NO. 07-09-0125-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 25, 2010
JULIAN EDWARD PERALES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 50,635-B; HONORABLE JOHN B. BOARD, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Julian Edward Perales appeals a judgment revoking his probation and
adjudicating his guilt of aggravated assault with a deadly weapon. He
originally pled guilty to the offense in 2005 and was placed on probation.
The State filed a motion to adjudicate his guilt on May 2, 2008, and an
amended motion on March 11, 2009. After a hearing during which appellant
pled true to four of the probation violations alleged against him, the
court found him guilty and sentenced him to ten years imprisonment. In
challenging that judgment, he argues that the trial court abused its
discretion in failing to hold a hearing on his motion for new trial and in
denying him the opportunity to secure counsel of his choice. We affirm the
judgment.
Issues 1 & 2 - Hearing on Motion for New Trial
Appellant timely filed a motion for new trial in which he asserted
that, although he wished to retain counsel of his own choosing for the
adjudication proceeding, the bailiff made him sign a document entitled
"Financial Information for Request for Court Appointed Attorney" and the
trial court forced him to proceed with appointed counsel that he did not
request and with whom he had a fundamental disagreement over his defense.
The motion was overruled by operation of law.
A defendant must present a motion for new trial to the trial court
within ten days of filing it. Tex. R. App. P. 21.6. The mere filing of a
motion for new trial is insufficient to satisfy this requirement. Stokes
v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009). The requirement of
presentment puts the trial court on notice that the movant desires the
trial court to take some action on the motion. Id. Therefore, the movant
must meet the burden of showing actual delivery of the motion for new trial
to the trial court or otherwise bringing it to its attention. Carranza v.
State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).
The record before us is silent on presentment other than a
certificate of service indicating that a copy of the motion was "delivered"
to the trial court.[1] That alone is insufficient to show that the trial
court was aware of the motion and that appellant desired a hearing on it.
Owens v. State, 832 S.W.2d 109, 111-12 (Tex. App.-Dallas 1992, no pet.);
see also Oestrick v. State, 939 S.W.2d 232, 235 n.5 (Tex. App.-Austin 1997,
pet. ref'd) (stating that a self-serving statement by defense counsel is
insufficient evidence of presentment). Although there can be different
ways to prove presentment, Stokes v. State, 277 S.W.3d at 24, we find
nothing in the record indicating the judge's signature or notation on the
motion or a proposed order, a docket sheet entry showing presentment, the
setting of a hearing date, or some other appropriate notation. See Gardner
v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). Appellant also fails
to point us to any such evidence in the record. Because the trial court
does not abuse its discretion in failing to conduct a hearing when there is
no evidence that the motion was timely presented to the trial court, id.,
appellant's first two issues are overruled.
Issues 3 & 4 - Opportunity to Retain Counsel
In his next two issues, appellant complains of the trial court
depriving him of the opportunity to secure counsel of his own choosing. We
note that appellant neither complained of the fact he was represented by
appointed counsel during the adjudication hearing nor requested an
opportunity to retain counsel. To preserve error, complaint must be made
to the trial court by a "timely" request, objection, or motion. Tex. R.
App. P. 33.1(a)(1). To be timely, an objection must be made at the
earliest opportunity, Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002), or as soon as the ground becomes apparent. Penry v. State, 903
S.W.2d 715, 763 (Tex. Crim. App. 1995). Appellant testified at the hearing
and spoke to the trial court. He provides no explanation of his failure to
mention this matter at that time, and we do not find any in the record.
The objection thus was forfeited. Courson v. State, 160 S.W.3d 125, 129
(Tex. App.-Fort Worth 2005, no pet.) (holding that an untimely objection
forfeits the complaint). For that reason, we overrule appellant's third
and fourth issues as well.
Accordingly, the judgment of the trial court is affirmed.
Per Curiam
Do not publish.
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[1]The certificate does not indicate how delivery occurred.