Opinion
No. 04-16-00787-CR
09-13-2017
Juan Ramon MEDRANO, Jr., Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 09-12-06579-MCRAJA
Honorable Amado J. Abascal, III, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice AFFIRMED
Juan Ramon Medrano, Jr. was convicted by a jury of aggravated sexual assault of a child. On appeal, Medrano contends the trial court erred in failing to conduct an evidentiary hearing on his motion for new trial and in denying his motion. Medrano also contends trial counsel rendered ineffective assistance of counsel. We affirm the trial court's judgment.
PROCEDURAL HISTORY
The jury returned its guilty verdict on December 13, 2011. The following day, Medrano failed to appear in court for the punishment phase of his trial. The jury assessed his punishment at fifty-five years' imprisonment.
In 2015, Medrano was returned to custody, and the trial court imposed sentence on March 19, 2015. On August 22, 2016, the Texas Court of Criminal Appeals granted Medrano an out-of-time appeal, and Medrano timely filed a motion for new trial which was overruled by operation of law.
After this court was advised the court reporter's record may have been lost or destroyed, we abated the appeal and remanded the cause to the trial court to make findings pursuant to TEX. R. APP. P. 34.6(f). After a hearing, the trial court found the court reporter's records and notes were lost or destroyed, and Medrano "was at fault for the loss of the court reporter's notes and records ... due to the extensive lapse of time between the return of the jury's verdict and the imposition of sentence, [] which delay was a direct result of [Medrano] having absconded." Accordingly, this court held Medrano was not entitled to a new trial based on the loss of the reporter's record and ordered the appeal to proceed without the reporter's record.
EVIDENTIARY HEARING ON MOTION FOR NEW TRIAL
In his first issue, Medrano contends the trial court erred in failing to hold an evidentiary hearing on his motion for new trial. In his brief, Medrano asserts he "timely and effectively communicated to the trial court that he needed and was requesting an evidentiary hearing to develop a record of those matters that were not determinable from the record." As support for this assertion, Medrano cites a section of his motion for new trial entitled "REQUEST FOR AN EVIDENTIARY HEARING," and a letter in the clerk's record from his attorney to the trial judge. The State responds Medrano failed to preserve this issue for our review because he did not timely present his motion for new trial to the trial court.
"A motion for new trial must be 'presented' to the trial court within 10 days of its filing." Obella v. State, No. PD-1032-16, 2017 WL 510568, at *1 (Tex. Crim. App. Feb. 8, 2017) (citing TEX. R. APP. P. 21.6). "This means the defendant must give the trial court actual notice that he timely filed a motion for new trial and requests a hearing." Id. "'Presentment' must be apparent from the record, and it may be shown by such proof as the judge's signature or notation on the motion or proposed order, or an entry on the docket sheet showing presentment or setting a hearing date." Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009).
"The rationale for requiring presentment is the same as that which supports preservation of error generally." Obella, 2017 WL 510568, at *1. "Thus, a reviewing court does not reach the question of whether a trial court abused its discretion in failing to hold a hearing if no request for a hearing was presented to it." Id. (internal quotations omitted).
As previously noted, Medrano appears to rely on the section of his motion entitled "REQUEST FOR AN EVIDENTIARY HEARING" to satisfy the presentment requirement. Both the Texas Court of Criminal Appeals and this court, however, have held that statements included in a motion for new trial are insufficient to establish presentment. See Gardner, 306 S.W.3d at 305 (holding "Certificate of Presentment" attached to motion stating a copy of the motion would be hand-delivered to the trial court did not satisfy presentment requirement); Hiatt v. State, 319 S.W.3d 115, 122-23 (Tex. App.—San Antonio 2010, pet. ref'd) (holding statement in motion for new trial that "THE DEFENDANT HEREBY PRESENTS THIS MOTION TO THIS HONORABLE COURT" insufficient to establish presentment).
Medrano also relies on a letter in the clerk's record from his attorney to the trial judge requesting a hearing. That letter, however, is dated October 20, 2016, which was thirty days after the motion for new trial was filed. Accordingly, even if the letter could constitute sufficient evidence of presentment, it did not establish the motion was presented within ten days of its filing.
Because the record does not establish Medrano timely presented his motion for new trial to the trial court, he has failed to preserve this complaint for our review. Obella, 2017 WL 510568, at *1.
NEWLY DISCOVERED EVIDENCE
In his first issue, Medrano alternatively argues the trial court erred in failing to grant his motion for mistrial because he established newly discovered or newly available evidence outside of the record that would reasonably lead to an acquittal.
A trial court has discretion to grant a motion for new trial based upon newly discovered evidence and its ruling will not be reversed unless the trial court abused its discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). To establish an abuse of discretion for failure to grant a motion for new trial based on newly discovered evidence, the appellant must show: (1) the evidence was unknown or unavailable to him before trial; (2) his failure to discover the new evidence was not due to a lack of diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and its materiality will probably result in a different outcome following a new trial. Carsner v. State, 444 S.W.3d 1, 2-3 (Tex. Crim. App. 2014).
In determining whether the new evidence will probably result in a different outcome, this court would need to compare the "new evidence" contained in the affidavits attached to the motion for new trial with the evidence presented at trial. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). In this case, however, this court is unable to review the evidence presented at trial because the record was lost or destroyed, and Medrano was at fault in that loss or destruction. Therefore, based on the record presented, this court cannot hold the trial court abused its discretion in denying the motion for new trial.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his remaining issues, Medrano contends trial counsel rendered ineffective assistance of counsel in failing to conduct a timely, diligent, and full investigation, failing to prepare Medrano to testify in his own defense, and failing "to have a colloquy on the record to inform [Medrano] that [he] had a right to overrule counsel's strategy not to call him to testify."
Medrano "bears the burden of proving ineffectiveness by a preponderance of the evidence." Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). To establish ineffective assistance of counsel, Medrano would be required to show that: (1) trial counsel's conduct was deficient, meaning counsel's representation fell below an objective standard of reasonableness and was not the result of reasonable professional judgment; and (2) he was prejudiced by the deficient performance, i.e., there is a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 691-92 (1984); Nava v. State, 415 S.W.3d 289, 307-08 (Tex. Crim. App. 2013). "In assessing prejudice, we [must] look to the entire record. Ex parte LaHood, 401 S.W.3d 45, 54 (Tex. Crim. App. 2013). Because the reporter's record was lost or destroyed, however, we cannot review the entire record to determine whether Medrano can establish the necessary prejudice. Because Medrano was at fault in the loss or destruction of the record, he is unable to satisfy his burden. See Perez, 310 S.W.3d at 893; cf. Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001) (noting trial record is necessary to resolution of ineffective assistance of counsel claim). Therefore, his ineffective assistance of counsel complains are overruled.
CONCLUSION
The trial court's judgment is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH