital areas around the eyes[,] [h]is left ear was quite bruised[,] [and]
had bruising to the left side of his face[.]” Millich was shown State’s Exhibits #2
through 6, which he testified were photos that truly and accurately depicted the area
of the injuries of KLK when Millich first saw and treated KLK at the hospital on
March 17, 2022, except the photos showed some light bandages and underneath the
bandages Millich saw the bruising. The photos show facial bruising, black eyes, and
a laceration on the upper left cheek. One of the areas Millich remembers most about
the case was “a perfectly circular lesion in the middle of the forehead with another
circular lesion in the center of the outer ring.” From the history KLK gave to Millich
at the time of treatment, KLK told Millich he was hit, “you know, with fists and with
a pistol, and that the handgun was pointed and jabbed at his forehead[,]” and Millich
stated the circular pattern of the injury “represented the muzzle of an impression of
a handgun[.]” Millich testified that the emergency room notes made during the initial
triage state, “‘Patient states he was assaulted by stepson just prior to arrival. Hit in
head multiple times with fist and gun. Patient states he doesn’t believe he lost
consciousness, but he was dazed. Patient has lacerations to the face, swelling to the
6
left side of head and ear. PD’ – is for police department – ‘was on scene.’” Millich
explained the triage nurse’s notes. In the medical records it shows that KLK gave
the triage nurse the following history:
ED Triage Note: pt states he was assaulted by step son just pta, hit in
head mult times with fist and gun, pt states he doesn’t believe he lost
consciousness but he was dazed, pt has lacerations to face and swelling
to lt side of head and ear, pd was on scene[.]
Millich also testified about additional notes in the medical records where the record
shows KLK described what had happened. For example, Millich agreed KLK said,
“My son was attacking me while at home. He hit me with the barrel of the pistol and
punched me a couple of times in the face and ear[.]” Millich also agreed that State’s
Exhibits #4 and #5 are close-up photos of what appears to be a circular pattern injury,
and Millich testified the impressions show not only the outside of the barrel of the
gun but also the inside of the barrel.
Testimony of Alton Baise
Alton Baise testified that he has over thirty years in law enforcement work
with different law enforcement agencies. At the time of the incident in question, he
was the Chief of Police for the Port Arthur School District, and his house is two
houses to the left and across the street from [KLK]’s house in Port Arthur, Texas.
Baise testified that he has known [KLK]’s family for a long time. Baise was at home
on the evening of March 17, 2022, when his wife told him there was a woman outside
who needed help. Baise went outside and found a woman asking for his help, and he
7
later learned the woman was A.K. (KLK’s wife and Noble’s mother). The woman
appeared to be “very, very nervous…she was shaking[,] trembling” and she was
“overwhelmed and appeared to be very excited—fear excitement, not joy
excitement.” The woman told Baise that her son was shooting inside the house and
he had gone into a rage. The woman said that she and her son had struggled, and her
son grabbed her, tore her clothes, and she ran. She also told Baise that her son was
accusing her and her husband, KLK, of hiding cigarettes from him. She told Baise
that her son told her that he was “going to get the gun[]” and as she was running out of
the garage, she heard gunshots. Baise agreed that State’s Exhibits #6 and #7 are
accurate photos of the woman and they depict what she was wearing and show her
clothes were torn, which was consistent with what she told Baise.
After speaking to the woman, Baise retrieved his vest, gun, flashlight,
handcuffs and radio, and he called for backup. As Baise approached KLK’s house,
the garage door was raised; he carefully listened as he approached to see what he
could hear; about thirty seconds later he heard the glass storm door open from the
front of the house, and he looked around the corner and he saw a man later identified
as Noble coming out of the door and walking onto the porch. Baise called out to the
man and had him raise his hands and get on his stomach on the ground, and Baise
handcuffed Noble. Baise (also known as A.B.) then called out to KLK to see if he
was inside and if he was shot, but KLK did not respond at first, so Baise went inside
8
the house and called out again to KLK who answered, “Is that you, A.B.?” Baise
asked if KLK had been shot and KLK told Baise he had not been shot. Baise could
see KLK sitting in a recliner in the corner, and according to Baise, KLK was
“shaking[.]” Baise further described what KLK looked like at that time:
He’s got blood streaming down his fingers and blood coming from his
head and just blood everywhere on his lap, you know. I say, “You sure
you’re not shot?” He said, “I’m not shot.” I said, “Just hang on, buddy.
