July 8, 2016

Texas Courts of Appeals

Obella v. State (7^th COA)

No. 07-15-00271-CR        7/1/16

Issue:

May a trial court allow a motion for new trial to be overruled by operation of law when the parties’ pleadings show a dispute that cannot be resolved on the existing record?

Holding:

No. If a defendant raises matters not determinable from the record and provides a supporting affidavit showing reasonable grounds for granting relief, the trial court must hold a hearing and issue an order. In this case, the defendant filed a motion for new trial, and the State filed a response with an affidavit from trial counsel challenging the factual allegations in the defendant’s ineffective assistance of counsel claim. The court did not specifically rule on the motion; instead it was overruled by operation of law. While a trial court may deny a motion for new trial based on pleadings and affidavits without live testimony, the record must show that the judge considered this evidence and made a ruling. Read.

Commentary:

A motion for rehearing or PDR may be in order. The court did not mention the issue of presentment. Normally, a defendant cannot complain about the trial court’s failure to conduct a hearing on his motion for new trial if the record does not reflect presentment of the motion to the trial court. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). To do otherwise penalizes the trial court for failing to perform some act that was never requested. Generally, a court of appeals must consider whether an error such as this was preserved by a proper presentment to the trial court. Merely filing a motion for new trial is insufficient to show presentment to the trial court—the defendant must show the trial court had actual notice of the necessity of a hearing. Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). If there was a proper presentment, then the trial court would have erred by declining to hold a hearing on these facts. But the “hearing” in question could simply have been reading the pleadings and signing an order—live testimony is not required.

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