Denial of a Motion for New Trial Without a Hearing In Texas
In Simpson v. State, 962 S.W.2d 57, 58 (Tex. App.--Houston [1st Dist.] 1997, no pet.), 19 days after the motion for new trial was filed the appellant sent a letter to the trial court submitting a copy of the motion for new trial with statements from witnesses.
The trial court denied the motion for new trial without a hearing.
The appellant complained of the denial of the motion without a hearing.
This Court held the denial of the motion for new trial without a hearing was not an abuse of discretion because there was nothing in the record to reflect the motion was presented to the trial court within 10 days of filing it.
As in Simpson, in the present case there is nothing in the record indicating that appellant presented the motion for new trial to the trial court within 10 days of filing.
The trial court never ruled on the motion, and there is nothing in the record to show that appellant asked for a ruling. the motion was overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c).
The Rules of Appellate Procedure provide that the defendant must present the motion for new trial to the trial court within 10 days of filing it, unless the trial court permits it to be presented and heard within 75 days of imposition of sentence. See TEX. R. APP. P. 21.6.
Thus, by the terms of the rule, in addition to filing a motion for new trial with the clerk, the appellant must present the motion to the trial court within 10 days.
The term "present" means that "the record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court." Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).
The filing of a motion for new trial alone is not sufficient to show "presentment." Id. at 78.
This construction of the rule avoids a trial court being reversed on appeal on a matter that was never brought to its attention. Carranza, 960 S.W.2d at 78-79.