Glen Edward Farmer v. State ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-12-00155-CR, 04-12-00156-CR, & 04-12-00157-CR
Glen Edward FARMER,
Appellant
v.
The STATE of
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2011-CR-9601A, 2011-CR-9602A, & 2011-CR-9603A
The Honorable Angus McGinty, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: June 26, 2013
AFFIRMED
Glen Edward Farmer pleaded guilty to three separate aggravated robberies. On appeal,
Famer contends that the trial court erred in (1) entering a deadly weapon finding in the written
judgments and (2) failing to hold a hearing on his motion for new trial. We affirm the trial court’s
judgments.
Deadly Weapon Finding
In his first issue, Farmer argues that the trial court failed to render a “proper judgment” as
required by article 37.12 of the Code of Criminal Procedure because the written judgment included
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a deadly weapon finding even though the court had not orally indicated that it was making such a
finding and the docket sheets similarly did not show that an affirmative finding had been made.
See TEX. CODE CRIM. PROC. ANN. art. 37.12 (West 2006). Farmer interprets the court’s silence as
evidence that there was not a deadly weapon finding. As a result, Farmer contends that a deadly
weapon finding is not authorized in the judgments and must be removed.
Under article 42.12, the jury or trial court as trier of fact is authorized to make an
affirmative finding of fact that a deadly weapon was used or exhibited during the commission of
a felony offense, or during the immediate flight therefrom, and that the defendant used or exhibited
the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or
exhibited. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2012); Lafleur v. State,
106 S.W.3d 91, 94-95 (Tex. Crim. App. 2003); Polk v. State, 693 S.W.2d 391, 393 & n.1 (Tex.
Crim. App. 1985). An express determination by the fact finder that a deadly weapon was used or
exhibited is required. Lafleur, 106 S.W.3d at 94; Polk, 693 S.W.2d at 393.
When a jury makes an affirmative deadly weapon finding, the trial court has a mandatory
duty to enter a deadly weapon finding in the written judgment. Lafleur, 106 S.W.3d at 94. When
the trial court is the finder of fact, it is within the court’s discretion whether to make an affirmative
deadly weapon finding, even if supported by the evidence, and, if made, whether to enter the deadly
weapon finding in the written judgment. Hooks v. State, 860 S.W.2d 110, 111 (Tex. Crim. App.
1993); Ex parte Franklin, 757 S.W.2d 778, 780 (Tex. Crim. App. 1988); Johnson v. State, 233
S.W.3d 420, 424-25 (Tex. App.—Fort Worth 2007, pet. ref’d).
No separate express finding of a deadly weapon is required by the trial court in certain
instances such as where a defendant pleads guilty to an indictment that alleges the use of a deadly
weapon. Lafleur, 106 S.W.3d at 95 (recognizing that “the trier of facts’ verdict on the indictment
may constitute an affirmative finding” when the indictment alleges a deadly weapon); Ex parte
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Empey, 757 S.W.2d 771, 774 (Tex. Crim. App. 1988) (holding that an affirmative deadly weapon
finding arose as a matter of law when indictment charged use of a deadly weapon and judge found
defendant guilty as alleged in indictment); Marshall v. State, 860 S.W.2d 142, 143 (Tex. App.—
Dallas 1993, no pet.) (holding no express finding was required when, by properly admonishing
defendant and accepting his guilty plea “to indictment” that charged him with using a deadly
weapon, the trial court necessarily found defendant used a deadly weapon); see also Johnson, 233
S.W.3d at 424.
Additionally, although article 42.03 of the Code of Criminal Procedure requires that the
sentence be pronounced in the defendant’s presence, the expectation of having the oral
pronouncement match the written judgment applies only to sentencing issues, such as the term of
confinement assessed and whether multiple sentences will be served concurrently or
consecutively. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West Supp. 2012); Ex parte
Huskins, 176 S.W.3d 818, 820-21 (Tex. Crim. App. 2005); Ex parte Madding, 70 S.W.3d 131, 135
(Tex. Crim. App. 2002); see also Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
Although a deadly weapon finding does affect a defendant’s eligibility for probation and parole, it
does not alter the range of punishment to which the defendant is subject, or the number of years
assessed. State v. Ross, 953 S.W.2d 748, 751 (Tex. Crim. App. 1997). Accordingly, a deadly
weapon finding may affect how the sentence is served, but it is not part of the sentence. Id. at 750-
51; Huskins, 176 S.W.3d at 821. Therefore, a trial court is not required to orally announce a deadly
weapon finding at sentencing if the allegation of use of a deadly weapon is clear from the face of
the indictment. Huskins, 176 S.W.3d at 821.
