                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                               '
 ROBERT SADA,                                                 No. 08-10-00315-CR
                                               '
                          Appellant,                               Appeal from
                                               '
 v.                                                            227th District Court
                                               '
 THE STATE OF TEXAS,                                         of Bexar County, Texas
                                               '
                          Appellee.            '               (TC # 2007CR3483


                                          OPINION

       Robert Sada appeals his conviction for aggravated sexual assault of a child. In three

issues, Appellant complains that the trial court committed reversible error by (1) improperly

threatening defense counsel with contempt in the presence of the jury; (2) denying his motion for

new trial based on the threats of contempt; and (3) denying his motion for new trial on the

grounds that the jury’s verdict was improperly influenced by court spectators. For the reasons

that follow, we affirm.

                                       FACTUAL SUMMARY

       Appellant was charged by indictment with eight counts of aggravated sexual assault of

his granddaughter, M.S. He pled not guilty and the case proceeded to trial. The jury found him

guilty on all counts in the indictment and assessed punishment at fifty years’ imprisonment.

       Appellant filed a motion for new trial predicated on three different grounds. First, he

argued that he was denied effective assistance of counsel because the trial judge threatened to

hold his attorney in contempt. This purportedly undermined counsel’s credibility in the minds

of the jurors. Second, Appellant complained that the trial judge committed two material errors
which were calculated to injure his rights as the accused. The first related to the trial judge’s

threat to hold defense counsel in contempt while the jury was within earshot. The second

contended the trial judge allowed M.S. to stage an entrance into court before testifying.

Regarding this second error, the motion alleged:

       When called to the witness stand by the State, [M.S.] entered the courtroom
       surrounded by a phalanx of individuals best-described as a motorcycle gang. As
       she reached the bar before the Court, [M.S.] emerged from this phalanx and took
       her seat at the witness stand, while the motorcycle gang members took seats in the
       front row of the courtroom immediately adjacent to the jury box. Each member
       of the motorcycle gang wore identical jackets and vests bearing insignia unique to
       their organization. Upon completion of her testimony, the complainant staged a
       similar exit from the courtroom. Defense counsel later learned that the insignia of
       the motorcycle gang identified them as members of an organization known as
       ‘Bikers Against Child Abuse.’ The obvious import of this entrance and exit
       display was to exert an improper and undue influence upon the jury. By
       permitting this improper display, the Court committed a material error calculated
       to injure the rights of the accused.

Finally, Appellant argued the jury’s verdict was contrary to the law and evidence because:

       During the guilt-innocence phase of trial, Defense counsel elicited testimony from
       the complainant, [M.S.], that she had not been sexually assaulted by the
       Defendant prior to Christmas of 2004. Consequently, the State was unable to
       prove beyond a reasonable doubt the allegations contained in Counts I and II of
       the indictment, which alleged an offense ‘on or about the 28th day of December,
       2003.’ Thus, the verdict was contrary to the law and evidence.

The motion for new trial was overrule by operation of law.

                                 THREAT OF CONTEMPT

       In Issue One, Appellant complains of the following comments made by the trial judge to

defense counsel during his cross-examination of the CPS investigator.

       THE COURT: Can I see the attorneys up here, please.

                                         (At the bench)

       THE COURT: You said that loud enough for everybody to hear. One more time
       and I will hold you in contempt. Sit down.



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       MR. RAIGN [Defense Counsel]: You should, and I apologize Your Honor.

       THE COURT: Sit down.

                                    (End of bench discussion)

       THE COURT: Anything else?

       MR. RAIGN: We’re going to pass the witness, Your Honor.

The record does not reflect what counsel said that was “loud enough for everybody to hear” and

prompted the bench conference. But Appellant complains that the threat to hold defense counsel

in contempt was so prejudicial so as to deny him his constitutional rights to a fair trial, due

process of law, due course of law, and effective assistance of counsel.

