No. 14-07-00870-CR
February 26, 2009, Memorandum Opinion filed March 31, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1013423.
Panel consists of Justices ANDERSON and FROST and Senior Justice HUDSON.
Senior Justice J. Harvey Hudson sitting by assignment.
SUBSTITUTE MEMORANDUM OPINION
KEM THOMPSON FROST, Justice.
This court withdraws its memorandum opinion issued February 26, 2009, and issues this substitute memorandum opinion in its place. Appellant Jesus Armando Lopez appeals his conviction for aggravated assault, claiming the trial court erred in denying his motion for new trial when the complainant recanted the allegations for the charged offense. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Police officers responded to the scene of an assault. Appellant's girlfriend told responding officers that appellant pushed her, kicked her, threatened to cut her with a piece of broken glass, and held a shotgun to her head, threatening to shoot her. Appellant was charged with aggravated assault. He pleaded "guilty" and accepted the State's plea-bargain offer of a fine and eight years' deferred adjudication community supervision on July 7, 2005. Two years later, the State moved to adjudicate appellant's guilt, alleging that appellant had violated terms and conditions of his community supervision. Appellant pleaded "true" to the allegations in the State's motion to adjudicate in exchange for the State's recommendation of five years' confinement. The trial court found appellant guilty of the charged offense. The trial court revoked appellant's deferred adjudication and assessed punishment at five years' confinement. Appellant filed a motion for new trial and attached a sworn affidavit from the complainant, appellant's girlfriend, in which she retracted the allegations of appellant's criminal behavior for the charged offense. In the affidavit, the complainant stated that her uncle notified police and that she told officers that appellant threatened her with a gun. She stated that when officers inquired further as to what had happened, she "immediately corrected those false allegations made by [her] uncle" and indicated that she "refused to make any complaint or to cooperate." According to her affidavit, she stated that appellant did not threaten her with a weapon nor did he assault her. She believed the "misunderstanding had been dropped." The trial court denied appellant's motion for new trial. On appeal, in a single issue, appellant claims the trial court erred in denying his motion for new trial based on the complainant's affidavit recanting the allegations of the charged offense. ANALYSIS
Appellant did not appeal the trial court's decision when the trial court placed him on deferred adjudication community supervision. A defendant who is placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in an appeal taken when the trial court first imposes deferred adjudication community supervision. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). Appellant's complaint on appeal arises from his conviction and punishment, not the revocation of his community supervision. Appellant was placed on deferred adjudication community supervision on July 7, 2005. Therefore, appellant had to have effected his appeal within thirty days of July 7, 2005. See TEX. R. APP. P. 26.2(a)(1) (providing that when no motion for new trial is filed, a defendant must appeal within thirty days after a sentence is imposed or suspended). Appellant did not timely appeal the trial court's order placing him on deferred adjudication community supervision; therefore, he may not raise an issue in this appeal regarding the evidence from the original plea proceeding. See id.; Manuel, 994 S.W.2d at 661-62. Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.