                                  NO. 07-04-0291-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  OCTOBER 13, 2005

                         ______________________________


                           ROSE M. GRAVES, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 93-417705; HONORABLE JIM BOB DARNELL, JUDGE

                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, Rose M. Graves, appeals from a judgment revoking community

supervision and imposing sentence pursuant to conviction for delivery of a controlled

substance. We affirm.


      In 1994, appellant entered an open plea of guilty to a charge of delivery of a

controlled substance, cocaine, in an amount less than 28 grams. Following trial, the court
found that the evidence substantiated appellant’s guilt, accepted the guilty plea, found

appellant guilty, and sentenced appellant to confinement for ten years. However, the

confinement was suspended and appellant was placed on community supervision for a

period of ten years.


       In 2003, the State filed an Application to Revoke Community Supervision. The

State contended, in its application, that appellant had violated the terms and conditions of

her community supervision by, among other things, committing the offenses of

manufacture of a controlled substance and possessing a controlled substance with the

intent to deliver. The State’s application was called and heard on April 7, 2004.1 The trial

court found that appellant had violated the terms of her probation, revoked the order

placing appellant on community supervision, and ordered that appellant serve the

confinement portion of her sentence in the Institutional Division of the Texas Department

of Criminal Justice.


       By her sole issue on appeal, appellant contends that the trial court erred in refusing

to grant her motion for new trial based on newly available evidence.2




       1
          In her brief and in oral submissions, appellant contends that the revocation hearing
was called and heard at the same time as the manufacture and possession charges.
However, the record reflects that the revocation was not called until April 7th. Further, it
is clear that, regardless of when the revocation proceeding commenced, the trial court had
not ruled on the revocation prior to April 7th.
       2
       Appellant’s motion for new trial is not contained in the appellate record. At oral
submissions, appellant contended that the motion applied to the revocation as well as the
manufacture/possession charges. For purposes of this opinion, we will assume this to be
true.

                                              2
       Whether a trial court erred in denying a motion for new trial based on new evidence

is determined by whether the trial court abused its discretion. Keeter v. State, 74 S.W.3d

31, 37 (Tex.Crim.App. 2002). To obtain a new trial based on new evidence, the movant

must establish that the evidence was (1) previously unknown or unavailable, (2) unknown

or unavailable for reasons other than a lack of due diligence on the part of the movant, (3)

admissible and not merely cumulative, corroborative, collateral or impeaching, and (4)

probably true and would probably result in a different outcome in another trial. Id. at 36-37;

Eddlemon v. State, 591 S.W.2d 847, 849 (Tex.Crim.App. 1979). As motions for new trial

based on new evidence are not favored, we must view appellant’s motion with great

caution. Drew v. State, 743 S.W.2d 207, 225-26 (Tex.Crim.App. 1987).


       A review of the record reveals that appellant asked the trial court to consider an

affidavit and testimony from Mr. Young at the April 7, 2004 hearing. After discussing this

“new evidence” in relation to appellant’s motion for new trial in the manufacture/possession

case, appellant’s counsel stated, “Then I take it the Court has overruled the Motion for New

Trial. Will the Court accept into evidence in the revocation hearing the affidavit of Mr.

Young?” To which the court responded, “The Court will accept the affidavit . . . as part of

the record in the revocation . . . .” (Emphasis added).3 We cannot see how a trial court

could properly grant a motion for new trial based on newly available evidence when the

same evidence upon which the motion is based was admitted into evidence during the trial.



       3
        Of course, appellant’s trial counsel’s acknowledgment that the trial court had
overruled the motion for new trial belies appellant’s appellate counsel’s contention that the
motion for new trial applied to both the manufacture/possession conviction and the
judgment revoking appellant’s community supervision.

                                              3
After the trial court admitted Mr. Young’s affidavit, appellant made no further offer of

evidence. As appellant has failed to identify any newly available or discovered evidence

to support a new trial of the revocation proceedings, we conclude that the trial court did not

abuse its discretion in refusing to grant appellant’s motion.4


       Concluding that appellant failed to present any new evidence to the trial court, we

affirm the trial court’s judgment revoking appellant’s community supervision.




                                           Mackey K. Hancock
                                               Justice




Do not publish.




       4
         This court has previously addressed appellant’s motion for new trial in the context
of the manufacture/possession conviction concluding that the trial court did not abuse its
discretion in denying appellant’s motion. See Young v. State, No. 07-04-0230-CR, 2005
Tex.App. LEXIS 4383 (Tex.App.–Amarillo June 8, 2005, no pet. h.).

                                              4
