Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00261-CR
Daniel LAQUE Sr., Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Atascosa County, Texas Trial Court No. 16-03-0060-CRA Honorable Donna S. Rayes, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice
Delivered and Filed: July 31, 2019
AFFIRMED AS REFORMED
Appellant Daniel Laque Sr. was found guilty on one count of first-degree aggravated sexual
assault of a child, one count of second-degree sexual assault of a child (a lesser-included offense
of one of the charged first-degree aggravated sexual assault of a child counts), and three counts of
second-degree indecency with a child. On appeal, Laque contends (1) the trial court erred in failing
to hold a hearing on his motion for new trial and (2) the trial court’s judgment contains an error
regarding the offense, penal code statute reference, and age of the victim in Count III. 04-18-00261-CR
The State concedes the error Laque argues is contained in Count III of the trial court’s
judgment; the judgment will be reformed accordingly. However, because the presiding judge did
not preside over the bench trial, we conclude the presiding judge did not abuse its discretion in
failing to hold a hearing on Laque’s motion for new trial. We affirm the trial court’s judgment as
reformed.
FACTUAL AND PROCEDURAL BACKGROUND
Laque was indicted on two counts of first-degree aggravated sexual assault of a child and
three counts of second-degree indecency with a child. Laque waived his right to a jury trial. On
September 1, 2017, the trial court found Laque guilty of one count of first-degree aggravated
sexual assault of a child, one count of second-degree sexual assault of a child (a lesser-included
offense of one of the charged first-degree aggravated sexual assault of a child counts), and three
counts of second-degree indecency with a child; the case was reset for sentencing. On December
11, 2017, Laque was sentenced to sixty-years’ confinement in the Institutional Division of the
Texas Department of Criminal Justice on the first-degree aggravated sexual assault of a child, and
twenty years’ confinement on the four second-degree felonies.
On January 9, 2018, Laque filed his motion for new trial. The hearing on the motion for
new trial was set for February 12, 2018. On February 12, 2018, counsel for the State and defense
counsel appeared; however, Laque was not present based on a failure to issue the bench warrant
for transport from the Texas Department of Criminal Justice. The matter was reset to February
26, 2018.
On February 26, 2018, Laque’s motion for new trial was recalled. The presiding judge
declined to hear the motion explaining the trial judge, who presided over the bench trial, was
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presiding in a different county at that time. 1 Defense counsel argued that the different judges
presiding in Atascosa County, in light of the seventy-five-day window proscribed by Rule 21.6 of
the Texas Rules of Appellate Procedure, denied Laque the right to raise a meaningful argument
before the court. See TEX. R. APP. P. 21.6. Defense counsel explained the motion was previously
set on February 12, 2018; he opined the trial judge’s decision to reset the matter was evidence the
allegations merited a hearing. He continued, had he known the trial judge would not be in Atascosa
County for the day’s docket, he “would have asked that the hearing be set in the county at some
point between the last hearing and this hearing where the trial judge was sitting.” Based on the
presiding judge’s failure to hear the motion for trial, the motion was overruled as a matter of law.
See Lundgren v. State, 434 S.W.3d 594, 596 (Tex. Crim. App. 2014).
On May 4, 2018, Laque filed this notice of appeal.
MOTION FOR NEW TRIAL
A. Standard of Review
A hearing on a motion for a new trial is not an absolute right. Smith v. State, 286 S.W.3d
333, 338 (Tex. Crim. App. 2009). When a motion for new trial is denied or overruled by operation
of law, an appellate court reviews the trial court’s decision for an abuse of discretion “reversing
only if no reasonable view of the record could support the trial court’s ruling.” Burch v. State, 541
S.W.3d 816, 820 (Tex. Crim. App. 2017) (citing Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim.
App. 2012)). A trial court abuses its discretion when the decision is so clearly wrong as to lie
outside that zone within which reasonable persons might disagree. Smith, 286 S.W.3d at 339.
