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Opinion filed May 29, 2008
In The
Eleventh Court of Appeals
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No. 11-07-00213-CR
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TRAVIS WAYNE ARDOIN, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Court Cause No. 97748
M E M O R A N D U M O P I N I O N
The trial court convicted Travis Wayne Ardoin of the offense of unauthorized use of a vehicle and assessed his punishment at confinement in a state jail facility for twenty-three months. We affirm.
It was undisputed at trial that appellant was arrested while driving a white, four-door Ford F-350 four-wheel drive work vehicle belonging to homebuilder Charles AChuck@ Malcolm King. Appellant testified that he was walking down the street when Aa guy named Gene@ asked him if he wanted to rent the vehicle for drugs. Appellant stated that he rented the vehicle twice over a two-day period and that AGene@ had shown him insurance papers and told him the vehicle was his. Appellant testified that he only ran from the police because he did not want them to find the two or three rocks of crack cocaine he had in the vehicle and that, when the spike strips deflated one of the tires, he ate the rocks of cocaine to prevent him from being caught. Appellant did not remember too much about his arrest because he suffered a seizure from ingesting the cocaine and had to be transported by ambulance to the hospital.
After his conviction, appellant filed a motion for new trial based on the grounds of newly discovered evidence. Attached to the motion was Sherman Eugene LeBlanc=s affidavit stating that he had given appellant permission to drive the vehicle. At the hearing, LeBlanc testified that Billy Glass worked for the owner of the vehicle and had given him a ride in it. They went to a motel where Glass left with someone else, leaving the vehicle and the keys. LeBlanc testified that he knew appellant by the name of ARed@ and that appellant knew him by the name of AGene.@ Appellant was going to the store, and LeBlanc gave him the keys to the vehicle. The trial court overruled the motion.
In his sole issue on appeal, appellant contends that the trial court abused its discretion in denying his motion for new trial. Appellant contends that the evidence provided by LeBlanc was essential to the issue of mistake of fact and that the record supports his conclusion that the trial court abused its discretion under Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002). We disagree.
The Court of Criminal Appeals has stated:
Article 40.001 of the Texas Code of Criminal Procedure provides that A[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.@ Under that statute, a defendant is entitled to have his motion for new trial granted if (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial.
Wallace v. State, 106 S.W.3d 103, 107-08 (Tex. Crim. App. 2003) (citing Keeter, 74 S.W.3d at 36‑37). The trial court=s ruling will not be disturbed on appeal absent an abuse of discretion, and the trial court determines Athe credibility of the witnesses and whether the new evidence is probably true.@ Keeter, 74 S.W.3d at 37.
The record before this court fails to establish that the grounds for a new trial based on newly discovered evidence have been met. LeBlanc=s testimony was consistent with appellant=s testimony at trial that a man named AGene@ gave him permission to drive the vehicle. This was not newly discovered evidence but was evidence that was corroborative and cumulative and went to the credibility of appellant=s testimony. The trial court was the sole judge of the weight and credibility of the testimony both at the hearing on the motion for new trial and at trial. Keeter, 74 S.W.3d at 37; Adelman v. State, 828 S.W.2d 418 (Tex. Crim. App. 1992); DeBolt v. State, 604 S.W.2d 164 (Tex. Crim. App. 1980). Further, the record does not establish that this evidence was not known to appellant at the time of trial or that any failure to discover was not due to lack of diligence on appellant=s part. The record supports the trial court=s denial of the motion for new trial. The issue is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
May 29, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.