                                 NO. 07-06-0317-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                AUGUST 20, 2007
                        ______________________________

                          OSCAR BORUNDA, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE
                      _________________________________

             FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                    NO. 3804; HONORABLE RON ENNS, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Oscar Borunda, appeals his conviction for delivery of a controlled

substance over four grams but less than 200 grams, a first degree felony, and sentence

of ten years in the Institutional Division of the Texas Department of Criminal Justice,

suspended for five years, and a fine of $500. We affirm.
       On July 20, 2005, appellant communicated with an undercover officer to set up a

narcotics transaction. Appellant met with the officer at an activity center in Cactus, Texas.

Shortly after arriving at the activity center, appellant met with another individual. That

unidentified individual left the activity center and returned with the controlled substance and

a second unidentified individual.      The second unidentified individual delivered the

controlled substance to the officer and the officer handed over the money to the first

unidentified individual. Appellant, acting as an intermediary, was responsible for setting

up the transaction and was present during the delivery.


       Appellant was charged with the offense of delivery of a controlled substance over

four grams but less than 200 grams. During appellant’s trial on May 9, 2006, the State

offered an exhibit labeled as State’s exhibit number two which was a clear plastic baggie

which contained the controlled substance.         In order to establish chain of custody, the

officer testified to writing on the baggie. The exhibit was admitted into evidence without

objection. After deliberation, the jury convicted appellant of the offense and the trial judge

assessed appellant’s punishment.


       On June 8, 2006, appellant filed a motion for new trial contending the jury

considered evidence not introduced at trial. Specifically, appellant contends that the jury

considered the writing on State’s exhibit number two during its deliberation.1 Appellant

contends that the trial court erred in not granting appellant’s motion for new trial.




       1
       During jury deliberation, the jury sent out a written question, “Who is the second
defendant listed on exhibit #2?”

                                              2
       Appellant is required to present the motion for new trial to the trial court within ten

days of filing. TEX . R. APP. P. 21.6; Carranza v. State, 960 S.W.2d 76, 78 (Tex.Crim.App.

1998.) The mere filing of a motion for new trial alone is not sufficient to show presentment.

See Carranza, 960 S.W.2d at 78 (rule does not allow “presentment” of motion by filing with

the clerk). To present a motion means the record must show that appellant’s motion for

a new trial was actually delivered to the trial court or otherwise brought to the attention of

the trial court. Id. at 79.


       A review of the record does not affirmatively show that the trial court was made

aware of the pending motion for new trial. There is no signed order, no hearing set on the

motion for new trial, no notation on a proposed order, nor any notation on a docket sheet

contained in the clerk’s record filed in this case. Id. Therefore, appellant has failed to

establish that the trial court was presented with appellant’s motion for new trial. Hence, we

cannot conclude that the trial court erred in failing to grant appellant’s motion for new trial.


       For the foregoing reasons, we affirm the judgment.




                                                   Mackey K. Hancock
                                                       Justice
Do not publish.




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