                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-279-CR


ZACHARY STEPHEN ARNOLD                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Zachary Stephen Arnold was convicted of aggravated robbery

with a deadly weapon. In his sole point on appeal, he complains that the trial

court abused its discretion by failing to hold a hearing on his motion for new

trial. Specifically, Arnold contends that because his motion and supporting

affidavits alleged that he was denied effective assistance of counsel, the trial




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          … See Tex. R. App. P. 47.4.
court should have held a hearing on his motion to allow him to develop the

record. We will affirm.

      Arnold pleaded guilty to aggravated robbery with a deadly weapon and

was sentenced to seven years’ imprisonment.           Following the sentencing

hearing, Arnold filed a motion for new trial.2 Arnold also filed two affidavits to

support his motion. The trial court did not grant a hearing on his motion for

new trial, and it was overruled by operation of law.       See Tex. R. App. P.

21.8(c).

      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, the trial court

is under no requirement to conduct a hearing if the motion for new trial is not

presented in a timely manner.     Tex. R. App. P. 21.6; Rozell v. State, 176

S.W.3d 228, 230 (Tex. Crim. App. 2005).          A defendant must present the

motion for new trial to the trial court within ten days of filing it. Tex. R. App.

P. 21.6. The purpose of the presentment rule is “to put the trial court on actual



      2
       … Arnold contends on appeal that he asserted in his motion that he was
denied effective assistance of counsel, which rendered his plea involuntary. To
the contrary, Arnold’s motion for new trial alleged that (1) the judgment was
contrary to the law and the evidence; (2) his plea was involuntary and his
sentence was excessive, with no mention of ineffective assistance; and (3)
newly discovered evidence warranted a new trial.

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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.” Stokes v. State, 277 S.W.3d

20, 21 (Tex. Crim. App. 2009) (quoting Carranza v. State, 960 S.W.2d 76, 78

(Tex. Crim. App. 1998)).

      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 sheet. Carranza, 960 S.W.2d at 79; Burrus v.

State, 266 S.W.3d 107, 115 (Tex. App.—Fort Worth 2008, no pet.). The

defendant bears the burden of presentment; he must ensure such a notation on

a proposed order or a setting of a hearing. Burrus, 266 S.W.3d at 115. The

filing of a motion for new trial alone is not sufficient to show presentment.

Stokes, 277 S.W.3d at 21.

      In this case, Arnold timely filed his motion for new trial, but there is no

ruling on the motion, no proposed order containing the judge’s signature or

notation, and no notation on the docket sheet of a hearing date set on the

motion. See Carranza, 960 S.W.2d at 79; Burrus, 266 S.W.3d at 115. An

unsigned   document exists     in   the   record   titled, “Acknowledgment of

Presentment of Motion for New Trial,” which Arnold filed with his motion for

new trial, as well as a notation on the docket sheet stating that the motion for

new trial was filed. But an unsigned certificate of presentment and the filing

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of a motion for new trial have been held insufficient to establish presentment

under Texas Rule of Appellate Procedure 26.1. See Burrus, 266 S.W.3d at 115

(holding that statement in motion for new trial titled, “Certificate of

Presentment,” and notation in docket sheet stating that motion was filed were

insufficient evidence to establish presentment); Cozzi v. State, 160 S.W.3d

638, 641 n.5 (Tex. App.—Fort Worth 2005, pet. ref’d) (stating that docket

sheet entry indicating that “motion for new trial filed” is insufficient to show

presentment); Longoria v. State, 154 S.W.3d 747, 762 (Tex. App.—Houston

[14th Dist.] 2004, pet. ref’d) (holding that statement in record “Notice of

Presentment of Motion for New Trial” is insufficient to show presentment). In

short, the record does not reflect that Arnold presented his motion for new trial

to the trial court and, in fact, he does not argue on appeal that he did present

his motion for new trial. See Stokes, 277 S.W.3d at 21; Carranza, 960 S.W.2d

at 78 (stating that appellant failed to ‘present’ motion for new trial because

nothing in the record showed that the trial court was put on actual notice of the

motion). Thus, because Arnold did not present his motion for new trial to the

trial court, we hold that the trial court did not abuse its discretion by not

conducting a hearing on his motion for new trial. See Carranza, 960 S.W.2d

at 78–79 (stating that a trial court should not be reversed on appeal on a




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matter never brought to the trial court’s attention). We overrule Arnold’s sole

point.

         Having overruled Arnold’s sole point, we affirm the trial court’s judgment.




                                                    SUE WALKER
                                                    JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 18, 2009




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