Hang on.” I said, “I got -- I think an ambulance is on the way. I got help
on the way. Hang on.”
Baise also identified what is depicted in the photos that were taken of KLK and of
Noble on the evening in question, which Baise said accurately depict the condition
of each of them, and the photos were admitted into evidence. According to Baise,
Noble had an injury to his hand, which was consistent with hitting someone. Baise
explained to the jury that KLK has had health problems as long as Baise has known
him, and the problems have worsened over the years. KLK’s left leg had been
amputated due to an infection, so at the time of the incident KLK had one prosthetic
leg, and Baise would observe KLK use a wheelchair whenever KLK was outside
with his dog. Baise asked KLK what happened and KLK told Baise that Noble “was
going into a rage accusing him of hiding his cigarettes[]” and that “his son started
punching him, and he thinks he hit him with a pistol once or twice. And then he
walked about the house just shooting—shooting the gun about the house. And he
shot a couple of times right close to where [KLK] was sitting.” On cross9
examination, Baise agreed that he noted in his report that Officer Knowles told him,
“Man, I don’t know who was doing the shooting because we found the gun, but the
clip was in [KLK]’s pocket.”
Testimony of Jake Benoit
Officer Jake Benoit testified that on the date of this incident he was a police
officer with the Port Arthur Police Department. The dispatcher received a call made
by Chief Baise and Officer Benoit went to the scene. When Officer Benoit arrived,
he saw Chief Baise had a white male handcuffed in the front yard and lying on his
stomach. At that point, Officer Benoit asked Baise if anyone else was inside the
residence or if anyone needed help and Baise told Benoit that an elderly gentleman
was inside the living room and bleeding. Officer Benoit entered the house to check
on KLK who was sitting in a recliner. State’s Exhibits #2 through 6 were identified
as photos taken of the elderly gentleman [KLK], but the photos showed what Benoit
said is “a lot less” blood than when Officer Benoit first saw KLK. The EMTs were
already on the scene and helping KLK when Officer Benoit arrived. Upon first
speaking with KLK, Officer Benoit felt like KLK did not want to tell Benoit the full
story. KLK acted like he wanted the police to leave, and KLK told Benoit he did not
need assistance from the EMT. When Officer Benoit asked KLK what had happened,
KLK told Benoit that he was punched by his son, and later he told Benoit he was not
hit with any object.
10
Officer Benoit put Noble in his police car and later transported Noble to the
station and photographed Noble at the station, and the photos were introduced as
State’s Exhibits #9 through 12. Officer Benoit was wearing a body camera at the
scene, which he described as something like a cell phone that recorded everything,
and a 2.5-minute segment from the body camera footage was played for the jury.
The camera footage shows that when Officer Benoit arrived at the scene it was still
daylight, and according to Officer Benoit, when he first observed KLK
A. He had a large amount of blood coming from his face. He kept
wiping his face, wiping his face. And when he would wipe it, I could
see that he had a laceration to his cheek, but he also had a circular -- it
was bleeding. It was a circular mark on the -- in between his eyes that
was actually bleeding.
Q. Kind of like what we see here in State’s [Exhibit #] 40?
A. Yes, sir.
Q. Could you see that perfect circular type injury?
A. Yes, sir.
Q. And could you see the blood coming from that?
A. Yes, sir.
Q. What was your impression when you saw that?
A. When I saw that knowing a gun’s involved, that – in my opinion,
that would be from someone taking a gun and physically punching
somebody with the barrel of the front of it.
Officer Benoit testified that Noble told the police that he believed KLK was
under the influence of narcotics. But Benoit testified that he did not see any
indication that KLK was “under the influence.” Blood spatter was found near the
recliner where KLK was seated. Live bullets and spent shell casings were found on
the floor, and there were some bullet holes. State’s Exhibit #31 was introduced, and
11
Officer Benoit agreed it is a photograph of Noble’s bedroom, and he agreed that it
shows a pack of cigarettes on a table in Noble’s bedroom.
