COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00230-CR
02-10-00231-CR
02-10-00232-CR
02-10-00233-CR
BARRY MARTIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Barry Martin was convicted on his guilty pleas in four felony theft
cases after the trial court granted the State‘s motions to adjudicate his guilt.2 In
1
See Tex. R. App. P. 47.4.
2
See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5 (West Supp. 2010); Tex.
Penal Code Ann. ' 31.03 (West 2011).
one point, Appellant asserts that the trial court erred by ―not holding a hearing on
[his] timely filed motion[s] for new trial because there was an allegation of actual
innocence in the motion[s] and the trial court was required to allow the appellant
to fully develop the record.‖ We affirm.
II. Procedural and Factual Background
In May 2005, Appellant pleaded guilty to four felony theft charges in
exchange for the State‘s agreement to the imposition of deferred adjudication
community supervision in each case. Appellant affirmed to the trial court that he
signed and understood the judicial confession in each case, acknowledging that
he unlawfully appropriated property ―with intent to deprive the owner of the
property.‖ Appellant also affirmed that he was pleading guilty of his own free will
and that no one threatened or forced him to do so. The trial court placed
Appellant on deferred adjudication community supervision in each case in
accordance with his plea agreements.
On April 27, 2010, the trial court heard evidence on the State‘s amended
motions to adjudicate in each case. Appellant pleaded ―not true‖ to the
allegations—and the trial court heard evidence—that he failed to pay court costs
and restitution as ordered and that Appellant reported only one time to his
probation officer. The trial court adjudicated Appellant‘s guilt in each case based
upon its findings that he failed to pay court costs or restitution as ordered and
failed to report to his probation officer on numerous occasions. After hearing
punishment evidence, the trial court sentenced Appellant to concurrent
2
sentences of ten years‘ confinement in the third-degree offense and twenty-four
months‘ confinement in the remaining state jail felony offenses.
On May 25, 2010, Appellant timely filed four new-trial motions, asserting in
each that the verdict was contrary to the law and the evidence and that
[t]he Defendant was actually innocent of theft in each of these
cases because the evidence was insufficient to prove any necessary
intent to deprive the owners of the property existed at the same time
as any appropriation of the property without the owners‘ effective
consent. Each of these cases involved on-going contractual and
charge account-type arrangements. The Defendant intended to
complete the transactions and pay any money due at the time the
money or property was appropriated. All appropriations occurred
with the consent of the owners at that time.
Appellant also requested a hearing. His motions were not supported by an
affidavit, although defense counsel‘s verification affidavit was attached to each
one. On June 7, 2010, the trial court scheduled a June 25, 2010 hearing on
Appellant‘s motions. On the day of the hearing, the State filed a written motion
asking the court to deny Appellant‘s motions. While the trial court noted that it
did not disagree with the State that Appellant was not entitled to a hearing on his
motions, the trial court stated:
having read [Appellant‘s] motion, it‘s saying he‘s innocent because
the evidence was insufficient. There was a written stipulation of
evidence offered in which he admitted each and every element of
the offense he was charged with, so I‘d be interested in knowing
how the evidence was insufficient.
In response, defense counsel advised that Appellant was claiming actual
innocence and that ―the element to which his actual innocence applies is the
intent to — the intent to appropriate the property, to deprive the property.‖ The
3
trial court noted that Appellant ―admitted every element of the offense of theft‖
and, after reading the judicial confession in one case, stated, ―That‘s a theft. And
that‘s what he admitted he did in the stipulation.‖ Defense counsel responded
that ―stipulations in guilty pleas are often a great hindrance when someone is
trying to appeal.‖ The trial court then advised counsel: ―[Appellant‘s] certainly
welcome to appeal. . . . But him having the right to appeal doesn‘t mean this
Court‘s got to waste its time on something that doesn‘t raise any issue.‖ Defense
counsel then offered Appellant‘s affidavit, which the trial court admitted for
―record purposes‖ over the State‘s objections. 3 The trial court denied Appellant‘s
motions for new trial without further hearing.
