Affirm and Opinion Filed October 26, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-01129-CR

No. 05-21-01130-CR

No. 05-21-01131-CR

No. 05-21-01132-CR

SYED HUMZAH HASHMI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2

Dallas County, Texas

Trial Court Cause Nos. F19-33675-I, F19-35541-I, F19-35542-I, F19-35543-I

MEMORANDUM OPINION

Before Justices Molberg, Partida-Kipness, and Carlyle

Opinion by Justice Molberg

Appellant Syed Humzah Hashmi claims the trial court abused its discretion in 

failing to conduct an evidentiary hearing on a consolidated motion for new trial filed 

after entry of judgments convicting him of aggravated sexual assault of a child and 

three offenses of possession of child pornography and sentencing him to various 

concurrent terms of confinement in the Texas Department of Criminal Justice’s 

Institutional Division. Based on binding case law and the record before us, we 
–2–

conclude Hashmi failed to present his new trial motion to the trial court as required 

in order to preserve the issue for review because the record fails to show the trial 

court received actual notice of Hashmi’s motion and request for hearing. We thus 

affirm the judgments in this memorandum opinion. See TEX. R. APP. P. 47.4.

BACKGROUND

Hashmi pleaded guilty to and elected to have the trial court assess punishment 

on the four offenses with which he was charged. After punishment proceedings, the 

trial court entered judgments convicting Hashmi of aggravated sexual assault of a 

child (trial court cause number F19-33675-I) and three offenses of possession of 

child pornography (F19-35541-I, F19-35542-I, and F19-35543-I) and sentenced him 

to various concurrent terms of confinement in the Texas Department of Criminal 

Justice’s Institutional Division. The trial court certified Hashmi’s right to appeal, 

and Hashmi timely appealed. He also obtained new appellate counsel.

Hashmi also timely filed a motion for new trial, in which he argued his trial 

counsel provided him constitutionally ineffective assistance by failing to file a 

motion to suppress certain evidence and by failing to present meaningful mitigation 

evidence during punishment. Among other things, the motion included a request for 

hearing,1a fiat for the setting of a hearing, a proposed order, and an affidavit by 

Hashmi on the circumstances surrounding his arrest. 

 

1

In a section entitled “Request for an Evidentiary Hearing,” Hashmi’s counsel stated, in part: “This 

motion raises matters substantially outside the trial record and thus Mr. Hashmi requests an evidentiary 

hearing.”
–3–

ISSUE AND ANALYSIS

Hashmi presents one issue on appeal, which states:

[Hashmi] had a viable motion to suppress. The motion to suppress 

would not have resolved all of [Hashmi’s] problems, but it would have 

removed the most offensive and evocative evidence and resulted in a 

lower sentence. Counsel did not move to suppress. [Hashmi] filed a 

careful motion for new trial, alleged ineffective assistance of counsel, 

presented the motion to the court, asked for an evidentiary hearing, and 

even provided [a] date when the state was unavailable. This Court is 

adamant that without a fully developed record—one that, in this case, 

could only be accomplished through an evidentiary hearing—a claim 

of ineffective assistance of counsel is premature. The trial court refused 

an evidentiary hearing. Did the trial court err?

Standard of Review, Preservation & Presentment

We review a trial court’s denial of a hearing on an appellant’s motion for new 

trial for an abuse of discretion and will reverse only when the trial judge’s decision 

was so clearly wrong as to lie outside that zone within which reasonable persons 

might disagree. See Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). 

A trial judge abuses his discretion by failing to hold a hearing on a new trial motion 

when the motion “raises matters which are not determinable from the record.” Id.

But “[I]t is the duty of the appellate courts to ensure that a claim is preserved 

in the trial court before addressing its merits.” Obella v. State, 532 S.W.3d 405, 407 

(Tex. Crim. App. 2017) (per curiam) (citing Wilson v. State, 311 S.W.3d 452, 473 

(Tex. Crim. App. 2010)). 

In Rozell v. State, 176 S.W.3d 228 (Tex. Crim. App. 2005), the court stated:

The right to a hearing on a motion for new trial is not absolute. 

Generally, a trial court should hold a hearing if the motion and attached 
–4–

affidavit raise matters that are not determinable from the record that 

could entitle the accused to relief. In addition to timely filing the 

motion with supporting affidavits that demonstrate reasonable grounds 

for believing that some error has occurred, the defendant must present

the motion to the trial court.

Id. at 230 (footnotes and citations omitted) (emphasis added). 

