Opinion
No. 14-07-00814-CR
Opinion filed December 18, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 208th District Court Harris County, Texas, Trial Court Cause No. 1022484.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
In a single issue, appellant, Stacey Michelle January, contends the trial court abused its discretion by denying appellant's request for a hearing on her motion for new trial. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. Appellant pleaded guilty to the offense of injury to a child without an agreed recommendation on punishment. After conducting a punishment hearing, the trial court sentenced appellant to forty years' confinement. Appellant timely filed a motion for new trial, contending (1) there was legally and factually insufficient corroborating evidence to sustain the conviction, (2) her plea was involuntary, and (3) she received ineffective assistance of counsel. In the motion, appellant requested an evidentiary hearing, but the motion was not supported by an affidavit. Appellant timely appeared in court to present the motion for new trial and again requested an evidentiary hearing. See Tex. R. App. P. 21.6. The trial court announced it would defer a decision on this request until after the State had an opportunity to review the motion. Appellant later filed a "supplemental" motion for new trial accompanied by an affidavit and again requesting a hearing. Subsequently, the trial court signed an order denying the request for a hearing. The motion for new trial was overruled by operation of law seventy-five days after imposition of the sentence. See Tex. R. App. P. 21.8(a), (c). In her sole issue, appellant contends the trial court abused its discretion by refusing to hold an evidentiary hearing on the motion for new trial because some of her grounds were not determinable from the record. When an accused presents a motion for new trial raising matters not determinable from the record which could entitle her to relief, the trial court abuses its discretion by failing to hold a hearing. Martinez v. State, 74 S.W.3d 19, 22 (Tex.Crim.App. 2002) (citing King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000)). However, as a prerequisite to obtaining a hearing, the motion must be supported by an affidavit specifically showing the truth of the grounds for attack. Id. (citing King, 29 S.W.3d at 569; Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993)). A motion for new trial alleging facts outside the record filed without a supporting affidavit is not a proper pleading and is fatally defective. Klapesky v. State, 256 S.W.3d 442, 454 (Tex.App.-Austin 2008, pet. ref'd). A trial court does not err by refusing to grant a hearing on such a motion. Id. Appellant first presented an affidavit when she filed her supplemental motion. However, this supplemental motion was not timely because it was filed more than thirty days after the trial court imposed sentence in open court. See Tex. R. App. P. 21.4(a) (providing motion for new trial in criminal case must be filed no later than 30 days after trial court imposes or suspends sentence in open court); Tex. R. App. P. 21.4(b) ("Within 30 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 [criminal] defendant may, without leave of court, file one or more amended motions for new trial."). Although appellant denominated her filing as a "supplemental" motion, it effectively constituted an amended motion governed by Rule 21.4(b) because she attempted to correct the defect in her original motion. See Redmond v. State, 30 S.W.3d 692, 700 (Tex.App.-Beaumont 2000, pet. ref'd) (concluding that "supplemental" affidavits filed more than thirty days after sentencing, in attempt to correct previous motions for new trial which lacked affidavits, were governed by time constraints of Rule 21.4(b)). Because appellant's only timely motion for new trial was unsupported by affidavit, we conclude that the trial court did not abuse its discretion by denying her request for a hearing. See Klapesky, 256 S.W.3d at 454-55 (holding trial court did not abuse its discretion by failing to hold hearing on timely motion for new trial where defendant first presented affidavit thirty-one days after sentence imposed, in untimely attempt to amend motion). Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.