Dryden, Billy Francis v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Memorandum Opinion filed August 16, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00415-CR

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BILLY FRANCES DRYDEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 952,941

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M E M O R A N D U M O P I N I O N

Appellant, Billy Frances Dryden, challenges his conviction for indecency with a child. In his sole point of error on appeal, appellant alleges the trial court erred in refusing to grant a hearing on his motion for new trial. We affirm.

Appellant was charged by indictment with indecency with a child. On June 24, 2003, he entered a plea of guilty pursuant to a plea agreement with the State. The trial court signed an order deferring adjudication of guilt, placing appellant on community supervision for six years and assessing a $600 fine.

On December 8, 2004, the State filed a motion to adjudicate appellant=s guilt, alleging appellant had twice violated the terms of his community supervision by going on or within 300 feet of a place where children commonly gather, specifically Pasadena Memorial High School Football Stadium, on or about October 10 and October 17, 2003. Appellant entered a plea of not true to the State=s motion. At a hearing on the motion to adjudicate, Pasadena Independent School District (APISD@) Police Officer David Garza testified that he saw appellant, whom he had known since childhood, at a PISD football game at Pasadena Memorial High School Football Stadium in October 2003. Officer Garza testified that football games are played there in the afternoons and evenings on Thursdays, Fridays, and Saturdays during football season. Officer Garza=s timesheet reflected that he had worked football games at the stadium on October 10, 11, 24, and 25 of that year. Officer Garza further testified that he could not remember the exact date he saw appellant at a football game or whether he saw appellant at a game on a Thursday, Friday, or Saturday. Several defense witnesses testified that appellant was in Mississippi from October 9 through October 19 on a travel permit issued by the trial judge. The trial judge noted that it was undisputed that appellant was in Mississippi on those days. Appellant testified that he was not at the football stadium in October 2003 and had not attended a game there since 2001.

The trial court found that appellant had violated the terms of his community supervision as alleged in the State=s motion. The trial court found appellant guilty and assessed punishment at eight years=confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant filed a motion for new trial, which the trial court denied without holding a hearing.

In his sole point of error on appeal, appellant contends the trial court erred in refusing to grant an evidentiary hearing on his motion for new trial because new evidence was introduced that was not adduced at the hearing on the State=s motion to adjudicate guilt. Appellant=s motion for new trial alleged the trial judge intimated in trial counsel=s presence that because of the Aon or about@ language in the State=s motion to adjudicate guilt, she would find the State=s allegations true even if the defense witnesses testified that appellant was out-of-state on October 10 and 17. Therefore, appellant argued, the trial court was neither neutral or detached and was biased against appellant. On appeal, appellant argues the motion and the attached affidavit give rise to facts not determinable from the record, and therefore, appellant was entitled to a hearing to determine the trial court=s alleged bias.

The right to a hearing on a motion for new trial is not an absolute right. See, e.g., Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993); Moore v. State, 4 S.W.3d 269, 278 (Tex. App.CHouston [14th Dist.] 1999, no pet.). We review a trial court=s refusal to hold an evidentiary hearing on a motion for new trial under an abuse-of-discretion standard. Reyes, 849 S.W.2d at 816. When a defendant presents a motion for new trial that raises matters not determinable from the record upon which the defendant could be entitled to relief, the trial judge abuses his discretion by failing to hold a hearing. Id. As a prerequisite to obtaining a hearing, a motion for new trial must be supported by an affidavit specifically showing the truth of the grounds alleged as a basis for a new trial. Daniels v. State, 63 S.W.3d 67, 70 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). The affidavit must be made by someone with knowledge of the facts, and the affidavit must show reasonable grounds exist for granting a new trial. Reyes, 849 S.W.2d at 816; Flores v. State, 18 S.W.3d 796, 798 (Tex. App.CAustin 2000, no pet.). An affidavit that is conclusory or that is unsupported by facts is not sufficient to put the trial court on notice that reasonable grounds for relief exist. Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).

In support of his motion, appellant attached an affidavit by his appellate counsel in which she stated that trial counsel told her that the trial court intimated in trial counsel=s presence that defense evidence that could place appellant at other places on several weekends in October would be moot because Officer Garza had already testified he could not recall which weekend in October he saw appellant at the football game. According to appellate counsel, trial counsel was of the opinion that the trial court had already reached a decision before appellant was able to present his defense evidence.

We conclude the trial court did not abuse its discretion in denying appellant=s request for an evidentiary hearing on his motion for new trial. First, appellant=s motion was not supported by an affidavit from someone with knowledge of the facts. See Flores, 18 S.W.3d at 798. Appellate counsel=s affidavit referred to an intimation by the trial court in trial counsel=s presence that led trial counsel to believe the trial court had reached a decision before the defense presented its first witness. There is no indication that appellate counsel had personal knowledge of the trial court=s alleged intimation. In addition, appellate counsel=s affidavit is conclusory and is insufficient to put the trial court on notice that reasonable grounds for relief existed. See Buerger, 60 S.W.3d at 363. Trial counsel interpreted the trial judge=s statement as to the evidentiary problems of the case to imply that the trial court had already made up its mind to find the allegation true before the defense evidence was concluded. Based on these statements by trial counsel, appellate counsel reached the conclusion that the hearing on the state=s motion to adjudicate guilt was neither neutral or unbiased. Trial counsel did not state in her affidavit how or why the trial judge=s alleged intimation led trial counsel to believe that the trial court had reached a decision of appellant=s guilt before he was able to present his defense evidence.

Because the affidavit attached to appellant=s motion for new trial was not made by someone with knowledge of the facts and was conclusory, we conclude that the trial court did not abuse its discretion in failing to hold a hearing on the motion. Therefore, we overrule appellant=s sole issue on appeal. Accordingly, we affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed August 16, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).