1 The Honorable Donna Rayes, presiding judge of the 81st Judicial District Court, presided over the bench trial and is referred to as the “trial judge” throughout this opinion. The Honorable Russell Wilson, presiding judge of the 218th Judicial District, presided over the hearing on February 26, 2018, and is referred to as the “presiding judge” throughout the opinion. We note Judge Rayes and Judge Wilson have concurrent jurisdiction in Atascosa County District Court.
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When the seventy-five-day window to schedule a hearing expires, it is deemed denied by operation
of law. Lundgren, 434 S.W.3d at 596.
The movant bears the burden of actually delivering the motion for new trial to the trial
court, Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (citing Carranza v. State, 960
S.W.2d 76, 79 (Tex. Crim. App. 1998)), and ensuring the hearing is set for a date within the trial
court’s jurisdiction, Belcher v. State, 93 S.W.3d 593, 601–02 (Tex. Crim. App. 2002) (Frost, J.,
concurring); see also Johnson v. State, 925 S.W.2d 745, 748 (Tex. App.—Fort Worth 1996, pet.
refd) (stating that it was incumbent upon defendant to “develop some record, before the expiration
of the court’s jurisdiction, which demonstrated his efforts to reschedule the hearing” on the
defendant’s motion for new trial).
B. Arguments of the Parties
Laque contends the trial court abused its discretion in failing to timely hold a hearing on
Laque’s motion for new trial. Laque claims the trial court recognized the merits of Laque’s motion
for new trial by setting two hearing dates.
The State contends the agreed reset on Laque’s original motion for new trial hearing date
resulted from trial counsel’s failure to provide the State adequate time to request Laque’s bench
warrant to attend the February 12, 2018 hearing. Further, the State claims the trial counsel had
adequate time to schedule a hearing before the seventy-five-day window expired. Additionally,
the State contends the record is void of evidence that trial counsel properly presented the motion
for new trial to the trial court or requested the case be reset before the expiration of the seventy-
fifth day.
C. Motion for New Trial Properly before the Trial Court
The record clearly supports the motion was presented to the trial court. See Gardner v.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00261-CR
Daniel LAQUE Sr., Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Atascosa County, Texas Trial Court No. 16-03-0060-CRA Honorable Donna S. Rayes, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice
Delivered and Filed: July 31, 2019
AFFIRMED AS REFORMED
Appellant Daniel Laque Sr. was found guilty on one count of first-degree aggravated sexual
assault of a child, one count of second-degree sexual assault of a child (a lesser-included offense
of one of the charged first-degree aggravated sexual assault of a child counts), and three counts of
second-degree indecency with a child. On appeal, Laque contends (1) the trial court erred in failing
to hold a hearing on his motion for new trial and (2) the trial court’s judgment contains an error
regarding the offense, penal code statute reference, and age of the victim in Count III. 04-18-00261-CR
The State concedes the error Laque argues is contained in Count III of the trial court’s
judgment; the judgment will be reformed accordingly. However, because the presiding judge did
not preside over the bench trial, we conclude the presiding judge did not abuse its discretion in
failing to hold a hearing on Laque’s motion for new trial. We affirm the trial court’s judgment as
reformed.
FACTUAL AND PROCEDURAL BACKGROUND
Laque was indicted on two counts of first-degree aggravated sexual assault of a child and
three counts of second-degree indecency with a child. Laque waived his right to a jury trial. On
September 1, 2017, the trial court found Laque guilty of one count of first-degree aggravated
sexual assault of a child, one count of second-degree sexual assault of a child (a lesser-included
offense of one of the charged first-degree aggravated sexual assault of a child counts), and three
counts of second-degree indecency with a child; the case was reset for sentencing. On December
11, 2017, Laque was sentenced to sixty-years’ confinement in the Institutional Division of the
Texas Department of Criminal Justice on the first-degree aggravated sexual assault of a child, and
twenty years’ confinement on the four second-degree felonies.
On January 9, 2018, Laque filed his motion for new trial. The hearing on the motion for
new trial was set for February 12, 2018. On February 12, 2018, counsel for the State and defense
counsel appeared; however, Laque was not present based on a failure to issue the bench warrant
for transport from the Texas Department of Criminal Justice. The matter was reset to February
26, 2018.
