### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00089- CR

Ge rardo De la Rosa, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. CR-10 -00 89, H ONO RAB LE MARK R. LUITJ EN, JUDGE P RESIDING

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

A jury found Ger ardo De la Rosa g uilty of eleve n counts of ag g rava ted sexual assault of a child. The trial court assessed puni shment at forty -five y ear s in prison for each offense , with the sentenc es to be serve d concur rently

. On appea l, appellant contends that the trial court err ed by deny ing his motion for continuance of the punishment phase of trial and by failing to hold a hear ing on his moti on for ne w trial. We will affirm the judg ment.

BACK GR OUND We need not rec ount the testimony at the g uilt-innocence phase of trial beca use neither issue on appea l conce rns it. Appellant’s issues require that we focus on events following the jury verdic t finding him g uilty

.

Sometime afte r the g uilt-innocence phase con c lu d e d o n O c to b e r 1 3 , 2 0 1 0 , a p pellant’s family soug ht to repla ce his reta ined trial counsel. They hired new counsel at 4 p.m. on November 1,2010, j u s t ahead of the schedule d punishment hear ing on November 3, 2010. Appellant moved

to substitut e counsel and for a continuance of the puni shment hear ing. The trial cour t gr anted the motion to s ubstitut e.

T h e s o l e g round stated in the motion for continuance is that the new attorn ey neede d more ti m e t o p re p ar e. At the punishment hear ing, the new attorney stated that he wanted

more time to investiga te appellant’ s family ’s questions about why former counsel did not call

some witn es s es who could cast doubt on the conviction and why he did not apply for probation for appellant. The new attorney stated that he also wanted more time to prepa re for the punishment hear ing. The trial co urt opined that the issues the new attorney wanted to explore wer e not punishment issues but w ere more suited to a motion for new trial or appea l. The court opined that the l ack of prepa

ration t ime was due to the at t o rn ey b eing hi red less than t wo full day s befor e the hear ing—w hich was due to appellant’ s decision, not any defic iency

in the trial court’s scheduling of a three -we ek gap betwee n the guilt-innocenc e and p u n i s h m en t phases of appellant’ s trial. The trial court denied the motion for continuance , but persua ded appellant’ s former counsel to assist the

new a ttorney

during the punishment phase. After sentenc e was impose d , ap pellant filed a motion for new trial alleg ing that his g uilt-innocence counsel was ineffe ctive beca use (1) counsel failed t o ca l l witnesses who would h av e u ndermined the complainant’s cre dibilit y , and (2) counsel incorre ctly believed that appellant was ineligible for probation and, there fore , failed to advise appellant of that elig ibilit y . No hear ing was held on the motion for new trial and it was overr uled by opera tion of law. See Tex. R. App. P. 21.8(c).

2DISCUSSIO N Appellant contends that the trial court e rre d by deny ing his motion for c ontinuance and fa iling to hold a hea

ring on his moti on for ne w trial. 1

Denial of continuan ce The denial of a motion for continuance rests within the trial court’s sound discretion. Renteria v. State , 206 S.W .3d 689, 699 (Tex. Crim. App. 2006). A defe ndant must show “spec ific prejudice to his defense ” to establish that the trial court a bused its discretion in ref using to g rant a continuance

. Id. Ex amples of specific prejudice include unfair surprise, an inability to eff ectively

cr oss-examine witnesses, and the inability to elicit cruc ial testimony from potential witnes s es . Ja n ec ka v. State , 937 S.W .2d 456, 468 (Tex. Crim. App. 1996). Courts deciding wh et h er a continuance is nece ssary to t he provision of competent counsel can consider fac tors such as the following : (1) the leng th of the delay reque sted, (2) whether other continuance s wer e reque sted and whether they wer e denied or gra nted, (3) the leng th of t ime in which the acc used’s counsel had to prepa re for trial, (4) whether another competent attorney was prepa red t o t ry t he case , (5) the balanc ed convenie nce or inconvenienc e to the witnesses, the opposing counsel, and the trial court, (6) whether the delay is for l egi timate or contrived rea sons, (7) whether the case was complex or si mple, (8) whether a denial of the m otion re s u l t ed i n some identifiable harm to the defendant,

