
                              NO. 07-09-0125-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                              OCTOBER 25, 2010




                           JULIAN EDWARD PERALES,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                         ___________________________

               FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

              NO. 50,635-B; HONORABLE JOHN B. BOARD, PRESIDING



                             Memorandum Opinion



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Julian Edward Perales appeals a judgment revoking  his  probation  and
adjudicating his guilt of aggravated  assault  with  a  deadly  weapon.   He
originally pled guilty to the offense in 2005 and was placed  on  probation.
The State filed a motion to adjudicate his guilt on  May  2,  2008,  and  an
amended motion on March 11, 2009.  After a hearing  during  which  appellant
pled true to four of the  probation  violations  alleged  against  him,  the
court found him guilty and sentenced him  to  ten  years  imprisonment.   In
challenging that judgment,  he  argues  that  the  trial  court  abused  its
discretion in failing to hold a hearing on his motion for new trial  and  in
denying him the opportunity to secure counsel of his choice.  We affirm  the
judgment.
      Issues 1 & 2 - Hearing on Motion for New Trial
      Appellant timely filed a motion for new trial  in  which  he  asserted
that, although he wished to retain counsel  of  his  own  choosing  for  the
adjudication proceeding, the bailiff  made  him  sign  a  document  entitled
"Financial Information for Request for Court  Appointed  Attorney"  and  the
trial court forced him to proceed with appointed counsel  that  he  did  not
request and with whom he had a fundamental disagreement  over  his  defense.
The motion was overruled by operation of law.
      A defendant must present a motion for new trial  to  the  trial  court
within ten days of filing it.  Tex. R. App. P. 21.6.  The mere filing  of  a
motion for new trial is insufficient to satisfy  this  requirement.   Stokes
v. State, 277 S.W.3d 20, 21 (Tex.  Crim.  App.  2009).  The  requirement  of
presentment puts the trial court on  notice  that  the  movant  desires  the
trial court to take some action on the motion.  Id.  Therefore,  the  movant
must meet the burden of showing actual delivery of the motion for new  trial
to the trial court or otherwise bringing it to its attention.   Carranza  v.
State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).
       The  record  before  us  is  silent  on  presentment  other  than   a
certificate of service indicating that a copy of the motion was  "delivered"
to the trial court.[1]  That alone is insufficient to show  that  the  trial
court was aware of the motion and that appellant desired a  hearing  on  it.
Owens v. State, 832 S.W.2d 109, 111-12 (Tex.  App.-Dallas  1992,  no  pet.);
see also Oestrick v. State, 939 S.W.2d 232, 235 n.5 (Tex. App.-Austin  1997,
pet. ref'd) (stating that a self-serving statement  by  defense  counsel  is
insufficient evidence of presentment).   Although  there  can  be  different
ways to prove presentment, Stokes v.  State,  277  S.W.3d  at  24,  we  find
nothing in the record indicating the judge's signature or  notation  on  the
motion or a proposed order, a docket sheet entry  showing  presentment,  the
setting of a hearing date, or some other appropriate notation.  See  Gardner
v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009).  Appellant also  fails
to point us to any such evidence in the record.   Because  the  trial  court
does not abuse its discretion in failing to conduct a hearing when there  is
no evidence that the motion was timely presented to the trial  court,   id.,
appellant's first two issues are overruled.
          Issues 3 & 4 - Opportunity to Retain Counsel
      In his next  two  issues,  appellant  complains  of  the  trial  court
depriving him of the opportunity to secure counsel of his own choosing.   We
note that appellant neither complained of the fact  he  was  represented  by
appointed  counsel  during  the  adjudication  hearing  nor   requested   an
opportunity to retain counsel.  To preserve error, complaint  must  be  made
to the trial court by a "timely" request, objection,  or  motion.   Tex.  R.
App. P. 33.1(a)(1).  To  be  timely,  an  objection  must  be  made  at  the
earliest opportunity, Wilson v. State, 71 S.W.3d 346, 349 (Tex.  Crim.  App.
2002), or as soon as the ground  becomes  apparent.   Penry  v.  State,  903
S.W.2d 715, 763 (Tex. Crim. App. 1995).  Appellant testified at the  hearing
and spoke to the trial court.  He provides no explanation of his failure  to
mention this matter at that time, and we do not  find  any  in  the  record.
The objection thus was forfeited.  Courson v. State,  160  S.W.3d  125,  129
(Tex. App.-Fort Worth 2005, no pet.) (holding  that  an  untimely  objection
forfeits the complaint).  For that reason,  we  overrule  appellant's  third
and fourth issues as well.
      Accordingly, the judgment of the trial court is affirmed.

                                        Per Curiam

Do not publish.






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      [1]The certificate does not indicate how delivery occurred.



