NO. 07-04-0291-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B OCTOBER 13, 2005

______________________________ ROSE M. GRAVES, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 140 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 93-417705; H ONORABLE JIM BOB DARNELL, JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORA NDUM OPIN ION Appellant, Rose M. Gra ves, appe als fro m a judgm ent revok ing commun ity supervis ion and imposing sentence pursua nt to conviction for d elive ry o f a controlled substa nce. We affirm. In 1994 , appellant ente red an op en pl ea of gui lty to a char

ge o f del iv ery

of a controlled substance, cocaine, in an amount less than 28 grams. Following trial, the court1 In her brief and in or

al submission s, appellant contends that the revoca tion hearing was called and heard at the same time as the m anufacture and possession charges. However, the record reflects that the revocation was not called un til April 7 th . Further, it is clear that, regardles s of when the revocati on proceeding commenced, the tri al court had not ruled on the revocation prior to April 7 th

.

2 Appellant’s motion fo r new trial is not contained in the appell ate record. A t oral submissions, appellant contend ed that the motion appl ied to the rev ocation as well as the manufacture/possessi on charges. For purposes of this opinion, we wi ll assume thi s to be true. 2 found that the evidence substantiat ed appellant’s guilt, acce pt ed the guilt y plea, found appellant

guilty , and sentenced appel lant to confinement for ten years. However, the confinementwas suspe nded and appellant w as placed o n co mmunity supervision for a period of ten years. In 2003, the State f iled an Appli cation to Rev oke Community Supervisi on. The State conten ded, in its a pplication, that ap pella nt had v iolated the terms and conditions of her community supervision by, among other things, co mmitting the offenses of man ufacture of a cont rolle d sub stan ce an d pos sess ing a c ontr olle d sub stan ce wi th th e intent to deliver. The State’s appl ication was called and he ard on April 7, 2004. 1 The trial court found that appellant ha d violated the terms of her pr obation, revoked th e or der placing appellant on communi ty superv ision, and or dered that appell ant serve t he confinementportion of

her sentence i n the Institutional Divis ion of the Texas D epartment of Criminal Ju stice. By her sole issue on appeal, appellant contends tha t the trial court erred in r efusing to grant her

motion for new trial based o n newly availabl e evidence. 23 Of course, ap pellant’s trial couns el’s acknow ledgment that thetrial cour t had overrule d the motion for new trial beli es appellant’s

appellate couns el’s contenti on thatthe motion for ne w trial ap plied to both the manufacture/possessi on convict ion and the judgment revoking appell ant’s community supervis ion. 3 Whether a trial courterred in deny ing a motion for new trial based on new evidence is determined by

whether th e trial cour

t abused itsdiscretion
. Keet er v. State , 74 S.W.3d 31, 37 (Tex.Crim.App. 2002). To obtain a new trial based on new ev idence, the movant must establish tha t the evidence w as (1) prev iously unk nown or unavailable, (2) un known or unavailable for reasons other than a lac k of due dilig ence on the part of themovant, (3) admissible and not merely cumulativ e, corro borative, collateral or impeaching , and (4) probably true and would probably result in a different outcome in another trial
. Id . at 36-37; Eddlemon v. State , 591 S.W.2d 847, 849 (Tex.Crim.App. 1979). As motions for new

trial based on new ev idence are not favored, we mus t view app ellant ’s motion w ith great caution. Drew v . State , 743 S.W .2d 207, 225-26 (Te x.Crim.App. 1987). Areview of the re cord rev ea ls that appell ant asked the tr ial court to consider an affidavit and testimony

from Mr. You ng at the April 7, 2004 hearing. After discussing this “new evidence”in relatio n to appellant’s mot ion for new t rial in themanufacture/possess ion case, appellant’s counsel stated, “Then I take it the Court has overruled the Motion for New Trial. W ill th e Cou rt acc ept i nto e vi dence in the revocatio n hearing the affidavit of Mr. Young?” To which the court res ponded, “The Court will a ccept the affidavi t . . . as part of the record in t he revocati on . . . .” (Emphasis added). 3 W e cannot see how a trial court could prop erly gra nt a m otio n fo r new tr ial ba sed o n newl y availa ble e vi de nce when the same evidence upon which the motion is based was admitted into evidence during the trial.4 This court has previously addressed appellant’s motion for new trial in th e con text of the manufacture/possess ion convic tion concludi ng that the trial court di d notabuse its discretion in denying appellant’s motion. See Young v . State , No. 07-04-02 30-CR, 2005 Tex.App. LEXI S 4383 (Tex.App. –Amarillo Jun e 8, 2005, no pet. h.)
. 4 After the trial court admitted M r. Young’ s affidavit, appel lant made no further offer of evidence. A

s appellant has failed to identify any newly available or discovered evidence to support a new

trial of t he re vocat ion p roce edin gs, we conclude that t he trial cour t did not abuse its dis cretion in r efusing to gr

ant appellant’smotion. 4 Concluding thatappellant failed to present any new evi dence to the trial cour t, we affirm the trial court’s judg ment revoki ng appellant’ s community s upervisi on.

Mackey K. Hancock Justice
Do not publish
.