Opinion issued July 31, 2014




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                         ————————————
                               NO. 01-13-00169-CR
                         ———————————
                  BRYAN DALE MANZELLA, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 184th District Court
                          Harris County, Texas
                      Trial Court Case No. 1349410



                       MEMORANDUM OPINION

     Appellant Bryan Dale Manzella pleaded guilty, without an agreed

recommendation as to punishment, to the felony offense of aggravated robbery

with a deadly weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2013).
After a presentence investigation and hearing, the trial court sentenced Manzella to

five years in prison. On appeal, he raises a single issue challenging the trial court’s

failure to hold a hearing on his motion for new trial.

      We affirm.

                                    Background

      Bryan Dale Manzella attempted to take a large television from a discount

department store, and he threatened the store’s employees with a box-cutting knife

when they stopped him near the exit. Manzella fled without the television, and he

was later arrested and charged with aggravated robbery. He pleaded guilty without

an agreed recommendation as to punishment and signed, and he initialed the

typical paperwork associated with a plea agreement.

      At the plea hearing, the trial court asked him a series of questions before

accepting his plea of guilty. Manzella testified that he understood the proceedings

in his case and that he had confessed to aggravated robbery; he was satisfied with

his lawyer’s work; he knew there was no plea bargain; and he was waiving his

right to a jury trial. He further testified that no person had exercised force,

threatened him, or made promises to induce him to enter a plea. He answered “yes”

when asked if he was entering his plea freely and voluntarily. The court accepted

his guilty plea.




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      Almost three months later, the court held a hearing to determine punishment.

The presentence investigation report was admitted into evidence. The report

included a statement from Manzella in which he stated that he was experiencing

financial troubles and tried to steal the television. He denied having a knife or

threatening to kill anyone. The report also revealed that Manzella had a five-year-

old prior conviction for criminal trespass and that he had been charged with

possession of a controlled substance and evading arrest six months after the

aggravated robbery. Although the possession of a controlled substance case had

been dismissed, the PSI showed that he had been sentenced to 14 days in jail for

evasion.

      The PSI also summarized Manzella’s social history, which showed that he

had a three-year-old daughter. The report described his educational history as

follows: “The defendant stated he completed the 8th grade via home school. The

defendant stated he was homeschooled because his stepfather . . . travelled around

the United States. He also stated he stopped studying, started working, making

money and never had a desire to go back to school.” Both Manzella’s mother and

his ex-wife, who is the mother of his child, wrote character reference letters

describing him as hard-working, loving, and helpful to the family. They asked the

court to give him another chance. Neither appeared at the hearing: Manzella’s ex-




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wife was at a doctor’s appointment with their daughter and his mother was

attending to funeral arrangements for her mother.

      In addition to the PSI report, the court heard testimony from Manzella. He

said that he understood that the court could sentence him within the range of

punishment, which was five years to life in prison. He apologized for his actions,

expressed a desire to be available as a father to his young daughter, said he

“learned [his] lesson,” and asked the court for probation. Manzella testified that he

had truthfully answered the questions asked by the PSI interviewer, including that

he had been homeschooled through the eighth grade. He testified that he never

finished high school or sought a GED but he had no physical or mental disability

that would prevent him from doing so. He said, “I can read a little bit.” Manzella

testified that he was seeking probation so that he could care for his daughter and

support her financially.

      Manzella admitted prior convictions for criminal trespass as a teenager and

for evading arrest. As to the charged aggravated robbery, Manzella said that he

understood he “must have had a pocket knife” and that his actions were “wrong.”

He explained that he had fallen upon difficult financial circumstances and was at a

“low point,” but that he was sorry and wanted another chance to be a “better man.”

      On cross-examination, Manzella testified that he knew that “aggravated”

meant “you have a weapon,” and that he pleaded guilty to aggravated robbery. But

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he also said that everything he told the PSI interviewer was truthful, and he told

that person that he never used a knife. The State asked:

      Q.     So, when—you were lying when you talked to her and said you
             didn’t have a knife?

      A.     Yes, sir.

      ....

