Opinion filed June 30 , 201 6



### In The 

# Eleventh Court of Appeals

__________ No s . 11

- 1 5

- 00 005

- C R & 11

- 1 5

- 00 006

- C R

__________ JOSEPH TYRONE NICHOLS Appellant

V

. THE STATE OF TEXAS , Appellee

On Appeal from the 350 th District Court

Taylor County, Texas Trial Court Cause No s . 9080

- D & 8999

- D

M E M O R A N D U M O P I N I O N Appellant, Joseph Tyron e Nichols
, pleaded guilty to two felony offenses , both of which occurred in a drug

- free zone. See T EX

. H EALTH & S AFETY C ODE A NN

. § 481.134 (c), (d) (West Supp. 2015 )

. The first offense was for possession of methamphetamine
, and the second was for possession with intent to deliver methamphetamine

. See id. § § 481.102(6), 481.1 12(a) , (c), 481.115(a), (b) (West2

2010)

. T he tri al court found Appellant guilty and assessed his punishment at confinement for eight years in each case. However, t he trial court suspended Appellant’s sentence s and placed him on community supervision for eight years in
each case

. Later, the State moved to revoke his community supervision

. At the revocation hearing, Appellant pleaded “ true” to many of the violations that the State had alleged in the motions. T he trial court found those allegations, as well as two additional ones, to be “true

. ”
T he trial court revoked Ap pellant’s community supervision
, reduced his punishment to confinement for seven years in each case
, and sentence d him accordingly

. In each appeal, Appellant challenges the trial court’s failure to hold a hearing on his motion for new trial
, in which he alleged ineffective assistance of
counsel

. He argues that the denial of the motions without a hearing was an abuse of
discretion. Alternatively, he request s that we abate the appeals and remand the causes to the trial court for it to explain why it failed to hold a hearing on the motions
for new trial. We affirm.
I. Procedural History
After the trial court entered the judgments by w hich it revoked Appellant’s community supervision, Appellant filed a motion for new trial in each ca u se

. In the
motion s , Appellant raised issues related to ineffective assistance of counsel

. The day that the trial court was to hear the motion s for new trial
, Appellant , despite being represented by appointed counsel, filed a handwritten document in which he expressly waived his right to a hearing on his motion for new trial in both causes.
The record does not reflect that appointed counsel insi sted on a hearing on the
motion s

. T he trial court did not hold the hearing , and A ppellant’s motion s for new
trial were deemed denied by operation of law. See T EX

. R. A PP

. P. 21.8 (a), (c)

.3 II. Analysis We review a trial court’s denial of a hearing on a motion for new trial under

an abuse of discretion standard. Smith v. State
, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). A hearing on a motion for new trial is not an absolute right. Id. A hearing is not required when the matters raised in the motion fo r new trial can be
determined from the record. Id. In addition, a motion for new trial is deeme d overruled by operation of law if a written order granting the motion for new trial is not entered by the seventy

- fifth day after the trial court imposes sent ence in open

court. T EX

. R. A PP

. P. 21.8(a), (c); State ex rel. Cobb v. Godfrey , 739 S.W.2d 47, 49 (Tex. Crim. App. 1987)

. Appellan t, throughout the course of these proceeding s , requested new counsel multiple times. O ne request occurred on the day of the second setting o n the motion s for new trial. Prior counsel was p ermitted to withdraw
, and new counsel was appointed to represent Appellant. On the day of the third setting, Appellant filed a handwritten note in which he waive d his right to a hearing on his motion s for new
trial

. The record does not reflect that Appellant’s appointed counsel request ed that
the trial court disregard Appellant’s waiver , demand ed that the hearing go forward as scheduled, or ask ed that the hearing be continued.
W e note f

rom the record that the hearing was not held as scheduled and that
the trial court may have accepted and honored Appellant’s waive r of the hearing on
the motion for new trial

. See generally Robinson v. State , 240 S.W.3d 919 (Tex. Crim. App. 2007) (trial c ourt may act on pro se motion even though defendant is represented by counsel)

. Moreover , because the trial court did not grant Appellant’s
motion s for new trial before the seventy

- fifth day, the motion s were deemed denied by operation of law. Appellant received what he requested and never objected to the
trial court ’s failure to hold a hearing

. To the contrary
, Appellant apprised the trial4

court that he did not want a hearing. As a result, he has failed to preserve this issue
for appeal. T EX

. R. A PP

. P. 33.1(a); see also Rozell v. State
, 176 S.W.3d 228, 231 (Tex. Crim. App. 2005) (where defendant does not make the trial court aware that he desires a hearing, nothing is preserved for appellate review)

. But here, the issue extends beyond waiver and constitutes invited error. An Appellant may not claim as error an action that he induced. By his handwritten instrument, Appellant essentially asked the trial court to not hold a hearing

— he
obtained the relie f that he sought. See Prystash v. State , 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (party may not complai n of trial court actions that party asked the
trial court to take ) . A s far as Appellant’s complaint about hybrid representation is concerned, even if his filing of the waiver could be considered hybrid representation, that matter is committed to the trial court’s discretion. There has been no complaint
as to an abuse of that discretion

. See Scarbrough v. State
, 777 S.W.2d 83, 92 (Tex.
Crim. App. 1989) (allowance of hybrid representation in the trial court is discretionary).
We overrule Appellant’s sole issue in each cause

.

III. This Court’s Ruling
We affirm the judgment s of the trial court.

MIKE WILLSON
JUSTICE
June 30 , 201 6 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: W right , C.J., Willson, J. , and Bailey, J.