                         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


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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


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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.


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(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).


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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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