Texas Stamp


PD-0083-23 09/06/2023

“When four judges have considered whether to properly grant a motion for new trial and two of them have decided that such a motion was properly granted, then that decision cannot be outside the zone of reasonable disagreement. The two-justice majority of the Court of Appeals never explicitly found that the trial court’s decision was either arbitrary or unreasonable, and their Opinion failed to give proper deference to the trial court’s ruling. When reviewing the Court of Appeals’ decision, it is clear the State was unable to show that trial counsel’s decision to order his subordinate attorney to play the entirety of one of, if not, the most damning piece of evidence in the entire trial and admit it into evidence did not undermine confidence in the outcome.”

Hradek called 911 because she awoke to find her three-month-old son cold to the touch. Paramedics noted conditions indicating the child died a significant time before Hradek called 911. She was charged with intentionally or knowingly causing serious bodily injury to a child by omission. She was convicted of the lesser included offense of reckless injury to a child by omission. She moved for a new trial on multiple claims, including various instances of ineffective assistance of counsel. The claim at issue in this petition centers around the offering and playing by one of her defense team of an unredacted jail recording that contained multiple statements by Hradek or her mother that had the potential to impact her credibility generally or her guilt or innocence more directly. That lawyer admitted she had not reviewed the entire recording when co-counsel instructed her to offer it. The trial court granted Hradek’s motion and issued findings and conclusions of law.

The State appealed and the court of appeals reversed. It accepted the State’s concession that playing the entire call and allowing its admission into evidence “admittedly constitute[d] egregiously deficient performance.” After reviewing the totality of the record, however, it could not find evidence of prejudice. In the case of both the “credibility” statements and “guilt” comments, it found no evidence presented in the new trial hearing explaining how those statements prejudiced Hradek. “[T]he record at trial and the new trial hearing is completely void of any tangible evidence Hradek was required to provide to show prejudice pursuant to Strickland.” “The evidence showed only that there may have been some conceivable effect on the outcome of her trial[,]” which is insufficient to warrant a new trial. One justice dissented.

Hradek argues on review that the majority’s approach was incorrect on multiple fronts. First, the majority reviewed the record de novo instead of viewing it in the light most favorable to the trial court’s ruling (and findings). Second, and for similar reasons, the majority did not consider that the trial court’s ruling could be in the zone of reasonable disagreement even if the majority saw things differently. Third, the majority’s view of the deficiently admitted evidence is just wrong. Finally, she rejects the idea that a defendant must show tangible, affirmative evidence of prejudice. The only source for such evidence, she argues, would be juror affidavits that would be inadmissible at the hearing on motion for new trial.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724