## In the Court of Appeals Second Appellate Dis trict of Texas

at Fort Worth

___________________________ No. 02

- 19

- 00313

- CR

_____ ______________________

On Appeal from the 415th District Court Parker County, Texas Trial Court No. CR17

- 005 9
Before Birdwell, Womack, and Walker, JJ. M emorandum Opinion by Justic e Womack 

### M ILES 

### W ESLEY 

### K

ENNEY 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. I NTRODUCTION Appellant Mi les We sley Kenney ap peals his conviction and resulting seventeen

year se ntence for evading arrest or detention with a vehicle

. In three points, Kenney
argues (1) that the tri al court erred by not including hi s requested deadly weapon instr uction in the jury charge , (2) that he received ineffective assistance of counsel, and (3) that the trial court erred by not conducting a hear ing on his motion for ne w trial

. We affirm.
I I. B ACKGROUND Based on a warr an t, p olice officers arrested Kenney on January 11, 2017, for the offense of evading arrest or detention with a vehicle because of events that

occurr ed on November 12, 2016. A cco rding to Kenney, prior to trial, the State
offered him a senten cing and charge plea wherein his conviction would not contain a deadly weapon finding , and he would receive fifteen years ’ incarceration. On the
advice of counsel, Kenney rejected the plea . L ater, Kenney entered a plea of guilty to

one cou nt of evading arrest or detention , pleaded true to the State ’ s enhancement paragraph s , and, without a sentencing recommendation from t he State, elected to3

have a jury assess his punishm ent. At trial , 1 t he St ate off ered e vidence regarding the
issue of whether Kenney had used his vehicle as a deadly weapon

. A. Deputy Calv in Bradley Chane Deputy Calvin Bradley Chane , a fiel d training officer for the Park er County
Sheriff’s Office , testifi ed at the trial

. Cha n e said t hat he was patrolling with Deputy Anthony Sheridan on November 12, 2016, around 7:30 a.m. , when he observed a white car parke d partially on the shoulder and partially on the gravel area of a road in
Par k er County. Kenney was si tting in the car. Chane called dispatch and reported he would be participating in “a motorist assist.” Accordin g to Chane, as he exited his
vehicle to make cont act with Kenney, he no ticed “ a lot of movement from the dri ver” who “appeared . . . slumped over the steering whe el. ” As Chane approached the car, its brake lights came on and off, and then the “v ehicle took off.” Chane testified that Kenney entered nearby Inters t ate Highway 20 at a high rate of speed. As he pursued Kenney, Chane learned from dispatch that the ve hicle had been reported stolen. Chane described Kenney’s driving as constantly being at a high ra te of speed, disobeyin g tr af

fic laws, exiting and entering th e interstate at high rates of speed, “blowing through a lot of stop signs,” and possessing a tota l disregard for any
other motorists.

1 When a defendant pleads guilty, the defendant is not eligible for a bi furcate d trial, so there is n o per se puni shment phase. There is, instead, a unitary tr ial. Carroll v. St ate , 42 S.W.3d 129, 131

– 32 (Tex. Crim. App. 2001).4

By Chane’s account, because the high

- speed chase stretched from Pa rker
Co u nt y into Tarrant County, he received assistance from officers of other jurisdictions in his pursuit. As th e chase occurred, Sheridan continuou sly relayed
information to dispatch regarding the chase’s locations

. Eventually, Kenney e x ite d the interstate for a final time, raced through a residential neighborhood, crashed his car onto an embankment in front of an apartment complex, left his car, an d took off
runnin g. Kenney then jumped a fence, and Chane was una ble to appre hend him

. According to Chane, he then searched the car. One of the things Chane noticed while searching the car is that the vehicle’s identification number did not

m atch all p arts of the car. He also found a number of tool s, inc luding a set of large
bolt cutters that Chane testified were used in crimes involving entering a gate or cutting a chain, fence, or bolt. Chane said that he also found a disassembled bicycle in

t he tru nk

. Regard ing the chas e overall, Cha ne confirmed that Kenney had driven at approximately 110 miles per hour at times. Chane further testified that as the chase ensued, he could see Kenney “trying to reach and put things un der the floorboard and grab a h o ld of things in the pa ssen ge r’s side and a lot of movement in the vehicle.” Chane described Kenney’s movements in the car as “definitely . . . dangerous. ” When
asked whether the vehicle that Kenney was dr iving, given the manner in whic h he had
driven it , co uld ha ve caused death or serious bodily injury to Kenney or somebody else, Chane agreed that it could

