*1
presentment
trial court. Such
judgment
evidenced
sion to set aside the
appeals
the trial court’s consideration of the
and remand the cause for reconsider-
overruling
motion and
it.
light
opinion
ation in
of our
in this case and
hereby join
of the court.
Martinez,
agree
court’s written order
motion is the court was offered
the motion and considered its merits. This
action is sufficient to show motion
presented to the trial court.1 That the mo- day period
tion was ruled on within the 75 CARRANZA, presented Appellant, shows it was either within ten David days permitted or the trial court it to presented days after the ten but within day period.2 the 75 The STATE of Texas. Appeals The Court of erred in hold No. 810-96. ing that the record did not show the motion Texas, Appeals Criminal presented for new trial was En Banc. Appeals’ court.3 The Court of aside, set and this cause is to that remanded 21, 1998. Jan. court for Appellant’s further consideration of eighth point of error.
OVERSTREET, J., concurring filed a
opinion.
McCORMICK, P.J., MANSFIELD, WOMACK, JJ„
KELLER and dissent.
OVERSTREET, Judge, concurring. case, appellant timely the instant filed presented
the motion for new trial and
motion within ten to the trial court as
evidenced the written notation on the Therefore,
certificate of service. it was error appeals
for the court of to hold that properly present his motion for new Thus, agree I with this Court’s deci- Martinez, appeals filing, 1. In the court of noted a recita- after "unless in his discretion the trial the trial court’s order that the motion had judge permits presented it to be and heard within "timely presented.” words, filed and existence added). days[.]” (emphasis In other however, language necessary, of such is not only discretion a trial court has once Rather, presentment. show it is the trial court’s late, motion is is to either allow it to be actions motion constitutes nothing ed and heard or do and let it be over- presentment. evidence of its by operation ruled of law. might argued that a trial court’s overrul- argues 3.The State the trial court did not err ing day period aof motion after the ten failing to conduct a on the motion for period day before the 75 could be for the reason new trial because the affidavit in of the timely presented that the motion was not was insufficient. The Court of motion day period. the ten a trial court if issue, has not had the to address that day period, a motion ten we overrules after the Appeals' so there is no Court decision denying assume the court is rea- filing. issue for this Court to review. Connor v. sons other its late than presented (Tex.Crim.App.1994). that the motion must be within ten *2 timely filed a
Appellant
See
newly
evidence.
premised on
discovered
31(a)(1). Appellant’s mo-
Tex.R.App.Proc.
and a
a “Fiat”
for new trial contains
tion
(asA
re-
Appendix
proposed “Order.”
transcript). The “Order”
produced from
trial court to
signature line for the
has a
denying the
granting or
it is
indicate whether
contains
line is blank and
motion. This
spaces for
“Fiat” contains
signature. The
appel-
date
trial court to set
space
another
for new trial with
lant’s motion
spaces
signature. These
the trial court’s
for
containing neither a
blank
are also
signature. There
nor the trial court’s
date
for new
appellant’s motion
was no
And,
trial
motion for new
appellant’s
signed
by written order
not “determined
it
trial court so was
the”
Tex.R.App.Proe.
pursuant to
operation of law
31(e)(3).
nothing in the record to
There is
appel-
actually knew
indicate
trial and
lant had filed a
on it.
desired
Appeals,
appeal to the Court
On direct
the trial court erred
appellant claimed
hearing on his motion
failing
conduct a
held the
trial. The Court
failing
not err in
to conduct
trial court did
appellant’s motion for new
hearing on
“present” the mo-
appellant did not
because
Tex.
to the trial court as
State, No.
31(c)(1).
Carranza v.
R.App.Proc.
(Tex.
04-93-00619-CR,
was carried over in on the motion for new trial 31(c)(1). During enactments and Rule this Green.3 time, “presentment” leg- the term was never Because the term as used in defined, islatively and the term is not defined ambiguous, is somewhat we re- appellate procedure. the rules We have sort to extra textual sources to define the *3 analogs found no federal or out-of-state State, 782, Boykin term. See v. 818 S.W.2d requirement “presentment” Texas’ of a V.T.C.A., (Tex.Cr.App.1991); 785-86 Govern-
motion for new trial to the trial court.
Code,
ment
Section 311.023. We commence
“object
purpose
our
with the
or
discussion
light
This Court’s case law has shed little
31(e)(l)’s
sought to be obtained” in Rule
re-
on what it means to
a motion for
quirement
that a motion for new trial be
Reyes
new trial to the trial court. See
v.
V.T.C.A.,
“presented” to the trial court. See
State,
(Tex.Cr.App.1993);
849 S.W.2d
815
311.023(1)(in
Code, Section
con-
Government
State,
(Tex.Cr.