Although appellant contende d in h i s m o t i o n for new trial that he rec eived ineffe ctive 1 assistance of counsel, he does not asser t ineffe ctiveness as a primary issue on appea l. His arg ument here rela ted to that is s u e i s that the trial court’s denial of the continuance and failure to hold a h ea ri n g o n the motion for new trial preve nted him from fully prese nting his claim of ineffe ctive assistance at the trial c ourt. 3and (9) the quality of leg al repr esenta tion a ctually provided. Ex parte W indham , 634 S.W .2d 718, 720 (Tex. Crim. App. 1982). A trial court abuses its discretion when it acts without ref ere nce to any g uiding rules or principles or acts arbitra rily or unrea sonably , or when its decision is so clea rly wrong that it lies outside the zone of rea sonable disag ree ment. Gonzalez v. State , 117 S.W .3d 831, 839 (Tex. Crim. App. 2003); Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App.1990) (op. on re h’g ). Appellant has not demonstrated that the trial court abused its discretion b ased on the arg uments prese nted at trial. I n the motion for conti n u an ce, appellant reque sted more time to prepa re for the punishment hear ing. The discussion on the motion at the hea ri n g conce rned questions about why former counsel did not call some witnes s es wh o could cast doubt on the conviction and why he did not apply for probation for appellan t

. T h es e i ssues rela ted to former counsel’s previous perf

ormanc e, not p repa

ration for the punishment hear ing. There was no

ex planation why new counsel was hired almost three wee ks afte r appellant was found g uilty and less than two fu l l d ay s b efor e the schedule d punishment hear ing. For mer counsel had beg un prepa ring for the punishment hear ing and stay ed to assist n ew counsel. After the motion was denied, appellant’ s new attorney called and questioned witnesses on his behalf

. There is no rec ord of testimony re l ev an t t o punishment that appellant would have adduce d had the court g rante d a continuance

. A delay of the hear ing would have imposed costs o n t he visiti ng trial judge and
t he complaining witness, as well as other witnesses who would have had to make themsel v es available ag ain.

4On ap p ea l , appellant contends that he should have been g rante d a continuance

beca use new counsel could have investiga ted whether appellant was elig ible for probation, which would have reve aled what appellant char acte rizes as the trial court’s misunderstanding of the applicability of a chang e in the laws conce rning probation elig ibilit y . He co n tends that, with

rese arc h durin g t h e continuance , he could have persua ded the court to g rant a mistrial based on counsel’s ineffe ctiveness due to incorre ct advice reg arding probation elig ibilit y as occur red in State

v. Bounhiza , 294 S.W .3d 780 (Tex. A pp.—Austin 2009, no pet.). Appellant does not explain why

a continuance was nece ssary to prese nt this arg ument to the trial court, nor does this arg ument show that the trial court abused its discretion by deny ing the motion for continuanc e b as ed o n the arg uments prese nted to it. We also note that appellant was able to prese nt essentially this arg ument in his motion for new trial filed a month afte r the punishmen t h ea ri n g, t o no avail. We find no

reve rsible er

ror pr esente d in the trial court’ s denial of the motion for c ontinuance.

F ailure to hold a h earing on the m otion f or new trial Appellant complains that the t ri al court err ed by not holding a hear ing on his motion for new tria l. Appellant, however, failed to prese rve any err or i n the denial of t he hearing for appellate revie w. The rig ht to a hear ing on a motion for new trial is not absolute. Rozell v. State , 176 S.W .3d 228, 230 (Tex. Crim. App. 2005). Gene rally , a trial court should hold a hear ing if the motion and attache d aff

idavit raise matters that are not deter minable from the rec ord and that could entitle the ac cused to re lief. Id. ; see also Tex. R. App. P. 21.2. The require ment in Rule 21.6 that the defe ndant “must present the motion for new t rial to the trial court within 10 day s of filing it” require s something more than mere ly filing the motion. See Tex. R. App. P. 21.6 (empha ses added) ; 5see also Rozell , 176 S.W .3d at 230. T o “present” the motion means to do something to bring it

direc tly to the attention of the trial court or s o m eo n e au thorized to act on the court’s behalf

. Carranza v. State , 960 S.W .2d 76, 79 (T ex . C ri m . App. 1998) (citing id. at 81 (Ove rstree t, J .,
concur ring )). The presentation can be si g nified by a ruling on the m otion , a s i gnature or not ation

on the proposed order , a hear ing date, or some other indication that the movant actua lly notified the trial court of

the exist ence of the motion and did not simply file the motion with the clerk. Id. “[A] revie wing court does not rea ch the question of whether a t ri al court abused its discretion in failing to hold a h earing if no reque st for a hear ing was prese nted to it.” Rozell , 176 S.W .3d at 230. We find no indication in the rec ord or the briefs that the motion was prese nted to the trial court afte r it was filed wit h t h e cl er k

. Ap pellant, there fore , has not shown that he prese rved our

ability to review any

err or in the trial court’s failure to hold a hea ring on the motion for ne w trial. See R ozell , 176 S.W .3d at 230.

CONCLUSION Finding no reve rsible er

ror pr esente d, we a ffirm the judg ment.

J eff Rose, J ustice Be fore J ustices Pury ear , Rose, Goodwin Affir med Filed: June 5, 2013 Do Not Publish
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