No. 05-02-00842-CR.
Opinion Filed April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F-0153643-HJ. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG.
Opinion By Justice WRIGHT
Appellant appeals his conviction for burglary of a habitation. Appellant pleaded guilty and entered a plea of true to an enhancement paragraph. The trial court sentenced him to eighteen years' confinement and a $500 fine. In a single issue, appellant argues that the trial court abused its discretion in failing to hold a hearing on his motion for new trial. We affirm.
Procedural Background
The trial court sentenced appellant on April 4, 2002. Appellant timely filed his motion for new trial on May 3, 2002. Through appellant's retained counsel, the hearing on the motion for new trial was passed by agreement twice. The first time, the hearing was passed to June 6, 2002. The second time, the hearing was passed by agreement to July 1, 2002, a date beyond the trial court's jurisdiction to rule on the motion. The trial court appointed appellate counsel for appellant on May 14, 2002. Appellant's appointed counsel sent a letter dated June 10, 2002 to the court reporter requesting preparation of the reporter's record. The letter is file-stamped June 20, 2002. In her letter she states: "[I]n addition, it is my understanding that a Motion for New Trial hearing was set for June 7, 2002 but had to be reset due to the Appellant being transferred to TDC. I would like to have that hearing transcribed also. I will let you know the new date." No hearing date was set within the period of the trial court's jurisdiction and appellant's motion for new trial was overruled by operation of law. Motion for New Trial
In his only issue, appellant contends the trial court erred in failing to conduct a hearing on his motion for new trial. Specifically, appellant contends he was entitled to a hearing on his motion for new trial because he raised grounds that could not be determined from the record. A defendant does not have an absolute right to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993). To obtain a hearing on a motion for new trial, the defendant must present the motion within ten days of its filing, unless the court in its discretion allows the motion to be presented and heard within seventy-five days of the date sentence was imposed. Tex. R. App. P. 21.6. If the trial court does not rule on a motion for new trial within the seventy-five day period, it loses its jurisdiction to do so and the motion is deemed overruled by operation of law. Tex. R. App. P. 21.8(c); Baker v. State, 956 S.W.2d 19, 15 (Tex.Crim.App. 1997). It is the defendant's burden to ensure that a hearing is set on a date within the trial court's jurisdiction. Ryan v. State, 937 S.W.2d 93, 97 (Tex.App.-Beaumont 1996, pet. ref'd). Appellant did timely file a pro se motion for new trial. Further, appellant acknowledges that the hearing on his motion for new trial had to occur on or before June 18, 2002. What appellant fails to acknowledge is that it was his burden to ensure that a hearing was set on or before that date. An attorney purporting to represent appellant agreed to postpone the motion for new trial hearing to July 1, 2002, a date outside of the trial court's jurisdiction. We know from the record that appellant's appointed counsel knew by at least June 10, 2002, that the hearing on appellant's motion had been postponed and that it needed to be reset. She failed, however, to request and obtain a hearing on or before June 18, 2002. Because appellant failed to request and obtain a hearing on or before June 18, 2002, we conclude the trial court did not err in failing to conduct a hearing on his motion for new trial. We overrule appellant's issue. We affirm the trial court's judgment.