Quindarle Daray Batts v. The State of Texas--Appeal from 351st District Court of Harris County

Appellant=s Motion for Rehearing Overruled; Affirmed; Memorandum Opinion dated July 19, 2005 Withdrawn, and Substitute Memorandum Opinion filed September 29, 2005

Appellant=s Motion for Rehearing Overruled; Affirmed; Memorandum Opinion dated July 19, 2005 Withdrawn, and Substitute Memorandum Opinion filed September 29, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00108-CR

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QUINDARLE DARAY BATTS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 944,481

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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Appellant=s motion for rehearing is overruled, our opinion issued in this case on July 19, 2005, is withdrawn, and the following opinion is issued in its place.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[1] 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.[2] 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

Justice

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).

[1] A jury found appellant guilty and sentenced him to life imprisonment.

[2] 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).