.5

On cross

- examination, Chane said that his normal routine if a pursuit becomes dangerous to himself o r others is to end the pursuit. Although C hane said that Kenney did appear to run someone off the road, he also said that in his opinion no one was in danger. On redirect, however, Chane agreed that he did not know at any given time what Kenn ey would do, including n ot k nowing if Ke nney would cut in
f ront of one of the many 18

- whee le rs he passed, if he was going to sideswipe a nother vehicle, if he was going to clip the back of a vehicle and make it turn around, if he was going to hit a si gn pol e as he darted across lanes of t raffic, or if he was going to hit somebody when he ran through a stop sign or red light. Chane acknowledged that
each of those actions w as dangerous on Kenney’s part.
B. Video and Audio of the High

- Speed Chase
The St ate published the video capture d from Chane’s in

- car c amera, wh ich depicted the incident from the time Chane pulled in behind Kenney’s car until after Kenney had fled on foot. In the video, Chane can b e see n ex iting his patrol v ehicle , and as Chane approache d the front of Kenny ’ s vehicle, the car ’ s brake lights c a me on and off, and then Kenney abruptly took off and race d onto the interstate. It took
Chane more than o ne minute to eventuall y come up directly be h ind Ke nney. At multiple times during the chase, Kenney ex ited the interstate and drove onto the frontage roa d and through intersections without stopping at stop signs or stop lights
and then re enter ed the interstate at a high rate of spe e d. At different times, as Kenney would approach traffic, either on the interstate or the frontage road, he6

caused multiple veh icles to veer and brake in an a ttempt to avoid b eing struck. On
one occasio n, as Kenney reentered the interstate, he drove directly in front of a
vehicle that was also attempting to enter the interstate, causing the vehicle to brake
and swerv e. During a n other moment, Kenney drove between an 18

- wheeler and another vehicle, only to encounter a second 18

- wheeler driving directly besid e anothe r car in t he other lane. Trapped by the traffic, Kenney raced onto the left hand shoulder and passed the traffic, for c ing all the vehicles in the area to move to the right. He repeated si milar acts multiple times durin g the nearly twenty

- minute ch ase. A t another instance, Kenney raced around the right hand side of a vehicle that was obstructing his travel, and the vehic le attempted to move to the right unaware
that Ke nney was going to ra ce around him on that side, which caused the veh icle to
take eva sive action. As th e chase continued, one of the officers in the car can be heard reporting t hat Kenney was tr aveling at sp eeds in excess of 1 10 miles per hour. Throughout the cha se, Kenney drove between numerous v ehicles multiple times, a ll the while racing down the interstate. Some of the times when Kenney would exit the inter state and drive onto the frontag e road, his vehi c le would strike the gr ass and gravel , causing debr is to fly in the
air

. R oughl y eleven minutes into the chase, another police vehicle approached and
attempt ed to block Kenney

. Kenney ’s response was to swerve to the right across th r ee interstate lanes an d pass several cars using the righthan d shoulder. As the7

second patrol vehicle again tried to get ahead of Kenney , Kenney feigned he was going to exit only to swerve sharply b ack on to the interstate and acce lerate.
Si xteen minu te s into the chase, Kenney e x ited the interstate for good. As he did, he again struck a graveled median and nearly collided with another vehicle on the
f rontage road. Shortly after, Kenney took a right turn onto a ma in thoroughfare a nd
into a b usiness dist rict. Seconds later, Ke nney slammed on his brakes , turn ed into a gas station parking lot, crossed the parking lot, and exited th e lot into a residen tial

area . As he drove down the n e ighborhood street, Kenney dr ove in and out of oncoming traf

