                                   NO. 07-10-00297-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                       JUNE 8, 2011


                        CARLOS JAVON BECKETT, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


       FROM THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY;

                 NO. 1117440D; HONORABLE SHAREN WILSON, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION

       Appellant Carlos Javon Beckett appeals his conviction for unauthorized use of a

vehicle.1 Through one issue, appellant asserts the trial court erred in failing to hold a

hearing on his motion for new trial. We will affirm.

                                        Background

       Appellant plead guilty to the offense of unauthorized use of a motor vehicle in

August 2008. The court placed him on deferred adjudication community supervision for

a period of three years. In March 2010, the State filed an amended petition to proceed

       1
           See Tex. Penal Code Ann. § 31.07 (West 2009).
to adjudication in which it alleged a single violation of the terms of appellant’s

community supervision, that appellant committed the offense of assault-bodily injury.

       At the March 18 hearing on the State’s petition, after appellant plead the alleged

ground for revocation was not true, the court heard Cameron Bullock testify he was

assaulted by appellant and others on January 11, 2010, at a convenience store. One of

appellant’s friends, Lawrence Williams, testified on appellant’s behalf, telling the court

he was the only person who assaulted Bullock.           Williams testified appellant was

pumping gas at the time of the altercation.

       The trial court adjudicated appellant guilty and sentenced him to nine months in

Tarrant County Jail.   Appellant filed his motion for new trial on April 19, 2010 and

requested an evidentiary hearing. The trial court generated a signed setting notice,

setting a hearing for May 21, 2010. The trial court cancelled the hearing on May 19.

Appellant filed a written objection on May 20, asking the hearing to be conducted as

scheduled. The trial court did not respond and the motion for new trial was overruled by

operation of law. Appellant now appeals, contending the trial court erred in failing to

hold the evidentiary hearing on his motion for new trial.

                                         Analysis

       A trial court's decision regarding whether to hold a hearing on a motion for new

trial in a criminal case is reviewed by an abuse of discretion standard. Wallace v. State,

106 S.W.3d 103, 108 (Tex.Crim.App. 2003); Martinez v. State, 74 S.W.3d 19, 22

(Tex.Crim.App. 2002). In applying this standard, we may not substitute our judgment for

that of the trial court; instead, we must decide whether the trial court's decision was

arbitrary or unreasonable. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006).

                                              2
A defendant is entitled to a hearing on his motion for new trial if the motion and

accompanying affidavit(s) "rais[e] matters not determinable from the record, upon which

the accused could be entitled to relief." Wallace, 106 S.W.3d at 108, citing Reyes v.

State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). To be sufficient to entitle the

defendant to a hearing, the motion for new trial and accompanying affidavits do not

need to establish a prima facie case for a new trial. Wallace, 106 S.W.3d at 108.

Instead, they "must merely reflect that reasonable grounds exist for holding that such

relief could be granted." Wallace, 106 S.W.3d at 108, citing Martinez v. State, 74

S.W.3d 19, 22 (Tex.Crim.App. 2002).           The purpose of the hearing is to give the

defendant an opportunity to fully develop the matters raised in his motion. Martinez, 74

S.W.3d at 21.

       On appeal, the State’s argument in support of the trial court’s ruling is there was

no evidence appellant actually presented the trial court with his motion for new trial

within ten days of filing it in accordance with Rule of Appellate Procedure 21.6. The

State contends appellant’s certificate of service was insufficient to demonstrate

presentment. Further, the State argues the court’s notice setting the May 21 hearing is

not part of the appellate record.

       Rule 21.6 provides “Time to Present—The defendant must present the motion for

new trial within 10 days of filing it, unless the trial court in its discretion permits it to be

presented and heard within 75 days from the date when the court imposes or suspends

sentence in open court.” Tex. R. App. P. 21.6.

       The trial court’s “setting notice” setting a hearing on appellant’s motion appears

in the clerk’s record appended as an exhibit to appellant’s May 20 objection to

                                               3
cancellation of the hearing. The notice contains the wording “date posted: 05/04/10”

and bears a signature appearing to be that of the trial judge.

       In support of its contention the setting notice is not a part of the appellate record

to be considered on this appeal, the State cites Hiatt v. State, 319 S.W.3d 115

(Tex.App.—San Antonio 2010, pet. ref’d).         We agree with appellant that Hiatt is

inapposite because it addressed a motion filed in the appellate court after the parties

had filed briefs. Id. at 123. The State does not suggest any reason to doubt the

authenticity of the signed setting notice appended to the motion appellant filed in the

trial court and thus appearing in the clerk’s record on appeal, nor does the State

suggest any other legitimate reason we should not consider it.

       The evidence supporting appellant’s contention the record demonstrates timely

presentment includes his counsel’s certificate of service appended to the motion for new

trial. There, counsel certified “that on April 19, 2010, a true and correct copy of the

[motion was served on the State] and presented to Ms. Carol Alexander, court

coordinator[2] of Criminal District Court No. 1, pursuant to Rule 21.6 of the Texas Rules

of Appellate Procedure by hand delivery.” While counsel’s statement in the certificate

alone likely would be insufficient to show presentment, Hiatt, 319 S.W.3d at 122-23, the

setting notice bearing the judge’s signature serves to confirm the motion’s presentment.

See Stokes v. State, 277 S.W.3d 20, 23 (Tex.Crim.App. 2009) (docket-sheet entry, if


       2
       The certificate contains a footnote at this point citing Butler v. State, 6 S.W.3d
636 (Tex.App.—Houston [1st Dist.] 1999, pet. ref’d) for the proposition that presentment
of a motion for new trial to the court coordinator meets the presentment requirement.
Because of the presence in this case of a setting notice signed by the trial judge, we
need not here address that holding of Butler.

