No. 14-02-01060-CR.
Opinion filed January 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(B).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 885,409. Affirmed.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and GUZMAN.
JOHN S. ANDERSON, Justice.
Appellant Gregory Arrellano was charged with aggravated sexual assault of a child. See TEX. PEN. CODE ANN. § 22.021(a)(1)(B)(iii),(a)(2)(B) (Vernon Supp. 2004). He pleaded guilty with an agreed recommendation of eight years' deferred adjudication, a $1,000 fine and certain enumerated conditions. The trial court found the evidence substantiated appellant's guilt, deferred adjudication, placed appellant on community supervision for eight years, and assessed a fine of $1,000. Subsequently, the trial court adjudicated appellant's guilt and sentenced him to fourteen years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant filed a motion for new trial and for arrest of judgment, alleging (1) ineffective assistance of counsel at the adjudication hearing, (2) newly discovered evidence, and (3) legally and factually insufficient evidence to show violation of the conditions of supervision. The trial court denied the motion without a hearing. We affirm.
DISCUSSION
In his sole issue for review, appellant argues the trial court erred by not granting him a hearing on his motion for new trial. The State argues this court should overrule appellant's issue because appellant did not request a hearing and therefore did not preserve the issue for appeal. The State does not address the merits of appellant's motion. Preservation of Appellate Issue Appellant presented his motion for new trial to the court within ten days of filing it and provided the court with a proposed order including four options. The first two provided for setting a hearing; the third, for granting the motion without a hearing; and the last, for overruling the motion without a hearing. The trial court checked the last option and signed the order. On this record, we conclude appellant sufficiently preserved the issue. See Reyes v. State, 82 S.W.3d 351, 354 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (per curiam) (suggesting specific request not necessary if motion is presented and is sufficient to raise matter not determinable from record). The Merits of Appellant's Motion A defendant may not appeal the decision to adjudicate guilt. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(b) (Vernon Supp. 2004). This court, however, has jurisdiction to review the trial court's decision to deny a motion for new trial without a hearing because this claim does not arise from the determination to adjudicate. Daniels v. State, 63 S.W.3d 67, 69 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). In Buerger v. State, for example, this court reviewed the trial court's denial of a hearing on a motion for new trial, in which the defendant alleged, in part, he received ineffective assistance of counsel at the adjudication hearing. 60 S.W.3d 358, 362-63 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). The Buerger court reviewed the trial court's denial of a hearing on the motion for new trial because such a motion is a post-adjudicative proceeding, and Article 42.12, section 5(b) does not preclude review. Id. at 361; see also Daniels, 63 S.W.3d at 69. In Buerger, the court concluded there had been no abuse of discretion because the assertions in the defendant's affidavits were conclusory and established no facts entitling the defendant to a new trial. Buerger, 60 S.W.3d at 363. When a motion for new trial presents matters not determinable from the record that could entitle appellant to relief, the trial court abuses its discretion in failing to hold a hearing. King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000). However, a defendant must support the motion by an affidavit specifically showing the truth of the grounds of attack. Id. Nevertheless, a defendant need not establish a prima facie case for a single cognizable ground raised in his motion for new trial. Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994). The test is whether the motion and affidavit reflect that reasonable grounds exist for holding that relief could be granted. Id. To obtain reversal on the grounds of ineffective assistance of counsel, a defendant must show (1) his counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Valencia v. State, 946 S.W.2d 81, 83 (Tex.Crim.App. 1997); see Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068 (1984). To obtain a new trial on the basis of newly discovered evidence, a defendant must show (1) the new evidence was unknown to defendant at the time of trial; (2) failure to discover the evidence was not due to defendant's lack of diligence; (3) the evidence has a materiality that probably would cause a different result in another trial; and (4) the evidence is admissible and not merely cumulative, corroborative, collateral or impeaching. Margraves v. State, 56 S.W.3d 673, 685 (Tex. App.-Houston [14th Dist.] 2001, no pet.); see also Moore v. State, 882 S.W.2d 844, 849 (Tex.Crim.App. 1994). Thus, both a claim of ineffective assistance and a claim of newly discovered evidence contain a materiality element, i.e., a showing of the probability of a different result. The trial court, in the motion for new trial, was presented with conflicting evidence on the issue of whether V.V. had contact with appellant. Having compared the evidence at the adjudication hearing with the affidavits offered in support of the motion for new trial, we conclude the result would probably not differ, even given the additional evidence. Appellant therefore did not present reasonable grounds for holding relief could be granted. See Jordan, 883 S.W.2d at 665. We find no abuse of discretion. We overrule appellant's sole issue for review. We affirm the judgment of the trial court.