Nos. 05-07-00538-CR, 05-07-00539-CR
Opinion Filed April 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-01730-WS and F04-01731-WS.
Before Justices WHITTINGTON, RICHTER, and MAZZANT.
AMOS L. MAZZANT, JUSTICE.
James A. Pratt, II, was convicted of indecency with a child and sentenced to fifteen years in prison. In his only issue, he argues the trial court abused its discretion when it denied his motion for new trial. For the following reasons, we affirm the trial court's judgments.
Background
Appellant pleaded guilty to two indictments alleging indecency with a child and pleaded true to the enhancement paragraphs. The trial court found appellant guilty of both charges, found the enhancement paragraphs true, and assessed punishment in each case at fifteen years in prison. Appellant subsequently filed a writ of habeas corpus alleging, in part, that he was denied the effective assistance of counsel because his trial attorney failed to perfect his right to appeal. The court of criminal appeals granted appellant an out-of-time appeal. Appellant subsequently filed a motion for new trial requesting an evidentiary hearing and alleging that trial counsel rendered ineffective assistance, that exculpatory evidence was intentionally destroyed or withheld, and that the verdict was contrary to the law and the evidence. The motion for new trial was overruled by operation of law. Discussion
In his first issue, appellant argues the trial court abused its discretion when it denied his motion for new trial. Specifically, appellant claims that the trial court failed to hold an evidentiary hearing on his motion for new trial even though he asserted claims that were not determinable from the record. Therefore, he was unable to develop the factual basis for his motion for new trial. When reviewing on appeal a trial court's denial of a hearing on a motion for new trial, the standard of review is abuse of discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003) (en banc); Longoria v. State, 154 S.W.3d 747, 762 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Howell v. State, 175 S.W.3d 786, 792 (Tex.Crim.App. 2005). As a preliminary matter, the rules of appellate procedure required appellant to "present" his motion for new trial to the trial court within specified time limits. See Tex. R. App. P. 21.6 (requiring presentment within ten days of filing). A complaint raised in a motion for new trial is not preserved unless the motion is presented to the trial court. Carranza v. State, 960 S.W.2d 76, 78-79 (Tex.Crim.App. 1998). To establish presentment, the record must show that the movant brought the motion to the trial court's attention. Id. at 79. Merely filing a motion for new trial does not constitute evidence of its presentment to the court. Id. at 78. This requirement is satisfied when the movant "actually deliver[s] the motion for new trial to the trial court or otherwise bring[s] the motion to the attention or actual notice of the trial court." Id. at 79; Longoria, 154 S.W.3d at 762. The record in this case does not indicate that appellant presented his motion for new trial to either the trial court or the court coordinator. See Butler v. State, 6 S.W.3d 636, 641 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (presentment requirement can be met by presentment to the court coordinator); see also Estrella v. State, 82 S.W.3d 483, 485-86 (Tex.App.-San Antonio 2002, pet. dism'd) (following Butler). The record contains appellant's "Notice of Intent to File a Motion for New Trial," "Motion for Leave to Present the Motion for a New Trial to the Court Later Than Ten Days After Its Filing," and a "Motion for a New Trial with Evidentiary Hearing Request." These documents are file-stamped but the record does not contain any acknowledgment of presentment to the trial court or a ruling on appellant's motions, and neither the filing of the motions nor presentment is mentioned on the court's docket sheets. See Longoria, 154 S.W.3d at 762 (although appellant filed a "notice of presentment of motion for new trial," record was devoid of any showing appellant actually presented motion for new trial or notice of presentment to the trial court or court coordinator); see also Rhea v. State, 181 S.W.3d 478, 484 (Tex.App.-Texarkana 2005, pet. ref'd); Owens v. State, 832 S.W.2d 109, 111 (Tex.App.-Dallas 1992, no pet.). Appellant argues the present case is distinguishable from the above cases because it involved an out-of-time appeal. However, the effect of granting an out-of-time appeal was that it merely restored appellant to the position he occupied immediately after the trial court signed the judgments of conviction. See Mestas v. State, 214 S.W.3d 1, 4 (Tex.Crim.App. 2007). Since he was returned to a point at which he could give notice of appeal, appellant was also at a point where he could file a motion for new trial. See id. A complaint raised in a motion for new trial, however, is not preserved unless the motion is presented to the trial court. Tex. R. App. P. 21.6; Carranza, 960 S.W.2d at 78-79. Because the record does not contain an acknowledgment of presentment and the trial court's docket sheets do not indicate either the filing of the motion for new trial or presentment, we conclude appellant did not "present" the motion for new trial to the court as required by the rules of appellate procedure. See Tex. R. App. P. 21.6; Owens, 832 S.W.2d at 111. The trial court does not abuse its discretion by denying a motion for new trial through operation of law if, as in this case, the motion is not timely presented. Longoria, 154 S.W.3d at 762-63. Accordingly, we overrule appellant's sole issue. We affirm the trial court's judgments.