              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS

                                          No. PD-0417-06


                               FORREST LEE STOKES, Appellant

                                                  v.

                                     THE STATE OF TEXAS


                    On Discretionary Review of Case 14-04-00518-CR of the
                                 Fourteenth Court of Appeals,
                                        Harris County


               WOMACK , J., delivered the opinion for a unanimous Court.


       The question in this case is whether a docket-sheet entry was sufficient to show

“presentment” of a motion for new trial to the trial court. We hold that it in this case it was.

       The appellant was convicted of felony theft and sentenced to fifteen years’ confinement.

He timely filed a motion for new trial alleging ineffective assistance of counsel. No hearing was

held on the motion, which was overruled by operation of law.
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                                                 The Presentment Rule

         A defendant is required to “present” a motion to the trial court within ten days of filing it,

unless the court, in its discretion, extends that time period.1 Merely filing the motion is not

sufficient alone to show presentment.2 The trial court must rule on the motion by written order

within seventy-five days after imposing sentence.3 If it fails to do so by the expiration of this

period, the motion is deemed denied.4 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 on it.”5

         In Carranza, this court held that the term “present,” as used in the predecessor to Rule

21.6, means:

         [T]he record must show the movant for a new trial sustained the burden of actually
         delivering the motion for new trial to the trial court or otherwise bringing the motion
         to the attention or actual notice of the trial court. This may be accomplished in
         several ways such as, for example, obtaining the trial court’s ruling on a motion for
         new trial.6




         1
           T EX . R. A PP . P. 21.6. Rule 21.6 states: “The defendant must present the motion for new trial to the trial
court 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.”

         2
          Carranza v. State, 960 S.W .2d 76, 78 (Tex. Cr. App. 1998); Reyes v. State, 849 S.W .2d 812, 815 (Tex.
Cr. App. 1993).

         3
             T EX . R. A PP . P. 21.8(a), (b).

         4
             T EX . R. A PP . P. 21.8(c).

         5
             Carranza, 960 S.W .2d, at 78.

         6
             Id., at 79.
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       The Carranza Court said that its holding was “essentially the same holding as that set out

in [a concurring] opinion” written by Judge Overstreet.7 That opinion stated that the presentment

“must be directed to the trial court or another authorized to act on behalf of the trial court,” and it

“may be evidenced by the judge’s signature or notation on a proposed order or by a hearing date

set on the docket. This list is not meant to be exhaustive, but merely suggestive as to how one

may fulfill the communication requirement for presenting a motion for new trial.”8

       Carranza also expressly overruled Green v. State, to the extent that it relied on a

particular notation as being sufficient to show presentment.9 There, a proposed order setting a

date for a hearing was attached to a motion for new trial.10 A written notation on the proposed

order indicated that the motion was presented to the trial judge on October 15, 1985.11 The Green

Court had found this notation to be sufficient to put the trial court on notice that the appellant

desired a hearing on the motion.12 The Carranza Court found such a notation to be insufficient to

show presentment “because, among other things, such a notation does not establish that it is the

‘judge’s notation.’”13 In the same footnote, Carranza supported this proposition by citing to a




       7
           Id., at 79-80.

       8
           Id., at 81 (Overstreet, J., concurring).

       9
           Id., at 80 n.6 (overruling Green, 754 S.W .2d 687 (Tex. Cr. App. 1988)).

       10
            Green, 754 S.W .2d, at 687.

       11
            Ibid.

       12
            Ibid.

       13
            Carranza, 960 S.W.2d, at 80 n.6 (quoting Carranza, 960 S.W .2d, at 81 (Overstreet, J., concurring)).
                                                                                           Stokes - 4

footnote in Presiding Judge Onion’s dissenting opinion in Green,14 which made clear that the

notation was unsigned and unidentified.15

                                         The Proceedings in This Case

       The appellant in the instant case filed his motion for new trial on June 17, 2004, the same

day that he claims to have presented it to the trial court. The motion included a request for a

hearing, and attached to it was a proposed order to rule on the hearing and the motion. The

proposed order remained blank and without the trial judge’s signature. The only indication that

the motion may have been presented to the trial court comes from two handwritten entries on the

docket sheet. Both entries are date-stamped June 17, 2004. One entry reads, “MNT filed-

presented,” with a few additional characters at the end which are undecipherable. This entry has

been crossed out. The other entry reads, “Motion New Trial presented to court no ruling per

judge.” There are no initials, signatures, or other notations next to this entry.

