Texas Stamp


PD-0202-19 05/08/2019

“Whether or not the 8th Court of Appeals erred in finding that Appellant waived his right to a hearing on a properly presented and filed motion for new trial?”

Montelongo filed a motion for new trial requesting a hearing.  The trial court scheduled a hearing but cancelled it four days later.  Montelongo’s motion was overruled by operation of law.    

On appeal, Montelongo complained about the trial court’s failure to hold a hearing.   The court of appeals disagreed.  It concluded that Montelongo failed to preserve his complaint because he made no effort to reschedule the hearing or, alternatively, he failed to develop the record to show that he tried.  The court also observed that he did not obtain a ruling on his motion or object to the lack of a ruling.   

Montelongo argues he did not forfeit his claim because there is no precedent that requires a party to object if the trial court fails to hold a hearing it previously set. 

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