


 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-03-00201-CR
 
George Vernon Martinez,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the 249th District Court
Somervell County, Texas
Trial Court # 249-00390
 

O p i n i o n

 
          Pursuant
to a plea bargain, the court placed George Vernon Martinez on deferred
adjudication community supervision.  The
State later filed a motion to adjudicate Martinez’s guilt. 
After a contested hearing, the court adjudicated Martinez’s guilt and sentenced him to twelve years’
imprisonment.  Martinez then filed a motion for new trial, which the
court overruled.  Martinez contends in two issues that the court abused
its discretion by: (1) denying him an evidentiary hearing on the motion; and
(2) overruling the motion.  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.  Accordingly, we will affirm.
          In
Jordan v.
State, the Court of Criminal
Appeals held that a defendant who had originally been placed on deferred
adjudication community supervision could not challenge the voluntariness of his
guilty plea by motion for new trial filed after the adjudication of his guilt
because a defendant is not allowed to attack his original plea in an
adjudication proceeding.  54 S.W.3d 783,
786 (Tex. Crim. App. 2001) (citing Manuel
v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999)); contra Keller v. State, 854 S.W.2d 224,
227-28 (Tex. App.—Beaumont 1993, pet. ref’d) (addressing merits of post-adjudication
motion for new trial alleging newly discovered evidence).[1]  Instead, the Court held that a habeas
application is the proper means to pursue such an attack.  Jordan, 54 S.W.3d at 786.
          An
exception to the rule announced in Jordan is that a defendant may raise a
post-adjudication allegation that the judgment in the original plea proceeding
is void.  Id. at 785 (citing Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001)).  However,
          [a]
judgment of conviction for a crime is void when (1) the document purporting to
be a charging instrument (i.e.
indictment, information, or complaint) does not satisfy the constitutional
requisites of a charging instrument, thus the trial court has no jurisdiction
over the defendant, (2) the trial court lacks subject matter jurisdiction over
the offense charged, such as when a misdemeanor involving official misconduct
is tried in a county court at law, (3) the record reflects that there is no
evidence to support the conviction, or (4) an indigent defendant is required to
face criminal trial proceedings without appointed counsel, when such has not
been waived, in violation of Gideon v.
Wainwright.  While we hesitate to
call this an exclusive list, it is very nearly so.
 
Nix, 65 S.W.3d at
668 (footnotes omitted).
          In
this case, Martinez contends that newly discovered evidence
establishes his innocence.  However, the
evidence he has discovered would do no more than discredit the complainant’s
allegations.  This does not rise to the
level of the “no evidence” required to establish a “void” judgment under Nix.
          Here,
the only difference between Martinez’s case and Jordan’s is that Martinez is challenging the original plea on the basis
of newly discovered evidence rather than on the basis of an involuntary plea.  Martinez must pursue this issue in a habeas
application.  See Jordan, 54 S.W.3d at 786.
Accordingly, we overrule the issues presented
and affirm the judgment.
 
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed February
 23, 2005
Publish
[CRPM]




 




    [1]           Because
Keller appears to be in direct
conflict with Jordan, we decline to follow it.


