NO. 07-00-0209-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A APRIL 26, 2002

______________________________ W ILLIE MORRIS, JR., APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 262 ND DISTRIC T COURT O F HARRIS COU NTY; NO. 9428208; HON ORABLE MIKE AN DERSON, JU DGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ. Appellant

Willie Morris, J r., appeals from a jud g ment adjudicating his guil t for for gery. He urgesthat the trial cour t er red in failing to grant a h earing on hi s postadjudi catio n motio n for new tria l. We affirm.
Agrand jury of Harris County indicted appellant for fo rgery. Honoring a plea bargain between appellant and the State, th e trial cour t deferred adjudication of appellant and placed him on community sup ervisi on for five years. In Januar y, 2000, the State moved2

for adjudication. On January 27, 2000, the trial court held a hearing on the State’s moti on, adjudicated appellant guilt y, and sentenced him to five year s incarcer

ation in the Texas Department

of Criminal J ustice, Insti tutional Div ision. Appellant then fil ed a motion for new trial. His motion was compri sed of an affidavit verified by hi s attorne y an d by appella nt. The substance of the affidav it consisted of allegations and recitati ons that before appell ant entered into his pl ea bargain for deferred adjudicat ion appellant’ s trial counsel had not (1 ) properlyinvesti gated the charges in the indictment, (2) interviewed witnesses, or (3) sou ght compulsoryprocess for witnesses who would have testified to fact s pro ving appellant’s innocence of the forgery charge. The affidav it also set out an alleged misunderstandi ng of the original plea proceedin gs and conseq uences of the plea on t he part of appellant.
The trial cour

t denied the motion for new tri al without holding a hearing. Appellant’s appeal is from the denying of his motion w ithout an evi dentiary he aring hav ing been held. He asserts that the trial court was r equired to hold a hearing because his moti on referenced matters not determinab le from the record, a nd upon whic h he could be enti tled to relief. He ur

ges that his

motion for new trial was sufficient torequire the t rial court to hold an evidenti ary heari ng to determin e i f his initi al deferred adjudi cation plea w as voluntaryand i f he received effective assi stance of counsel i n connection w ith the plea. He seeks abatement of thi s appeal and remand wit h directionsfor the trial court to hold an evidentiary hearing on his motion for new trial.
Ahearing on a motion for new trial is not required when the matte rs ra ise d in the motion are subject to being determined from the recor d. See Reyes v . State , 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). I n certain i nstances, however, the t rial court abuses its3

discretion in failing to ho ld a hearing on a motion for new trial that raises matters which are notdeter minabl e from t h e record. See Jordan v. S tate , 883 S.W.2d 664, 665 (T ex.Crim. App. 1994); Reyes , 849 S.W .2d 816. The purpo se of such a heari ng is for a defendantto fully develop the issues raised in his motion f or new trial. See Jordan , 883 S.W.2d at 665. W hen an accused present s a motion for n ew t rial rai sing matters not determinable from the record, upon which t he accused could be entitl ed to relief, the trial court abuses i ts discreti on in failing to hold a heari ng. See Reyes , 849 S.W.2d at 816.
A defendant

plac ed on defe rre d adj udica ti on must appe al i ssues rel ati ng to t he ori ginal defer red adju dicat ion p roceedi ng when defe rre d adju dicat ion i s fi rst imposed, an d cannotappeal such m atters after revo cation of p robation an d adjudica tion. See Daniels v. State , 30 S.W .3d 407 , 408 (Te x.Crim .App. 20 00); Manuel v. State , 994 S.W .2d 658 , 661- 62 (Tex.C rim.A pp.199 9). The appellant in Daniels sought reversal of his conviction because the reporter’ s record of his original plea hearing had been lost. The appellant urged that the lost recor

d prevented hi m from challenging the voluntariness of his plea and rulings on pretrial motions. See Daniels , 30 S.W.3d at 408. The Court of Criminal Appeals held that the reporter’s record was not nece s sary to t he appeal because D aniels could not, after revocatio n of his probation and adjudication , appeal “any issues rel ating to the o riginal deferred adjudicatio n proceeding.” Id

. All of the matters refere nced in appellan t’s motion for new tri al related to the procee dings leading to his orig inal deferred adj udication plea hearing. Appe l lant could have appe a led such iss ues only w hen deferred adjudication was first imposed. Id . The issuesraised in appellant’s motion for new trial coul d not be consider ed on direct appe al4

following revocati on of probation and adjudication. The issues in appellant’s motion would not have entit led him to rel ief, even if found to be true. Id

. Acco rdin gly, the trial courtdid not abuse i ts discreti on in denying appellant’s mot ion without hol ding an ev identiary hearing. We af firm the judgment of the trial cour t.

Phil Johnson Justice Do not publish

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