Mireles, Joey v. The State of Texas--Appeal from 105th District Court of Nueces County

  NUMBER 13-00-256-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JOEY MIRELES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

  On Appeal from the 105th District Court

of Nueces County, Texas.

____________________________________________________________________

OPINION ON REMAND

Before Chief Justice Valdez and Justices Castillo and Baird [1]

Opinion by Justice Baird

A jury convicted appellant of the offense of aggravated sexual assault and assessed punishment at confinement for ten years, probated for ten years, and a fine of $6,000.00. The State later moved to revoke appellant=s community supervision. Appellant pled true to the allegations in that motion and the trial court assessed punishment at ten years confinement in the Texas Department of Criminal JusticeBInstitutional Division and a fine of $6,000.00.

On direct appeal, appellant raised two issues. Relying on our opinion in Gutierrez v. State, 65 S.W.3d 362 (Tex. App.BCorpus Christi 2001, pet. filed), we originally sustained the first issue which contended appellant=s plea was involuntary because it was conditioned upon a plea bargain which the trial judge did not follow. However, the Texas Court of Criminal Appeals reversed our decision in Gutierrez v. State, 108 S.W.3d 304 (Tex. Crim. App. 2003) (en banc), and, accordingly, remanded this case for reconsideration.

In light of the court of criminal appeals= opinion, we hold the trial judge was not bound by the punishment recommendation agreed to by appellant and the State. See id. at 310. Furthermore, the record indicates that each of appellant=s several pleas of true to the allegations in the State=s motion to revoke probation were voluntarily entered. Consequently, we hold the trial judge did not abuse his discretion in accepting those pleas. Accordingly, the first issue is overruled.

The second issue concerns the AMotion For Appeal@ filed by appellant on April 20, 2000. The trial judge treated this pleading as ADefendant=s Motion for Reconsideration or Reduction of Sentence,@ and entered a written order denying same. Appellant contends the motion was, in reality, a motion for new trial and the trial judge erred in not conducting a hearing thereon. In support of this argument, appellant cites Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) (en banc), which stands for the proposition that the trial judge must hold a hearing on a motion for new trial which raises Amatters not determinable from the record, upon which the accused could be entitled to relief.@ See id. at 816.

We reject appellant=s argument for two reasons. First, Reyes also held that, as a prerequisite to obtaining a hearing, motions for new trial must be supported by an affidavit, either of the accused or someone else, specifically showing the truth of the grounds of attack. Id. Therefore, even if we treated appellant=s AMotion For Appeal@ as a motion for new trial, the pleading is defective because it is not supported by affidavit. Therefore, the trial judge did not err in failing to hold a hearing.

Additionally, we note that appellant=s AMotion For Appeal@ sought only for the trial court to follow the punishment recommendation agreed to by appellant and the State. We hold this was not a sufficient allegation to require a hearing under Reyes because it does not raise a matter Anot determinable from the record, upon which the accused could be entitled to relief.@ Id. This holding is supported by the trial judge=s AOrder Denying Defendant=s Motion for Reconsideration or Reduction of Sentence@ which states:

The court has carefully read and considered the motion. The Court finds that within the first year of his community supervision, the Defendant committed the offense of interfering with an arrest, consumed alcoholic beverages, violated his curfew, failed to attend the sexual perpetrators offender program, and failed to pay fees and costs. His repeated misbehavior shows that the Defendant was not serious about complying with the conditions of community supervision. This court finds no basis upon which to reconsider its judgment or to reduce the sentence imposed.

(Emphasis added). Clearly, the trial court was aware of the allegation raised in appellant=s motion, fully considered that allegation, and explained his reasons for rejecting it. Therefore, the trial court did not err in failing to hold a hearing. For these reasons, the second issue is overruled.

The judgment of the trial court is affirmed.

CHARLES F. BAIRD,

Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Opinion delivered and filed this

the 14th day of July, 2005.

[1] Former Texas Court of Criminal Appeals Judge Charles F. Baird has been assigned to this Court by the Chief Justice of the Supreme Court of Texas. See Tex .Gov=t Code Ann. ' 74.003 (Vernon 2005).