Opinion filed November 7, 2013




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-11-00074-CR
                                     __________

          ARMANDO CASTILLO CAMPOS, JR., Appellant

                                        V.

                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 220th District Court
                           Comanche County, Texas
                    Trial Court Cause No. CCCR-10-03300


                  MEMORANDUM OPINION
                ON MOTION FOR REHEARING
      In his motion for rehearing, Appellant contends that this court “erred by
concluding that trial judges must be personally served with motions for new trial in
order to satisfy the ‘presentment’ requirement.”
      Appellant argues that we “announced the astonishing rationale that ‘actual
notice to the trial court’ is never shown when counsel ‘show[s] only that the
motion was hand-delivered to the trial court’s office.’” Appellant contends that,
instead, the Court of Criminal Appeals only requires counsel to “actually deliver[]
the motion for new trial to the trial court or otherwise bring[] the motion to the
attention or actual notice of the trial court.” Carranza v. State, 960 S.W.2d 76, 79
(Tex. Crim. App. 1998). But the defendant in Carranza did nothing more than file
a motion for new trial and, thus, failed to “present” the motion to the trial court.
Id. at 80. Furthermore, the court later reasoned that the presentment requirement
had not been satisfied when there was “no indication in the record that the motion
for new trial was, in fact, hand-delivered to the trial judge” and “no indication in
the record that the trial judge ever saw the motion.” Gardner v. State, 306 S.W.3d
274, 305 (Tex. Crim. App. 2009). “The defendant must put the trial judge on
actual notice that he desires the judge to take some action, such as making a ruling
or holding a hearing, on his motion for new trial.” Id.
      Appellant’s “Certificate of Presentment” shows that the motion was
delivered to the “Office for the 220th Judicial District Court of Comanche County”
but fails to show that the trial judge had actual notice that Appellant desired the
judge to take some action on the motion. Even if a defendant certifies that the
motion has been presented, the law is that such a certificate alone is not sufficient
evidence of presentment. Burrus v. State, 266 S.W.3d 107 (Tex. App.—Fort
Worth 2008 no pet.). “Presentment” must be such that it results in actual notice to
the trial court. Carranza, 960 S.W.2d at 79. A defendant may show “actual
notice” by, among other things, the judge’s signature or notation on a proposed
order or by a hearing date set on the docket. Carranza, 960 S.W.2d at 79–80.
However, there must be some evidence of presentment other than the lawyer’s
statement or even certificate that the motion was presented to the trial court. We
did not hold on original submission, and we do not now hold, that a defendant must
obtain personal service on the trial court. What we did hold, and a position that we
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still maintain, is that there must be some evidence that the trial court had actual
notice—not personal service, but actual notice—that a defendant wanted it to take
some action on the motion. To read previous case law, as well as our opinion,
otherwise is a complete misreading and misunderstanding of the law of
presentment.
      The motion for rehearing is denied.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


November 7, 2013
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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