       The appellant claimed on direct appeal that the trial court abused its discretion by failing

to rule on or hold a hearing on the motion for new trial. The Fourteenth Court of Appeals did not

reach the merits of this question because it held that the appellant had not met the threshold

requirement for presentment of the motion to the trial court.16 The Court quoted the statement in

Carranza that the notation in Green was insufficient because it could not be attributed to the trial

judge.17 It also referred to the Carranza opinion’s citation to the footnote in Presiding Judge



       14
            Ibid. (citing Green, 754 S.W.2d, at 689 n.3 (Onion, P.J., dissenting)).

       15
            Green, 754 S.W.2d, at 689 n.3 (Onion, P.J., dissenting).

       16
            Stokes v. State, 221 S.W.3d 101, 105 (Tex. App.— Houston [14th Dist.] 2006).

       17
            Id., at 104 (quoting Carranza, 960 S.W .2d, at 80 n.6)
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Onion’s dissent in Green.18 The Court of Appeals interpreted these statements in Carranza to

hold, “Therefore, for a handwritten statement on a docket sheet to be evidence that the motion for

new trial was presented to the trial court, it must be signed by the trial judge.”19

       The Court of Appeals also discussed its opinion in Daniels v. State.20 Daniels concerned

the same issue as the instant case.21 There, presentment was evidenced by a handwritten docket

entry, dated November 29, 1999, which read, “Motion For New Trial was presented to the

Court.”22 The Fourteenth Court found this notation to be sufficient to satisfy the presentment

requirement of Rule 21.6.23

       The Court justified reaching different conclusions in Daniels and in this case by

distinguishing the facts of each. The Court said, “Because Daniels followed the Carranza

opinion, we presume, although it is not specifically mentioned in the Daniels opinion, that the

docket in entry [sic] Daniels was signed by the trial judge.” The Court then noted that the entries

in this case were unsigned and gave no indication of having been made by the trial judge. The

Court concluded, “We cannot presume the notations at issue, were, in fact, made and signed by

the judge. Because these entries are not signed by the judge, they do not constitute sufficient

presentment under Carranza.”24


       18
            Ibid. (citing Carranza, 960 S.W.2d, at 80 n.6).

       19
            Ibid.

       20
            63 S.W .3d 67 (Tex. App.— Houston [14th Dist.] 2001).

       21
            Id., at 68.

       22
            Id., at 69.

       23
            Ibid.

       24
            Stokes, 221 S.W .3d, at 105.
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        The Court ultimately concluded that, because the appellant had not properly presented his

motion, the trial court did not abuse its discretion in failing to hold a hearing.25

                                              The Issues

        On petition to this court, the appellant raises three grounds for review.

                 1. The Court of Appeals erred by creating a “presumption of irregularity” to
        justify ignoring the trial court record concerning presentment of Appellant’s Motion
        for New Trial.
                 2. The Court of Appeals erred by misstating its own precedent, along with
        that of the Court of Criminal Appeals, to conclude that a docket-sheet entry reflecting
        presentment of Appellant’s Motion for New Trial is insufficient to show the motion
        was actually presented.
                 3. The Court of Appeals erred by confusing a written order constituting
        appealable error with the documentation necessary to reflect the threshold
        requirement of presentment of a Motion for New Trial.

Because the grounds center on the same issue and were argued together in the appellant’s brief,

we address them as one here.

        Carranza did not discuss all of the ways in which the presentment requirement might be

fulfilled. But the one thing about which we can have no doubt after Carranza is that there are

many ways to show presentment of a motion for new trial to the trial court. The opinion

expressly said so.26 It also gave examples of those communications which will and will not

suffice. “[O]btaining the trial court’s ruling on a motion for new trial,”27 for example, is




        25
             Ibid.

        26
             Carranza, 960 S.W .3d, at 79.

        27
             Ibid.
                                                                                          Stokes - 7

sufficient, as is a judge’s signature on a proposed order.28 On the other hand, merely filing a

motion is insufficient.29

       With regard to the Court of Appeals’ discussion of Daniels, if the docket-sheet entry in

that case had been signed by the judge, it would fall within the category of communications that

meet the presentment requirement. But that does not mean that there are no other ways of

showing that a motion for new trial has been presented to the trial court.

