NO. 07-00-0513-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A NOVEMBER 2, 2001

______________________________ JOHN F. FOUNTAIN, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 1 40TH DI STRICT COURT OF LU BBOCK COU NTY; NO. 96-423628; H ONORABLE JIM BOB DARNELL, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ.
Pursuant to an open plea, appe llant John F. Fountain was convicted of possession of a controlled substance, enhanc ed, and punishment w as assessed at 18 years confinement. By a sole point of error, appellant contend s the trial court erre d in denying his reque st fo r a ne w trial base d on i nef fec tive assist ance of counsel for not relayi ng an offer made by th e pros ecutor . Base d upon t he rat ional e expr essed h erein , we affirm.2

On January 16, 1996, appellant ran a stop sig n and was pul led over by Officer Scott W eems. After Weems advised appellant that he was stopped f or a tra ffi c violat ion, a check for warr

ants was conducted. The searc h revealed an outstanding arrest warrant and appellant

was placed under ar rest. Appellant si gned a vehi cle release form and was dr iven to jail by Weems. Appellant’s gloves had been placed o n the front seat of the patrol car and as Weems exited the car, he picked up the gloves and felt something in one of the fingers. Weems turned the glove ups ide down and a“coupl e of rock s fell out that appeared to be c rack cocain e.” Weems advised the intake officer that contr aband had been discover

ed and recommended that appellant besearched. After a pat down and a strip searc h, a large amount of crack cocaine was discovered underneath appellant’s testicles.
Pursuant to an open plea, th e State presented evidence i n addition to the stipulated evidence and a ppellant’s judicial confession . After punishment evidence was also presented, including prior offenses, thetrial cour t sentenced appell ant to 18 years confinementon October 20, 2000. On November 9, 2000, appellant fil ed a motion for new trial alleging that his tri al counsel was ineffective for failing to convey a pl ea bargain offer of five years. A hearing on the motion was set for Dece mber 1 , 2000, but did not take place until Januar

y 12, 2001. At

the hearing appellant testi fied that he wo uld h ave accepted the alleged five-year off er. By his affidavit filed on the date of the hearing, trial counsel aver red th at he was aw are of t he ori ginal offer ma de by th e assistant district atto rney, but due to a lapse in ti me was unable to concl usively establish tha t he conveyed3

the offer to appellant i n “such a manner as to allow him to make a knowing and intelli gent assessment of the offer.” Appellant’s motion for new t rial was denied. Appellant

contends the tr ial court er red in deny ing his motion for new trial because trial counsel was ineffective for not relaying an offer made to him by the prosecutor. We disagree. Pursuant to R ule 21.8(a) of the Texas Rulesof Appellate Proc edur e, the t rial court must rule o n a mo tion for n ew tr ial wi thin 75 daysafter sentence is imposed. Otherwis e, the motion is ov erruled by

operation of law

and the t rial co urt loses i ts jurisdict ion to rule on the motion. Tex . R. App. P. 28. 1(c); Parmer v. State, 38 S.W.3d 661, 666 (Tex.App.–Aus tin 2 000, pet. ref’d), citi ng State v . Garza, 93 1 S.W.2d 560, 562 (Tex.Cr.A pp. 1996). A heari ng conducted after the motion for new trial hasbeen overr uled by ope ra tion of la w is not auth orize d and will no t be c onsi dere d on a ppe al. L aidl ey v. State, 966 S.W.2d 105, 108 (Tex.App.–H ouston [1st Di st.] 1998, pet. r ef’d). Further , the burden is on the defendant to e nsur e that a hearing is conducted t imely, and fail ure to object to an untimely

hearing w

aives err or. Tex. R . App. P. 33.1(a) ; Baker v. State, 956 S.W .2d 19, 24-25 (Tex.Cr.App. 199 7). Appellant

was sentenced on October 20, 2000. The 75-day per iod withi n which to rule on a motion for new trial ex pired on Januar

y 3, 2001. Thus, appellant’ s motion for new trial was ov erruled by

operation of law. Tex . R. App. P. 21.8(a). Although a hear ing was setfor December 1, 20 00, no hearing was conduc ted until January 12, 2001. Nothing in the record in dicate s that ap pellan t object ed to th e untim ely date o f the h earing. Thus, any4

evidence presented at the hearing on January 12, 2001, cannot be cons idered on appeal because the trial court was w ithout juri sdiction tohold the heari ng. Appellan t’s sole poi nt of error is o verruled

. Accordingl y, the judg ment of the trial court is affirmed.

Don H. Reavis Justice
Do not publish

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