Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00262-CR

Joe Anthony PEREZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 81st Judicial District Court, Atascosa County, Texas

Trial Court No. 17-03-0189-CRA

Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Irene Rios, Justice

Delivered and Filed: May 15, 2019

AFFIRMED

Perez contends the trial court abused its discretion by failing to hold a hearing on his motion 

for new trial because he raised matters not determinable from the record that would entitle him to 

a new trial. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). We disagree.

FACTUAL AND PROCEDURAL BACKGROUND

Perez was found guilty by an Atascosa County jury of one count of aggravated assault with 

a deadly weapon and one count of aggravated assault with a deadly weapon – family violence. On 

March 29, 2018, the trial court assessed punishment at ten years’ and thirty-five years’ 
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confinement, respectively, in the Institutional Division of the Texas Department of Criminal 

Justice. On April 4, 2018, trial counsel filed a notice of appeal and a motion to withdraw as 

counsel. On the same day, the trial court granted the motion to withdraw and appointed appellate 

counsel for Perez. 

On April 23, 2018, retained appellate counsel filed a notice of appearance of counsel. On 

May 7, 2018, retained appellate counsel filed a motion for new trial. No hearing was held before 

the trial court.

MOTIONS FOR NEW TRIAL

A. Arguments of the Parties

Perez contends the trial court abused its discretion in refusing to grant an evidentiary

hearing on his motion for new trial. The State counters the motion was untimely and the record 

does not support it was ever presented to the trial court.

B. Filing and Presentation of Motions for New Trial

Texas Rule of Appellate Procedure 21.4 governs the time to file a motion for new trial.

The defendant may file a motion for new trial before, but not later than 30 days 

after, the date when the trial court imposes or suspends sentence in open court.

TEX. R. APP. P. 21.4(a); State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013). “Such a 

motion is a prerequisite for the trial court to grant a new trial; the court may not do so on its own 

motion.” Zalman, 400 S.W.3d at 593 (citing State v. Aguilera, 165 S.W.3d 695, 699 (Tex. Crim. 

App. 2005)).

C. Analysis

On March 29, 2018, the trial court imposed the sentence. On May 7, 2018—thirty-seven 

days after sentencing—Perez’s appointed counsel filed a motion for new trial asserting his trial 

counsel’s complete indifference to a hostile community, failure to seek a venue transfer, and poor 
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preparation and trial decisions. The basis for the motion for a new trial, even newly discovered 

evidence, has no impact on the appellate timetable. Licon v. State, 99 S.W.3d 918, 926 (Tex. 

App.—El Paso 2003, no pet.)

Pursuant to Rule 21.4, Perez’s motion for new trial was due not later than April 30, 2018. 

Because Perez’s motion for new trial “was filed outside the thirty-day window prescribed by Rule 

21.4 of the Texas Rules of Appellate Procedure, the motion was untimely and the trial court lacked 

jurisdiction to consider it.” Perez v. State, 261 S.W.3d 760, 771 (Tex. App.—Houston [14th Dist.] 

2008, pet. ref’d); see also Griffith v. State, 507 S.W.3d 720, 727 (Tex. Crim. App. 2016) (Alcala, 

J., dissenting) (acknowledging strict deadlines to consider motion for new trial claims before trial 

court lost jurisdiction).

Accordingly, we conclude the trial court did not err in refusing to set the untimely motion 

for new trial for hearing. Perez’s sole issue on appeal is overruled and the trial court’s judgment 

is affirmed.

Patricia O. Alvarez, Justice

DO NOT PUBLISH