                                             4
signed by judge, would have shown presentment requirement met); Losoya v. State,

No. 02-09-0361-CR, 2010 Tex. App. Lexis 7305 (Tex.App.—Fort Worth August 31,

2010, no pet.).

       The State lastly argues the setting notice does not demonstrate that presentment

occurred within ten days of the motion’s filing, as required by Rule 21.6. It points out

the “posted” date shown on the notice, May 4, which was more than ten days after the

April 19 filing date. Two factors, we think, defeat this argument. First, the State’s

argument would have us ignore appellant’s counsel’s certification that he presented the

motion to the court coordinator by hand delivery on April 19. While, again, not sufficient

alone to show presentment, counsel’s certification surely is entitled to consideration. Cf.

Losoya, 2010 Tex. App. Lexis 7305 at *4 (describing motion containing only a statement

in the body of the motion that movant “hereby presents” the motion and a statement in

an unsigned order stating that movant presented the motion to the court “on the ___ day

of ___ 2009”). And second, Rule 21.6 gives a trial court discretion to permit a motion

for new trial to be “presented and heard” within 75 days from sentencing in open court.

Tex. R. App. P. 21.6. That the trial court apparently took the action of posting the notice

of hearing on May 4, a date beyond ten days from the motion’s filing, does not indicate

a lack of compliance with the presentment requirement.

       Although we disagree with the State that appellant’s evidence of presentment is

lacking, for other reasons we nonetheless find no abuse of discretion in the trial court’s

failure to hold a hearing on the motion for new trial.

       First, the new trial appellant sought was a rehearing of the State’s motion to

revoke appellant’s community supervision and proceed to adjudication on the

                                              5
underlying offense.     A revocation proceeding is neither criminal nor civil in nature; it is

an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.

1993).       At a revocation hearing, the State must prove by a preponderance of the

evidence that the defendant has violated a condition of his community supervision. Id.

The Court of Criminal Appeals has also held that, "since a revocation is a proceeding

tried before the court and not before a jury, the trial court is not required even to

consider a motion for new trial." Glaze v. State, 675 S.W.2d 768, 769 (Tex.Crim.App.

1984).3 Article 42.12, § 5(b) of the Code of Criminal Procedure provides the trial court’s

determination to proceed to adjudication “is reviewable in the same manner as a

revocation hearing conducted under Section 21 of this article in a case in which an

adjudication of guilt had not been deferred.” Tex. Code Crim. Proc. Ann. art. 42.12, §

5(b) (West 2010). We are unable to see why the principle the Court of Criminal Appeals

enunciated in Glaze should apply differently in deferred adjudication revocations.

         Second, for reasons related to the contents of appellant’s motion for new trial, the

trial court reasonably could have found it did not show he could be entitled to relief.

Wallace, 106 S.W.3d at 108.       The motion asserts that Cameron Bullock, the victim of

appellant’s assault who testified at the revocation hearing, committed perjury.             In

support of the motion, appellant attached an affidavit from an individual named Cassius

McLin. McLin’s affidavit, dated April 2, 2010, contains this paragraph:


         3
         We do not suggest, however, that a trial court abuses its discretion by choosing
to consider a motion for new trial following a revocation proceeding. Cf. State v.
Herndon, 215 S.W.3d 901, 909-10 (Tex.Crim.App. 2007) (discussing exercise of
discretion).



                                               6
      On Wednesday, January 13, 2010, at approximately 11 or 11:30 am
      Jessee Ohawkum, Kelly Ohawkum, William Ohawkum, person known to
      me only as Matthew, person know [sic] only to me as Roderick and
      Cameron Bullock were all in the game room of Jessee’s home. I heard
      Cameron Bullock say “I need a favor; I need you to say that Marquise
      Bennett, Carlos Bennett[4] and Lawrence Williams jumped me.” Then he
      said “My Daddy is mad and he wants to press charges on them all. I need
      you to say they jumped me.


      Appellant’s motion effectively requested a new trial based on newly discovered

evidence. To obtain a new trial based on newly discovered evidence, appellant was

required to show: (1) the evidence was unknown to him at the time of trial; (2) his

failure to discover the new evidence was not due to his lack of due diligence; (3) the

new evidence is admissible and not merely cumulative, corroborative, collateral, or

impeaching; and (4) the new evidence is probably true and will probably bring about a

different result in a new trial. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.Crim.App.

2002); Tex. Code Crim. Proc. Ann. art. 40.001 (West 2010). The first two factors went

unaddressed in appellant’s motion.    Without at least some indication the evidence

reflected in McLin’s affidavit qualified as newly discovered evidence, the trial court

reasonably could have concluded it would not entitle appellant to a new revocation

hearing.

      Further, the trial court reasonably could have concluded McLin’s testimony to the

facts shown in the affidavit would not probably bring about a different result in a new

revocation hearing. Appellant argues the affidavit shows his probation was revoked

based only on perjured testimony. As noted, it was undisputed at the hearing that


      4
        While the affidavit refers to Carlos “Bennett,” it seems clear the affiant was
speaking of appellant, Carlos Beckett.

                                          7
appellant was at the convenience store at the time of the assault on Bullock. The point

of disagreement was whether appellant participated in the assault. The court had the

opportunity to evaluate the credibility of appellant’s friend Williams and of Bullock. None

of the persons named in McLin’s affidavit except Bullock testified at the hearing. The

court was not required to agree with appellant that the affidavit demonstrated that

Bullock committed perjury, or that McLin’s testimony would lead to a different result.

Wallace, 106 S.W.3d at 108.

       For these reasons, we resolve appellant’s sole issue against him and affirm the

judgment of the trial court.



                                                              James T. Campbell
                                                                   Justice



Do not publish.




                                            8
