Opinion filed October 20, 2016




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-14-00273-CR
                                     __________

                  JOE LOUIS FUENTES, JR., Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                                   Midland, Texas
                          Trial Court Cause No. CR43245


                      MEMORANDUM OPINION
      The jury convicted Joe Louis Fuentes, Jr. of the felony offense of driving
while intoxicated and of the felony offense of evading arrest or detention with a
vehicle. See TEX. PENAL CODE ANN. §§ 38.04 (evading arrest or detention), 49.04
(driving while intoxicated), 49.09(b)(2) (felony driving while intoxicated) (West
Supp. 2016). Appellant pleaded true to two enhancement paragraphs as to Count
One (driving while intoxicated) and to two enhancement paragraphs as to Count Two
(evading arrest). After finding the enhancement paragraphs to be true, the jury
assessed Appellant’s punishment at confinement for a term of forty-five years for
each count. The trial court sentenced Appellant accordingly and ordered that the
sentences are to run concurrently. We affirm.
      Appellant’s convictions are the result of a traffic stop for failing to stop at a
red light.   Deputy Jorge Arteaga Martinez of the Midland County Sherriff’s
Department testified that he observed Appellant pass through the red light at the
intersection at which Deputy Martinez was stopped. Deputy Martinez initiated a
traffic stop, but Appellant accelerated, “took a sharp left turn” onto another street,
ran a stop sign, made two more sharp turns, and then hit a cinder block wall.
Appellant jumped out of the driver’s side window and ran. Deputy Martinez was
able to catch him after Appellant fell to the ground.
      Deputy Martinez testified that he noticed a strong odor of alcohol emitting
from Appellant’s person and that Appellant’s speech was slurred. Another deputy
transported Appellant to the Midland County Detention Center where Deputy
Martinez conducted field sobriety tests and ultimately determined that Appellant was
intoxicated. Deputy Martinez obtained a warrant for a blood draw, and the test
results showed that Appellant’s blood alcohol concentration was 0.141.
      Appellant presents two issues for our review. In his first issue, Appellant
asserts that the trial court committed reversible error when it prohibited Appellant
from presenting evidence relevant to his defense. Specifically, Appellant contends
that the trial court should have allowed him to play the audio portion of a video
recording that the State had already played for the jury but had played without audio.
The recording at issue depicted the field sobriety tests performed by Appellant and
conducted by Deputy Martinez at the Midland County Detention Center.
      Prior to trial, defense counsel informed the trial court that the conversation
between the arresting officer and Appellant was in Spanish. Defense counsel
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represented that he wanted to introduce the audio portion of the recording at trial
because it contained exculpatory evidence.        Because the conversation was in
Spanish, he requested the court to appoint an interpreter. The prosecutor responded
that he had planned to just mute the audio. He said, “I’m not aware of any
exculpatory evidence in it, but I don’t speak Spanish, so I don’t know what they’re
saying for the most part.” The prosecutor also said that the State would not object
to the use of a certified and reliable interpreter to introduce portions of the video.
However, the State did not believe that it was the trial court’s responsibility to
appoint an interpreter. Instead, the State represented that Appellant was responsible
for securing an interpreter if the defense wanted to introduce the audio portion of the
video. The State noted that Appellant retained his defense counsel and, thus, was
not indigent.
      The trial court denied Appellant’s request for the trial court to appoint an
interpreter and told Appellant that he needed to get his own witness to translate the
audio portion of the video if he wanted to offer it at trial. The trial court based its
ruling, in part, on the fact that Appellant could read and write the English language
and would not need an interpreter for any other portion of the trial.
      When the State offered the video during trial, defense counsel objected to the
State removing the audio portion of the video and contended that removing the audio
was destruction of evidence. He contended that the State could not tamper with
evidence and that the prosecutor should just play it as it was even if the conversation
was in Spanish. The trial court overruled Appellant’s objection and again told the
parties that the court could not play an exhibit in Spanish.
      During defense counsel’s cross-examination of Deputy Martinez, he offered
the video and audio content of the recording. The State objected on the grounds that
the recording had not been properly authenticated and that it was inadmissible unless
it was accompanied by a translation of the Spanish words spoken on the recording.
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The trial court gave defense counsel an opportunity to lay the proper predicate, but
defense counsel failed to do so. Deputy Martinez testified that he had not seen the
specific DVD that defense counsel represented was a video and audio recording of
the field sobriety tests. He acknowledged that he had reviewed both the audio and
video portions of the State’s recording, but he did not testify that he had reviewed
the specific copy of the recording that defense counsel was offering into evidence.
Because defense counsel was unable to authenticate the recording, the trial court
sustained the State’s objection and excluded the recording. The trial court told
defense counsel that he could question Deputy Martinez about the conversation.
        Deputy Martinez agreed that what was said between himself and Appellant
was extremely important for the jury to consider. Deputy Martinez testified that
Appellant was able to understand his instructions, was able to walk into the “sally
port” of the detention center, was not swaying, and “did okay” on the walk-and-turn
test.
        Subsequently, defense counsel attempted to make a bill of exception regarding
the audio portion of the recording. The State objected to defense counsel’s exhibit
on the grounds that it was in an improper format and that it contained other
recordings besides the recording of the field sobriety tests. The parties again
discussed the issue of the conversation being spoken in Spanish. Defense counsel
explained that he was not only trying to show what was said but was also trying to
show how it was said and how Appellant had not lost the use of his mental or
physical faculties by the way that he was interacting with the deputy. The parties
and the trial court discussed the possibility of a limiting instruction, but the court
denied Appellant’s request to conditionally admit the exhibit and Appellant’s request
to admit the exhibit as part of his bill of exception because it contained other
recordings and was in the wrong format; it was not an MP3 or MP4. The trial court
told defense counsel, “It’s got to be this one thing in MP3, MP4 format, and then it
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can be. Because the Court of Appeals cannot review it unless it’s in that format.”
Defense counsel represented that he would convert the recording to the proper
format.
      Although defense counsel later informed the trial court that he had converted
the exhibit to an MP3, he never offered it again for purposes of his bill of exception.
Instead, he informed the trial court that he would like to recall Deputy Martinez and
impeach Deputy Martinez by showing that Deputy Martinez testified incorrectly as