fic and again ignored stop signs. Ro ughly n ineteen minutes into the chase, Kenney crashed his car over a curb and o nto an embankment in front of an
apartment c omplex , ex it ed his car , an d then fled. Later, Cha n e attempted to tur n off the car, and he discovered that Ke nney had left the car in neutral. Consequently, Kenney’s vehicle almost slid back down the embankment an d into Chane’s patrol

v ehic le

. While Chane was on the stand, the State als o published an audio recording of the communications between Chane and disp atc h after Kenney had fl ed from the car.
In the audio, Chane state d th at Kenney ha d hop p ed over a fence and onto another
property. He descr ibed Kenney as having long hair and a goatee and wearing a white
shirt and bla ck shorts.8

C. Kenney ’ s Prior Crim inal History
At trial , t he Sta te al so introduced ten jud g ments sho wing that Kenney had previously been convicted of unauthoriz ed use of a motor vehicle , two coun ts of burglary of a habitation , two counts of driving with an invalid driver ’ s lice nse , b urglar y of a building , possess ion of me thamphetamine , theft o f a vehicle , criminal trespass of
a habitation , and evading arrest

. The State also elic ited testimony from witness es who
averred that on December 1 0, 201 7 , Kenney was caught shopliftin g . Police arrest ed Kenney that day, and w hile searching him , found a straight razor b lade , a syringe ,

s tolen ch e cks, stolen social security documents, and a partial driver’ s license that did not belong to Ke nn ey. D. Crime Scene Technician Heather Lee Huffman
Heather Le e Huffman, a crime scen e technicia n with the Parker County
S heriff’s O ffice , said that she processed 2 the vehicle Kenney was drivin g the day he evaded police. As the State introduced pict ures that Huffman had taken of the vehicle, she described what the p ictures portrayed. One of the items Huffman f ound

was a n eyegl ass c ase that contained two syringes, a tin y mug, a rubber band, and two separate pieces of crystallized cotton. Huffman said that the crystal substance found in the cotton was methamphetamine

.

2 According to Huffman, “processing” a vehicle involves looking “for any evidence th at will link it to a su sp e ct such as fingerpr ints, DNA, an y items, identifying items, things like that.”9

E. Kenney ’ s Testim ony Kenney tes tified in his own defense. Kenney told the jury how he had been involved in a custody dispute be tween his parents when they divorced when he was four years old. When Kenney was fourteen, his father, whom he l ived wit h, was
pa ralyzed in a c ar wreck, and Kenney had to t ake care of his father who was then
confined to a wheelchair. Kenney said that after his father’s wreck, he began to get “into a lot of trouble,” do drugs, and run ar ound with the w rong people. By Kenn ey’s account, the f irst drug he used was marijuana, but his drug use rapidly escalated a nd by the time he was fifteen years old he was “smoking speed and snorting coke.” Kenney also started co mmitting c rimes and was placed on probation
for two counts of b urglary of a motor vehi cle and criminal trespass when he was
fifteen. Kenney said that the criminal trespass was the result of his failed attempt at robbing a store with a gun. Kenney al so was char ged with evading arrest or detention

on foot around the s ame time. According to Kenney, because of the trouble he got into, he never graduated from high school. In 2005, Kenney was charged with three

counts of b u rglar y of a habitation and ended up serving time in prison. Kenney said
he was paroled, but that h e broke off hi s ankle m onitor and was eventually arrested on the parole violation and sent back to prison. When he was late r r e lease d, he agai n was arrested for burglary of a habitation and sp ent several months in the Tarrant County j ail. Kenn ey describe d how , when he was rele ased from jail , he “was doing pretty well” for a few years maintaining a steady job and bein g i n a re lationship , but he10

“started using again,” and in 2014 , he wa s arrested for theft of a vehicle and possession of methampheta mine. In 2016, Kenney was arres ted for evading arrest on foot after he attempted to shoplift some it ems from a sp o r ting g oods st ore. Kenney said that he did not steal the vehicle used in the police chase