      Q.     So, what are you telling this Court now today, did you have a
             knife when you were exiting that Wal-Mart with the 46-inch
             TV?

      A.     I do not recall having a knife. I maybe had one in my pocket,
             but I do not recall waving it around.

      The trial court imposed sentence in this case on February 19, 2013. On

April 5, 2013, Manzella filed a motion for new trial and requested a hearing. The

motion alleged that after the imposition of sentence, his counsel first learned that

Manzella could not read and had a learning disability. A psychosocial evaluation

was then conducted by Joycelyn Williams, an employee of the Harris County

Public Defender’s Office. In an affidavit attached to the motion for new trial,

Williams averred that she met with Manzella on March 26, 2013 and conducted “a

brief interview to ascertain his educational and psychosocial history.” She averred

that he “stated that he cannot functionally read.” She also stated: “During my

interview, Mr. Manzella disclosed that he is distressed about what he believes to be

misinformation given to him by his trial attorney. He reported that he did not read


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the documents related to the Pre-Sentencing Investigation because he cannot read.

He reported that his attorney did not explain them to him nor provide him copies of

the paperwork.”

      Manzella acknowledged that his motion for new trial was not filed within

the 30-day time limit in Texas Rule of Appellate Procedure 21.4. However, he

argued that because he sought a new trial under article 40.001 of the Texas Code of

Criminal Procedure, which does not specify a filing deadline, the 30-day time limit

did not apply. He contended that the 30-day time limit was not jurisdictional and

because the record had not been filed in the appellate court, the trial court retained

jurisdiction to hold a hearing and rule on his motion. The court denied the motion

for new trial on the same day it was filed, without holding a hearing.

      On appeal, Manzella argues that the trial court erred by not holding a

hearing on his motion for new trial. He again argues that because the Code of

Criminal Procedure does not specify a time limit for filing a motion for new trial

based on newly discovered evidence, and because the Rules of Appellate

Procedure do not include newly discovered evidence as a reason for granting a new

trial, the 30-day limit in Rule 21.4 does not apply. In addition, he contends that

even if the 30-day time limit did apply, it was not jurisdictional, and because the

appellate record had not been filed by April 5, the court had jurisdiction to hear the

motion for new trial.

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                                       Analysis

      A defendant has a right to file a motion for a new trial. See TEX. R. APP. P.

21; Drew v. State, 743 S.W.2d 207, 223 (Tex. Crim. App. 1987); Cooks v. State,

190 S.W.3d 84, 86–87 (Tex. App.—Houston [1st Dist.] 2005), aff’d, 240 S.W.3d

906 (Tex. Crim. App. 2007). Rule 21.4 requires that a motion for new trial must be

filed within 30 days of the date the judge pronounces sentence in open court. TEX.

R. APP. P. 21.4. If the court does not rule on the motion for new trial within 75

days following the pronouncement of sentence in open court, the trial court’s

authority to grant the motion expires, and it is deemed denied by operation of law.

TEX. R. APP. P. 21.8. The Court of Criminal Appeals has held that these deadlines

are jurisdictional. Drew, 743 S.W.2d at 223; see also State v. Holloway, 360

S.W.3d 480, 486 (Tex. Crim. App. 2012) (“When the statutory timetable is not

followed . . . ‘the trial court lack[s] jurisdiction’ to thereafter rule on the merits of

the motion for new trial.”), rev’d on other grounds by Whitfield v. State, 430

S.W.3d 405 (Tex. Crim. App. 2014).

