Opinion
NO. 03-15-00634-CR
08-22-2017
Edward Funderburke, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-15-904050 , HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Edward Funderburke was convicted by a jury of two counts of tampering with a governmental record and was sentenced to 15 months in state jail on each count. See Tex. Penal Code § 37.10(c)(1). In one issue, Funderburke contends that the trial court erred in failing to hold a hearing on his amended motion for new trial. We will affirm.
DISCUSSION
I. Presentment requirement
A trial court does not err in not conducting a hearing on a motion for new trial if a defendant failed to timely present the motion to the trial court. See Tex. R. App. P. 21.6 (requiring defendant to present motion for new trial to trial court within 10 days of filing motion); see also Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009). The presentment requirement is intended to ensure that the defendant puts the trial court on actual notice that he wants the trial court to take some action on the motion for new trial, such as ruling or holding a hearing on it. Id. To comply with that requirement, a defendant must do more than simply file the motion for new trial with the trial-court clerk. Id.
Presentment may be proven in many ways. Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). Generally, evidence of documents, notations, or signatures furnished by the trial judge or court personnel may demonstrate actual knowledge of the motion by the trial court and thus establish presentment. See id.; Stokes, 277 S.W.3d at 21-22. Some examples are as follows:
• An order containing the trial court's ruling on the motion. Carranza, 960 S.W.2d at 79-80.
• A proposed order containing the judge's signature or judge's notation. Id.
• The court's docket sheet containing the judge's signature or judge's notation. Id.
• A docket sheet containing a hand-written entry, "Motion New Trial [sic] presented to court no ruling per judge." Stokes, 277 S.W.3d at 25.
• Defense counsel's certificate of presentment containing a "setting notice" bearing the judge's signature. Beckett v. State, No. 07-10-00297-CR, 2011 WL 2226518, at *2 (Tex. App.—Amarillo June 8, 2011, pet. ref'd) (mem. op., not designated for publication).
• An entry in the trial court's case-management system by the court coordinator setting the motion for a hearing. Butler v. State, 6 S.W.3d 636, 641 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd).
• A "case setting form" setting the motion for a hearing containing the signature of the court coordinator. Estrella v. State, 82 S.W.3d 483, 485-86 (Tex. App.—San Antonio 2002, pet dism'd).
In Butler v. State, 6 S.W.3d 636, 641 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd), the court held that evidence that the court coordinator had actual notice of the motion was sufficient, explaining that "[t]he legislature provided court coordinators to act as the trial court's agent for such administrative responsibilities[.]"
By contrast, courts have held that evidence of self-serving statements by defense counsel is insufficient to show presentment, such as documents containing counsel's representations that a motion for new trial has been presented to the trial court. Some examples are as follows:
• A proposed order attached to a motion for new trial setting a date for a hearing and containing a notation indicating that the motion was presented to the trial judge on a certain date, but no evidence that the notation was the judge's notation. Carranza, 960 S.W.2d at 79-80.
• A blank, unsigned proposed order setting a hearing date and a proposed order ruling on the motion attached to the motion for new trial. Hiatt v. State, 319 S.W.3d 115, 123-24 (Tex. App.—San Antonio 2010, pet. ref'd).
• Appellant's notice of appeal that contained a statement that the motion for new trial was presented to the court through counsel. Oestrick v. State, 939 S.W.2d 232, 235 n.5 (Tex. App.—Austin 1997, writ ref'd).
• Defense counsel's "Certification of Service and Presentment" requesting a hearing and stating that the motion was presented to the trial judge and served on the attorney for the State, but no evidence that a hearing was set. Owens v. State, 832 S.W.2d 109, 111 (Tex. App.—Dallas 1992, no pet.), overruled on other grounds by Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994).
• A certificate of presentment signed by defense counsel attached to a motion for new trial. Rodriguez v. State, 425 S.W.3d 655, 662-63 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Burrus v. State, 266 S.W.3d 107, 115 (Tex. App.—Fort Worth 2008, no pet.).
• The filing of a "Notice of Presentment" by defense counsel and a docket sheet containing an entry for the motion having been filed. Longoria v. State, 154 S.W.3d 747, 762 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd).
In sum, for an appellant to establish that he was entitled to a hearing on a motion for new trial, the record must contain some evidence indicating that the trial judge or court personnel was actually aware of the appellant's motion and desire for a hearing and not merely evidence of efforts by defense counsel to present the motion to the court.
II. The record contains no evidence showing that the trial court was actually aware of Funderburke's amended motion for new trial and request for a hearing.
In this case, Funderburke's amended motion for new trial was overruled by operation of law, so the record does not contain an order on the motion. Instead, the record contains (1) a blank, unsigned proposed order attached to the motion for new trial filed by defense counsel; (2) a separate, file-stamped document entitled "Defendant's Presentation of Motion for New Trial and Request for Hearing" signed by defense counsel with an attached, unsigned proposed order; and (3) a separate, file-stamped document entitled "Notice of Presentment" signed by defense counsel, in which counsel "certified" that the motion was presented to the trial court on a certain date. We conclude that this evidence does not show that the trial court was actually aware of his motion and request for hearing.
This case is factually similar to Castro v. State, No. 03-12-00730-CR, 2015 WL 1214402, at *3-4 (Tex. App.—Austin Mar. 13, 2015, pet. ref'd) (mem. op., not designated for publication), in which this Court held that the record did not demonstrate presentment. In Castro, the record contained (1) a "Certificate of Presentment" below defense counsel's signature line on the motion for new trial, in which counsel "certified" that he had presented the motion to the court by delivering a copy to the court coordinator; and (2) an unsigned, file-stamped proposed "Order Denying Defendant's Amended Motion for New Trial Without an Evidentiary Hearing," which contained a hand-written notation signed by defense counsel indicating that he had "presented this proposed order to court coordinator, who presented it to J. Kennedy. Judge indicated she would let 75-day period elapse and did not sign proposed order."
This Court concluded that the evidence did not show that the trial court was actually aware of Castro's motion. Id. at *5. We first noted that defense counsel's certification of presentment was the kind of self-serving statement that courts have held do not show presentment. Id. (citing Owens, 832 S.W.2d at 111; Oestrick, 939 S.W.2d at 235 n.5). We then observed that the notation on the proposed order was "by a party on a party-generated document rather than a note on a court-generated document like a docket sheet or written by the judge or court personnel—distinctions that weigh against a showing that the motion was presented to the trial court." Id. (citing Stokes, 277 S.W.3d at 24-25; Carranza, 960 S.W.2d at 80 n.6.).
Here, similarly, the record contains only documents and statements made by defense counsel stating that the motion had been presented to the trial court. The record contains no court-generated documents, signatures or notations by the judge or court personnel, or other such evidence that would indicate that the trial court was given actual notice that Funderburke wanted the court to take some action on his motion. See id.; Stokes, 277 S.W.3d at 21.
The record does not show that Funderburke timely presented his motion for new trial to the trial court. See Tex. R. App. P. 21.6. Therefore, Funderburke has not shown that the trial court erred in failing to hold a hearing on his amended motion for new trial. See Stokes, 277 S.W.3d at 24-25; see also Castro, 2015 WL 1214402, at *3-4. We overrule Funderburke's sole issue.
CONCLUSION
We affirm the judgments of the trial court.
/s/_________
Cindy Olson Bourland, Justice Before Chief Justice Rose, Justices Goodwin and Bourland Affirmed Filed: August 22, 2017 Do Not Publish