                                     Preservation Of Error

       Generally, an appellant must object to a trial judge’s comments, or other conduct, during

trial to preserve error for appeal. Blue v. State, 41 S.W.3d 129, 131 (Tex. 2000)(plurality

opinion); TEX.R.APP.P. 33.1. An accused cannot complain of error on appeal if he fails to (1)

object to any act by or remarks of the court at trial, (2) request an instruction that the jury

disregard the remarks, or (3) move for a mistrial. See Drake v. State, 450 S.W.2d 625, 628

(Tex.Crim.App. 1970)(where there was no objection to trial court calling district attorney to

bench and having whispered conversation with him and there was no showing as to contents of

conversation and matter was not presented by either formal or informal bill of exception, nothing

was presented for review.). Nevertheless, some rights are widely considered so fundamental to

the proper functioning of our adjudicatory process as to enjoy special protection in the system.

Blue, 41 S.W.3d at 131, citing Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993),

overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). “A

principle characteristic of these rights is that they cannot be forfeited.” Id. In other words,



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where a judge’s remarks are of such a nature as to deprive the defendant of due process of law

under the 14th Amendment, the defendant’s inaction is insufficient to waive his rights. Id. at

137; see Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).

                                             Analysis

       Appellant candidly acknowledges that he did not object at trial, but he maintains that the

constitutional restraints on the comments of a judge are absolute rights which cannot be waived.

In support of his argument, he directs us to Blue and argues that the trial court’s threat to hold

defense counsel in contempt, in the jury’s presence, “was so prejudicial as to deny Appellant his

right to a fair trial, due process of law, due course of law and effective assistance of counsel as

guaranteed by the United States Constitution and the Texas Constitution. “ Even assuming the

comments at the bench conference were made within the jury’s hearing, this does not constitute

one of the “few cases where the judge’s statements when viewed objectively are so egregious as

to render him biased.” Blue, 41 S.W.3d at 138 (Keasler, J., concurring).

       In Blue, the trial judge apologized to the venire for the long wait and explained that the

delay was due to the defendant’s indecisiveness on entering a plea agreement. Blue, 41 S.W.3d

at 130. The judge also expressed his opinion that, “he would have preferred that the defendant

plead guilty.” Id. These specific comments “‘vitiated the presumption of innocence’ before the

venire, adversely affecting appellant’s right to a fair trial,” and therefore the comments “were

fundamental error of constitutional dimension and required no objection.” Id. at 132. Here,

Appellant has not directed our attention to any comment that allegedly tainted the presumption of

innocence. See Blue, 41 S.W.3d at 132. He complains of a single instance where the judge

admonished defense counsel. What counsel said or did to prompt the bench conference cannot

be discerned from the record, and we will not speculate that the admonishment was not justified.



                                               -4-
       We are also guided by Joshlin v. State, 488 S.W.2d 773 (Tex.Crim.App. 1972). There,

the appellant complained that the trial court admonished defense counsel six separate times,

telling him “not to ‘ask immaterial questions,’ quit ‘killing time’ and ‘get on with your

questions,’ ‘you are wandering all over the lot. That’s an improper observation and question.’”

Joshlin, 488 S.W.2d at 776 (internal quotations omitted). There were no objections lodged.

“Even if it can be argued that the matter is properly presented for review,” said the court, the

comments did not demonstrate reversible error. Id. Citing the general rule that the trial court

must maintain broad discretion in controlling the general conduct of the trial, the court opined

that if counsel’s conduct is such that it calls for repeated admonishments, “it is perhaps better

practice to do so in the absence of the jury.” Id.

       We are presented with one unexplained comment at a bench conference. We know not

whether it was overheard by any juror.               See Sifford v. State, 505 S.W.2d 866, 868

(Tex.Crim.App. 1974)(“We have considered the Court’s admonishments and find they were fully

justified by counsel’s conduct,” where the trial judge told defense counsel to “shut up and sit

down” in the presence of the jury, and repeatedly admonished him and where only one trial

objection was made); see also Liteky v. United States, 510 U.S. 540, 554, 555-56, 114 S.Ct.

1147, 127 L.Ed.2d 474 (1994)(stating: (1) “judicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do

not support a bias or partiality challenge”; (2) “[n]ot establishing bias or partiality, however, are

expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds

of what imperfect men and women, even . . . judges, sometimes display”; and (3) “a judge’s

ordinary efforts at courtroom administration--even a stern and short-tempered judge’s ordinary

efforts at courtroom administration--remain immune.”). Finding no error, we overrule Issue One.



                                                -5-
                                  MOTION FOR NEW TRIAL

       In Issues Two and Three, Appellant complains that the trial court denied a hearing on his

motion for a new trial. The State responds that Appellant failed to timely present the motion to

the court and therefore cannot complain on appeal.