       Although Carranza overruled the holding in Green that an unsigned notation on a

proposed order satisfies the presentment requirement,30 that notation was significantly different

from the one in the instant case, which was on a docket sheet. Proposed orders are prepared by,

and in the possession of, the defense attorney (or the defendant pro se). An unsigned notation on

such a document cannot confidently be attributed to the court. This is the basis of the Carranza

requirement that there be some indication that the notation on such a document be a “judge’s

notation.”

       A docket sheet, on the other hand, is far more reliable as an indicator of the trial judge’s

decisions and the business of the court. It is more likely that only the judge and those authorized

to act on his or her behalf have access to the docket sheets and can make entries to them. It may

be unnecessary to require an additional showing that a docket-sheet entry properly reflects the

events of any particular case. We may therefore presume that the notation on the docket sheet in




       28
            Ibid. (adopting language of Overstreet, J., concurring opinion).

       29
            Id., at 78; Reyes, 849 S.W .2d, at 815.

       30
            Carranza, 960 S.W .2d, at 80 n.6.
                                                                                          Stokes - 8

this case gives an accurate account of the motion’s disposition without need for the trial judge’s

signature.

       The Court of Appeals concluded that a handwritten statement on a docket sheet must be

signed by the trial judge. It stated, with regard to Judge Onion’s dissenting opinion, “The

Carranza court cited with approval a footnote from the dissenting opinion in Green, which stated

that, for a handwritten notation to be evidence of presentment, it must be signed by the trial

judge.”31 We do not read Judge Onion’s footnote to stand for such a rule. The footnote says:

       The majority says the motion was “timely … presented to the court.” What the
       majority does not make clear is that this statement is based only on an unsigned and
       unidentified handwritten notation on the last page of the said motion “Presented to
       Judge 10-15-85. No Date set on hearing.” Who made such notation is not shown by
       the record and it is not supported elsewhere in the record. This Court is not informed
       what “presentation” meant to the individual making the notation, be he or she a legal
       secretary, law clerk, “gofer,” attorney, clerk or whoever. Nor are the circumstances
       under which the motion was “presented” revealed.32

       Nowhere here is it expressly stated that a judge’s signature is necessary to satisfy the

requirement. And we do not read the Carranza court’s use of the footnote to support the

proposition that a signature is the exclusive method for showing that a notation was in fact the

“judge’s notation.” Furthermore, as we discussed above, a notation on a proposed order and an

entry on a docket sheet are sufficiently distinguishable that we think the Court of Appeals drew

an incorrect conclusion in looking to the requirement for a “judge’s notation” in order to support

its determination that a judge’s signature is necessary on a docket sheet.




       31
            Stokes, 221 S.W .3d, at 104.

       32
            Green, 754 S.W.2d, at 689 n.3 (Onion, P.J., dissenting).
                                                                                             Stokes - 9

        What we may take, then, from the Carranza evaluation of Green, is to add to the short list

of examples of what does and does not constitute presentment. For we know that a notation such

as that described in Judge Onion’s footnote (an anonymous notation at the end of a proposed

order) will not suffice. Aside from this, many options for fulfilling the requirement may remain.

        The State raises a jurisdictional issue based on the factual-conclusivity clause of the

Texas Constitution. The clause provides that the decision of a direct-appeal court “shall be

conclusive on all questions of fact brought before them on appeal or error.”33 The State

acknowledges that this court has jurisdiction to review whether the Court of Appeals used the

proper standard in analyzing the adequacy of the appellant’s presentment of the motion. It argues,

however, that this court does not have jurisdiction to disturb the Court of Appeals’ factual

findings regarding the reliability of the docket-sheet entry. We reject the State’s contention

because this was not a question for a fact-finder, such as a trial court or a jury. Rather, this is a

question of procedural requirement subject to modification by the rule-making power of the

Court. In this instance, the factual-conclusivity clause does not limit this court’s authority to

review the Court of Appeals’ decision.

                                              Conclusion

        The docket-sheet entry, “Motion New Trial presented to court no ruling per judge,” was

sufficient to show that the motion was presented to the trial court as required by Rule 21.6. We

vacate the judgment of the Court of Appeals and remand this case to that court for an analysis of

the merits of the appellant’s claim.




        33
             T EX . C O N ST . art. V, § 6.
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Delivered February 11, 2009.
Publish.
