Ryan Deneal Coleman v. The State of Texas--Appeal from 188th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00242-CR

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RYAN DENEAL COLEMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 30572-A

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

On August 18, 2003, Ryan Deneal Coleman pled guilty to aggravated assault without the benefit of a plea agreement regarding punishment. See Tex. Pen. Code Ann. 22.02 (Vernon Supp. 2004). After hearing the evidence and arguments on punishment, the trial court sentenced Coleman to ten years' imprisonment and entered an affirmative finding that Coleman used or exhibited a deadly weapon during the commission of the offense.

Coleman filed a verified motion for new trial September 9, 2003, alleging the guilty plea was coerced. The trial court conducted no hearing on the motion, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). On appeal to this Court, Coleman contends the trial court abused its discretion by allowing the motion for new trial to be overruled by operation of law without conducting a hearing. Coleman then asks us to determine the appropriate remedy should we sustain his first point of error. We affirm the trial court's judgment.

A criminal defendant must file a motion for new trial only when it is necessary that facts not already part of the trial record be adduced. Tex. R. App. P. 21.2. To be timely, the motion for new trial must be filed within thirty days from the day the trial court imposes or suspends sentence. Tex. R. App. P. 21.4(a). Further, the trial court must be "presented" with the motion within ten days of its filing. Tex. R. App. P. 21.6. Thereafter, the trial court has seventy-five days from the date it originally imposed or suspended sentence to rule on the motion for new trial. Tex. R. App. P. 21.8(a). If the trial court grants a new trial, it must do so by a written order within the prescribed time frame. Tex. R. App. P. 21.8(b). If the trial court does not act on the motion for new trial within seventy-five days of imposing or suspending sentence, the motion for new trial is overruled by operation of law. Tex. R. App. P. 21.8(c).

Attachment of Appellate Counsel's Affidavit to Coleman's Brief on Appeal

In his brief to this Court, Coleman's appellate counsel submitted an affidavit that discusses a conversation counsel had with the trial court. This affidavit is not part of the official record in this case. As we stated in Yarbrough v. State, 57 S.W.3d 611 (Tex. App. Texarkana 2001, pet. ref'd), under the Texas Rules of Appellate Procedure, specifically Tex. R. App. P. 34.6, we may not, in a case on direct appeal, consider an affidavit that was not part of the record before the trial court, unless that affidavit regards a matter affecting our jurisdiction. Id. at 615 16; see also Hernandez v. State, 84 S.W.3d 26, 32 (Tex. App. Texarkana 2002, pet. ref'd) (appellate court could not consider former prosecutor's affidavit regarding flooding of Harris County criminal courthouse because affidavit not part of trial court's record). The affidavit submitted by appellate counsel, and not admitted into evidence in the trial court, does not regard a matter affecting our jurisdiction. We therefore may not consider the affidavit Coleman's appellate counsel attached to the appellant's brief.

Analysis of Issues Presented

Turning to Coleman's first point of error, he asks this Court to determine whether the trial court abused its discretion by failing to conduct a hearing on Coleman's motion for new trial. In some instances, a trial court abuses its discretion when it does not conduct a hearing on a defendant's motion for new trial that raises matters not discernible from the record. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Landers v. State, 110 S.W.3d 617, 626 (Tex. App. Houston [14th Dist.] 2003, pet. ref'd). Nonetheless, the mere filing of a motion for new trial is insufficient to show "presentment" of the motion, as required under the Texas Rules of Appellate Procedure. Tex. R. App. P. 21.6; Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998). As defined by the Texas Court of Criminal Appeals, "presentment," as Rule 21.6 uses that term, requires the trial court be placed on actual notice the movant desires a hearing or a ruling on the motion for new trial. Carranza, 960 S.W.2d at 78 (interpreting former Rule 31(e)(3) of the Texas Rules of Appellate Procedure). Typically, the movant will satisfy the presentment requirement when the record on appeal shows the movant actually delivered the motion to the trial court or otherwise brought the motion to the trial court's attention. Id. at 79. Notice might be "evidenced by the judge's signature or notation on a proposed order or by a hearing date set on the docket." Id. at 81 (Overstreet, J., concurring).

In this case, there is nothing in the official appellate record to show Coleman presented his motion for new trial to the court below. Coleman therefore has not satisfied his burden under Tex. R. App. P. 21.6.

Because we overrule Coleman's first point, we need not reach Coleman's second point of error, as it is contingent on his prevailing under his first point of error.

We affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: April 5, 2004

Date Decided: April 9, 2004

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