Officer Benoit prepared a report, and in his report, he describes what Noble
told him at the scene. According to the report, it was about 7:00 p.m. when the police
first arrived on the scene. According to the report, after being “Mirandized,” Noble
told the officers that he had returned home from work around 3:45 p.m. that
afternoon, and after he had returned home from work, Noble began drinking
“Fireball whiskey.”
Q. So, let’s kind of deal with this really one statement at a time and see
if you found anything to support what was made. Okay? So, after the
Mirandized -- I’m picking up on page 3 -- Mr. Noble told you that he
returned home from work at about 3:45. You got called out at about
7:00 o’clock --A. Yes, sir.
Q. -- right? He told you he entered the residence and began drinking
Fireball whiskey.
A. Yes, sir.
Q. Do you remember a bottle of Fireball whiskey being found at the
scene?
A. Yes, sir.
Q. That would indicate that that portion seems to be accurate?
A. Yes, sir.
Appellant also told the officers that KLK was known to use narcotics and to fire the
gun without concern for Noble’s or his mother’s safety. Noble said he called his
boss, and his boss told him to leave. Noble then said he confronted KLK and
attempted to retrieve the firearm for everyone’s safety. Noble said he struggled with
KLK and successfully managed to get the firearm away from KLK without hitting
12
KLK, he removed the magazine from the gun, cleared the round, and exited the
house to smoke a cigarette. Noble said he then heard three shots from inside the
house, and he reentered the home again to confront KLK and observed that the
firearm was in KLK’s hand. Noble said he attempted to take the firearm, and that he
struck KLK on his left cheek with his elbow, causing a laceration, and he was able
to take the firearm again from KLK and threw it across the room, and then Noble
said he exited the residence again just as police arrived.
Officer Benoit went through the photographs and explained to the jury what
was depicted in the photos, Exhibits 14 through 40, noting among other items the
blood splatter next to the recliner where KLK was sitting, medication bottles, bullet
holes, spent casings, and unfired rounds. Officer Benoit transported Noble to the
police station.
Testimony from Marie Thibault
Crime Scene Investigator Marie Thibault testified that she processed both
Noble and KLK for gunshot residue. Thibault also photographed KLK. Thibault
explained that when she processed the crime scene, she placed little yellow cone
markers, noting the location of evidence including fired shell casings, blood spatter,
live rounds, and bullet holes. A 9-millimeter handgun was found between a box
spring and a mattress. Bullet jacket fragments were found and marked. Some
fragments were found in Noble’s bedroom and Thibault thought that meant that a
13
gun was fired inside Noble’s bedroom. A bottle of Fireball whiskey was found in
the hallway bathroom, which she agreed offered support to part of what Noble said
happened. The evidence was gathered and delivered by Thibault to the crime lab and
processed by the lab. She took photos of Noble’s hands and there were abrasions
that he said came from work and installing insulation. According to Thibault, it is
her understanding that KLK had washed his hands before the gunshot residue test.
Thibault found a bullet hole in the floor. Fired shell casings were located in KLK’s
office area and also in the hallway that connects the bedroom and the office. No
fingerprints were developed on any live or fired shell casings. KLK told the officers
that the firearm was previously loaded by him with fifteen live rounds, and they were
told that Noble had cleared at least two lodged bullets. State’s Exhibit #58 shows
where Thibault measured the length of the barrel of the gun found at the scene, and
she testified that based on the measurements she took as depicted in State’s Exhibit
#58, the size was consistent with the size of the injury on KLK as depicted in State’s
Exhibit #4.
Testimony of Aaron Taylor
Officer Aaron Taylor of the Port Arthur Police Department testified that he
was dispatched to the scene on the evening of the assault. Upon arrival, he was
advised that KLK was inside the home, and he entered the home to speak with KLK.
KLK told him that Noble tried to “kill him with a firearm and assaulted him[.]”
