Opinion
No. 02-03-186-CR.
Delivered: August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 362nd District Court of Denton County.
Panel A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
MEMORANDUM OPINION
See Tex.R.App.P. 47.4.
Appellant Rondez Wilcots pled guilty to sexual assault, and the trial court placed him on deferred adjudication community supervision. The State later filed a motion to revoke, and the trial court adjudicated appellant guilty and sentenced him to eight years' confinement. Appellant filed a timely motion for new trial, which the trial court denied without conducting an evidentiary hearing. Appellant's sole issue on appeal is that the trial court erred by refusing to hold a hearing on his motion for new trial. A defendant's right to an evidentiary hearing on a motion for new trial is not an absolute right, and we will reverse a trial court's decision not to conduct a hearing only where the court has abused its discretion. Reyes v. State, 849 S.W.2d 812, 815-16 (Tex.Crim.App. 1993); Mallet v. State, 9 S.W.3d 856, 867-68 (Tex. App.-Fort Worth 2000, no pet.). An evidentiary hearing is necessary if the motion accompanied by one or more affidavits shows reasonable grounds for relief that are not determinable from the record. King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000); Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994); Reyes, 849 S.W.2d at 816; Mallet, 9 S.W.3d at 868. The affidavit must allege facts supporting the movant's claim. See Jordan, 883 S.W.2d at 665. The only specific facts appellant alleges in his motion for new trial are that "[t]he complainant in the case . . . has recanted her prior allegation that she was assaulted by [appellant]. . . . [S]he will testify that she never had sex with [appellant] and that she was never assaulted in any way by [appellant]." He also claims that "[h]earing her testimony would most likely result in a different result . . . [and] would have exonerated [appellant]." Thus, appellant contends that newly discovered evidence will prove his actual innocence of the original offense. He also claims that his original plea was involuntary. At a hearing in which the trial court heard argument on whether it should conduct an evidentiary hearing on appellant's motion for new trial, appellant's counsel explained that his plea was involuntary because "he was led to believe that [the complainant] was going to testify against him, and that was not the case. [The complainant] was going to tell them that she never had sex with him, and that was withheld from him and caused him to enter his plea." However, this factual explanation was not included in the motion for new trial or accompanying affidavit; thus, the trial court did not abuse its discretion in denying the motion for new trial on this ground. As to appellant's claim of actual innocence, appellant does not argue that the original judgment placing him on deferred adjudication was void; thus, the "void judgment" exception to the general rule prohibiting appeal from issues related to an original plea proceeding in subsequent proceedings does not apply. See Nix v. State, 65 S.W.3d 664, 667-69 (Tex.Crim.App. 2001). Because appellant has not shown the applicability of any exception to the general rule prohibiting him from attacking the original judgment placing him on deferred adjudication in a subsequent proceeding — and thus did not allege reasonable grounds upon which the trial court could have granted him relief — the trial court did not abuse its discretion in denying him an evidentiary hearing on his motion for new trial. We overrule appellant's sole issue and affirm the trial court's judgment.
The State contends that the appeal should be dismissed for want of jurisdiction because this is a plea bargain case and appellant did not obtain the trial court's permission to appeal this issue, which was not raised by pretrial motion. See Tex.R.App.P. 25.2. The State also erroneously claims that the trial court did not certify appellant's right to appeal. See Tex.R.App.P. 25.2(d). We hold that we do have jurisdiction to address appellant's issue because it is unrelated to both appellant's conviction and the trial court's decision to adjudicate. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon Supp. 2004); McGee v. State, 124 S.W.3d 253, 256 (Tex. App.-Fort Worth 2003, pet. ref'd).
Appellant's motion also contended that a new trial should be granted on other grounds, but the only grounds he attacks on appeal are his claim of actual innocence and claim that his plea was involuntary.
Appellant cannot claim the exception on the ground that the evidence in the original plea proceeding is legally insufficient because his guilty plea constitutes some evidence of his guilt. Nix, 65 S.W.3d at 668 n. 14.
Appellant acknowledges that actual innocence claims are typically brought by post-conviction writ but argues that in the interest of justice and judicial expediency, the trial court should have heard evidence on his claims. While the trial court has discretion in ruling on a motion for new trial, it is also bound by established precedent controlling its ability to consider evidence regarding an original plea after a subsequent revocation proceeding. See Nix, 65 S.W.3d at 667-69; Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999).