                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-361-CR


BALDEMAR LOSOYA                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                 STATE

                                   ------------

          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

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                                I. Introduction

     Appellant Baldemar Losoya appeals his conviction for possession of

between four and 200 grams of cocaine with intent to deliver.2 He contends




     1
         … See Tex. R. App. P. 47.4.
     2
      … See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon
2010).
in one issue that the trial court abused its discretion by failing to hold a hearing

on his motion for new trial. We affirm.

                                 II. Background

      A grand jury indicted Appellant with one count of possessing with the

intent to deliver between four and 200 grams of cocaine.           The indictment

included a repeat offender notice alleging a prior felony conviction for

possession with the intent to distribute approximately twenty-five kilograms of

marijuana. Appellant pleaded true to the repeat offender notice and entered an

open plea of guilty to the charged offense. After a sentencing hearing, the trial

court sentenced Appellant to twenty years’ confinement.

      The trial court signed the judgment, and Appellant filed a pro se notice of

appeal. Appellant timely filed a pro se motion for new trial and a supporting

affidavit. He also included an “order granting hearing” and an “order granting

motion.” The “order granting hearing” states:

            Be it remembered that the foregoing motion was presented
      to the court on the ____ day of ____ 2009, with a request for the
      court to conduct a plenary hearing thereon and it is therefore
      ordered that on the ____ day of ____ 2009, __.m., a hearing will be
      had in the ____ court of ____ County, Texas on said motion.

            DONE AND ENTERED this ___ day of _________ 2009.




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The trial court did not sign or make any notations on the “order granting

hearing” or the “order granting motion,” and Appellant’s motion for new trial

was overruled by operation of law.




                                    III. Discussion

      Appellant argues in his sole point that the trial court erred by failing to

conduct a hearing on his motion for new trial. The State responds that the trial

court did not abuse its discretion because Appellant did not present his motion

for new trial to the trial court.

A. Applicable Law

      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. See Tex. R. App. P. 21.6; Rozell v. State, 176

S.W.3d 228, 230 (Tex. Crim. App. 2005). The rules of appellate procedure

require that “[t]he defendant must present the motion for new trial to the trial

court within 10 days of filing it.” Tex. R. App. P. 21.6. “The purpose of the

presentment rule is ‘to put the trial court on actual notice that a defendant

desires the trial court to take some action on the motion for new trial such as

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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)).

      Merely filing the motion is not sufficient alone to show presentment. Id.

“‘Presentment’ must be apparent from the record, and it may be shown by such

proof as the judge’s signature or notation on the motion or proposed order, or

an entry on the docket sheet showing presentment or setting a hearing date.”

Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009) (citing Stokes,

277 S.W.3d at 22 and Carranza, 960 S.W.2d at 79). “The defendant bears the

burden of ensuring this notation or setting a hearing.” Burrus v. State, 266

S.W.3d 107, 115 (Tex. App.—Fort Worth 2008, no pet.) (citing Simpson v.

State, 962 S.W .2d 57, 58 (Tex. App.—Houston [1st Dist.] 1997, no pet.)).

“[W]ithout any showing that the trial judge actually saw appellant’s motion for

new trial, the judge cannot be faulted for failing to conduct a hearing on that

motion.”   Gardner, 306 S.W.3d at 305 (citing Carranza, 960 S.W.2d at

79–80).

B. Analysis

      Although Appellant timely filed his motion for new trial, 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. The

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only suggestions of presentment are a statement in the body of the motion for

new trial stating that Appellant “hereby presents” the motion to the court

coordinator pursuant to rule 26.1 within ten days of filing and a statement in

the unsigned “order granting hearing” that Appellant “presented [the motion for

new trial] to the court on the ___ day of _____ 2009, with a request for the

court to conduct a plenary hearing thereon.”        This evidence, however, is

insufficient to establish presentment under rule 26.1.        See Gardner, 306

S.W.3d at 305–06 (holding that appellant did not present motion for new trial

because there was “no indication in the record that the motion for new trial

was, in fact, hand-delivered to the trial judge [or] that the trial judge ever saw

the motion” and that document titled “Order for a Setting” did not “suffice as

a request to hold a hearing on the motion”); Rozell, 176 S.W.3d at 231 (holding

record did not show the trial court had actual notice of request for hearing

when proposed order included “options of having a hearing or ruling on the

motion without a hearing”); Burrus, 266 S.W.3d at 115 (finding no presentment

in absence of ruling on motion for new trial, signature or notation on proposed

order, or notation on docket sheet of hearing date on the motion); 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). We hold that Appellant has

                                        5
not met his burden of showing timely presentment of his motion for new trial

to the trial court and that the trial court therefore did not abuse its discretion

by failing to conduct a hearing on the motion for new trial.        We overrule

Appellant’s sole point.

                                IV. Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.




                                            ANNE GARDNER
                                            JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

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

DELIVERED: August 31, 2010




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