to how many beers Appellant told Deputy Martinez that Appellant had consumed.
The trial court did not allow defense counsel to play the audio in front of the jury
but did allow defense counsel to play the audio for Deputy Martinez. Defense
counsel then recalled Deputy Martinez to ask him how many beers Appellant told
him that Appellant had consumed that night. Deputy Martinez had previously
testified that Appellant said that he had consumed five beers on the night in question,
but after reviewing the recording, Deputy Martinez testified that Appellant actually
said that he had “[o]ne, two, three beers.”
      To determine whether the trial court erred when it denied Appellant’s request
to play the audio portion of the video, we would first need to decide whether it was
the trial court’s responsibility to provide an interpreter to translate the Spanish
conversation. However, even if we found that Appellant made a proper request for
an interpreter and even if we found that it was the trial court’s responsibility to
provide an interpreter, we cannot say that the trial court’s failure to provide an
interpreter constituted reversible error in this case.
      Defense counsel represented that it wanted to play the audio portion of the
recording to show that Appellant had not lost the use of his mental or physical
faculties. While we agree that the audio portion of such a recording could assist the
jury in deciding whether Appellant was intoxicated, the jury charge in this case
allowed the jury to convict Appellant if it found that Appellant did not have the
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normal use of his mental or physical faculties or if it found that Appellant had a
blood alcohol concentration of 0.08 or more. Thus, even if the audio portion of the
video contained exculpatory evidence, the exculpatory evidence would be related to
whether Appellant had the normal use of his faculties, not whether he had a blood
alcohol concentration above the legal limit.
      Here, the evidence showed that Appellant had a blood alcohol concentration
of 0.141, almost twice the legal limit of 0.08. Defense counsel attempted to discredit
the reliability of the test results by showing that it was impossible for Appellant to
have a 0.141 blood alcohol concentration when he consumed only two beers and by
showing that the blood was not properly refrigerated before testing. When asked
about the amount of alcohol a person would have to consume to elevate the person’s
blood alcohol concentration to 0.141, the forensic scientist who analyzed
Appellant’s blood testified that it would take approximately ten beers; two or three
beers, even quickly consumed, would not elevate a person’s blood alcohol
concentration to 0.141. She further testified that blood loses alcohol at room
temperature.    Therefore, the fact that the blood may not have been properly
refrigerated may have lowered the test results in Appellant’s case. Although the jury
necessarily rejected Appellant’s defense as it related to the results of the blood draw,
Appellant was not prohibited from presenting a defense to the State’s allegation that
he had a blood alcohol concentration of 0.08 or more.
      Furthermore, Appellant elected to testify in this case, and he provided an
explanation to the jury as to why he was unable to stop at the intersection and as to
why he initially fled from Deputy Martinez. Appellant explained that the brakes on
his pickup were not working and, thus, he was unable to stop. He further explained
that he initially ran from Deputy Martinez because he panicked. Appellant also
testified that he consumed only two beers with his dinner on the evening in question
and that he did not have any drugs in his system. Although Appellant did not explain
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the contents of the conversation with Deputy Martinez, defense counsel could have
asked him what he said in the video if indeed it was contrary to what
Deputy Martinez told the jury. In fact, defense counsel did recall Deputy Martinez
to ask him again how many beers Appellant said he had that night, and
Deputy Martinez changed his prior testimony—in which Deputy Martinez had
testified that Appellant told him that he had consumed five beers—to reflect that
Appellant actually said he had “[o]ne, two, three beers.” Defense counsel did not
ask Deputy Martinez about any other statements that Appellant made during the field
sobriety tests, nor did defense counsel represent to the trial court or to this court that
Deputy Martinez misrepresented any other portion of the conversation.
      Because defense counsel was not prohibited from presenting a defense and
because the jury could have convicted Appellant based on the results of the blood
draw, we find beyond a reasonable doubt that the trial court’s alleged error did not
contribute to the conviction or punishment in this case. See TEX. R. APP. P. 44.2(a).
Appellant’s first issue is overruled.
      Appellant argues in his second issue that the trial court committed reversible
error when it failed to conduct a hearing on his motion for new trial in which he
alleged several instances of ineffective assistance of counsel. The State responds
that Appellant failed to present his motion for new trial to the trial court in a timely
manner and that, therefore, the trial court did not abuse its discretion when it did not
conduct a hearing on the motion. We agree that Appellant failed to properly present
his motion to the trial court.
      Appellant was required to present his motion for new trial within ten days of
filing the motion in order to obtain a hearing on the motion. See TEX. R. APP. P. 21.6;
Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009). “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 a ruling or a hearing
                                            7
on it.’” Stokes, 277 S.W.3d at 21 (quoting Carranza v. State, 960 S.W.2d 76, 78
(Tex. Crim. App. 1998)). Therefore, the record must show that Appellant actually
delivered the motion for new trial to the trial court or must show that Appellant
otherwise brought the motion to the trial court’s attention so that the trial court had
actual notice of the motion. Id. at 21–22.
      Appellant filed his motion on October 3, 2014; his sentences were imposed
on September 5, 2014. He attached four affidavits and one letter in support of his
motion for new trial. The motion was filed within thirty days of the imposition of
his sentences, as is required by Rule 21.4, and Appellant specifically requested that
the trial court set a hearing on the motion. See TEX. R. APP. P. 21.4(a).
      On November 17, 2014, Appellant filed a brief in support of his motion for
new trial. In his brief in support of his motion, Appellant claimed that the trial court
was personally presented with a “Certificate of Presentment” and with a proposed
order to set a hearing but that the trial court did not acknowledge either document.
To support his claim, Appellant attached an affidavit by Kenna Rhind, a paralegal
who assisted on his case, in which she stated that she took the Certificate of
Presentment and the proposed order to the court on October 15, 2014. According to
Rhind’s affidavit, the court was closed for Columbus Day on October 13, 2014, and
was closed on October 14 to honor a police officer who was killed in the line of duty.
Rhind further stated that the trial court was conducting a jury trial on October 15 but
that Rhind left the documents with the court coordinator, who told her that she would
give the documents to the trial court later that day. The documents were placed with
the clerk’s record but were never filed, nor were they signed or acknowledged by
the trial court. On each document is a single line that runs through the body of the
document from the top right to the bottom left, like a partial “X.” There are no other
notations on the documents.