. Rather, by Kenney ’s account, he purchased it in front of a game room for “ a lit tle bit of drugs
and a little bit of cash.” Kenney s a i d he s uspected that the vehicle had probably been
stolen. Kenney admitted to driving “well over 100 miles an ho ur” during the chase,
but he said that he tried neither to ram ot her vehicles nor to hit them

. He also said
tha t he pas sed vehicles on the should er because they were blocking him as he attempted to flee, but, according to Kenney, he “didn’t f eel it was dangerous the way [he] passed” the o ther cars. But Kenney did say that he recognized that he was
“care l e ss abo ut other people’s safety.” Kenney also stated th at he did not crash the vehicle, but purposely “ran up on the c urb” so that he could flee on foot and scale a large fence t hat he knew was behind the apartment com plex. Even t hough Kenn ey knew that police had his phone and knew who he was, h e was not arrested until

some time later

. Kenney averred that he found the checks, social security documents, and partial
driver’s license in a “flop house” whe r e he st ayed sometimes

. He also admitt ed that the eyeglas s case containing the drug paraphernalia was his , and he was us in g methamphetamine daily at the time of the ch ase. By Kenney’s account, most of the11

tools found in the car b e longed to him, and he woul d use the bolt cutters when he
would ste al. Kenney said that he was open to going to drug r eha bilitation. Kenney
stated that he h ad been in jail since his arrest for evading , ha d a newfound appreciation f

o r law e nforcement , and ha d become a trustee of th e jail, which g ave him responsibiliti es based on his good behavior

. F. The Jury Charge , Sentence , and A ppeal After both the State and Kenney rested, the trial court discussed the j u r y char ge with counsel. At the charge conference, Kenney requested tha t the following
instructi o n be includ ed regarding the j ury ’ s potential deadly weapon fi nding:
In order to affi rm atively find th e use or exhibition of a deadly weapon, the evidence mus t demons trate that: (1) The vehicle meets the definition of a deadly we apon ; (2) The deadly weapon was used or exhi bited during the felon y offense on trial; and ( 3) People other than the defendant were p ut in actual danger. The trial court denied Kenney ’ s re q u est. Instead, the trial court included the following language regardi ng a deadly weapon finding: Do you find beyond a reasonable d oubt that the Defend ant, Miles Wesley Kenney, used or exhibited a deadly weapon, to

- wit: a motor
v e h icle, that in the manner of its use or intended use was capable of causing death or serious b odily inj ury during the commission o f the offense alleged in th e indictment?
A “ de adly weapon ” means anything tha t in the manner of its use or intended use is c a p able o f causing death or serious bodily injury.12

“ Serious bodily injury ” means bodily injury that creates a substantial risk
o f d eath or that causes death, serious permanent d isfigurement, or protracted loss o r impairment of the function of any bodily m e m ber or organ. “Motor vehicle” or “Vehicle” means a device that c an be used to transport or draw persons or property on a highwa y . After deliberations, the jury assessed puni shment at seventeen years ’ incarceration and found the deadly weap o n findi ng true
. T he trial court se ntenced Kenney and rendered judgment accordi ngly , and t his appeal follo wed. 3
III. D ISCUSSION
A. The Jury Instruction on Deadly Weapon In his first poin t, Kenney argues that the trial court erred by not inclu d i ng his
request ed instructio n in the jury charge

— an instruction that tracks case la w regarding evidentiary sufficien c y re vi ew on a deadly weapon finding. Drichas v. State , 175 S.W.3d 795, 798 (Tex. Crim. App. 2005)

. The St a t e counters that the “trial court did not err by refusing [Ke nn ey’s] request to in clude non

- statutory caselaw pertaining to reviewing the sufficie n cy of the evidence in its deadly weap on instruction.” We agree
with the State.
1. Standard of Review
We r e v iew a complaint of jury cha rge error under a two

- step process. Kirsch v.
State , 357 S.W.3d 645, 65 2 (Tex. Crim. App. 20 12) ; Ngo v. State , 175 S. W .3d 738, 743

