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Click here for the full text of this decision FACTS:Authorities charged Quindarle Daray Batts by indictment with aggravated sexual assault of a child. After finding him guilty of the charged offense, the jury found true two enhancement paragraphs and assessed a life sentence. On March 2, 2004, Batts filed a one-page motion for new trial. Three days later, via a different attorney, Batts filed a second, four-page motion for new trial. The second motion was more detailed than the first motion and contained additional grounds, including allegations of ineffective assistance of counsel. The clerk’s record also contained a hand-written “Order Setting Motion for New Trial,” dated March 11, 2004, which set a hearing on the motion for March 23, 2004. Judge Mark Kent Ellis signed the order. The clerk’s record also contains an “Agreed Setting” form, filed March 13, 2004. The agreement reset the hearing for April 2, 2004. The reporter’s record does not include a transcription of any such hearing. Batts’ sole point of error before the 14th Court asserted abuse of discretion by the trial court in failing to hold a hearing on the motion for new trial, which alleged, inter alia, ineffective assistance of counsel at the punishment phase of trial. In its substitute memorandum opinion, the 14th Court overruled Batt’s point of error. It conceded that Batts had complied with Texas Rule of Appellate Procedure 21.6 and had presented the motion for new trial. The 14th Court also noted that, “[w]hen an accused”presents’ a motion for new trial raising matters not determinable from the record that could entitle him to relief, the trial court abuses its discretion by failing to hold a hearing. The 14th Court further noted that there was no indication in the record whether a hearing took place on the reset date, and if such a hearing took place, what transpired at that hearing, or if no such hearing took place, why not a failure by the trial court, Batts’ failure to appear or otherwise. The 14th Court held that “appellant’s sole point of error fail[ed] to demonstrate that a hearing was not held, or that any non-occurrence of the hearing resulted from any abuse of discretion by the trial court.” In seeking review by the CCA, Batts asked: When a timely filed and presented motion for new trial is set for hearing and later denied by operation of law, must the appellant show why the trial court did not hold a hearing? HOLDING:The CCA sustained Batts’ grounds for review and remanded the cause to the 14th Court. The CCA found speculative the state’s suggestions that the trial court may have held such a hearing but the court reporter failed to transcribe it or that Batts, along with counsel, may have appeared and waived his previous request for a hearing. The state’s position, the CCA stated, would also require Batts to prove a negative, a task that is nearly impossible. The CCA found that the record in the case did not support a conclusion that the primary source for this case’s history, the docket sheet that records that history in detail, would fail to mention such a hearing if it had been held. The CCA concluded that the record reflected that Batts presented his new trial motion and requested a hearing, that a hearing date was set and then reset, that no such hearing was held and that the 14th Court erred in holding that Batts failed to demonstrate that a hearing was not held. The CCA stated that it failed to find any authority holding that a movant must demonstrate that the failure to hold a hearing “resulted from any abuse of discretion by the trial court,” the CCA stated. It therefore concluded that the 14th Court also erred in holding that Batts’ sole point of error failed, because Batts did not demonstrate “that any non-occurrence of the hearing resulted from any abuse of discretion by the trial court.” OPINION:Johnson, J., delivered the opinion of the court in which Meyers, Price, Womack, Holcomb and Cochran, JJ., joined. CONCURRENCE:Keller, P.J., concurred in the result without a written opinion. DISSENT:Keasler and Hervey, JJ., dissented without a written opinion.

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