NO. 07-11-00013-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

JANUARY 26, 2012 

ESTEBAN HUERTA FLOREZ, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY; 

NO. 21,873-C; HONORABLE ANA ESTEVEZ, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

 Appellant Esteban Huerta Florez appeals from his jury conviction for the offense 

of aggravated assault with a deadly weapon1

 and the resulting twenty-year sentence 

and $10,000 fine. Through one issue, appellant contends the trial court should have 

granted his request for a new trial, or at least a hearing, when the complaining witness 

admitted to testifying inaccurately at trial. We will affirm. 

 1 Tex. Penal Code Ann. § 22.02 (West 2011). 
2 

Background 

 The complaining witness was appellant’s girlfriend. After a night out at local 

bars, the couple argued, then fought. She testified that when the couple arrived home, 

appellant took her into the bathroom and held her down and choked her. She fought 

appellant, left the house and called 9-1-1 from a neighbor’s home. She returned home 

after seeing appellant drive away. She testified appellant then returned to the home 

and threatened her with a knife. On cross-examination she acknowledged that she 

gave appellant’s investigator a different account of events because she did not want 

appellant to get into trouble. 

 Two Amarillo police officers testified they saw appellant, through partially open 

living room blinds, holding the victim down with his left arm across her chest, displaying 

a knife in his right hand. Appellant still had the knife when officers forcibly entered the 

house and did not drop it until threatened with a taser. Appellant also had a “box knife” 

in his right front pocket. A physician testified to the victim’s injuries, which included a 

broken nose and bite marks on both hands.

 Appellant was convicted as indicted and punishment was assessed as noted, on 

December 14, 2010. The victim later provided appellant’s appellate counsel an affidavit 

in which she swore she testified inaccurately at trial. She stated she was very 

intoxicated that night and she now believed “that I grabbed a knife after [appellant] left 

the house to protect myself from [him] if he returned. When he did return, I brandished 

the knife and [appellant] struggled with me and took the knife to prevent anyone being 

harmed ...I cannot be completely sure as my memory of that night is very limited, but I 
3 

do not believe [appellant] threatened me with the knife.” This affidavit was attached to 

appellant’s motion for new trial filed January 31, 2011. The trial court heard appellant’s 

motion on February 28, 2011. At the conclusion of the hearing, the trial court denied the 

motion. Appellant appeals that ruling. 

Analysis 

 Through one issue, appellant contends the trial court erred in denying his motion 

for new trial without an evidentiary hearing2

 based on the newly discovered evidence 

that the victim in the case testified inaccurately at trial. The State argues appellant’s 

motion for new trial was untimely, and therefore the trial court had no jurisdiction to rule 

on it. 

To be timely, a motion for new trial in a criminal case must be filed no later than 

thirty days after the day sentence is imposed or suspended in open court. Tex. R. App. 

P. 21.4(a); Drew v. State, 743 S.W.2d 207, 222-23 (Tex.Crim.App. 1987). This includes 

motions for new trial based on newly discovered evidence. Drew, 743 S.W.2d at 222-

23. Here, sentence was imposed on December 14, 2010 but the motion for new trial 

was not filed until January 31, 2011. Because appellant filed his motion for new trial 

more than thirty days after sentence was imposed, the motion was untimely and we 

agree with the State the trial court had no jurisdiction to consider the motion. Tex. R. 

App. P. 21.4(a); Drew, 743 S.W.2d at 222-23; Beathard v. State, 767 S.W.2d 423, 433 

 2 Appellant’s brief cites a docket sheet notation stating counsel for the State and 

for appellant appeared and argued the new trial motion on February 28, and that the 

motion was denied. Appellant then argues in his brief that he should have a “full 

hearing,” which we interpret to mean an evidentiary hearing. 
4 

(Tex.Crim.App. 1989); Perez v. State, 261 S.W.3d 760, 771 (Tex.App.—Houston [14th

Dist.] 2008, pet. ref’d) (collecting cases). 

For that reason we resolve appellant’s sole issue against him and affirm the 

judgment of the trial court. 

 James T. Campbell 

 Justice 

Do not publish.