14
Officer Taylor observed injuries to KLK that he believed were consistent with KLK
being punched and some injuries that appeared to be the same diameter as the barrel
of a pistol. Three bullet holes were found in the wall of the living room. The firearm
was ultimately found in KLK’s bedroom under the mattress, which is where KLK
explained he kept it. Two witness statements were obtained, one from KLK and one
from AK.
KLK told Officer Taylor that the incident resulted from an argument between
KLK and Noble over cigarettes and a lighter, that Noble had retrieved KLK’s firearm
from the bedroom, and Noble had fired it approximately seven times before entering
the living room. KLK said that Noble attempted to fire twice in KLK’s direction, but
the firearm had malfunctioned. KLK also said that Noble had physically assaulted
KLK with the firearm by pushing the pistol against KLK’s head and punching him
several times. Officer Taylor testified that the pistol’s magazine was recovered from
KLK, and it was in his pocket. KLK told the officer that Noble had then placed the
pistol back under the mattress where it was kept.
AK gave a statement to Officer Taylor and explained that there was an
argument over cigarettes and a lighter, and she found some matches for Noble who
then entered the garage to calm down and smoke. She said that Noble continued to
get angry, threw and broke an ashtray in the garage, grabbed her by the shirt, made
a statement that he was going to kill KLK, and returned to the living room where
15
there was another argument. She went to the garage to clean up and then she heard
three gunshots after which she ran to get Chief Baise’s assistance. She advised
Officer Taylor that at that point she believed Noble was possibly suicidal, thought
he may have shot KLK, and potentially killed himself. When Officer Taylor spoke
with AK, AK’s shirt was torn, and that was consistent with being grabbed. Officer
Taylor also found a broken ashtray in the garage. Officer Taylor did not observe
anything indicating to him that KLK was intoxicated. State’s Exhibit #67, a fourteen
or fifteen minute portion of Officer Taylor’s body camera footage, was admitted into
evidence without objection and played to the jury. As the video was played for the
jury, the State questioned Officer Taylor about what can be heard on State’s Exhibit
#67, when Chief Baise talked to KLK about what happened:
Q. Okay. Do you -- did you hear in that portion [of] him having a
conversation with Chief Baise about what took place?
A. Yes, sir, he did.
Q. Did you hear him make a response as to whether or not he was hit
with the pistol?
A. Yes, sir, he did.
Q. And what response did you hear, sir?
A. That he was struck with a pistol.
Q. And did that fit with what you saw that day?
A. Yes.
Additional Testimony of Jake Benoit
The defense recalled Officer Benoit to testify, and he testified about a
supplemental police report prepared by Officer Moss who was unavailable to testify,
and the supplemental report was admitted as Defense Exhibit #1. Benoit explained
16
that Officer Moss was present at the scene on March 17, 2022, and he prepared a
report that noted on page two that “several people lived at this residence had
previously admitted to shooting up drugs[.]” Part of Officer Moss’s body camera
footage was also admitted into evidence as Defense Exhibit #2 and then shown to
the jury. The defense asked Officer Moss if KLK said a round was fired into the
ceiling in KLK’s bedroom, and Officer Benoit can be seen pointing at the ceiling in
the bedroom where a bullet hole was found. Officer Benoit testified it was hard for
him to understand what he said on the video, and he could not remember if he found
a bullet hole in the ceiling of KLK’s bedroom, but if he had noticed something he
would have told the evidence technician who could have made that determination.
Closing Arguments in Guilt/Innocence
In its closing argument, the Defense argued that Noble acted reasonably under
the circumstances, in that to protect both his and his mother’s safety, he had to use
desperate measures to get the gun away from KLK since he was shooting a gun while
intoxicated, paranoid, and using drugs. The Defense reminded the jury that both
KLK and AK had made inconsistent statements to law enforcement and were not
present at trial.