3 O n Aug u s t 21 , 2 0 1 9, the Texas Court of Criminal Appeals issued a mand ate granting Kenney this out

- of

- time appeal.13

(Tex. Crim. App. 2005). First, we determine whether error occurred. Ngo , 175 S.W.3d at 743. S e con d, if we find error, we evaluate whether harm resulted from
the error sufficie nt to require reversal. Id

. ( citing A lmanza v. State , 686 S.W. 2 d 157, 171 (Tex. Crim. App. 198 5 ) (op . on reh ’ g ) )

. Jury charge error requires reversal when the defendant has properly obj e c ted to the charge and we fi nd “some harm” to his rights. Id

. 2. The Law Concer ning J ury Charges The purpose of the ju ry charge i s to inform th e jury of the applicabl e law and guide them in its application to the case. Beltran De La Torre v. State , 58 3 S.W .3d 613, 617 (Tex. Crim. App. 201 9) (quoting Hutch v. State , 922 S.W.2d 166, 1 70 (Te x. Crim. App. 1996)). A trial ju dge must ma i ntain neutral ity in providing such i nformation and guidance. Brown v. State , 122 S.W.3d 794, 798 (Tex. Crim. App. 2003). A tr ial judge
may not expres s any opi nion on the weight of the evidence or draw th e jury ’s attention to particular facts. Id . at 79 8 , 801. To ac complish this neutralit y, Article 36.14 of the Texas Code of Criminal Procedure provides that a jury charge: ( 1 ) m ust be in writing , (2) m ust distinc tly set forth the law applicable to the cas e , (3) cannot express any opinion as to the weight of the eviden ce , (4) may not sum up the testimony , and (5) cannot discuss the facts or use any argument in the charge
calc u l ate d to arouse the sympathy or excite the passions of the jury. Tex. Code Crim.
Proc. Ann. art. 36.14. This rule is designe d to preven t a jury from interpreting a jud ge’s comments as a judicial endorsement or imprimatur for a particular outcome.14

See Bartle t t v. State , 270 S.W.3d 147, 150 (Tex. Cr im. App. 2008) (“[A] trial court should

av oid an y allusion in the jury charge to a particula r fact in evid ence, as the jury might construe this as judicial endorsement or imprimatur.”). As a general rule, a jury cha r g e t hat tracks the language of a statute is “a proper charge on the statutory issu e.” S ee Riddle v. State , 888 S.W.2d 1, 8 (Tex. Cr i m. App. 1994) . And a court sho uld normally reject non

- statutory instructions as improper comments on the weight of the ev i d enc e where such instruction s are unnecessa ry to clarify the law and they also dra w the jury’s attention to a particular type of evi d ence. See, e .g., Kirsch , 357 S .W.3d at 65 2 (holding that an instruction defining “operate” i n a DWI case was an impermiss i b le comment on the weight of the evidence b ecause it

“ improperly impinged on the j ury ’ s fact

- finding authority by limitin g the juror s ’
understandi ng of what evidenc e could constitute” the element of operating); Brown , 122 S.W. 3d at 796, 802

– 03 (rejecting a n instruction that “intent o r knowledge may be
inferre d by acts done or words spok en” because while neutral, it improperly focused

t he jury ’ s a t tention on ev

idence that might support a finding of criminal intent, told the jury how to consider certain evid e n ce, and instruct ed the jury on a rule of

a ppellate evidentiary suffici ency review). 3. Analysis
In this ca se, the jur

y charge track ed the statutory language of a deadly weapon finding and included statutory def initions of deadly weapon , ser i o us bodily injury, and

motor vehicle

. See Te x. Penal Code Ann. § § 1.07 (a) (17 )( B ) , (4 6), 32.34(a)(2). Thus,15

the charge was a proper charge on the st atutory issue of a deadly weapon finding. See
Riddle , 888 S.W.2d at 8

. Moreov er, Kenney’s requested charge t h at would have required the jury to find that “[p] eople other than [Kenney] wer e put in act ual danger”
because of the manner in w h ich Kenney exhib ited the vehicle while eva ding arrest is
not found in a statute