Here, each indictment against Farmer explicitly alleged that:
while in the course of committing theft of property and with intent to obtain and
maintain control of said property; [Farmer] did intentionally and knowingly
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threaten and place Ahmah Rahimi in fear of imminent bodily injury and death, and
[Farmer] did use and exhibit a deadly weapon, to-wit: A FIREARM[.]
The record shows that Farmer was properly admonished, and it was agreed and understood by all
the parties and the judge that Farmer was entering a plea to a “3(g) offense with a deadly weapon
finding.” Thus, by accepting Farmer’s guilty plea to aggravated robbery as charged in the
indictment, the trial court made a finding that he used or exhibited a deadly weapon and properly
included an affirmative deadly weapon finding in the written judgments. Accordingly, we overrule
Farmer’s first issue.
Motion For New Trial
In his second issue, Farmer argues that the trial court abused its discretion by failing to
conduct a hearing on his timely filed motion for new trial in each case. He asserts the motion was
supported by affidavits, and alleged ineffective assistance of counsel, a matter not determinable
from the record that could entitle him to a new trial.
It is well settled that the right to a hearing on a motion for new trial is not an absolute right.
Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). As a prerequisite to obtaining a
hearing, the motion and supporting affidavits must present matters not determinable from the
record which could entitle the movant to relief. Martinez v. State, 74 S.W.3d 19, 21-22 (Tex.
Crim. App. 2002). In addition, a defendant is required to “present” a motion to the trial court
within ten days of filing it, unless the court, in its discretion, extends that time period. TEX. R.
APP. P. 21.6. When a defendant presents a motion for new trial raising matters not determinable
from the record which could entitle him to relief, the trial court abuses its discretion in failing to
hold a hearing on the motion for new trial. King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App.
2000).
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Here, the trial court did not abuse its discretion because Farmer did not show he satisfied
the procedural hurdle of presentment required for a hearing. See TEX. R. APP. P. 21.6; Reyes, 849
S.W.2d at 816. The purpose of presentment is to put the trial judge on actual notice that the
defendant desires the judge to take some action, such as making a ruling or holding a hearing, on
his motion for new trial. Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009); Stokes
v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009). Presentment must be apparent from the
record, and may be shown by the judge’s signature on the motion or proposed order, or an entry
on the docket sheet showing presentment or setting a hearing date. Stokes, 277 S.W.3d at 21. The
defendant bears the burden of establishing that the presentment requirement has been satisfied.
Gardner, 306 S.W.3d at 306; Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998) (record
must show defendant met his burden of actually delivering motion for new trial to trial judge, or
otherwise bringing motion to judge’s attention).
Although Farmer timely filed his motion for new trial, the record does not contain any
documentary evidence that the trial court had actual notice of the motion such as a proposed order
or notation containing the judge’s signature, a notation on the docket sheet of a request for hearing
or a hearing date set on the motion, or a ruling on the motion. The only suggestion of presentment
is a statement in Farmer’s affidavit that all “motions for new trial in all three cases were timely
presented to the trial court.” This bare statement, however, is insufficient to establish presentment
under Rule 21.6. See Gardner, 306 S.W.3d at 305-06; Burrus v. State, 266 S.W.3d 107, 115-16
(Tex. App.—Fort Worth 2008, no pet.); Oestrick v. State, 939 S.W.2d 232, 235 n.5 (Tex. App.—
Austin 1997, pet. ref’d) (self-serving statement by defense counsel, without more, is insufficient
evidence of presentment). There is nothing in the record to indicate the trial judge ever saw the
motion for new trial, and it was overruled by operation of law in each case. Cf. Gardner, 306
S.W.3d at 305. Thus, Farmer did not carry his burden to establish that the trial court abused its
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discretion in failing to hold a hearing on his motion for new trial. See Rozell v. State, 176 S.W.3d
228, 230 (Tex. Crim. App. 2005) (trial court is under no requirement to conduct a hearing if the
motion for new trial is not presented in a timely manner). Accordingly, we overrule Farmer’s
second issue.
Based on the foregoing reasons, we affirm the judgments of the trial court.
Rebeca C. Martinez, Justice
Do not publish
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