Opinion filed June 30, 2016

In The

Eleventh Court of Appeals 

__________

Nos. 11-15-00005-CR & 11-15-00006-CR

__________

JOSEPH TYRONE NICHOLS Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 350th District Court

Taylor County, Texas

Trial Court Cause Nos. 9080-D & 8999-D

M E M O R A N D U M O P I N I O N

Appellant, Joseph Tyrone Nichols, pleaded guilty to two felony offenses, both 

of which occurred in a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN.

§ 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), 481.112(a), (c), 481.115(a), (b) (West 
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2010). The trial court found Appellant guilty and assessed his punishment at 

confinement for eight years in each case. However, the trial court suspended 

Appellant’s sentences 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. The trial court found those allegations, as well as two 

additional ones, to be “true.”

The trial court revoked Appellant’s community supervision, reduced his

punishment to confinement for seven years in each case, and sentenced 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 requests 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 which it revoked Appellant’s 

community supervision, Appellant filed a motion for new trial in each cause. In the 

motions, Appellant raised issues related to ineffective assistance of counsel. The 

day that the trial court was to hear the motions 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 insisted on a hearing on the 

motions. The trial court did not hold the hearing, and Appellant’s motions for new 

trial were deemed denied by operation of law. See TEX. R. APP. P. 21.8(a), (c).
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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 for new trial can be 

determined from the record. Id. In addition, a motion for new trial is deemed 

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 sentence in open 

court. TEX. R. APP. P. 21.8(a), (c); State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 

(Tex. Crim. App. 1987). 

Appellant, throughout the course of these proceedings, requested new counsel

multiple times. One request occurred on the day of the second setting on the motions

for new trial. Prior counsel was permitted 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 waived his right to a hearing on his motions for new 

trial. The record does not reflect that Appellant’s appointed counsel requested that 

the trial court disregard Appellant’s waiver, demanded that the hearing go forward 

as scheduled, or asked that the hearing be continued. 

We note from the record that the hearing was not held as scheduled and that

the trial court may have accepted and honored Appellant’s waiver of the hearing on 

the motion for new trial. See generally Robinson v. State, 240 S.W.3d 919 (Tex. 

Crim. App. 2007) (trial court may act on pro se motion even though defendant is 

represented by counsel). Moreover, because the trial court did not grant Appellant’s 

motions for new trial before the seventy-fifth day, the motions 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 trial 
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court that he did not want a hearing. As a result, he has failed to preserve this issue 

for appeal. TEX. R. APP. 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 relief that he sought. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. 

Crim. App. 1999) (party may not complain of trial court actions that party asked the 

trial court to take). As 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 judgments of the trial court.

MIKE WILLSON

JUSTICE

June 30, 2016

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.