. R ather, it is a definition used by cou r t s in judicial decisions when evaluating the s ufficiency of the evidence to sup port a deadl y weapon find ing

. See Drichas , 175 S. W .3d at 798

. Thi s added non statutory instructio n would have been an improper comment on the weight of the evidence because it w ould have indicated
to the jury that it should focus on Kenney’s testi mony that h e did not think he was endangering anyone and C h ane ’ s testimony that he would have stopped p urs uing Kenney if t he cha se had become dangerous to others. See Beltran De La To r r e , 583
S.W.3d at 619 (“By highlighting one particular path to establishing the element of possession . . . the instruction focus e d the jury’s att ention on that particular type of evidence and imperm issibly gui ded the jury’s assessment of the evidence of
p o ssession.”). Further , such an instruction was unnecessary to clarify the l aw of a deadly weapon finding. Kirsch , 357 S.W.3d at 65 2

. We hold th at the trial court did not

err by denying Kenney ’ s requested i nstruct ion ; thus, we need not assess harm. Ng o , 175 S.W.3d at 743

. W e overrule Kenney ’ s first point.
B. Ineffective Assistanc e of Co unsel In his second point, Kenney argues that he re c ei ved ineffectiv e assistance of

cou nsel when h is trial attorney advised him to not take a more favorable pl ea and that16

hi s a t t orney failed to proper ly prepare for trial

. We conclude t hat be cause the record
is silent as to Kenney ’ s attor ney ’ s trial strate g ies, a direct ap peal is the imprope r

avenue to bring this cla im.
The Sixth Amend ment to the United S tat e s Constitution and A rti cle I,
Section 10 of the Texas Constitution afford cri minal defendants the right to reasonably effective assistance of counse l

. U.S. C onst am end. VI; T ex . C onst . art. I, § 10; Yarborough v. Gentry , 540 U.S. 1, 5, 124 S. Ct. 1, 4 (20 03) ; Garci a v. State , 57 S. W.3d 436, 440 (Tex. Crim. App. 2001). We apply a two

- pronged test to ineffective
assistance of counsel claims. Stricklan d v. Washington , 46 6 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984

); Thompson v. State , 9 S.W.3d 808, 812 (Tex

. C r i m. App. 1999). First,

an a ppellant must show that his counsel ’ s performance was deficient. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. T he record must be s ufficiently deve loped to
overcome a strong pre sumption that counsel provided reasonable ass i s tance
. Bone v.
State , 77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002) (citin g Thompson , 9 S.W.3d at
813

– 14). Second, an a ppellant must show tha t the deficient per formance prejudi ced
the defense. Strickland

, 466 U.S. at 687, 104 S. Ct. at 2064. Furt her , a claim for
ine ffectiv e assistance of counsel must be firmly grounded and af firmatively supported by the record. Thompson , 9 S.W.3d at 814; Jac ks on v. State , 973 S.W.2d 954, 955 (Tex.
Crim. App. 1998). When the record is silent as to possible trial str a t egies undertaken by de fense counsel, we will not speculate on the reasons fo r those strategies. See Jackson v. State , 877 S.W.2d 768, 771 (Tex. C rim. App. 1994).17

Here, w e are pr esented with a case demonstrat ing the “inadequacies inhere nt in
evaluati ng i n effective assistance c laims on direct appeal.” Patterson v. State , 46 S.W.3 d 294, 306 (Tex. App.

— Fort Worth 2001, pet. ref ’ d ). Although K enney f

iled a motion
for ne w trial , the motion was overruled by operation of law; thus, no hearing was
held , and we ha v e no rec ord addressing the reasons for his counsel ’ s actions. Moreover, Kenn ey ’ s complaints on appeal regarding his counsel concern actions t ha t may or may not be grounded in s ound trial strategy, but the record is silent as to his
counsel ’ s reasons f

or d o ing or failing to do t he things of which Kenney complains.
See id

. As such , these issues are better raised via an application for a writ of h abeas corpus. T ex . C ode C rim . P r oc . A nn . art. 11.07 ; Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App

