Rondez Wilcots v. State ( 2004 )

  COURT OF APPEALS

SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-03-186-CR

RONDEZ WILCOTS                                                                APPELLANT

V.

THE STATE OF TEXAS                                                                  STATE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION ON APPELLANT’S SECOND
PETITION FOR DISCRETIONARY REVIEW¹

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        Pursuant to rule of appellate procedure 50, we have reconsidered our previous memorandum opinion on appellant Rondez Wilcots’s petition for discretionary review. See Tex. R. App. P. 50.  We withdraw our judgment and memorandum opinion on appellant’s petition for discretionary review dated October 29, 2004 and substitute the following.

        Appellant Rondez Wilcots pled guilty to sexual assault, and the trial court placed him on deferred adjudication community supervision.  The State later filed a motion to revoke, and the trial court adjudicated appellant guilty and sentenced him to eight years’ confinement.  Appellant filed a timely amended motion for new trial, which the trial court denied without conducting an evidentiary hearing.  Appellant’s sole issue on appeal is that the trial court erred by refusing to hold a hearing on his amended motion for new trial.

        The State contends that the appeal should be dismissed for want of jurisdiction because this is a plea bargain case and appellant did not obtain the trial court’s permission to appeal this issue, which was not raised by pretrial motion.  See Tex. R. App. P. 25.2.  The State also erroneously claims that the trial court did not certify appellant’s right to appeal.  See Tex. R. App. P. 25.2(d).  We hold that we do have jurisdiction to address appellant’s issue because it is unrelated to both appellant’s conviction and the trial court’s decision to adjudicate.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon Supp. 2004-05); Daniels v. State, 63 S.W.3d 67, 69 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); Amaro v. State, 970 S.W.2d 172, 173 (Tex. App.—Fort Worth 1998, no pet.).

        A defendant’s right to an evidentiary hearing on a motion for new trial is not an absolute right, and we will reverse a trial court’s decision not to conduct a hearing only when the court has abused its discretion.  Reyes v. State, 849 S.W.2d 812, 815-16 (Tex. Crim. App. 1993); Mallet v. State, 9 S.W.3d 856, 867-68 (Tex. App.—Fort Worth 2000, no pet.).  An evidentiary hearing is necessary if the motion, accompanied by one or more affidavits, shows reasonable grounds for relief that are not determinable from the record.  King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000); Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994); Reyes, 849 S.W.2d at 816; Mallet, 9 S.W.3d at 868.  The affidavit must allege facts supporting the movant’s claim.  See Jordan, 883 S.W.2d at 665.

        The only specific facts appellant alleges in his amended motion for new trial are that “[t]he complainant in the case . . . has recanted her prior allegation that she was assaulted by [appellant]. . . . [S]he will testify that she never had sex with [appellant] and that she was never assaulted in any way by [appellant].”  He also claims that “[h]earing her testimony would most likely result in a different result. . . . [and] would have exonerated [appellant].”  Thus, appellant contends that newly discovered evidence will prove his actual innocence of the original offense.  He also claims that his original plea was involuntary.

        Appellant’s amended motion for new trial alleging actual innocence based on newly discovered evidence, the complainant’s recantation, was timely filed after the trial court adjudicated him guilty.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b); Tex. R. App. P. 21.4; Donovan v. State, 68 S.W.3d 633, 635-36 (Tex. Crim. App. 2002).  The amended motion raised reasonable grounds for relief that are not determinable from the record—that the complainant has recanted and would testify that she never had sex with appellant—upon which appellant could be entitled to relief if the trial judge believes the complainant’s recantation is credible.  See Keeter v. State, 74 S.W.3d 31, 36-38 (Tex. Crim. App. 2002); see also Ex parte Tuley, 109 S.W.3d 388, 389-95 (Tex. Crim. App. 2002) (holding that guilty plea does not preclude actual innocence claim).  Thus, the trial court abused its discretion by denying appellant an evidentiary hearing on the motion.  See King, 29 S.W.3d at 569; Jordan, 883 S.W.2d at 665; Reyes, 849 S.W.2d at 816; Mallet, 9 S.W.3d at 868.

        We abate this appeal for sixty days and remand the case to the trial court to hold a hearing on appellant’s amended motion for new trial.  See Tex. R. App. P. 44.4; Price v. State, 826 S.W.2d 947, 948 (Tex. Crim. App. 1992); Martinez v. State, 846 S.W.2d 345, 347 (Tex. App.—Corpus Christi 1992, order), disp. on merits, 846 S.W.2d 348 (Tex. App.—Corpus Christi 1992, pet. ref’d).  If the trial court denies the motion, it shall file a reporter’s record of the hearing, along with a supplemental clerk’s record, in this court on or before sixty days from the date of this order, and the appeal will be reinstated when the later of the two records is filed in this court.  If the trial court grants the motion, it must immediately forward a copy of the order granting the motion to this court, and this court will no longer have jurisdiction over the appeal.  See Price, 826 S.W.2d at 948.

                                                                  PER CURIAM

PANEL A: LIVINGSTON, J.; CAYCE, C.J. and WALKER, J.

DO NOT PUBLISH

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

DELIVERED: December 17, 2004

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NOTES

1. See Tex. R. App. P. 47.4.