Leon Junior Love v. State ( 2009 )

Affirmed and Memorandum Opinion filed May 12, 2009

Affirmed and Memorandum Opinion filed May 12, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00139-CR

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LEON JUNIOR LOVE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1115772

M E M O R A N D U M  O P I N I O N

Appellant, Leon Junior Love, was charged with intoxication assault.  He pleaded guilty without a recommendation on punishment and requested preparation of a pre-sentencing investigation report.  After a hearing, the trial court sentenced appellant to ten years= confinement.  In his sole issue, appellant contends the trial court abused its discretion when it Adenied@ his motion for new trial.  Because all dispositive issues are settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Appellant timely filed a motion for new trial, contending he received ineffective assistance of counsel because his attorney prevented him from accepting a plea offered by the State of six years= confinement.  The trial court did not rule on the motion for new trial; thus, it was overruled by operation of law seventy-five days after imposition of sentence.  See Tex. R. App. P. 21.8(a), (c).  Before the motion was overruled by operation of law, the trial court signed an order, opining that a factual dispute existed on the circumstance of a plea offer and requiring appellant=s trial counsel to file an affidavit in response to the motion.  Counsel filed an affidavit after the motion was overruled by operation of law.  Therefore, we ordered counsel=s affidavit stricken from the record.  Thus, appellant suggests his own contentions were effectively uncontroverted and the trial court abused its discretion by allowing the motion for new trial to be overruled by operation of law. 

However, appellant=s motion was insufficient to obtain a hearing or support grant of a new trial even though his counsel did not timely file a controverting affidavit. When the grounds for a new trial are outside the record, the motion must be supported by the defendant=s own affidavit or the affidavit of someone with knowledge of the facts.  Klapesky v. State, 256 S.W.3d 442, 454 (Tex. App.CAustin 2008, pet. ref=d) (citing Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993);  McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (op. on reh=g); Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983); Mallet v. State, 9 S.W.3d 856, 865 (Tex. App.CFort Worth 2000, no pet.)).  A motion for new trial alleging facts outside the record filed without supporting affidavit is not a proper pleading and is fatally defective.  Id. at 454.  Further, an inmate may use an unsworn declaration, as allowed by Chapter 132 of the Civil Practices & Remedies Code, in lieu of an affidavit.  See Tex. Civ. Prac. & Rem. Code Ann. '' 132.001B.002 (Vernon 2005) (providing, Aan unsworn declaration . . . by an inmate in the Texas Department of Corrections or in a county jail may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule . . .@ if it is Ain writing@ and Asubscribed by the person making the declaration as true under penalty of perjury@); Green v. State, 264 S.W.3d 63, 67 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d) (stating that supporting affidavit, verification, or unsworn declaration complying with Chapter 132 is prerequisite for criminal defendant to obtain evidentiary hearing on motion for new trial alleging matters not in the record). 

Appellant=s motion for new trial was not supported by affidavit, verification, or unsworn declaration complying with Chapter 132.  When appellant previously filed a notice of appeal, he attached a several-page document, outlining the reasons his counsel was allegedly ineffective.  Appellant attached one page of this document to his motion for new trial.  However, this page was not in the form of an affidavit, verification, or unsworn declaration.  Accordingly, the trial court did not abuse its discretion  by allowing the motion for new trial to be overruled by operation of law.

We overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).