III. New Trial Hearing
Appellant asserts that the trial court erred and violated his state and
federal due process rights by ―not holding a hearing on [his] timely filed motion[s]
for new trial because there was an allegation of actual innocence in the motion[s]
3
Appellant‘s affidavit provided in part:
I am actually innocent in each of these theft cases even
though I took a probation plea offer to get out of jail. In three of the
cases, I intended to pay for the merchandise I bought when the bills
came due. In the fourth, I intended to finish the work I was paid for
when the money was received.
In support, Appellant makes specific factual allegations regarding each case.
4
and the trial court was required to allow the appellant to fully develop the
record.‖4
A. Applicable Law
The purposes of a new trial hearing are (1) to determine whether the case
should be retried and (2) to complete the record for presenting issues on appeal.
Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). Such a hearing is
not an absolute right. Id. We review a trial court‘s decision to deny a hearing on
a new-trial motion under an abuse of discretion standard. Id. at 200; Roberts v.
State, No. 02-09-00440-CR, 2010 WL 2720587, at *2 (Tex. App.—Fort Worth
July 8, 2010, no pet.) (mem. op., not designated for publication) (citing Hobbs).
A trial court abuses its discretion by failing to hold a hearing if the motion and
accompanying affidavits (1) raise matters that are not determinable from the
record and (2) establish reasonable grounds showing that the defendant could
potentially be entitled to relief. Hobbs, 298 S.W.3d at 199. ―If the trial judge finds
that the defendant has met the criteria, he has no discretion to withhold a
hearing. In fact, under such circumstances the trial judge abuses his discretion
4
Appellant does not separately argue that the trial court erred by denying
his motions for new trial. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim.
App. 2003) (stating that whether a defendant is entitled to a hearing on a new-
trial motion is a separate question from whether he should ultimately be granted
a new trial); Lemmons v. State, No. 02-04-00086-CR, 2005 WL 1356270, at *1
(Tex. App.—Fort Worth June 9, 2005, pet. ref‘d) (mem. op., not designated for
publication) (citing Wallace).
5
in failing to hold a hearing.‖ Smith v. State, 286 S.W.3d 333, 340 (Tex Crim.
App. 2009).
As a prerequisite to a new-trial hearing (when the grounds in the new-trial
motion are based on matters not already in the record), the motion must be
supported by an affidavit setting out the factual basis for the claim. Smith, 286
S.W.3d at 339; see Hobbs, 298 S.W.3d at 200 n.32 (suggesting also that a
verified motion might be sufficient in some instances). ―Filing affidavits in support
of a motion for new trial more than [thirty] days after sentencing is considered an
untimely attempt to amend the motion.‖ Klapesky v. State, 256 S.W.3d 442, 455
(Tex. App.—Austin 2008, pet. ref‘d); see Mallet v. State, 9 S.W.3d 856, 865 (Tex.
App.—Fort Worth 2000, no pet.); see also Tex. R. App. P. 21.4 (―Within [thirty]
days after the date when the trial court imposes or suspends sentence in open
court but before the court overrules any preceding motion for new trial, a
defendant may, without leave of court, file one or more amended motions for new
trial.‖). A defendant may not amend or enlarge his original new-trial motion with
additional claims after the thirty-day period has expired, except when the State
fails to object to the addition at the time the claims are raised. See Clarke v.
State, 270 S.W.3d 573, 580–81 (Tex. Crim. App. 2008) (citing State v. Moore,
225 S.W.3d 556, 570 (Tex. Crim. App. 2007)).
6
B. Affidavit as an Untimely Amendment
Although Appellant filed his new-trial motions within thirty days of the trial
court‘s imposition of his sentences, the motions were not supported by affidavits.5
Appellant subsequently filed an affidavit in support of the motions more than
thirty days after the imposition of his sentences. Thus, Appellant‘s affidavit was
an untimely attempt to amend his new-trial motions. See Klapesky, 256 S.W.3d
at 455; Mallet, 9 S.W.3d at 865. Because the State objected to the trial court‘s
consideration of the affidavit, neither the trial court nor this court may consider it.
