                              NO. 12-08-00385-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS
MARK HEAD,                                      '           APPEAL FROM THE 7TH
APPELLANT
                                                '           JUDICIAL           DISTRICT
COURT

THE STATE OF TEXAS,                             '           SMITH COUNTY, TEXAS
APPELLEE


                              MEMORANDUM OPINION
       Mark Head appeals two convictions for aggravated sexual assault of a child, for
which he was sentenced to imprisonment for forty years and fined five thousand dollars on
each count. Appellant raises four issues on appeal. We affirm.

                                      BACKGROUND
       Appellant was charged by indictment with two counts of aggravated sexual assault
of a child, his girlfriend’s seven year old daughter. Appellant pleaded “not guilty” to each
count and the matter proceeded to a jury trial. The jury found Appellant “guilty” as
charged and, following a trial on punishment, assessed Appellant’s punishment at
imprisonment for forty years and a five thousand dollar fine for each offense. Appellant
filed a motion for new trial and requested a hearing thereon. Subsequently, Appellant’s
attorney sent a letter to the trial court via facsimile requesting that the trial court set a
hearing because the motion had been properly presented. This letter was ultimately filed
by the district clerk for Smith County. Appellant’s motion for new trial was overruled by
operation of law; no hearing was conducted. This appeal followed.

                     PRESENTMENT OF A MOTION FOR NEW TRIAL
       A defendant has a right to a hearing on a motion for new trial when the motion
raises matters that cannot be determined from the record. Reyes v. State, 849 S.W.2d 812,
816 (Tex. Crim. App. 1993). However, a defendant does not have an absolute right to a
hearing on a motion for new trial, id. at 815, and a trial court is under no requirement to
conduct a hearing if the motion for new trial is not presented in a timely manner. See TEX.
R. APP. P. 21.6; Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). Thus, to
obtain a hearing on a motion for new trial, a defendant must present the motion to the trial
court within ten days of filing, unless the trial court in its discretion permits the motion to
be presented and heard within seventy-five days of the date the court imposes or suspends
sentence in open court. TEX. R. APP. P. 21.6; see Sexton v. State, 51 S.W.3d 604, 609
(Tex. App.–Tyler 2000, pet. ref’d).
        Merely filing a motion for new trial does not satisfy the presentment requirement.
Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998). The term “present” means
the record must show the movant for a new trial sustained the burden of actually delivering
the motion for new trial to the trial court or otherwise bringing the motion to the attention
or actual notice of the trial court. Id. at 79. Examples of “presentment” include obtaining
the trial court’s ruling on the motion for new trial, the judge’s signature or notation on a
proposed order, or a hearing date on the docket. Id.
        In the case at hand, the record reflects that Appellant timely filed his motion for
new trial. However, there is no ruling on the motion, no proposed order containing the
trial judge’s signature or notation, and no notation on the docket sheet of a hearing date
set on the motion. Appellant argues that the letter faxed by his attorney addressed to the
trial judge is sufficient to demonstrate presentment of his motion for new trial. This letter
stated, in pertinent part, as follows:

                 I am writing in [regard] to the motion for new trial filed in this cause. The
        defendant would like to develop evidence for the motion for new trial with a hearing on
        his motion for new trial. We feel that a hearing would be necessary to properly develop
        the record for an appeal of Mr. Head’s conviction. As such, we request that the Court set
        the Defendant’s Motion for New Trial for a hearing at a date convenient with the Court’s
        calendar. I am further requesting that this court set a hearing because this Motion has
        been properly presented to the Court, which is within 10 day[s] of filing the Motion for
        New Trial, entitling the Defendant to a hearing.


Despite Appellant’s attorney’s directing the letter to the trial judge, there is no indication in
the record that the trial judge, the court coordinator, or any other particular person received
the letter.1 By all indications, the letter was filed by the district clerk for Smith County in

        1
            There is no fax confirmation receipt pertaining to this letter in the record.

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the same manner as Appellant’s motion for new trial or any other pleading or motion.
Thus, we conclude that the letter is not sufficient evidence that Appellant presented his
motion for new trial to the trial court. See Burrus v. State, 266 S.W.3d 107, 115 (Tex.
App.–Fort Worth 2008, no pet.) (statement in motion for new trial entitled “Certificate of
Presentment” not sufficient evidence of presentment); Longoria v. State, 154 S.W.3d 747,
762 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (statement in record “Notice of
Presentment of Motion for New Trial” insufficient to show presentment); Oestrick v. State,
939 S.W.2d 232, 235 n.5 (Tex. App.–Austin 1997, pet. ref’d) (self-serving statement by
defense counsel, without more, insufficient evidence of presentment to trial court).
Therefore, because Appellant did not meet his burden of proof that he presented his motion
for new trial to the trial court, we hold that the trial court did not err in not conducting an
evidentiary hearing on Appellant’s motion for new trial.           Appellant’s first issue is
overruled.