Dugard v.
tion of new ‘present’ a motion for “In order trial, give the trial court the movant must 12.06,V.A.C.C.P., next consider Article timely filed notice that it has actual 20.21, and Article V.A.C.C.P. See Tex.Gov’t request motion for new 311.023(4) (in Cd., construing a stat- it. filing on the motion within ten ute, courts consider laws on the same or presentment must be directed The subjects). similar Article 12.06 that to act on or another authorized trial court “presented” an indictment is considered presentment trial court. The behalf of the upon by grand when it has been acted to the trial in actual notice must result jury and “received the court.” Article may be evidenced court and provides that when an indictment is 20.21 signature or notation on grand jury ready “presented,” to be fore- on the docket. by a date set or man shall “deliver the indictment exhaustive, but to be provi- This list is not meant clerk of the court.”5 These or may fulfill as to how one merely suggestive of Criminal Procedure sions of Code pre- “presenting” an the communication contemplate that indictment "present- insufficient to show dictio- Court has held is 4. The Court relied on a common Martinez ment.” nary “present” meaning as “to offer definition of Martinez, 846 S.W.2d at for consideration.” dictionary 31(c)(1) requires this definition that the Rule "present" "presented” It does not resolve the issue in this case to the trial court. does trial be "presentment” of the to the clerk also include the not authorize because this definition would trial which this court. of a motion for new mere senting (Empha- a motion for trial.” Supplied).6
sis JUDGE PRESIDING holding Judge
The in Overstreet’s essentially holding as is the same OVERSTREET, Judge, concurring. (cid:127) opinion. that out in case set majority I concur with the result of the nothing appel is to show there the record opinion, disagree with the rationale serv- lant delivered his trial motion to the trial majori- ing as the basis of the decision. The brought or the motion to the otherwise “present” ty finds the term as used attention or actual notice of the trial court. ambiguous” as “somewhat and uses Therefore, the Court of did not err Appeals finding its reliance on to hold his mo failed 311.023(1), §§ V.T.C.A. Gov’t Code tion for new trial to the trial court. 311.023(5) 311.023(4), reaching its con- of the Court of clusion. Carranza v. 960 S.W.2d at affirmed. Ambiguous inexplicable, 78-79. uncertain, capable being un- doubtful
MEYERS, J., judgment. concurs possible derstood two more senses ways.1 meaning Based common EXHIBIT A ambiguous, disagree I must *5 ORDER Instead, ambiguous. plain I look
meaning along of the term with the subject have the few cases which addressed day for consideration On came on in resolving the issue this case. Defendant’s Motion for New Trial. After same, consideration of this court is of the 1) to present The verb tense of opinion that said motion be GRANTED/DE- presence bring or introduce into the of NIED. 3) 2) to; someone; gift give a to to make THAT_ IT IS ORDERED 4) (as lay charge) formally, to a bestow 5) object inquiry, a as an before court 6) benefice, to offer to view: nominate to a _ day on this the SIGNED [emphasis From the defini- added]. show.2 _, tion, present plain mean- has a and common by introducing, ing bring forth bestow- —to JUDGE PRESIDING showing. introducing, acts of ing,. or The bestowing showing are all acts which re- FIAT by presenter quire physical a act the receipt by presentee. the
implied act of meaning, it is difficult Based on this common being duly present- foregoing Motion majority’s position hereby hearing on the the ed to me is set for for me embrace _ _ _, day ambiguous. that the term is n .m./p.m.,in the presiding Court. cases for an examination of the Now of_, the_day Signed on this State, Reyes 812 subject. In v. 849 S.W.2d held that mere (Tex.Cr.App.1993), this Court P.J., (Onion, dissenting). extent Green To the a for new trial under 6. A notation on motion support proposition revealed the record like the circumstances not that such can be read to "present is not sufficient to show one in Green "presentment,” a notation is sufficient to show because, among things, such a nota ment” other expressly overruled. Green is "judge’s establish that it is the tion does not Carranza, at 81 960 S.W.2d notation.” COLLEGIATE 1. See WEBSTER’S NINTH NEW (Overstreet, J.) (the "presentment must result in ed.1989). (9th DICTIONARY77 court and be evi actual notice to the trial judge’s signature notation on a denced COLLEGIATE WEBSTER’S NINTH NEW 2. See proposed order or date set (9th ed.1989). Green, docket”); 930 at 689 fn.3 DICTIONARY see also 754 S.W.2d
81 right is asserted right, provided present- absolute filing was insufficient constitute State, specified.” Synagogue v. v. time ment. Green S.W.2d within the (Tex.Cr.App.1988), that a this Court held 122 Tex.Crim. (1932).