Moore, 225 S.W.3d at 570. We therefore consider only Appellant‘s new-trial
motions in addressing his claim.6 Mallet, 9 S.W.3d at 865.
C. No Abuse of Discretion
Although Appellant asserts that his new-trial motions allege actual
innocence, the motions dispute only the requisite mental state to which Appellant
judicially confessed. This type of claim is properly characterized as a challenge
to the sufficiency of the evidence. See Ex parte Santana, 227 S.W.3d 700, 705
5
To the extent the court of criminal appeals has suggested that a verified
motion might be sufficient in some instances, Hobbs, 298 S.W.3d at 200 n.32,
Appellant‘s motions do not meet the Hobbs criteria—e.g., although the new-trial
motions were verified by defense counsel, he did not have personal knowledge
of all the facts alleged in the motions, including Appellant‘s intent at the time of
the offenses. Cf. id. (noting that verified motion sufficiently supported new-trial
motion where defendant swore under oath to the truth of the facts set out in the
motion, which were within his personal knowledge).
6
As discussed below, the gravamen of Appellant‘s complaint arises from
his original plea, and therefore, consideration of his affidavit would not change
the outcome of his appeal.
7
(Tex. Crim. App. 2007) (holding that defendant raised a sufficiency, rather than
an actual innocence, challenge when he only disputed facts to which he
stipulated in entering his guilty plea); see also Ex parte Tuley, 109 S.W.3d 388,
390 (Tex. Crim. App. 2002) (holding that a ―bare innocence‖ claim ―involves a
substantive claim in which the applicant asserts his bare claim of innocence
based solely on newly discovered evidence‖). Because Appellant‘s new-trial
motions raise a sufficiency challenge, we do not address his argument that the
trial court violated his state and federal due process rights by failing to hold a
hearing on his actual innocence claim. See Ex parte Tuley, 109 S.W.3d at 390
(holding that incarceration of an innocent person offends federal due process and
that a bare innocence claim is cognizable in a post-conviction application for writ
of habeas corpus) (citing Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim.
App. 1996)).
Appellant‘s sufficiency challenge raises only matters determinable from the
record. Moreover, the trial court was familiar with the history and facts of the
case, and further development of the record would not aid Appellant in presenting
his issue on appeal.7 See Lewis v. State, No. 02-02-00341-CR, 2003 WL
23095980, at *1 (Tex. App.—Fort Worth Dec. 31, 2003, no pet.) (mem. op., not
7
See generally Holden v. State, 201 S.W.3d 761, 764 (Tex. Crim. App.
2006) (holding that live testimony was not essential because the affidavits in
support of the new trial motion were from the defendant and his trial counsel who
had already appeared before a trial court judge who was familiar with the history
and facts of the case).
8
designated for publication) (holding that trial court did not abuse its discretion in
refusing to conduct a motion for new trial hearing when appellant‘s insufficient
evidence claim did not raise issues that could not be determined from the
record).
Appellant also failed to establish reasonable grounds showing that he
could potentially be entitled to relief. It is well settled that a defendant placed on
deferred adjudication community supervision may raise issues relating to the
original plea proceeding, such as evidentiary sufficiency, only in an appeal taken
when deferred adjudication community supervision is first imposed. Manuel v.
State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999); Martinez v. State, 184
S.W.3d 241, 242 (Tex. App.—Waco 2005, pet. ref‘d) (―Because the issues raised
in the motion for new trial relate back to the original plea proceeding, we hold that
they must be raised by a habeas application.‖); see Northington v. State, 76
S.W.3d 203, 205 (Tex. App.—Fort Worth 2002, no pet.) (―[W]e informed counsel
that if he intends to raise issues relating to the original deferred adjudication
proceeding in an appeal following the adjudication of appellant‘s guilt, the appeal
is untimely under appellate rule 26.2 and Manuel, unless the error falls within the
‗void judgment‘ exception set forth in Nix [v. State, 65 S.W.3d 664, 667 (Tex.