                                        Standard of Review

       “When an accused presents a motion for new trial raising matters not determinable from

the record, which could entitle him to relief, the trial judge abuses his discretion in failing to hold

a hearing.” King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000). However, a defendant

bears the burden of presenting a motion for new trial to the trial court within ten days of being

filed. Gardner v. State, 306 S.W.3d 274, 305 (Tex.Crim.App. 2009); see Tex.R.App.P. 21.6.

“The purpose of the presentment rule is ‘to put the trial court on actual notice that a defendant

desires the trial court to take some action on the motion for new trial such as a ruling or a hearing

on it.’” Hiatt v. State, 319 S.W.3d 115, 122 (Tex.App.--San Antonio 2010, pet. ref’d), citing

Stokes, 277 S.W.3d at 21(internal citations omitted). If a motion for new trial is not timely

presented, the trial court is under no requirement to conduct a hearing. See TEX.R.APP.P. 21.6;

Rozell v. State, 176 S.W.3d 228, 230 (Tex.Crim.App. 2005).

       There are many ways to show presentment of a motion for new trial to the trial court. See

Hiatt, 319 S.W.3d at 122. For example, notice may be evidenced by a judge’s signature on a

proposed order or by a hearing date set on the docket. See Gardner, 306 S.W.3d at 305;

Carranza v. State, 960 S.W.2d 76, 79-80 (Tex.Crim.App. 1998). Regardless of the method,

“presentment” requires a defendant to go beyond simply filing the motion with the clerk. Stokes,

277 S.W.3d at 21, 24; Hiatt, 319 S.W.3d at 122. The record must show the movant actually




                                                 -6-
delivered the motion to the trial court or otherwise brought it to the court’s attention. Carranza,

960 S.W.2d at 79.

                                              Analysis

       Appellant timely filed a motion for new trial on July 8, 2010. The record does not

contain a ruling or a proposed order bearing the judge’s signature. There are no docket entries

evidencing a hearing. The only suggestion of presentment is a recitation in the motion itself

directly below the certificate of service entitled “Certificate of Presentation” which is signed

only by Appellant’s attorney.

       I certify that I am counsel for Defendant in this cause and that I presented this
       Motion for New Trial to the trial court on July 8, 2010, within 10 days after filing
       it.

       Citing Hiatt, the State counters that the certification of presentation is wholly insufficient.

The case is factually similar. There was no ruling on Hiatt’s motion for new trial. The trial

judge’s signature did not appear on either Hiatt’s motion or the proposed orders accompanying

the motion. There were no entries on the docket sheet regarding the setting of a hearing date.

Hiatt, 319 S.W.3d at 123. Like Appellant here, Hiatt argued that a statement in the motion for

new trial -- “THE DEFENDANT HEREBY PRESENTS THIS MOTION TO THIS

HONORABLE COURT” -- was sufficient proof of presentment. Id. The court of appeals

rejected his argument. Id. at 122-23, citing Burrus v. State, 266 S.W.3d 107, 115-16 (Tex.App.--

Fort Worth 2008, no pet.); Kaluza v. State, No. 01-07-00737-CR, 2008 WL 2465891, *3

(Tex.App.--Houston [1st Dist.] 2008, no pet.)(mem. op., not designated for publication)(holding

a “certificate of presentation” appearing on the last page of appellant’s motion for new trial did

not establish presentment); Larue v. State, No. 09-05-145-CR, 2007 WL 1501646, *12

(Tex.App.--Beaumont 2007, pet. ref’d)(mem. op., not designated for publication)(holding a



                                                -7-
statement in the motion for new trial entitled “certificate of presentment” in which appellate

counsel stated the motion was hand-delivered to the trial court insufficient to establish

presentment); Owens v. State, 832 S.W.2d 109, 111-12 (Tex.App.--Dallas 1992, no pet.),

overruled on other grounds, Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App. 1994)(holding a

“Certification of Service and Presentment” was insufficient to establish the trial court received

actual notice of the defendant’s motion for new trial).

       We conclude that the evidence is insufficient to establish presentment. Consequently, we

overrule Issues Two and Three and affirm the judgment of the trial court.



March 14, 2012                                __________________________________________
                                              ANN CRAWFORD McCLURE, Chief Justice


Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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