The State summarized and reviewed the argued evidence and testimony and
emphasized the evidence disputing Noble’s claim of self-defense. The State argued
the State had proven beyond a reasonable doubt that Noble committed an aggravated
17
assault on March 17, 2022, by intentionally, knowingly or recklessly causing bodily
injury to KLK, a member of his household, by striking him with a handgun. State’s
Exhibit #2, reflecting KLK’s facial injury, was also shown to the jury. The State
reminded the jury of the videos which showed the amount of blood on KLK’s face,
and the State explained that the medical records reflect that KLK stated he was hit
in the head multiple times with a fist and a gun by Noble. The State addressed KLK
and AK’s absence, mentioned “family dynamics[]” and noted that their presence was
not required to prove up the aggravated assault.
Sentencing
After the jury returned a verdict of guilty, the sentencing phase of the trial was
presented to the court without a jury. At the sentencing phase of the trial, the defense
argued that Noble and the victim had reconciled and forgiven each other, and that in
addition to signing “two nonprosecution affidavits[,]” KLK has “consistently held
the position that he did not want Mr. Noble to be punished” for this incident. The
defense also argued that Noble had lived in a violent home, he had prior convictions,
suffered from mental health, failed to take his medications, and had not had proper
care and treatment.
The defense called Phillip Jones, Noble’s friend and boss, who testified during
the punishment phase of the trial and stated that he had known Noble since they were
children. Jones provided background and testimony related to Noble’s family, work
18
history, a history of physical abuse by his father, and that when Noble was about 27
years old and in prison for another crime, Noble’s father committed suicide. He
explained that he believed from what he had been told that KLK had a history of
drug use, including using methamphetamines. He testified that AK contacted him on
the night of the incident asking that he come over to calm Noble down because KLK
had “fired off a gun and then Jason tried to take it from him and hit him, hit him with
his gun and all that.”
The State explained to the court that after the incident, KLK had given the
State an affidavit of nonprosecution, but KLK told them when he gave it to them,
that the accusations he had made against Noble had occurred and KLK said, “the
only reason why I’m doing this is because my wife’s making me do this.”
Motion for New Trial
After the trial and after sentencing, Noble’s appellate attorney filed a Motion
for New Trial. In the motion, Noble’s attorney argued that he was provided with an
affidavit from the complaining witness of the alleged crime who did not testify at
trial and that the affidavit presents what he described as newly discovered evidence
that the defendant acted in “self-defense and is not guilty[]” and the evidence is
“mitigating.” Additionally, Noble’s attorney argued the evidence presented to the
jury was false because KLK was “never hit in the head with a firearm.” The trial
court denied the motion for new trial.
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The affidavit of KLK that is attached to the motion for new trial states as
follows:
“My name is [KLK]; I am over the age of eighteen (18); I am fully
competent to make this affidavit; I have personal knowledge of the facts
stated herein and they are all true and correct.”
“My name is [KLK]. I can be reached at (409) []. I am the
complaining witness in the above-referenced and numbered
cause.
On or about March 17, 2022, Jason Noble and I got into a fight
over a pistol. I did not want to voluntarily give it to him. The pistol
accidently discharged in the living room while we were struggling
over it. While fighting over the gun, the barrel was pointed at Mr.
Noble’s stomach and he struck me with his left forearm on my
forehead in an attempt to free the pistol. Mr. Noble took the pistol
away from me; he cleared the barrel; released the magazine from
the pistol; and threw down onto the floor.
I am asking that this case be dismissed because I was never hit in
the head with a firearm by Jason Noble.
This is a voluntary act on my part and I have not been given
anything of value or pressured or threatened in any way in
exchange for any testimony.”
Standard of Review and Applicable Law
We review a trial court’s ruling on a motion for new trial under an abuse of
discretion standard of review. See Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim.
