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 CO URT OF RANDALL COUNTY; NO. 21,873-C; HONORABLE ANA ESTEVEZ, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Esteban Huerta Fl orez appeals from his jury conviction for the offense of aggravated assault with a deadly weapon 1 and the resulting twenty-year sentence and $10,000 fine. Through one issue, appellant contends t he trial court should have granted his request for a new trial, or at l east a hearing, when the complaining witness admitted to testifying inaccurate ly 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 fo ught. She testified that wh en the couple arrived home, appellant took her into the ba throom and held her down a nd 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 test ified appellant then returned to the home and threatened her with a knife. On cross-examinati on she acknowledged that she gave appellant’s investigator a different ac count 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 t he victim down with his left arm across her chest, displaying a knife in his right hand. Ap pellant 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 testifi ed 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 inaccura tely at trial. She stated she was very intoxicated that night and she now believed “t hat 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] str uggled with me and took the knif e to prevent anyone being harmed ...I cannot be completely sure as my me mory of that night is very limited, but I3 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 hearing 2 based on the newly discovered evidence that the victim in the case te stified inaccurately at trial. The State argu es appellant’s motion for new trial was untimel y, 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 impos ed or suspended in open co urt. 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 fi led 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 c onsider 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 not ation stating counsel for the State and for appellant appeared and argu ed 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 m ean an evidentiary hearing.4 (Tex.Crim.App. 1989); Perez v. State, 261 S.W.3d 760, 771 (T ex.App.—Houston [14 th 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

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