                                  NO. 07-05-0053-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                   AUGUST 4, 2005

                         ______________________________


                     BRIAN CHARLES ROBINSON, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

          FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY;

              NO. 01-1220-K368; HONORABLE BURT CARNES, JUDGE
                       _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant Brian Charles Robinson appeals from the trial court’s determination to

proceed with adjudication and an assessment of ten years confinement in the Texas

Department of Corrections, Institutional Division. We affirm.
                            Factual and Procedural Background


       Appellant entered a plea of guilty to the charge of injury to a child and was placed on

deferred adjudication for a period of five years. No appeal was taken from the initial plea.

Subsequently, the State filed a motion to proceed with adjudication, a first amended motion

to proceed and a second amended motion to proceed, which was heard by the trial court

on November 3, 2004. Appellant entered a plea of true to paragraph II and not true to all

remaining paragraphs of the second amended motion to proceed. After hearing the

evidence, the trial court entered an order finding the allegations in all paragraphs true and

sentenced appellant to ten years confinement.


                                           Analysis


       Appellant has raised three issues on appeal. Issues two and three challenge the

adjudication of appellant for the offense of injury to a child. This determination is controlled

by TEX . CODE CRIM . PROC . ANN . art. 42.12, § 5(b) (Vernon Supp. 2004) wherein it is provided

that a defendant may not appeal from a trial court’s determination to proceed with an

adjudication of guilt. Phynes v. State, 828 S.W.2d 1, 2, (Tex.Crim.App. 1992). As appellant

may not appeal the determination to proceed with an adjudication of guilt, appellant’s

second and third issues present nothing for our review.


       Appellant’s first issue deals with the alleged refusal of the trial court to conduct a

hearing on the motion for new trial filed. The record reflects, on November 19, 2004, a

motion for new trial was filed with the District Clerk of Williamson County. A complete

review of the Clerk’s record fails to demonstrate that the aforesaid motion was ever

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presented to the judge of the trial court. Presentment of a motion to the trial court is a

requirement for obtaining a hearing on said motion. TEX . R. APP . P. 21.6; Carranza v. State,

960 S.W.2d 76, 79 (Tex.Crim.App. 1998). Appellant’s failure to present the motion for new

trial is determinative of this issue as the trial court did not err in failing to set the motion for

new trial for a hearing. We overrule issue one.


                                           Conclusion


       We affirm the judgment of the trial court.




                                             Mackey K. Hancock
                                                  Justice


Do not publish.




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