On February 26, 2018, Laque’s motion for new trial was recalled. The presiding judge
declined to hear the motion explaining the trial judge, who presided over the bench trial, was
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presiding in a different county at that time. 1 Defense counsel argued that the different judges
presiding in Atascosa County, in light of the seventy-five-day window proscribed by Rule 21.6 of
the Texas Rules of Appellate Procedure, denied Laque the right to raise a meaningful argument
before the court. See TEX. R. APP. P. 21.6. Defense counsel explained the motion was previously
set on February 12, 2018; he opined the trial judge’s decision to reset the matter was evidence the
allegations merited a hearing. He continued, had he known the trial judge would not be in Atascosa
County for the day’s docket, he “would have asked that the hearing be set in the county at some
point between the last hearing and this hearing where the trial judge was sitting.” Based on the
presiding judge’s failure to hear the motion for trial, the motion was overruled as a matter of law.
See Lundgren v. State, 434 S.W.3d 594, 596 (Tex. Crim. App. 2014).
On May 4, 2018, Laque filed this notice of appeal.
MOTION FOR NEW TRIAL
A. Standard of Review
A hearing on a motion for a new trial is not an absolute right. Smith v. State, 286 S.W.3d
333, 338 (Tex. Crim. App. 2009). When a motion for new trial is denied or overruled by operation
of law, an appellate court reviews the trial court’s decision for an abuse of discretion “reversing
only if no reasonable view of the record could support the trial court’s ruling.” Burch v. State, 541
S.W.3d 816, 820 (Tex. Crim. App. 2017) (citing Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim.
App. 2012)). A trial court abuses its discretion when the decision is so clearly wrong as to lie
outside that zone within which reasonable persons might disagree. Smith, 286 S.W.3d at 339.
1 The Honorable Donna Rayes, presiding judge of the 81st Judicial District Court, presided over the bench trial and is referred to as the “trial judge” throughout this opinion. The Honorable Russell Wilson, presiding judge of the 218th Judicial District, presided over the hearing on February 26, 2018, and is referred to as the “presiding judge” throughout the opinion. We note Judge Rayes and Judge Wilson have concurrent jurisdiction in Atascosa County District Court.
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When the seventy-five-day window to schedule a hearing expires, it is deemed denied by operation
of law. Lundgren, 434 S.W.3d at 596.
The movant bears the burden of actually delivering the motion for new trial to the trial
court, Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (citing Carranza v. State, 960
S.W.2d 76, 79 (Tex. Crim. App. 1998)), and ensuring the hearing is set for a date within the trial
court’s jurisdiction, Belcher v. State, 93 S.W.3d 593, 601–02 (Tex. Crim. App. 2002) (Frost, J.,
concurring); see also Johnson v. State, 925 S.W.2d 745, 748 (Tex. App.—Fort Worth 1996, pet.
refd) (stating that it was incumbent upon defendant to “develop some record, before the expiration
of the court’s jurisdiction, which demonstrated his efforts to reschedule the hearing” on the
defendant’s motion for new trial).
B. Arguments of the Parties
Laque contends the trial court abused its discretion in failing to timely hold a hearing on
Laque’s motion for new trial. Laque claims the trial court recognized the merits of Laque’s motion
for new trial by setting two hearing dates.
The State contends the agreed reset on Laque’s original motion for new trial hearing date
resulted from trial counsel’s failure to provide the State adequate time to request Laque’s bench
warrant to attend the February 12, 2018 hearing. Further, the State claims the trial counsel had
adequate time to schedule a hearing before the seventy-five-day window expired. Additionally,
the State contends the record is void of evidence that trial counsel properly presented the motion
for new trial to the trial court or requested the case be reset before the expiration of the seventy-
fifth day.
C. Motion for New Trial Properly before the Trial Court
The record clearly supports the motion was presented to the trial court. See Gardner v.
State, 306 S.W.3d 274, 306 (Tex. Crim. App. 2009); Aguilar v. State, 547 S.W.3d 254, 265 (Tex.
