Opinion
No. 08-15-00137-CR
01-08-2016
JEFFREY MARK BRAGG, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 380th District Court of Collin County, Texas (TC# 380-80402-2012) OPINION
Jeffrey Mark Bragg is appealing a judgment adjudicating him guilty of falsely holding oneself out as a lawyer, a third-degree felony. See TEX.PENAL CODE ANN. § 38.122 (West 2011). We affirm.
FACTUAL SUMMARY
Appellant was a lawyer for more than twenty years before losing his law license in May of 2011. In early 2012, a grand jury indicted Appellant for falsely holding himself out as lawyer between the dates of July 5, 2011 and August 9, 2011. Appellant waived his right to a jury trial and entered a negotiated plea of guilty to the charged offense. The trial court followed the plea bargain and placed Appellant on deferred adjudication community supervision for three years. The State later filed a petition to adjudicate Appellant's guilt based on its allegations that he had violated several terms and conditions of community supervision. The State withdrew that petition and the trial court amended the terms and conditions of community supervision. A little more than one month later, the State filed another petition to adjudicate guilt alleging eight violations of the terms and conditions of community supervision. The trial court conducted a hearing on the State's motion on February 11, 2015, and Appellant entered an open plea of true to the petition. The trial court found all eight allegations true, entered an adjudication of guilt, and assessed Appellant's punishment at imprisonment for a term of five years.
Appellant filed a timely motion for new trial asserting that the trial court had relied on inaccurate facts when it made the decision to adjudicate Appellant's guilt, the prosecutor improperly questioned Appellant about an allegation which had been withdrawn, trial counsel provided ineffective assistance, Appellant was assessed a disproportionate sentence, and his plea of true was involuntary. The trial court did not conduct a hearing on the motion for new trial and it was overruled by operation of law.
NO HEARING ON MOTION FOR NEW TRIAL
In his sole issue, Appellant contends that the trial court erred by failing to conduct a hearing on his motion for new trial. A defendant's 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 defendant is entitled to a hearing on his motion for new trial if: (1) the motion is timely filed; (2) the motion is supported by affidavit which raises matters not determinable from the record that could entitle the defendant to relief; and (3) the motion is timely presented to the trial court. See Rozell, 176 S.W.3d at 230; Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003). The State contends that Appellant waived his complaint because he failed to satisfy the presentment requirement.
The mere filing of a motion for new trial is insufficient to show presentment. Carranza v. State, 960 S.W.2d 76, 78 (Tex.Crim.App. 1998). To present a motion for new trial, the defendant must give the trial court actual notice that he timely filed a motion for new trial and that he requests a hearing on the motion. Rozell, 176 S.W.3d at 230. The Court of Criminal Appeals explained in Rozell that "[t]he rationale for this requirement is the same as that which supports preservation of error generally: A trial court should not be reversed on a matter that was not brought to the trial court's attention." Id. By presenting the motion for new trial and requesting a hearing, the defendant makes the trial court aware that he wants the court to act on the motion and he would like a hearing on the motion. Id.
The record before us does not show that Appellant presented his motion for new trial to the trial court. Because Appellant did not make the trial court aware that he had filed a motion or that he wanted a hearing, he failed to preserve his complaint that the trial court erred by failing to hold a hearing on the motion for new trial. See Rozell, 176 S.W.3d at 231. We overrule the sole issue presented and affirm the judgment of the trial court.
STEVEN L. HUGHES, Justice January 8, 2016 Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)