Opinion
No. 09 83 001 CR.
September 7, 1983. As Corrected September 21, 1983.
Appeal from the County Court at Law No. 2, Jefferson County, George Buford, J.
Theodore Johns, Beaumont, for appellant.
John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
OPINION
Ralph Wayne Royal, Jr., complains that his Motion for New Trial should have been granted. The record indicates that the Motion for New Trial, which alleged newly discovered evidence, was filed with affidavit attached; but, thereafter, no hearing was requested or held and no action was taken by the Court either granting or denying the motion.
Appellant was convicted by a jury of misdemeanor theft. The Court assessed a fine of Two Hundred Fifty and No/100 ($250.00) Dollars.
An affidavit attached to a Motion for New Trial is but a pleading that authorizes the introduction of supporting evidence. It is not evidence in itself; and, in order to constitute evidence, the motion should be presented and the affidavit, along with other evidence, needs to be introduced as such at the hearing on the motion, which was not done in this case. Rios v. State, 510 S.W.2d 326, 328 (Tex.Cr.App. 1974); Stephenson v. State, 494 S.W.2d 900, 909-910 (Tex.Cr.App. 1973). Consequently, nothing is presented for review. See Simon v. State, 630 S.W.2d 681 (Tex.App. — Houston [1st Dist.] 1981, no writ).
AFFIRMED.