Crim. App. 2001)].‖).8 Because Appellant failed to establish reasonable grounds
8
See also Jordan v. State, 54 S.W.3d 783, 786 (Tex. Crim. App. 2001)
(holding that a defendant originally placed on deferred adjudication community
supervision cannot challenge the voluntariness of his guilty plea by new-trial
motion filed after the adjudication of his guilt because he is not allowed to attack
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entitling him to relief, the trial court did not abuse its discretion by not conducting
an evidentiary hearing.9 We overrule Appellant‘s sole point.
IV. Appellant’s Pro Se Motion
After both parties submitted their briefs, Appellant filed a pro se letter with
this court in April 2011, which we construe as a motion. In the motion, Appellant
explained that his appointed appellate counsel had notified him in a March 2011
letter that he was discontinuing his law practice. Appellant further stated,
[s]ince it is now obvious [appellate counsel] is not and has not been
able to provide effective counsel, I ask the court to ―stay‖ any further
action and appoint qualified, effective, counsel to my cases. As I
mentioned in my first letter it is necessary to correct the atrocious
errors [appellate counsel] has made in the ―Brief‖ he filed.
Appellant noted that he had never received a file-marked copy of the ―first letter‖
he had sent to the court.10
A few days later, the court received a faxed cover letter from Appellant‘s
appellate counsel stating: ―Attached please find a copy of my letter of March 23,
2011 to [Appellant] regarding my withdrawing from his new [child support] case
his original plea in an adjudication proceeding); Brisco v. State, No. 01-00-00762-
CR, 2002 WL 595075, at *5 (Tex. App.—Houston [1st Dist.] Apr. 18, 2002, pet.
ref‘d) (mem. op., not designated for publication) (holding appellate court had no
jurisdiction over appellant‘s new-trial motion challenging the voluntariness of his
plea filed after the trial court revoked his community supervision).
9
To the extent Appellant‘s argument can be construed as a challenge to
the trial court‘s denial of the new-trial motions, we dismiss this portion of his claim
for want of jurisdiction. See Manuel, 994 S.W.2d at 661–62.
10
This court has received only Appellant‘s April 5, 2011 letter.
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and remaining counsel on his cases on appeal in your court,‖ and ―I hope this
clarifies the issue of [Appellant] needing new counsel for the appeals.‖ The letter
counsel had sent to Appellant stated that, due to receiving a triple-bypass heart
operation, cousel was giving up his law practice ―as regards pending unresolved
cases‖ but that he would ―remain on [Appellant‘s] cases on appeal.‖ Counsel‘s
letter also responded to a letter Appellant had sent to him:
Unfortunately, on these direct appeals cases we are limited to the
record at the revocation and motion for new trial hearings. The
matters you speak of in your letter will have to be addressed, if at all,
in a writ of habeas corpus that can‘t be filed until the direct appeal is
finished.
The trial court retains authority over counsel appointed to represent the
defendant on appeal. See Tex. Code Crim. Proc. Ann. art 26.04(j)(2) (West
Supp. 2010); see also Enriquez v. State, 999 S.W.2d 906, 908 (Tex. App.—
Waco 1999, no pet.). Thus, if there were any indication that Appellant‘s right to
effective assistance of counsel might be compromised if current counsel
continued to represent him during the appellate process, or if we suspected that
Appellant and his counsel had an actual conflict of interest, we would abate the
proceeding so that the trial court could conduct a hearing to determine whether
current counsel should be replaced. See Meza v. State, 206 S.W.3d 684, 688
(Tex. Crim. App. 2006) (holding that, in some instances, it is appropriate for trial
court to exercise the authority to appoint or substitute counsel following
abatement and remand). However, we have considered Appellant‘s April 5, 2011
letter; appellate counsel‘s correspondence with the court; the parties‘ briefs; the
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clerk‘s records; and the reporter‘s record of Appellant‘s guilty pleas, the
adjudication hearing, and the motion for new trial proceeding, and we deny
Appellant‘s motion because there is no such indication or suspicion here. See id.
V. Conclusion
Having overruled Appellant‘s sole point, we affirm the trial court‘s
judgments.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 11, 2011
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