Generally, a motion for new trial must be “presented” to the trial court within 

ten days of its filing. See TEX. R. APP. P. 21.6.2 To present a motion for new trial 

to the trial court, a “defendant must give the trial court actual notice that he timely 

filed a motion for new trial and requests a hearing on the motion for new trial.” 

Rozell, 176 S.W.3d at 230. 

Presentment must be shown on the record. Gardner v. State, 306 S.W.3d 274, 

305 (Tex. Crim. App. 2009). It can be proved by the judge’s signature on the motion 

itself or on a proposed order; it can also be proved by an entry on the docket sheet 

showing presentment or setting a hearing date. Id. Merely filing the motion, 

however, does not accomplish presentment. Stokes v. State, 277 S.W.3d 20, 24 (Tex. 

Crim. App. 2009). Additionally, “[b]oiler plate language in the [motion’s] prayer is 

not sufficient to put the court on notice that the appellant wants a hearing” and 

“certainly does not qualify as obtaining a ruling.” Perez v. State, 429 S.W.3d 639, 

644 (Tex. Crim. App. 2014).

 

2 Rule 21.6 states, “The defendant must present the motion for new trial to the trial court within 10 days 

of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from 

the date when the court imposes or suspends sentence in open court.” TEX. R. APP. P. 21.6.
–5–

If no request for a hearing was presented to the trial court, we will not reach 

the question of whether the trial court abused its discretion in failing to hold a hearing

on a party’s motion for new trial. Rozell, 176 S.W.3d at 230 (“[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.”). 

Application

The parties dispute whether Hashmi presented the motion to the trial court and 

whether the circumstances required the trial court to hear Hashmi’s new trial motion.

We turn first to the question of presentment. Hashmi argues he presented his 

motion to the trial court because the motion requested a hearing, included a fiat to 

facilitate the setting of a hearing, and included an email from his counsel stating as 

follows:

From: [Hashmi’s counsel] 

Sent: Thursday, December 23, 2021 10:43 AM[3]

To: taylor.willis@dallascounty.org; Lupe Mercado[4]

<Lupe.Mercado@dallascounty.org>

Subject: State of Texas v. Syed Hashmi: Cause No. F-1933675-1

 

3 Hashmi’s motion for new trial contains a file-stamp showing it was filed in the trial court on December 

23, 2021, at 10:02 a.m.

4 Citing Texas Rule of Evidence 102(a), Hashmi asks us to take judicial notice that Lupe Mercado, one 

of the two email recipients, was the trial court’s court coordinator. Although we take no position on that 

request, we do assume, for purposes of this appeal, that Lupe Mercado was the trial court’s coordinator, 

considering that the State does not dispute this and considering that the trial court’s current webpage 

includes Lupe.Mercado@DallasCounty.org as the court coordinator’s proper email address. See 

https://www.dallascounty.org/government/courts/criminal_district/court2/, last accessed Oct. 3, 2022.
–6–

Lupe:

I have filed a MNT in Mr. Hashmi’s four cases. Taylor called this 

morning about when we would approach the judge. I will be out of 

town next week and Taylor leaves on January 19. We would like to get 

in to see the judge and to have a hearing of about an hour sometime in 

that window. I will be out of town the last week of December.

I am attaching the motion for new trial to this email for purposes of 

“presenting” the motion to the court.

The State disagrees with Hashmi’s conclusion regarding presentment but does 

not dispute the email was sent or that it went to the trial court coordinator. The State 

argues Hashmi’s email is evidence he attempted to present his motions for new trial 

via the court coordinator but argues the record lacks evidence he successfully did so. 

To put it in football terms, the State argues Hashmi attempted a pass but that the 

record does not reflect a completion. 

Both parties cite various cases in support of their respective positions, some 

that are binding, which we discuss below, another from our Court, which is 

distinguishable,5and other cases from our sister courts. Below, we focus on the 

binding cases on which the parties rely. 

Hashmi cites Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009), a case 

appealed from our Court, in which the court reversed our judgment because the court 

 

5 See Hedemann v. State, No. 05-18-00247-CR, 2019 WL 4386369, at *3–6 (Tex. App.—Dallas Sept. 

13, 2019, no pet.) (prelim. op. on rehr’g) (not designated for publication) (concluding, in limited 

circumstances of case, that presentment to court reporter was both a good faith effort of presentment and a 

reasonable attempt to present the motion to the person “authorized to act on behalf of the trial court.”). 