                               IMPROPER JURY ARGUMENT
       In his second issue, Appellant argues that the trial court erred in permitting nine
instances of improper jury argument by the prosecutor. In order to preserve error for
improper jury argument, the appellant must (1) object on specific grounds; (2) request an
instruction that the jury disregard the comment, and (3) move for a mistrial. Harris v.
State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989). Here, in the two instances in which
Appellant did object to the alleged improper argument by the prosecutor, his objections
were sustained. However, in each of these instances, Appellant failed to request a curative
instruction and move for mistrial. Further, Appellant concedes that he failed to object to
the other seven instances of alleged improper prosecutorial argument.
       Nonetheless, Appellant contends that “the inflammatory [and] impermissible
[argument] was so pervasive that the error became structural error that did not need
preservation for those instances where Appellant’s [c]ounsel chose not to object.”
Generally, a party’s failure to object at trial waives the error of which he complains on
appeal. See TEX. R. APP. P. 33.1. However, some error is of such a magnitude as to
constitute a “structural defect affecting the framework within which trial proceeds.” Rey v.
State, 897 S.W.2d 333, 344–45 (Tex. Crim. App. 1995). Structural error occurs only when
the error strips a defendant of basic protections without which a criminal trial cannot
reliably determine guilt or innocence. See id. at 345.
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       In the instant case, Appellant does not argue that any one instance of allegedly
improper prosecutorial argument constituted structural error. Rather, Appellant contends
that the sum of the prosecutor’s improper arguments caused the error to become
“structural” error. However, Appellant has not cited, nor are we aware of, any authority
supporting the notion that numerous instances of nonstructural error can be transformed
into structural error. See TEX. R. APP. P. 38.1(i). Therefore, we hold that Appellant has
waived the error, if any, of which he now complains. See id.; Harris, 784 S.W.2d at 12.
Appellant’s second issue is overruled.

                                RIGHT TO PUBLIC TRIAL
       In his third and fourth issues, Appellant argues that he was denied his constitutional
and statutory rights to a public trial. Specifically, Appellant contends that “an unknown
individual[,] who had authority over the deputies who guard the Smith County
[Courthouse], denied Appellant’s family [member] access to the courtroom or the
courthouse.” As a result, Appellant argues that his “family member was not able to
observe the trial or support Appellant in the courtroom.”
       The Sixth Amendment to the Constitution of the United States guarantees an
accused the right to a public trial. U.S. CONST. amend. VI; Addy v. State, 849 S.W.2d 425,
428 (Tex. App.–Houston 1993, no writ); see also TEX. CONST. art. 1, § 10 (Vernon 2007);
TEX. CODE CRIM. PROC. ANN. arts. 1.05, 1.24 (Vernon 2005). The due process clause of
the Fourteenth Amendment makes this right applicable to trials conducted in state court.
U.S. CONST. amend. XIV; Addy, 849 S.W.2d at 428. The right to a public trial is one of the
few structural requirements identified by the United States Supreme Court where, if the
right is improperly denied, the error is exempt from harm analysis.         See Arizona v.
Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991).
However, failure to object to the closing of the courtroom will serve to waive the right to a
public trial. See Levine v. United States, 362 U.S. 610, 619, 80 S. Ct. 1038, 1044, 4 L. Ed.
2d 989 (1960).
       Public trials play a fundamental role in guaranteeing a defendant a fair trial. Addy,
849 S.W.2d at 428. This right prevents the abuse of judicial power, discourages perjury,
encourages unidentified potential witnesses to come forward, and instills in the public the
perception that their courts are acting fairly. Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 569–71, 100 S. Ct. 2814, 2823–24, 65 L. Ed. 2d 973 (1980). The right to a
                                            4
completely open trial is not absolute, however. Addy, 849 S.W.2d at 429. Limitations on
public attendance may be imposed where they are necessary to protect a state’s interest that
outweighs the defendant's right to public scrutiny. Rovinsky v. McKaskle, 722 F.2d 197,
200 (5th Cir. 1984). But no state’s interest, however compelling, can sustain the exclusion
of press and public from part of a trial, absent findings of necessity articulated on the
record. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-09, 102 S. Ct. 2613,
2619-21, 73 L. Ed. 2d 248 (1982). Before closing a trial, the judge must state on the record
his reasons for doing so to inform the public and enable the appellate court an opportunity
to review the adequacy of the reasons. Id.
       In the case at hand, Appellant notes in his brief that he was unaware of his family
member’s exclusion from the courtroom. Indeed, there is no indication in the record that
the trial court or anyone acting at its direction ordered the exclusion of Appellant’s family
member. As set forth above, a hearing on a motion for new trial is necessary when the
matters raised in the motion are not determinable from the record. See Reyes, 849 S.W.2d
at 816. Here, because the record was silent concerning the exclusion of Appellant’s family
member from the courtroom, it was imperative that Appellant take the necessary procedural
steps to cause the trial court to conduct a hearing. Moreover, the affidavit from Appellant’s
brother, George Head, in which he stated that a man in a suit and tie along with two
uniformed “Smith County Deputies” denied him access to the courtroom, is of no
consequence because it is not evidence. See Stephenson v. State, 494 S.W.2d 900, 909–10
(Tex. Crim. App. 1973) (affidavit attached to motion for new trial is merely pleading that
authorizes introduction of supporting evidence, and         not evidence in itself, unless
introduced at hearing on motion); Burrus, 266 S.W.3d at 112 (affidavits do not become
evidence in criminal case until introduced into evidence); Jackson v. State, 139 S.W.3d 7,
21 (Tex. App.–Fort Worth 2004, pet. ref’d) (same); Portillo v. State, 117 S.W.3d 924, 930
(Tex. App.–Houston [14th Dist.] 2003, no pet.) (same); see also Coale v. State, No.
14-07-01033-CR, 2008 WL 4937575, at *4 (Tex. App–Houston [14th Dist.] 2008, no pet.)
(mem. op., not designated for publication) (same). Therefore, because Appellant failed to
take the necessary steps to ensure that an evidentiary hearing was conducted on his motion
for new trial, there is nothing before us to review. Appellant’s third and fourth issues are
overruled.



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                                               DISPOSITION
         Having overruled Appellant’s first, second, third, and fourth issues, we affirm the
trial court’s judgment.


                                                                JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered January 20, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                          (DO NOT PUBLISH)




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