Opinion filed June 30, 2016




                                     In The


        Eleventh Court of Appeals
                                  __________

                  Nos. 11-15-00005-CR & 11-15-00006-CR
                                __________

                 JOSEPH TYRONE NICHOLS Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 350th District Court
                              Taylor County, Texas
                     Trial Court Cause Nos. 9080-D & 8999-D


                      MEMORANDUM OPINION
      Appellant, Joseph Tyrone Nichols, pleaded guilty to two felony offenses, both
of which occurred in a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.134(c), (d) (West Supp. 2015). The first offense was for possession of
methamphetamine, and the second was for possession with intent to deliver
methamphetamine. See id. §§ 481.102(6), 481.112(a), (c), 481.115(a), (b) (West
2010). The trial court found Appellant guilty and assessed his punishment at
confinement for eight years in each case. However, the trial court suspended
Appellant’s sentences and placed him on community supervision for eight years in
each case. Later, the State moved to revoke his community supervision. At the
revocation hearing, Appellant pleaded “true” to many of the violations that the State
had alleged in the motions. The trial court found those allegations, as well as two
additional ones, to be “true.”
      The trial court revoked Appellant’s community supervision, reduced his
punishment to confinement for seven years in each case, and sentenced him
accordingly. In each appeal, Appellant challenges the trial court’s failure to hold a
hearing on his motion for new trial, in which he alleged ineffective assistance of
counsel. He argues that the denial of the motions without a hearing was an abuse of
discretion. Alternatively, he requests that we abate the appeals and remand the
causes to the trial court for it to explain why it failed to hold a hearing on the motions
for new trial. We affirm.
                                 I. Procedural History
      After the trial court entered the judgments by which it revoked Appellant’s
community supervision, Appellant filed a motion for new trial in each cause. In the
motions, Appellant raised issues related to ineffective assistance of counsel. The
day that the trial court was to hear the motions for new trial, Appellant, despite being
represented by appointed counsel, filed a handwritten document in which he
expressly waived his right to a hearing on his motion for new trial in both causes.
The record does not reflect that appointed counsel insisted on a hearing on the
motions. The trial court did not hold the hearing, and Appellant’s motions for new
trial were deemed denied by operation of law. See TEX. R. APP. P. 21.8(a), (c).




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                                     II. Analysis
      We review a trial court’s denial of a hearing on a motion for new trial under
an abuse of discretion standard. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim.
App. 2009). A hearing on a motion for new trial is not an absolute right. Id. A
hearing is not required when the matters raised in the motion for new trial can be
determined from the record. Id. In addition, a motion for new trial is deemed
overruled by operation of law if a written order granting the motion for new trial is
not entered by the seventy-fifth day after the trial court imposes sentence in open
court. TEX. R. APP. P. 21.8(a), (c); State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49
(Tex. Crim. App. 1987).
      Appellant, throughout the course of these proceedings, requested new counsel
multiple times. One request occurred on the day of the second setting on the motions
for new trial. Prior counsel was permitted to withdraw, and new counsel was
appointed to represent Appellant. On the day of the third setting, Appellant filed a
handwritten note in which he waived his right to a hearing on his motions for new
trial. The record does not reflect that Appellant’s appointed counsel requested that
the trial court disregard Appellant’s waiver, demanded that the hearing go forward
as scheduled, or asked that the hearing be continued.
      We note from the record that the hearing was not held as scheduled and that
the trial court may have accepted and honored Appellant’s waiver of the hearing on
the motion for new trial. See generally Robinson v. State, 240 S.W.3d 919 (Tex.
Crim. App. 2007) (trial court may act on pro se motion even though defendant is
represented by counsel). Moreover, because the trial court did not grant Appellant’s
motions for new trial before the seventy-fifth day, the motions were deemed denied
by operation of law. Appellant received what he requested and never objected to the
trial court’s failure to hold a hearing. To the contrary, Appellant apprised the trial


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court that he did not want a hearing. As a result, he has failed to preserve this issue
for appeal. TEX. R. APP. P. 33.1(a); see also Rozell v. State, 176 S.W.3d 228, 231
(Tex. Crim. App. 2005) (where defendant does not make the trial court aware that
he desires a hearing, nothing is preserved for appellate review).
      But here, the issue extends beyond waiver and constitutes invited error. An
Appellant may not claim as error an action that he induced. By his handwritten
instrument, Appellant essentially asked the trial court to not hold a hearing—he
obtained the relief that he sought. See Prystash v. State, 3 S.W.3d 522, 531 (Tex.
Crim. App. 1999) (party may not complain of trial court actions that party asked the
trial court to take). As far as Appellant’s complaint about hybrid representation is
concerned, even if his filing of the waiver could be considered hybrid representation,
that matter is committed to the trial court’s discretion. There has been no complaint
as to an abuse of that discretion. See Scarbrough v. State, 777 S.W.2d 83, 92 (Tex.
Crim. App. 1989) (allowance of hybrid representation in the trial court is
discretionary).
      We overrule Appellant’s sole issue in each cause.
                               III. This Court’s Ruling
       We affirm the judgments of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE
June 30, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.


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