App. 2014). The trial court is the sole judge of the witnesses’ credibility on a motion
for new trial with respect to affidavits and live testimony. See Okonkwo v. State, 398
S.W.3d 689, 694 (Tex. Crim. App. 2013). Accordingly, we must afford almost total
deference to the trial court’s express and implied findings of historical facts as well
as mixed questions of law and facts that turn on an evaluation of credibility and
20
demeanor. See id. We apply the same deferential review to a trial court’s
determination of historical facts based solely on affidavits, regardless of whether the
affidavits are controverted. See id.; Splettstosser v. State, No. 09-23-00339-CR, 2025
Tex. App. LEXIS 9149, **81-82 (Tex. App.—Beaumont, Nov. 26, 2025, pet. ref’d)
(mem op., not designated for publication). We must also view the evidence in the
light most favorable to the trial court’s ruling. Biagas v. State, 177 S.W.3d 161, 170
(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
The Texas Code of Criminal Procedure article 40.001 provides that “[a] new
trial shall be granted an accused where material evidence favorable to the accused
has been discovered since trial.” Tex. Code of Crim. Proc. Ann. Art. 40.001. To be
entitled to a new trial for newly discovered evidence, the defendant must show that
the new evidence was recently discovered, and the evidence must be material. Id.
The appellant must show that (1) the newly discovered evidence was unknown or
unavailable to the defendant at the time of trial; (2) the defendant’s failure to
discover or obtain the new evidence was not due to the defendant’s lack of diligence;
(3) the new evidence is admissible and not merely cumulative, corroborative,
collateral or impeaching; and (4) the new evidence is probably true and will probably
bring about a different result in a new trial. Carsner v. State, 444 S.W.3d 1, 2-3 (Tex.
Crim. App. 2014). A motion for new trial cannot be granted unless the defendant
shows entitlement to one under the law. State v. Thomas, 428 S.W.3d 99, 104 (Tex.
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Crim. App. 2014). When the defendant fails to establish any one of the four
necessary elements as outlined above, then the trial court should deny the motion.
While it is true that the recantation of material testimony may warrant a new
trial, see Keeter v. State, 74 S.W.3d 31, 37-38 (Tex. Crim. App. 2002), there are
exceptions to this rule. One such exception arises when the record provides the trial
court “some basis for disbelieving the testimony[]” of the recanting witness. Id. at
38.
Analysis
Because both of Appellant’s issues pertain to the motion for new trial, we
address them together. Noble argues that the affidavit he attached to his motion for
new trial is “new evidence” and that it demonstrates that the evidence presented at
trial was “false.” Applying an abuse of discretion standard of review, considering
that the trial court is the sole judge of the witnesses’ credibility on a motion for new
trial with respect to the affidavit, and considering the evidence that was submitted in
the trial court during the trial, we conclude that the trial court did not abuse its
discretion in denying the motion for new trial. See Coyler, 428 S.W.3d at 122;
Okonkwo, 398 S.W.3d at 694.
The trial court could have concluded that the information in the affidavit was
not newly discovered evidence that was unknown or unavailable. The record before
the trial court shows that the statements made in the affidavit were not new or
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unknown. In fact, the record reflects that the defense attorney was aware during the
opening statement of the guilt-innocence phase of the trial, as well as during the
punishment phase of the trial, that KLK had filed an affidavit of nonprosecution and
the defense even argued during punishment that they had “reconciled” or “forgiven”
each other for what happened. Additionally, the defense made the same argument to
the jury that Noble had struggled with KLK to wrestle the gun away from KLK and
that he had hit KLK with his elbow but not with the gun.
Additionally, the trial court could have concluded that the affidavit was not
“probably true” because the statements in the affidavit are contradicted by the
evidence in the record. The trial court could have disbelieved the affidavit given the
statements KLK made to hospital personnel, to the investigating officers, to Chief
Baise, and that it is contrary to the physical evidence. Here, the record contains
evidence of statements made by KLK and AK immediately after the events in
question describing what happened, statements made by KLK to the hospital
personnel, descriptions of the injuries sustained by KLK in the medical records,
testimony from Chief Baise and the investigating officers and the crime technician,
evidence collected at the scene, as well as photographs depicting the unique, barrelshaped wound on KLK’s forehead. We conclude that the record provides some basis
for the trial court to disbelieve KLK’s affidavit and recantation. Because the record
presented the trial court with circumstances that cast doubt into the victim’s
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recantation, we cannot say the trial court abused its discretion in denying the motion.
See Keeter, 74 S.W.3d at 39. We overrule both issues.
AFFIRMED.
LEANNE JOHNSON
Justice
Submitted on August 3, 2026
Opinion Delivered August 12, 2026
Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.
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