Alcides Melendez v. State

Affirmed and Memorandum Opinion filed September 10, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00513-CR ____________ ALCIDES MELENDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1117153 M E M O R A N D U M   O P I N I O N Appellant Alcides Melendez pleaded guilty to aggravated sexual assault of a child without an agreed recommendation on punishment. After a pre-sentence investigation was completed, the trial court sentenced Melendez to twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Subsequently, Melendez retained new counsel and filed a motion for new trial in which he alleged that his trial counsel was ineffective. In a single issue, Melendez contends that the trial court erred by not conducting a hearing on his motion for new trial. We affirm. I In September 2007, Melendez was indicted for the felony offense of aggravated sexual assault of a child under fourteen. He pleaded guilty to the offense on December 20, 2007, without an agreed recommendation on punishment. After admonishing Melendez , the trial court accepted his guilty plea and continued the proceedings so a pre-sentence investigation could be conducted. On March 10, 2008, the trial court sentenced Melendez to twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Melendez retained new counsel and filed a motion for new trial and in arrest of judgment on April 9, 2008, alleging that (1) his guilty plea was not entered knowingly and intelligently, (2) his trial counsel rendered ineffective assistance of counsel and failed to investigate the law and facts of his case, and (3) he was incompetent at the time of the entry of his guilty plea due to mental disease or defect. The motion was timely filed and supported by Melendez=s brother=s and sister=s sworn affidavits.[1] Apparently, Melendez=s new counsel did not request a hearing and failed to attach proposed orders to the motion. The trial court=s docket sheet reflects the following notation on April 16, 2008: AAtty approached re: MTN for new trial - Judge did not rule.@ The trial court did not hold a hearing on the motion for new trial, and it was overruled by operation of law. See Tex. R. App. P. 21.8(c). This appeal timely ensued. II In a single issue, Melendez asserts that the trial court erred in failing to schedule a hearing on his motion for new trial. The State responds that Melendez failed to either present or request a hearing on the motion. The right to a hearing on a motion for new trial is not absolute. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). A trial court generally should hold a hearing if the motion and attached affidavits raise matters that cannot be determined from the record that could entitle the accused to relief. Id. But to be entitled to a hearing on a motion for new trial, the accused must timely present the motion to the trial court. Id. Presentment in this context Aincludes actual notice of the desire to have a hearing.@ Id. (citing Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998)). We do not reach the issue of whether the trial court abused its discretion in failing to hold a hearing if no request for a hearing was made because the issue was not preserved for appellate review.[2] See id. Here, nothing in the record reflects that Melendez sought a hearing.[3] Melendez failed to include an express request for a hearing within the text of his motion.[4] Further, the motion was overruled by operation of law. Cf. Carranza, 960 S.W.2d at 79 (A>The presentment must result in actual notice to the trial court and may be evidenced by the judge=s signature or notation on a proposed order or by a hearing date set on the docket.=@) (quoting id. at 81 (Overstreet, J. concurring)). On the record before us, we cannot conclude that Melendez=s desire for a hearing was adequately brought to the attention of the trial court. He did not request a hearing or attach a proposed order to the motion. See Rozell, 176 S.W.3d at 231. Consequently, the motion was overruled by operation of law. See Carranza, 960 S.W.2d at 79 (AThe presentment must result in actual notice to the trial court and may be evidenced by the judge=s signature or notation on a proposed order or by a hearing date set on the docket.@). Under these circumstances, the record does not reflect that Melendez adequately notified the trial court of his desire to have a hearing on his motion. Accordingly, Melendez has not preserved this issue for our review. * * * Melendez has not preserved his complaint regarding the trial court=s failure to conduct a hearing on his motion for new trial. Accordingly, we overrule his only issue and affirm the trial court=s judgment. /s/ Jeffrey V. Brown Justice Panel consists of Justices Seymore, Brown, and Sullivan. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Melendez did not execute an affidavit in support of the motion. [2] APresenting the motion for new trial and the request for a hearing is akin to objecting to the erroneous admission of evidence. Absent a proper objection that alerts the trial court to the erroneous admission, the error has not been preserved for appellate review.@ Rozell, 176 S.W.3d at 230. [3] As noted above, the trial court=s docket sheet reflects that Melendez Aapproached@ the trial court regarding the motion for new trial. However, a docket sheet is not part of the record. See Kerr v. State, 83 S.W.3d 832, 834 (Tex. App.CTexarkana 2002, no pet.); Rodriguez v. State, 834 S.W.2d 592, 595 (Tex. App.CHouston [1st Dist.] 1992), rev=d on other grounds, 844 S.W.2d 744 (Tex. Crim. App.1992); Bell v. State, 734 S.W.2d 83 (Tex. App.CAustin 1987, no pet.). Moreover, the docket sheet does not indicate that Melendez requested a hearing on his motion. [4] Indeed, the word Ahearing@ is mentioned twice in the motion: (1) AA hearing must be commenced before the 75th day after the sentence, which is May 24, 2008, or this motion is overruled by operation of law@; and (2) AFor the foregoing reasons, and for such other reasons that may arise on the hearing of this Motion, Defendant requests a new trial.@ (emphasis) But neither of these statements constitutes a request for a hearing. The first statement establishes the timeline for the motion, and the second presumes a hearing will be conducted. Cf. Rozell, 176 S.W.3d at 231 (stating that the motion did not include a request for a hearing and the orders attached to the motion left to the trial court=s discretion whether a hearing should be held).