Raymond Darnell Oaks v. State

• Court: Court of Appeals of Texas
• Decided: February 27, 2007
• Docket: 14-06-00104-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed February 27, 2007

Affirmed and Memorandum Opinion filed February 27, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00104-CR

RAYMOND DARNELL OAKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 984855

M EM O R A N D U M   O P I N I O N

Appellant, Raymond Darnell Oaks, was charged with aggravated sexual assault of a child.  He pleaded guilty to indecency with a child pursuant to a plea agreement with the State.  In accordance with the plea agreement, the trial court assessed punishment at five years= deferred adjudication and a $200.00 fine.  Asserting that appellant had violated the terms of his probation, the State thereafter moved to adjudicate his guilt.  The trial court found the allegations in the State=s motion to be true, revoked appellant=s probation, found him guilty of indecency of a child, and assessed punishment at two years= incarceration in the Texas Department of Criminal Justice, Institutional Division, and a $200.00 fine.  Appellant filed a motion for new trial.  The trial court did not hold a hearing on the motion and it was overruled by operation of law. 

In his sole point of error on appeal, appellant claims the trial court erred in not granting a hearing on his motion for new trial.  The right to a hearing on a motion for new trial is not absolute.  Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).  Appellant was required to Apresent@ his motion to the trial court within 10 days of its filing.  Tex. R. App. P. 21.6.  However, the filing of a motion for new trial alone is not sufficient to show Apresentment.@  Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998).  Instead, Apresent@ means the movant for a new trial actually delivered the motion to the trial court or otherwise brought the motion to the attention of the trial court or the trial court had actual notice of the motion.  Id. at 79. 

Appellant=s motion for new trial states:

Undersigned counsel respectfully request [sic] that the Court take this Motion under consideration, set the matter for an evidentiary hearing by testimony or the submission of affidavits and grant Appellant=s motion.

This motion is timely filed on February 8, 2006, within thirty days of sentencing, and will be presented to the Court within ten days of it=s [sic] filing.

The order filed with the motion contains a line for the date the motion was heard by the trial court, two lines indicating whether the trial court granted or denied the motion, and a signature line.  All lines on the order are blank.  Although the motion requests that the trial court set the motion for a hearing and further states it Awill be presented to the Court,@ there is nothing in the record to suggest that appellant presented it to the trial court; otherwise brought the motion to the attention of the trial court; or that the trial court had actual notice of the motion.  Moreover, while the last docket sheet notation states, AMotion For New Trial Filed,@ this is not sufficient to show presentment.  Cozzi v. State, 160 S.W.3d 638, 641 n.5 (Tex. App.CFort Worth 2005, pet. ref=d); Longoria v. State, 154 S.W.3d 747, 762 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). 

In addition to presentment, a motion for new trial must be supported by an affidavit of either the defendant or another individual specifically showing the truth of the grounds asserted in the motion.  Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994).  In his appellate brief, appellant acknowledges that his motion for new trial was not supported by an affidavit.  In the absence of a supporting affidavit and presentment of the motion to the trial court, the trial court did not abuse its discretion in not holding a hearing on appellant=s motion for new trial.  Appellant=s sole point of error is overruled. 

Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed February 27, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).