Opinion
No. 05-04-01342-CR
Opinion Issued July 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd District Court, Dallas County, Texas, Trial Court Cause No. 296-00917-02. Affirmed.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
OPINION
Jason Wood appeals the trial court's refusal to grant a new trial following the revocation of his probation. The trial court revoked appellant's probation and sentenced him to two years in the State Jail. In a single point of error, appellant argues the trial court abused its discretion in not holding a hearing on appellant's motion for new trial and in denying such motion. We affirm the trial court's judgment. On April 20, 2001, appellant pleaded guilty pursuant to a plea bargain agreement to theft of property of a value between $1,500 and $20,000, and he was placed on deferred adjudication for a period of five years. In July 2002, he was sentenced to two years in State Jail after the State filed a motion to proceed with an adjudication of guilt because of failure to pay restitution, failure to perform community service, and testing positive for marijuana on a urinary analysis. After serving some time in jail, appellant was placed on probation for five years, beginning on October 16, 2002. In September 2004, the trial court granted the State's motion to revoke appellant's probation for failing to report to his probation officer in March and April 2003 and sentenced appellant to two years in the State Jail. The trial court then denied both a hearing on a motion for new trial and the motion itself. In a single point of error, appellant alleges that the trial court abused its discretion by not granting his motion for new trial and for not holding a hearing on the motion. The standard of review for determining whether the court erred in failing to grant the hearing is abuse of discretion. Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). If the motion raised reasonable grounds for relief that could not be determined from the record, then the trial court has abused its discretion by not holding the hearing. Id. Appellant must have initially requested a hearing on the motion for new trial in order to argue on appeal that the court abused its discretion in not holding one. Gallegos v. State, 76 S.W.3d 224, 228 (Tex.App.-Dallas 2002, pet. ref'd), ("Because appellant did not request a hearing, the trial court could not have abused its discretion in failing to hold one.") Appellant's motion for new trial makes no mention of a request for a hearing. Appellant points to the fact the trial judge wrote "denied" on the order setting the hearing for the motion for new trial as evidence that a hearing must have been requested. However, the record is devoid of any request for a hearing by appellant. Therefore, appellant has not preserved for our review the issue of whether the trial court abused its discretion in failing to conduct a hearing on his motion for new trial. Even if appellant had preserved the issue, the record does not show the trial court abused its discretion. In Reyes, the Court of Criminal Appeals reaffirmed the reasoning that a hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record. Reyes, 849 S.W.2d at 816. In addition, any affidavits used to support appellant's motions must reflect that reasonable grounds exist for granting relief. Id. Here, the record shows that the trial court was well aware of the situation regarding appellant's failure to report to his probation officer in March and April of 2003. In Macri v. State, the trial judge, acting as the trier of fact in the punishment phase, determined the information in affidavits related to the defendant's character would not have caused him to mitigate the sentence. Macri v. State, 12 S.W.3d 505, 510 (Tex.App.-San Antonio 1999, pet. ref'd). The appellant asserted that he had witnesses who would have testified concerning his character and why the punishment should be mitigated. Id. However, the trial judge had read these affidavits, and had heard all the testimony, including all the evidence of the appellant's violent behavior, and he had decided that the evidence in the affidavits would not have caused him to mitigate the punishment. Id. Therefore, there was no need to hold a hearing on the motion for new trial. Id. The appellate court did not find an abuse of discretion in the judge's decision to deny a hearing on the defendant's subsequent motion for new trial. Id. As in Macri, here there was direct testimony by appellant at trial concerning why he pleaded true and why he did not report to his probation officer. Furthermore, appellant's father testified to the same story concerning how his son's former attorney was in communication with his son's probation officer, who had advised appellant not to report during those two months. From appellant's testimony at trial, the judge knew appellant had followed his counsel's advice in pleading true to the allegation of failure to report. After appellant stated, "I was more advised by my attorney at that time," appellant's attorney added, "I guess technically he would be pleading true, that he did miss those two months, but he'll offer an explanation to the Court as to why." The trial judge was fully aware of the situation surrounding the failure to report to the probation officer, and all the facts related to the matter were determinable from the record. Thus, the matters raised in appellant's motion for new trial were presented in testimony at trial, and no new facts would have been raised in a hearing on appellant's motion for new trial. See Reyes, 849 S.W.2d at 816. Accordingly, we cannot conclude the trial court abused its discretion in failing to conduct a hearing on appellant's motion. See Macri, 12 S.W.3d at 510. We overrule appellant's single point of error. We affirm the trial court's judgment.