In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00471-CR
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PARIS ANDRE THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 15-12-12977-CR
__________________________________________________________________
MEMORANDUM OPINION
Arguing the judgment should be reversed because the trial court failed to
conduct an evidentiary hearing on his motion for new trial, Paris Andre Thompson
appeals a judgment finding him guilty of evading arrest or detention.1 Because
Thompson has not shown that he exercised due diligence to obtain an evidentiary
1 See Tex. Penal Code Ann. § 38.04(b)(2).
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hearing on his motion, we hold he failed to properly preserve the only argument he
raises in the brief, so we affirm.
Background
In February 2016, a grand jury indicted Thompson for evading arrest or
detention. Thompson’s indictment includes an allegation claiming he used a vehicle
when committing the offense. The indictment also alleges that Thompson, when
committing the offense, used or exhibited the vehicle as a deadly weapon.
Six months after Thompson was indicted, he reached a plea bargain with the
State. In carrying out his obligations under the plea agreement, Thompson judicially
admitted he was guilty of committing the offense, as alleged in the indictment. To
carry out the obligations the State agreed to as part of the bargain, the trial court
deferred adjudicating Thompson’s guilt and placed Thompson on community
supervision for a period of six years.
In June 2018, the State moved to revoke the deferred-adjudication order the
court signed when placing Thompson on community supervision. The State’s
motion to revoke alleges that Thompson violated the court’s deferred-adjudication
order in thirteen specific ways. In November 2018, the trial court conducted a
hearing on the motion to revoke. In the revocation hearing, Thompson pleaded “not
true” to the allegations in the motion alleging that he had violated the terms in the
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court’s deferred-adjudication order. But after hearing evidence on the motion, the
trial court found ten of the allegations, as alleged in the State’s motion, were true.
After that, the parties presented the punishment evidence relevant to the punishment
that should be assessed in Thompson’s case. After hearing final argument, the court
found Thompson guilty of evading arrest or detention, revoked its deferred-
adjudication order, and sentenced Thompson to prison for five years. At the end of
the hearing, the trial court also found Thompson used or exhibited a deadly weapon
when committing the offense.
After the trial court signed the judgment, Thompson moved for a new trial. In
his motion for new trial, Thompson alleged the attorney who represented him in his
revocation hearing had been ineffective because he had not “admonish[ed
Thompson] regarding the fact that a deadly weapon finding would increase his
sentence[.]” The motion for new trial is timely, as Thompson filed it within the
period defendants have to file post-judgment motions to overturn a judgment in
criminal cases. 2 Thompson’s attorney also attached his affidavit to the motion. In
the affidavit, Thompson’s trial attorney swore that, when he discussed the “offense
that was the basis of the Motion to Adjudicate Mr. Thompson[ʼs] Community
2 Tex. R. App. P. 21.1(a) (in criminal cases, providing that a defendant may
file a motion for new trial no later than 30 days after the date the trial court
pronounced the defendant’s sentence).
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Supervision[,] I failed to discuss the import of the deadly weapon finding with Mr.
Thompson.”
The record does not reflect whether Thompson’s attorney ever asked the trial
court for a hearing on his motion for new trial or in some other way brought the
motion to the court’s attention. Thompson’s motion includes an order, which the
trial court never signed, that the court might have used had the court for some reason
learned that Thompson had filed the motion and had the court, on its own initiative,
decided to set the matter for a hearing. That said, Thompson’s motion contains no
request for a hearing and ends with a prayer asking the trial court to “set aside the
judgment of conviction entered in this cause and order a new trial on the merits.”
Simply put, nothing in the record shows the trial court ever saw or knew
Thompson had filed a motion for new trial. Seventy-five days after the day the trial
court pronounced Thompson’s sentence, the motion for new trial was overruled by
operation of law. 3
In the brief Thompson filed to support his appeal, he argues that, had the trial
court conducted a hearing on his motion, he could have developed evidence showing
that his trial attorney provided him ineffective assistance of counsel. In the appeal,
3 Tex. R. App. P. 21.8(c) (providing that a “motion not timely ruled on by
written order will be deemed denied” if the court has not ruled on it within 75 days
of the day the court sentenced the defendant in open court).
4
the State filed a brief arguing the record fails to explain “how [Thompson’s] lack of
understanding regarding an affirmative deadly weapon finding prejudiced his case
or what he would have done differently had he known about the finding’s legal
significance.”
Analysis
A defendant does not have an absolute right to have the trial court grant a
hearing on a motion for new trial. 4 Under Texas law, “in the context of a motion for
new trial, the defendant must give the trial court actual notice that he timely filed a
motion for new trial” and that he wants the court to conduct a hearing on his motion.5
Thus, the defendant must present “the motion, along with a request for a hearing, . .
to let the court know that the defendant . . . would like a hearing on the motion.”6
To preserve a complaint alleging the trial court failed to conduct a hearing on
a motion for new trial, the appellate record must show the defendant made the court
aware that he wanted the court to conduct a hearing on his motion.7 “The rationale
for this requirement is the same as that which supports preservation of error
4 Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).
5 Id.
6 Id.
7 Id.
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generally: A trial court should not be reversed on a matter that was not brought to
the trial court’s attention.” 8
Before reaching the merits of the parties’ arguments, the reviewing court must
ensure the defendant preserved his complaint when he was in the trial court before
it may reach it upon appeal.9 The rules of error preservation are in the Texas Rules
of Appellate Procedure, and in a criminal case, they require the defendant to produce
an appellate record that shows that, while the defendant was in the trial court, he
made “the trial court aware of his complaint, unless the specific grounds were
apparent from the context[.]” 10
Here, nothing in the record suggests that Thompson ever made the court aware
that he wanted a hearing on his motion for new trial. Thompson did not specifically
request a hearing on his motion, and nothing in the record shows that he made the
trial court aware the motion for new trial was on file and that he wanted it heard. We
conclude Thompson’s complaint suggesting the trial court erred by failing to
conduct a hearing on his motion was not preserved for the purposes of an appeal. 11
8 Id.
9 Obella v. State, 532 S.W.3d 405, 407 (Tex. Crim. App. 2017).
10 Tex. R. App. P. 33.1(a)(1)(A).
11 See Obella, 532 S.W.3d at 407; Rozell, 176 S.W.3d at 230.
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Conclusion
Given Thompson’s failure to preserve his complaint for our review, the trial
court’s judgment is
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on August 18, 2020
Opinion Delivered December 30, 2020
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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