Quindarle Daray Batts v. The State of Texas--Appeal from 351st District Court of Harris CountyAnnotate this Case
Appellant=s Motion for Rehearing Overruled; Affirmed; Memorandum Opinion dated July 19, 2005 Withdrawn, and Substitute Memorandum Opinion filed September 29, 2005.
Fourteenth Court of Appeals
QUINDARLE DARAY BATTS, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 944,481
S U B S T I T U T E M E M O R A N D U M O P I N I O N
Appellant=s motion for rehearing is overruled, our opinion issued in this case on July 19, 2005, is withdrawn, and the following opinion is issued in its place.
Quindarle Batts appeals a conviction for aggravated sexual assault of a child on the ground that the trial court abused its discretion by not holding a hearing on appellant=s motion for new trial. We affirm.
When an accused Apresents@ a motion for new trial raising matters not determinable from the record that could entitle him to relief, the trial court abuses its discretion by failing to hold a hearing. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002). For this purpose, the term Apresent@ means the record must show that the motion was brought to the attention or actual notice of the trial court, such as by obtaining the trial court=s ruling on the motion, the judge=s signature or notation on a proposed order, or a hearing date set on the docket. Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).
In this case, the record reflects that appellant=s motion for new trial was initially set for hearing on March 23, 2004, then re-set to April 2, 2004, and to that extent was Apresented.@ However, there is no indication in our record: (1) whether a hearing took place on that date; (2) if a hearing took place then, what transpired at the hearing; or (3) if no hearing took place, why, i.e., whether due to a failure by the trial court, a non-appearance by appellant, or otherwise. Nor is there any signed order or notation by the trial court indicating any disposition of the matter. Under these circumstances, appellant=s sole point of error fails to demonstrate that a hearing was not held, or that any non-occurrence of the hearing resulted from any abuse of discretion by the trial court. Therefore, the point of error is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Judgment rendered and Substitute Memorandum Opinion filed September 29, 2005.
Panel consists of Justices Edelman, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
 A jury found appellant guilty and sentenced him to life imprisonment.
 Therefore, the motion is deemed to have been denied by operation of law 75 days after the sentence was imposed. See Tex. R. App. P. 21.8(a), (c).