      We review a trial court’s denial of a hearing on a motion for new trial for an

abuse of discretion, and we will reverse only if the trial court’s decision was

clearly wrong and outside the zone of reasonable disagreement. Smith v. State, 286

S.W.3d 333, 339 (Tex. Crim. App. 2009). The purposes of a hearing on a motion

for new trial are (1) to determine whether the cause should be retried and (2) to

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prepare a record that would enable the defendant to present issues on appeal if the

court denies the motion. Id. at 338. A criminal defendant does not have an

“absolute right” to a hearing on his motion for new trial. Hobbs v. State, 298

S.W.3d 193, 199 (Tex. Crim. App. 2009). “But a trial judge abuses his discretion

in failing to hold a hearing if the motion and accompanying affidavits (1) raise

matters which are not determinable from the record and (2) establish reasonable

grounds showing that the defendant could potentially be entitled to relief.” Id.

(citing Smith, 286 S.W.3d at 338–39).

      To show that reasonable grounds exist, the defendant must support his

motion with one or more affidavits that set forth the factual basis for the claim. Id.;

see Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). A defendant

seeking a new trial based on a claim of newly discovered evidence need not

establish a prima facie case for a new trial in order to be entitled to a hearing on the

motion. Wallace, 106 S.W.3d at 108. However, he must present in his motion and

accompanying affidavits factual matters that show he could be entitled to relief

under article 40.001 of the Code of Criminal Procedure. See id. at 107–08; see also

Hobbs, 298 S.W.3d at 201–02.

      Section 40.001 provides that a “new trial shall be granted an accused where

material evidence favorable to the accused has been discovered since trial.” TEX.




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CODE CRIM. PROC. ANN. art. 40.001 (West 2013). The Court of Criminal Appeals

has interpreted section 40.001 and held that

      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.

See Wallace, 106 S.W.3d at 108 (citing Keeter v. State, 74 S.W.3d 31, 36–37 (Tex.

Crim. App. 2002)). A defendant is never entitled to a new trial for the purpose of

obtaining evidence that was known and accessible to him at the time of trial, even

when he has not conveyed knowledge of the evidence to his attorney. Drew, 743

S.W.2d at 227 n.14.

      In this case, the trial court pronounced sentence in open court on

February 19, 2013. Manzella filed his motion for new trial 45 days later, on April

5. Because the statutory timetable was not followed, the trial court lacked

jurisdiction to grant Manzella’s motion for new trial. See Drew, 743 S.W.2d at

223; Perez v. State, 261 S.W.3d 760, 771 (Tex. App.—Houston [14th Dist.] 2008,

pet. ref’d) (holding that court lacked jurisdiction to rule on motion for new trial

alleging newly discovered evidence because it was filed more than 30 days after

the date sentence was imposed).




                                         9
      Manzella relies on State v. Moore, 225 S.W.3d 556 (Tex. Crim. App. 2007),

to argue that the time limit for bringing a motion for new trial is not, in fact,

jurisdictional. He contends that because the appellate record had not yet been filed,

the court retained jurisdiction to rule on his motion for new trial. In Moore, the

defendant timely filed an original motion for new trial, but filed an amendment to

the motion for new trial more than 30 days after the court pronounced sentence.

Moore, 225 S.W.3d at 557. The Court of Criminal Appeals held that although the

time for filing an original motion for new trial was jurisdictional, the limitation on

filing an amendment to a timely filed motion for new trial was not. Id. at 568.

Rather, this limitation was waivable, and absent an objection from the State, the

court could consider an untimely amendment to a timely filed motion for new trial

if it was filed before the 75-day deadline for the trial court’s ruling on the motion.

Id. at 568–69. The Court noted that this situation was distinguishable from the

failure to timely file an original motion for new trial, saying, “This is unlike the

situation in Drew, in which the failure of the defendant to timely file his original

motion for new trial deprived the trial court of the authority to grant a new trial at

all, within the seventy-five days or otherwise.” Id. at 569. Manzella’s case is like

Drew and unlike Moore. As in Drew, Manzella’s failure to timely file an original

motion for new trial deprived the court of authority to grant the new trial at all. See

id.

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      We hold that the court did not err in denying a hearing and the motion for

new trial because it lacked jurisdiction to grant the untimely filed motion. See

Wallace, 106 S.W.3d at 108. We overrule Manzella’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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