Unlike in this case, in Hedemann, the record contained information showing the court reporter responded 

with information, an offer of assistance, and a relevant question after receiving the email in question. 
–7–

concluded the trial court abused its discretion in refusing to hold a hearing on 

appellant’s motion for new trial when the motion was sufficient to put the trial judge 

on notice that reasonable grounds existed to believe appellant’s jury waiver may not 

have been a knowing and intelligent one. Id. at 203. The court stated it agreed with 

our implicit conclusion that the appellant preserved error by ending his new trial 

motion “with the specific and explicit request ‘that the Court grant a hearing on this 

Motion’” and attaching a verification affidavit to the motion that swore to the truth 

of the motion’s statements. Id. at 200, n.32. Applying that language to this case, 

Hashmi argues we should reach a similar conclusion because his motion included 

both of these things as well. The State disagrees but does not distinguish or discuss 

Hobbs in its brief. Hobbs is not on point. See Perez, 298 S.W.3d at 644 n.19.6

The State relies, in part, on Gardner, 306 S.W.3d at 305, in which the court 

determined an appellant did not show he timely presented the motion to the trial 

judge or that he requested a hearing on the motion, even though he timely filed a 

motion, asserted facts that were not in the record, included an “Order for a Setting,” 

and attached a “Certificate of Presentment” indicating the motion would be handdelivered to the trial judge. Gardner, 306 S.W.3d at 305–06. The court stated the 

“Certificate of Presentment” “indicated that he intended to present” the motion but 

 

6

In Perez, the court stated, “The appellant’s caselaw is not on point. In Hobbs v. State, 298 S.W.3d 193 

(Tex. Cr. App. 2009), we addressed when a hearing was necessary assuming it was properly requested and 

presented. The issue in this case is whether or not the request for a hearing was properly presented. Holding 

that it was not, we do not reach whether a hearing was required under Hobbs.”
–8–

“does not suffice to show that he actually did do so or when he did so.” Id. at 305. 

Hashmi does not distinguish or discuss Gardner in his briefs.

The State also relies on Carranza v. State, 960 S.W.2d 76 (Tex. Crim. App. 

1998) (en banc) (op. on pet. for discretionary review). In that case, the court 

determined it was not error to conclude appellant failed to present his motion for 

new trial to the trial court when there was nothing in the record to show appellant 

delivered his new trial motion to the trial court or otherwise brought the motion to 

the trial court’s attention or actual notice of the trial court. Id. at 80. Although 

Hashmi cites Carranza while quoting other cases, Hashmi does not apply, 

distinguish, or discuss Carranza in his briefs.

Although neither party cites it, another binding case that analyzes a 

presentment question is Perez, 429 S.W.3d at 643–44, which was issued after the 

other binding cases discussed herein. In Perez, the appellant’s new trial motion 

contained a prayer requesting that the trial court set the matter for hearing. Id. at 

644. The appellant’s motion also included an affidavit by his counsel stating he 

presented the motion for new trial and that the judge said he would “take a look” at 

it. Id. The court stated: 

The record contains no evidence that the appellant or his attorney took 

steps to obtain a setting or attempted to get a ruling on a request for a 

hearing. Given these facts, we agree with the Court of Appeals that the 

appellant did not preserve error. Boiler plate language in the prayer is 

not sufficient to put the court on notice that the appellant wants a 

hearing. 

Perez, 429 S.W.3d at 644.
–9–

Here, Hashmi cites as proof of presentment the request for hearing included 

in his motion, the fiat that accompanied the motion, and the email sent to the trial 

court’s coordinator. The record does not include any signature by the judge on the 

motion or on a proposed order and does not include any entry on the docket sheet 

showing presentment or the setting of a hearing date. 

Under Perez and Gardner, the motion’s fiat and request for hearing do not 

constitute presentment. See Perez, 429 S.W.3d at 644 (concluding boiler plate 

language in the motion’s prayer was not sufficient to put the court on notice the 

appellant wanted a hearing); Gardner, 306 S.W.3d at 305–06 (concluding the “Order

for Setting” “did not suffice as a request to hold a hearing on the motion”). 

