Carlos Javon Beckett v. State ( 2011 )

NO. 07-10-00297-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 8, 2011
CARLOS JAVON BECKETT, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY;
NO. 1117440D; HONORABLE SHAREN WILSON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Carlos Javon Beckett appeals his conviction for unauthorized use of a
vehicle.1 Through one issue, appellant asserts the trial court erred in failing to hold a
hearing on his motion for new trial. We will affirm.
Background
Appellant plead guilty to the offense of unauthorized use of a motor vehicle in
August 2008. The court placed him on deferred adjudication community supervision for
a period of three years. In March 2010, the State filed an amended petition to proceed
1
See Tex. Penal Code Ann. § 31.07 (West 2009).
to adjudication in which it alleged a single violation of the terms of appellant’s
community supervision, that appellant committed the offense of assault-bodily injury.
At the March 18 hearing on the State’s petition, after appellant plead the alleged
ground for revocation was not true, the court heard Cameron Bullock testify he was
assaulted by appellant and others on January 11, 2010, at a convenience store. One of
appellant’s friends, Lawrence Williams, testified on appellant’s behalf, telling the court
he was the only person who assaulted Bullock. Williams testified appellant was
pumping gas at the time of the altercation.
The trial court adjudicated appellant guilty and sentenced him to nine months in
Tarrant County Jail. Appellant filed his motion for new trial on April 19, 2010 and
requested an evidentiary hearing. The trial court generated a signed setting notice,
setting a hearing for May 21, 2010. The trial court cancelled the hearing on May 19.
Appellant filed a written objection on May 20, asking the hearing to be conducted as
scheduled. The trial court did not respond and the motion for new trial was overruled by
operation of law. Appellant now appeals, contending the trial court erred in failing to
hold the evidentiary hearing on his motion for new trial.
Analysis
A trial court's decision regarding whether to hold a hearing on a motion for new
trial in a criminal case is reviewed by an abuse of discretion standard. Wallace v. State,
106 S.W.3d 103, 108 (Tex.Crim.App. 2003); Martinez v. State, 74 S.W.3d 19, 22
(Tex.Crim.App. 2002). In applying this standard, we may not substitute our judgment for
that of the trial court; instead, we must decide whether the trial court's decision was
arbitrary or unreasonable. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006).
2
A defendant is entitled to a hearing on his motion for new trial if the motion and
accompanying affidavit(s) "rais[e] matters not determinable from the record, upon which
the accused could be entitled to relief." Wallace, 106 S.W.3d at 108, citing Reyes v.
State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). To be sufficient to entitle the
defendant to a hearing, the motion for new trial and accompanying affidavits do not
need to establish a prima facie case for a new trial. Wallace, 106 S.W.3d at 108.
Instead, they "must merely reflect that reasonable grounds exist for holding that such
relief could be granted." Wallace, 106 S.W.3d at 108, citing Martinez v. State, 74
S.W.3d 19, 22 (Tex.Crim.App. 2002). The purpose of the hearing is to give the
defendant an opportunity to fully develop the matters raised in his motion. Martinez, 74
S.W.3d at 21.
On appeal, the State’s argument in support of the trial court’s ruling is there was
no evidence appellant actually presented the trial court with his motion for new trial
within ten days of filing it in accordance with Rule of Appellate Procedure 21.6. The
State contends appellant’s certificate of service was insufficient to demonstrate
presentment. Further, the State argues the court’s notice setting the May 21 hearing is
not part of the appellate record.
Rule 21.6 provides “Time to Present—The defendant must present the motion for
new trial within 10 days of filing it, unless the trial court in its discretion permits it to be
presented and heard within 75 days from the date when the court imposes or suspends
sentence in open court.” Tex. R. App. P. 21.6.
The trial court’s “setting notice” setting a hearing on appellant’s motion appears
in the clerk’s record appended as an exhibit to appellant’s May 20 objection to
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cancellation of the hearing. The notice contains the wording “date posted: 05/04/10”
and bears a signature appearing to be that of the trial judge.
In support of its contention the setting notice is not a part of the appellate record
to be considered on this appeal, the State cites Hiatt v. State, 319 S.W.3d 115
(Tex.App.—San Antonio 2010, pet. ref’d). We agree with appellant that Hiatt is
inapposite because it addressed a motion filed in the appellate court after the parties
had filed briefs. Id. at 123. The State does not suggest any reason to doubt the
authenticity of the signed setting notice appended to the motion appellant filed in the
trial court and thus appearing in the clerk’s record on appeal, nor does the State
suggest any other legitimate reason we should not consider it.
The evidence supporting appellant’s contention the record demonstrates timely
presentment includes his counsel’s certificate of service appended to the motion for new
trial. There, counsel certified “that on April 19, 2010, a true and correct copy of the
[motion was served on the State] and presented to Ms. Carol Alexander, court
coordinator[2] of Criminal District Court No. 1, pursuant to Rule 21.6 of the Texas Rules
of Appellate Procedure by hand delivery.” While counsel’s statement in the certificate
alone likely would be insufficient to show presentment, Hiatt, 319 S.W.3d at 122-23, the
setting notice bearing the judge’s signature serves to confirm the motion’s presentment.
See Stokes v. State, 277 S.W.3d 20, 23 (Tex.Crim.App. 2009) (docket-sheet entry, if
2
The certificate contains a footnote at this point citing Butler v. State, 6 S.W.3d
636 (Tex.App.—Houston [1st Dist.] 1999, pet. ref’d) for the proposition that presentment
of a motion for new trial to the court coordinator meets the presentment requirement.