-4- 04-18-00261-CR
App.—San Antonio 2017, no pet.). The motion for new trial was called for a hearing on February
12, 2018 and reset to February 26, 2018. A trial court’s signature, a notation on a proposed order,
or a hearing date set on the docket are evidence of presentment. Stokes v. State, 277 S.W.3d 20,
21 (Tex. Crim. App. 2009) (citing Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998)).
The seventy-fifth day after Laque’s sentencing was Saturday, February 24, 2018; based on
Rule 4.1 of the Texas Rules of Appellate Procedure, the last day of the trial court’s jurisdiction
was necessarily extended to the following Monday—February 26, 2018. See TEX. R. APP. P. 21.6;
4.1(a) (extending period to next day not a Saturday, Sunday, or legal holiday when last day of
period falls on such day). The trial court, therefore, still possessed jurisdiction on Monday,
February 26, 2018, when the motion for new trial was set for the second time.
D. Hearing on Motion for New Trial
On February 26, 2018, the presiding judge in Atascosa County was not the trial judge
sitting during Laque’s bench trial. The presiding judge declined to take any action on the motion.
The presiding judge explained the procedure in the 81st and 218th Judicial District Courts.
So I will just place on the record, I am the Judge of 218th. The 81st and the 218th overlap exactly. There are two district judges in each of the five counties of these districts, and we have one court coordinator’s office. And the schedule for both Judges for 2018 has been posted online since Spring of last year, 2017. So, where [trial judge] is, unless it gets changed at the last minute, has been known for a number of months. I’ll also state if you want to call the—I have no idea—if you want to call the District Clerk’s office in Frio County where [the trial judge] is picking a jury, if she is extraordinarily concerned about something that is going on in this case, you might give her the opportunity to take any action she wants to take if this is the last date.
Consistent with the previously published calendar, the trial judge was presiding in a
different county on February 26, 2018. The presiding judge explained to defense counsel, “[t]he
schedule for both Judges for 2018 has been posted online since Spring of last year, 2017. So,
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where [the trial judge] or [the Atascosa presiding judge] is, unless it gets changed at the last minute,
has been known for a number of months.”
Defense counsel made no request to set a hearing before the trial judge even at the presiding
judge’s suggestion. The presiding judge opined defense counsel could contact the trial judge,
I’ll also state if you want to call the District Clerk’s office in Frio County where [the trial judge] is picking a jury, if she is extraordinarily concerned about something that is going on in this case, you might give her the opportunity to take any action she wants to take if this is the last date.
There is no evidence trial counsel appeared, or attempted to appear, before the trial judge
on February 26, 2018; the motion for new trial was, therefore, overruled by operation of law. TEX.
R. APP. P. 21.8. Defense counsel was given an opportunity to appear before the trial judge, within
the seventy-five-day window, and did not do so. A trial court “cannot grant a new trial on mere
sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is
innocent or ‘received a raw deal.’” State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App.
2007). A trial court does not have “discretion to grant a new trial unless the defendant
demonstrates that his first trial was seriously flawed and that the flaws adversely affected his
substantial rights to a fair trial.” Id. at 909; see also TEX. R. APP. P. 44.2.
Because the presiding judge did not preside over the bench trial, we cannot conclude the
presiding judge’s decision was not outside the zone within which reasonable persons might
disagree. We thus conclude the presiding judge did not abuse its discretion in refusing to hold a
hearing on the motion for new trial. Smith, 286 S.W.3d at 339.
TRIAL COURT’S JUDGMENT—COUNT III
After the close of evidence, the trial judge held the State failed to prove the child was
younger than fourteen-years-old when the sexual assault occurred. Laque contends, and the State
concedes, the judgment thus states the wrong offense, penal code statute reference, and age of the
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victim. Based on the trial judge’s specific finding, we reform the trial court’s judgment to reflect
the offense for which Laque was convicted as “Sexual Assault,” reform the judgment to reflect
Laque was convicted under “Texas Penal Code section 22.011(a)(1),” and further reform the
judgment to read as follows: “The age of the victim at the time of the offense was younger than 17
years of age.”
Accordingly, we affirm the trial court’s judgment as reformed.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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