Because the record must show the trial court received actual notice Hashmi 

timely filed a motion for new trial and requested a hearing on it, see Rozell, 176 

S.W.3d at 230, under Perez, Gardner, and Carranza, the email to the trial court 

coordinator does not constitute presentment either, as the record contains nothing 

showing the trial court coordinator received actual notice of it. See Perez, 429 

S.W.3d at 644 (concluding record contained no evidence appellant or his attorney 

took steps to obtain a setting or attempted to get a ruling on a request for a hearing, 

even though counsel presented an affidavit stating he presented the new trial motion 

and that the judge said he would “take a look” at it); Gardner, 306 S.W.3d at 305 

(concluding certificate of presentment reflected an intent to present the motion but 

did not suffice to show he actually did so or when he did so); Carranza, 960 S.W.2d 
–10–

at 80 (concluding appellant failed to present his motion for new trial to the trial court 

when there was nothing in the record to show appellant delivered his new trial 

motion to the trial court or otherwise brought the motion to the trial court’s attention

or actual notice of the trial court). 

Based on the above cases and record before us, we conclude Hashmi failed to 

present his new trial motion to the trial court because the record contains no 

information that the trial court received actual notice Hashmi timely filed the motion 

for new trial and requested a hearing on it. In light of this conclusion, we need not 

decide whether the circumstances required a hearing. See Perez, 429 S.W.3d at 644 

n.19 (stating court would not reach whether a hearing was required under Hobbs

because request for hearing was not properly presented).

We overrule Hashmi’s sole issue.7

 

7 We do so with some hesitation, however, considering the lengths to which appellant’s counsel went 

in his attempt to present the motion for new trial to the trial court. While we believe our decision to be 

consistent with the standards set forth in Rozell and other binding cases discussed above, we invite 

additional guidance from the Texas Court of Criminal Appeals on ways counsel can satisfy the standard 

using modern electronic communications, which are commonplace and have proliferated during the COVID 

pandemic. Here, it is abundantly clear from the record before us that appellant’s counsel was aware of the 

presentment requirement and took affirmative steps in order to try to satisfy it—including going so far as 

to file with the clerk’s office the timely request for a hearing that both sides agree was emailed to the trial 

court’s court coordinator. Although we recognize our sister court in Tyler has twice reached a similar result 

in appeals involving email and fax communications to a trial court coordinator, see McGary v. State, No. 

12-21-00115-CR, 2022 WL 1572037, at *1 (Tex. App.—Tyler May 18, 2022, no pet.) (mem. op., not 

designated for publication) (email communication); Head v. State, No. 12-08-00385-CR, 2010 WL 177779, 

at *2, n.1 (Tex. App.–Tyler Jan. 20, 2010, pet. ref’d) (mem. op., not designated for publication) (fax 

communication), to the extent those cases may be read to require that the record contain a “read receipt” of 

an electronic communication sent to a trial court coordinator, we decline to follow them. While we agree 

a “read receipt” could be helpful in showing actual notice, we do not read Rozell or other cases to require

one to show presentment to the trial court. We are reluctant to suggest such a requirement when two of the 

objects of the code of criminal procedure are to “insure a trial with as little delay as is consistent with the 

ends of justice” and “insure a fair and impartial trial.” See TEX. CODE OF CRIM. PROC. art. 1.03.
–11–

CONCLUSION

We affirm the trial court’s judgments.

211129f.u05

211130f.u05

211131f.u05

211132f.u05

Do Not Publish

TEX. R. APP. P. 47

/Ken Molberg/

KEN MOLBERG

JUSTICE
–12–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

SYED HUMZAH HASHMI, 

Appellant

No. 05-21-01129-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District 

Court No. 2, Dallas County, Texas

Trial Court Cause No. F19-33675-I.

Opinion delivered by Justice 

Molberg. Justices Partida-Kipness 

and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 26th day of October, 2022.
–13–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

SYED HUMZAH HASHMI, 

Appellant

No. 05-21-01130-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District 

Court No. 2, Dallas County, Texas

Trial Court Cause No. F19-35541-I.

Opinion delivered by Justice 

Molberg. Justices Partida-Kipness 

and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 26th day of October, 2022.
–14–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

SYED HUMZAH HASHMI, 

Appellant

No. 05-21-01131-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District 

Court No. 2, Dallas County, Texas

Trial Court Cause No. F19-35542-I.

Opinion delivered by Justice 

Molberg. Justices Partida-Kipness 

and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 26th day of October, 2022.
–15–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

SYED HUMZAH HASHMI, 

Appellant

No. 05-21-01132-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District 

Court No. 2, Dallas County, Texas

Trial Court Cause No. F19-35543-I.

Opinion delivered by Justice 

Molberg. Justices Partida-Kipness 

and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 26th day of October, 2022.