Because of the presence in this case of a setting notice signed by the trial judge, we
need not here address that holding of Butler.
4
signed by judge, would have shown presentment requirement met); Losoya v. State,
No. 02-09-0361-CR, 2010 Tex. App. Lexis 7305 (Tex.App.—Fort Worth August 31,
2010, no pet.).
The State lastly argues the setting notice does not demonstrate that presentment
occurred within ten days of the motion’s filing, as required by Rule 21.6. It points out
the “posted” date shown on the notice, May 4, which was more than ten days after the
April 19 filing date. Two factors, we think, defeat this argument. First, the State’s
argument would have us ignore appellant’s counsel’s certification that he presented the
motion to the court coordinator by hand delivery on April 19. While, again, not sufficient
alone to show presentment, counsel’s certification surely is entitled to consideration. Cf.
Losoya, 2010 Tex. App. Lexis 7305 at *4 (describing motion containing only a statement
in the body of the motion that movant “hereby presents” the motion and a statement in
an unsigned order stating that movant presented the motion to the court “on the ___ day
of ___ 2009”). And second, Rule 21.6 gives a trial court discretion to permit a motion
for new trial to be “presented and heard” within 75 days from sentencing in open court.
Tex. R. App. P. 21.6. That the trial court apparently took the action of posting the notice
of hearing on May 4, a date beyond ten days from the motion’s filing, does not indicate
a lack of compliance with the presentment requirement.
Although we disagree with the State that appellant’s evidence of presentment is
lacking, for other reasons we nonetheless find no abuse of discretion in the trial court’s
failure to hold a hearing on the motion for new trial.
First, the new trial appellant sought was a rehearing of the State’s motion to
revoke appellant’s community supervision and proceed to adjudication on the
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underlying offense. A revocation proceeding is neither criminal nor civil in nature; it is
an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.
1993). At a revocation hearing, the State must prove by a preponderance of the
evidence that the defendant has violated a condition of his community supervision. Id.
The Court of Criminal Appeals has also held that, "since a revocation is a proceeding
tried before the court and not before a jury, the trial court is not required even to
consider a motion for new trial." Glaze v. State, 675 S.W.2d 768, 769 (Tex.Crim.App.
1984).3 Article 42.12, § 5(b) of the Code of Criminal Procedure provides the trial court’s
determination to proceed to adjudication “is reviewable in the same manner as a
revocation hearing conducted under Section 21 of this article in a case in which an
adjudication of guilt had not been deferred.” Tex. Code Crim. Proc. Ann. art. 42.12, §
5(b) (West 2010). We are unable to see why the principle the Court of Criminal Appeals
enunciated in Glaze should apply differently in deferred adjudication revocations.
Second, for reasons related to the contents of appellant’s motion for new trial, the
trial court reasonably could have found it did not show he could be entitled to relief.
Wallace, 106 S.W.3d at 108. The motion asserts that Cameron Bullock, the victim of
appellant’s assault who testified at the revocation hearing, committed perjury. In
support of the motion, appellant attached an affidavit from an individual named Cassius
McLin. McLin’s affidavit, dated April 2, 2010, contains this paragraph:
3
We do not suggest, however, that a trial court abuses its discretion by choosing
to consider a motion for new trial following a revocation proceeding. Cf. State v.
Herndon, 215 S.W.3d 901, 909-10 (Tex.Crim.App. 2007) (discussing exercise of
discretion).
6
On Wednesday, January 13, 2010, at approximately 11 or 11:30 am
Jessee Ohawkum, Kelly Ohawkum, William Ohawkum, person known to
me only as Matthew, person know [sic] only to me as Roderick and
Cameron Bullock were all in the game room of Jessee’s home. I heard
Cameron Bullock say “I need a favor; I need you to say that Marquise
Bennett, Carlos Bennett[4] and Lawrence Williams jumped me.” Then he
said “My Daddy is mad and he wants to press charges on them all. I need
you to say they jumped me.
Appellant’s motion effectively requested a new trial based on newly discovered
evidence. To obtain a new trial based on newly discovered evidence, appellant was
required to show: (1) the evidence was unknown to him at the time of trial; (2) his
failure to discover the new evidence was not due to his lack of due diligence; (3) the
new evidence is admissible and not merely cumulative, corroborative, collateral, or
impeaching; and (4) the new evidence is probably true and will probably bring about a
different result in a new trial. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.Crim.App.
2002); Tex. Code Crim. Proc. Ann. art. 40.001 (West 2010). The first two factors went
unaddressed in appellant’s motion. Without at least some indication the evidence
reflected in McLin’s affidavit qualified as newly discovered evidence, the trial court
reasonably could have concluded it would not entitle appellant to a new revocation
hearing.
Further, the trial court reasonably could have concluded McLin’s testimony to the
facts shown in the affidavit would not probably bring about a different result in a new
revocation hearing. Appellant argues the affidavit shows his probation was revoked
based only on perjured testimony. As noted, it was undisputed at the hearing that
4
While the affidavit refers to Carlos “Bennett,” it seems clear the affiant was
speaking of appellant, Carlos Beckett.
7
appellant was at the convenience store at the time of the assault on Bullock. The point
of disagreement was whether appellant participated in the assault. The court had the
opportunity to evaluate the credibility of appellant’s friend Williams and of Bullock. None
of the persons named in McLin’s affidavit except Bullock testified at the hearing. The
court was not required to agree with appellant that the affidavit demonstrated that
Bullock committed perjury, or that McLin’s testimony would lead to a different result.
Wallace, 106 S.W.3d at 108.
For these reasons, we resolve appellant’s sole issue against him and affirm the
judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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