handwritten notation indicating that the motion had been this Court modified However suffi- specific on a date was ed that “... interpretation when it held this act cient. The Court further stated that right to on a put appel- trial court on that the “the notice Reyes right.’” truly an ‘absolute hearing so could be lant desired a that he at 815. We concluded present evidence afforded the required when the “... is not motion trial.” of his for new motion for new trial are matters raised Green, 754 at 687. Based on these S.W.2d rec- subject being determined from the cases, just filing. present requires more than Thus, court has a Id. at 816. the trial ord.” It is an act which communicates to the duty to on the motion for new hold requesting party’s desire to a hear- have pre- timely filed and trial when it has been ing. and asserts matters which are extrin- sented According to Rule the accused To fail to do so is an abuse sic the record. present shall his motion for new trial within of discretion. Id. filing it in it to ten order for (emphasis considered add case law and Based on the aforementioned “ ed). The has ‘[m]ust’ held “present”, following plain meaning synonymous usually ‘shall’ are and are man appropriate as it re- definition datory Brinkley when used statutes.” to Rule 31. In order to lates 472, 320 167 Tex.Crim. trial, give the movant must motion (1959). pres So if an accused is that it has the trial court actual notice days, ent his within ten what is the request trial and filed motion *6 consequence doing only benefit or so? It hearing on the motion within ten makes sense that the rule makers’ intended presentment must be directed it. The presented for the motion to be heard if with to the trial court or another authorized to act filing. in ten It could not have on behalf of the trial court. The require their intent that the motion be in actual notice to the trial ment must result presented a time certain amount of by the and evidenced and then allow the motion to be overruled proposed order or signature or notation operation slightest of of law without the con hearing date set on the docket. sideration. To follow this rationale would be exhaustive, merely list is not meant to promote meaningless provi a useless and suggestive one fulfill the as to how Furthermore, sion. the fact that the first presenting communication part specifically of the sentence does not hearing mention a does not mean that it does bar, appellant In the case at filed by implication. not follow In the second “ supported by affida- his rule section it states that [a] newly evidence. claiming vits discovered during for new trial need not be heard include statements several The affidavits 31(c)(2). Tex.R.App.Pro. term it is filed.” appellant not the who claim was individuals does not state that a motion for new trial Instead, person the victim. who killed fact, just not need be heard all. they name another man whom individuals opposite meaning language flows from the —a Appellant claim the crime. want- committed just required, not in the term with trial court pursue ed to this matter interpretation which is filed. The that hearing in fiat attached requested and hearing is dates back as far as 1932 judge did not to the motion. interpreting when this Court held Proc.1925, sign or the fiat. There was the order predecessor to Rule Code Cr. notation on the right to have written art. that file and “[t]he appellant had communi- indicating fiat that heard a motion new trial is deemed Walsh, District At- Ms for a on the motion Kathleen A. Assistant cated desire Denton, Paul, Atty., torney, the trial court or another authorized to set Matthew State’s Austin, hearing. any Nor is for State. there indication the case was set for a on the court’s Therefore, appellant not
docket. meet 31(e) “present” requirement of Rule OPINION ON APPELLANT’S PETITION by operation motion was overruled of law FOR DISCRETIONARY REVIEW expiration seventy-five days pur- upon the PER CURIAM. 31(e). suant to Rule placed probation for 24 Appellant was rely reviewing As a court we must pleading guilty to the misde- months after making our In this record determination. driving while intoxicated. meanor offense case there is no evidence the record that The State later filed a motion revoke appellant presented the motion for new trial appellant’s probation. The court re- only item to the trial court. The appellant’s probation voked and sentenced fiat, unsigned which produces is an order and days’ him to 120 confinement. The Fort prove that he re- is insufficient itself to convic- Worth Court of affirmed the quested on the motion for new trial sentence. Baxter v. to the trial and communicated his desire 1996). (Tex.App. S.W.2d 469 Worth —Fort court or another authorized to act. Accord- discretionary review on two appeals ingly, the court of did not err grant grounds. We decide our decision to holding appellant’s motion for new trial discretionary improvident. review was timely presented to the trial court in Therefore, appellant’s petition for we dismiss 31(c). with accordance discretionary review. appeals is affirmed. of the court of MANSFIELD, JJ., join. BAIRD and
Larry MOORE, Appellant, HENRY, Appellee. Pamela BAXTER, Appellant, William Stuart No. 01-95-01027-CV. Texas, The STATE of Texas. (1st Dist.). Houston No. 202-97. 2,May Texas, Appeals of Court of Criminal En Banc.
Feb. Denton, appellant. Hagen,
H.F. Rick