Montelongo, Alberto, 623 S.W.3d 819

Montelongo was convicted of attempted capital murder and continuous family violence; sentences imposed in open court on Sept. 30, 2015.
He timely filed and presented a motion for new trial on Oct. 30, 2015 that expressly requested a hearing.
The trial court scheduled a hearing, later sua sponte cancelled it, never rescheduled or ruled, and the motion was overruled by operation of law after 75 days.
On appeal the El Paso Court of Appeals held Montelongo waived the issue because he did not reschedule, obtain a ruling, or contemporaneously object to the lack of a ruling.
The Court of Criminal Appeals granted review and held that a timely filed and presented motion requesting a hearing preserves the issue of whether the trial court abused its discretion by failing to hold the hearing when the motion is later overruled by operation of law.
The CCA reversed the court of appeals and remanded for consideration of Montelongo’s first issue on the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to hold a hearing on a timely presented motion for new trial was preserved for appeal	Montelongo: timely filed and presented motion requesting a hearing preserves the issue; cancellation cannot undo presentation	State: appellant should have objected or attempted to reschedule once the hearing was cancelled; burden on appellant to ensure hearing occurs	The CCA held preserved: a timely filed and presented motion requesting a hearing preserves the issue when the motion is later overruled by operation of law; contemporaneous objection is not required

Colone v. State, 573 S.W.3d 249 (Tex. Crim. App. 2019) (motion overruled by operation of law equates to denial of requested hearing)
State v. Moore, 225 S.W.3d 556 (Tex. Crim. App. 2007) (trial court loses jurisdiction after motion is overruled by operation of law; hearing then unauthorized)
Rozell v. State, 176 S.W.3d 228 (Tex. Crim. App. 2005) (issue preserved only if motion requests a hearing and is presented)
Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009) (preservation requires telling the judge what is wanted at a time judge can act)
Burg v. State, 592 S.W.3d 444 (Tex. Crim. App. 2020) (cannot require contemporaneous insistence on a right that the trial court cannot then honor)
Wilson v. State, 7 S.W.3d 136 (Tex. Crim. App. 1999) (timeliness standard for objections)
State v. Garza, 931 S.W.2d 560 (Tex. Crim. App. 1996) (jurisdictional effect when motion is overruled by operation of law)
Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) (consideration of whether trial court abused discretion in failing to hold new-trial hearing)