. 2 0 0 3) (“[T]he record on d irect appeal will generally ‘not be sufficient
to show that counsel ’ s r epresentation was so deficient as to meet the fi rs t part of the
Strick land standard ’ as ‘[t]he reasona bleness of counsel ’ s choices often involves facts
that d o n o t appear in the appella te record.’ ”). There fore, we overrule Kenney ’ s second point.
C. No Hearing on Motion for New Trial
In his third poi nt , Kenney argues that the trial co urt erred by not co nducting a hearing on his motion f

or new trial. 4 The State counters that Kenney “ failed to

4 There are two motions for new trial in the clerk ’ s rec or d. The first motion appears to h ave been handwritten by Ke nn ey . The second is typed and signed by his appellate counsel. We fo cus on counsel ’ s motion

. A defendant has no absolute right to hybrid representation, so courts may ign ore pro se motions filed by d efe ndants18

preserve his claim that the tri al court erred in failing to conduct a hearing on his
motion for new trial beca us e he did not tim ely present his m otion to the court. ” We
ag ree with the State.
A d e fendant must do more t han merely file a motion for new trial to preserve
the arguments made in it. Richardson v. State , 328 S.W.3d 61, 72 (Tex. App.

— Fort Worth 2010, p et . ref

’ d) (per curiam ). T he defen dant must also pres ent the motion for
new trial to t h e trial court within t en days of filing the motion. Tex. R. App. P. 21.6.

“ The purpose of the presentment rule is ‘to put the trial court on actual notice that a
defen da nt desires the trial cour t to tak e some action on the motion for new trial such

a s a r uling or a hearing on it.’ ” Stokes v. State , 277 S.W.3d 20, 21 (Tex. Crim. App. 2009) (quoting Carranza v. State , 960 S.W.2d 76, 78 (Tex. Crim. App. 1998)). The
Texas C ourt of Criminal App eals “consist ently h as held the fil ing of a motion for new

tr ial a lone is not sufficient to show ‘presentment’ ” and does not preserve an issue for appellate review absent a showing that the trial court has seen the motion. Carranza , 96 0 S.W.2d at 78; see Navar ro v. St ate , 58 8 S.W.3d 689, 6 91 (Tex. App.

— Texarkana
20 19, n o pet.). Examples of presentment include obtaining the trial court ’ s ruling on the motion, the trial judge ’ s signature or notation on a proposed order, or a hearing
da te on the docket sheet

. Ca rranza , 960 S.W.2 d at 79; Burrus v. State , 266 S.W.3d 10 7,

with appointe d cou nsel. Pickett v. S t a te , No. 02

- 19

- 00090

- CR, 2020 WL 2073733, at *1 n.3 (Tex. App.

— Fort Worth Apr. 30, 2020, pet. ref ’ d) (per curiam) (mem. op., not designate d for publication).19

1 1 5 (Tex. App.

— Fort Wort h 2008, no pet.). The defendant bears the burden of
p resentment. Burrus , 266 S.W.3d at 115. Here, while Kenney filed a motion for new trial rais in g complaints about t he jury char g e, j ury deliber ations, a nd counsel , there is n o rul i n g on the motion, no or der containing the trial judge ’ s signature , no entry o n the docket sheet reflecting a hearing on the motion, or anything else in the re cord to ind ic ate that Kenney pres ented his

mot ion to the trial court. Because Kenney did not pre s e nt his motion to the t rial
court, his complaint that the trial court failed to hold a hearing on his motion is not preserved for our review. See Carranza , 9 60 S.W.2d a t 79; Navarro , 588 S.W .3d at 691;
T aylor v. State , No. 02

- 11

- 00261

- CR, 2012 WL 6196 623 , at *2 (Tex. App.

— Fort Wo rth Dec. 13, 2012, no pet .) (mem. op., not designate d for publication). Accordingly, we
overrule Kenney ’ s third point

. IV. C ONCLUSIO N Having o ve r ruled all three of Kenney ’ s poin ts on appeal, we affirm the trial

court ’ s judgme nt
. /s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P . 47.2(b)
Delivered : March 4, 2021