Opinion
No. 10-04-00001-CR
Opinion delivered and filed February 2, 2005. DO NOT PUBLISH.
Appeal from the 87th District Court, Freestone County, Texas, Trial Court # 92-069-CR. Remanded for a hearing.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Katrina Brewer was charged by indictment with intentionally and knowingly delivering a controlled substance. In 1992, Brewer entered into a plea bargain agreement and received deferred adjudication with a community supervision term of ten years. The State filed motions to adjudicate in 1993 and 1995, and then again in 2003, after the ten year probationary term had expired. Brewer pled true to three of the State's allegations and not true to one allegation. The trial court adjudicated guilt and sentenced Brewer to eleven years' confinement. Brewer filed a motion for new trial. She brings two issues on appeal: (1) her adjudication hearing was void because it was not conducted in the Freestone County seat and (2) the trial court erred in failing to conduct a hearing on her motion for new trial.
Improper venue
Brewer argues that because the record reflects that the trial court held her adjudication hearing outside the county seat of Freestone County, the hearing was void. Brewer's issue was based on the reporter's record that indicated that the hearing took place in Groesbeck in Limestone County. After Brewer's brief was filed, the court reporter filed an affidavit correcting the record to read that the hearing took place in Fairfield in Freestone County. Brewer's issue is rendered moot by the reporter's correction.Motion for New Trial
Brewer argues that the trial court erred in failing to conduct a hearing on her motion for new trial. When the trial court denies a hearing on a defendant's motion for new trial and the defendant appeals from that denial, we review the trial court's decision for an abuse of discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003). A defendant does not have an "absolute right" to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993). However, when a defendant raises a matter "not determinable from the record," the trial court is required to hold a hearing. Id. at 816. The defendant must include a supporting affidavit with the motion for new trial showing reasonable grounds for holding that relief should be granted. Id. Brewer filed a timely motion for new trial. She argued: (1) that the trial court improperly adjudicated her guilty because the State had improperly amended the motion to adjudicate after her probation had ended; (2) the State failed to serve the capias or arrest warrant using due diligence to apprehend her and have an adjudication hearing; and (3) trial counsel was ineffective for failing to raise these issues. The trial court issued an order that set a hearing on the motion for new trial. However, Brewer says that no notice of the hearing was provided. There is no indication in the record that notice of the hearing was ever given or a hearing held. We agree with Brewer and the trial court that Brewer was entitled to a hearing on her motion. Accordingly, we remand this cause to the trial court for a hearing on Brewer's motion for a new trial. The parties may appeal anew, as prescribed by the applicable statutes and rules, from the disposition in the trial court of the motion. Price v. State, 826 S.W.2d 947, 948 (Tex.Crim.App. 1992); Mendoza v. State, 935 S.W.2d 501, 504 (Tex.App.-Waco 1996, no pet.). The appellate timetable for a new appeal shall commence on the earlier of: (1) the date of the ruling on the motion for a new trial, or (2) the seventy-fifth day after our mandate issues. TEX. R. APP. P. 2, 18.1, 21.8, 26.2, 43.6.Brewer filed a formal bill of exception, along with an affidavit, stating that Brewer's appellate counsel's legal assistant had been assured by the trial court's clerk's office that the motion for new trial would not be set for hearing.
The final entry in the trial court's docket is an instruction to set the hearing on the motion for new trial and to send notice to the attorneys.
But we express no opinion on the merits of the motion.