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      The State filed a response to Appellant’s motion for new trial and claimed that
Appellant’s brief in support was untimely filed and that Rhind’s affidavit should not
be considered. The State also alleged that Rhind was incorrect that the courthouse
was closed on October 13, which was the last day to meet the requirement that the
motion be presented within ten days of filing. Attached to the State’s response is an
affidavit by Ross Bush, the district clerk of Midland County, in which Bush stated
that the courthouse was not closed in observance of Columbus Day on October 13
and that the courthouse was open for business on that day.
      Rule 21.4 provides that an amended motion for new trial must be filed within
thirty days of the imposition of the defendant’s sentence and before the court
overrules a previously filed motion for new trial. TEX. R. APP. P. 21.4(b). Therefore,
if we were to treat Appellant’s brief in support of his motion as an amended motion,
it would be untimely as it was filed on November 17, well after the thirty-day
window from September 5. Even if we were to consider the brief in support and
take Rhind’s statements that the courthouse was closed on October 13 and
October 14 as true, Rhind’s affidavit is not sufficient to show that the motion for
new trial was actually presented to the trial court or the court coordinator.
      The presentment requirement can be satisfied by presenting the motion to the
court coordinator; however, the court coordinator must do something to
acknowledge receipt of the motion, such as set a hearing or make a notation on a
court-generated document.      E.g., Castro v. State, No. 03-12-00730-CR, 2015
WL 1214402, at *4–5 (Tex. App.—Austin Mar. 13, 2015, pet. ref’d) (mem. op., not
designated for publication) (detailing multiple cases regarding when record is
sufficient to show presentment to court staff). Here, the record does not contain any
act on the part of the trial court or its court coordinator to show that either received
the motion for new trial. Although Rhind stated that she gave the documents to the
court coordinator, the record does not show whether the coordinator presented the
                                           9
documents to the trial court, nor does it show that the court coordinator scheduled a
hearing. The documents are not signed or acknowledged by the trial court or the
court coordinator, and the trial court did not rule on the request for a hearing.
Instead, the motion was overruled by operation of law on November 19. See TEX. R.
APP. P. 21.8.
      Because the record does not sufficiently show that Appellant delivered or
otherwise brought his motion to the attention of the trial court, we cannot say that
the trial court erred when it failed to hold a hearing on Appellant’s motion for new
trial. Appellant’s second issue is overruled.
      We affirm the judgment of the trial court in each count.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


October 20, 2016
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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