Cleveland Nixon v. State
05-14-01627-CR
| Tex. App. | Oct 5, 2015Background
- Nixon was placed on deferred adjudication for injury to a child with a $1,000 fine.
- The State moved to revoke probation or adjudicate guilt; hearing held September 29, 2014.
- Trial court found Nixon violated terms, adjudicated guilt, and sentenced him to five years’ imprisonment.
- Three days after sentencing Nixon filed a motion for new trial asserting various deficiencies.
- On October 30, 2014 Nixon amended the motion for new trial, adding mental-health and effectiveness claims, supported by the Polk Affidavit.
- The court later issued a Confidentiality Order (Nov. 6) and a Notice of Disposition (Nov. 9) with no clear indication of presentment of the motion; Nixon pressed for a hearing in December 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the amended motion timely presented to the trial court? | Nixon contends presentment occurred within ten days. | State argues no timely presentment shown. | No timely presentment;December 8 request was beyond ten days. |
| Did the trial court abuse its discretion by not holding a hearing on the amended motion? | Amended motion raised non-determinable issues and required a hearing. | Court appropriately refused to hold a hearing absent timely presentment. | Court did not abuse discretion given untimely presentment. |
Key Cases Cited
- Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) (hearing required when matters are not determinable from the record)
- Rozell v. State, 176 S.W.3d 228 (Tex. Crim. App. 2005) (right to a hearing not absolute; depends on presentment timing)
- Burrus v. State, 266 S.W.3d 107 (Tex. App.—Fort Worth 2008) (discretion to allow presentment after ten days within 75 days)
- Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. 2009) (presentment requires notice to the court; docket/court action may reflect notice)
- Carranza v. State, 960 S.W.2d 76 (Tex. Crim. App. 1998) (presentment may be shown by court actions or docket entries)
- Estrella v. State, 82 S.W.3d 483 (Tex. App.—San Antonio 2002) (case setting form evidence of presentment)
- Butler v. State, 6 S.W.3d 636 (Tex. App.—Houston [1st Dist.] 1999) (presentment effectiveness; not binding when absent timely notice)