Butler v. State

• Decision Date: 30 September 1999
• Citation: 6 S.W.3d 636
• Parties: <!--6 S.W.3d 636 (Tex.App.-Houston 1999) STEVE ALLEN BUTLER, Appellant v. THE STATE OF TEXAS, Appellee NO. 01-92-00822-CR In The Court of Appeals For The First District of Texas
• Court: Texas Court of Appeals

Page 636

6 S.W.3d 636 (Tex.App.-Houston[1st Dist.] 1999)

STEVE ALLEN BUTLER, Appellant v THE STATE OF TEXAS, Appellee

NO. 01-92-00822-CR

In The Court of Appeals For The First District of Texas

September 30, 1999

Rehearing Overruled Dec. 9, 1999.

On Appeal from the 337th District Court Harris County, Texas, Trial Court Cause No. 595,906

Panel consists of Justices Wilson, Nuchia, and Bass.^*

OPINION ON MOTION FOR REHEARING

Bass, Justice

We must decide an issue of first impression: Does former Texas Rule of Appellate Procedure 31(c)(1) (now Texas Rule of Appellate Procedure 21.6), which requires a defendant to "present" a motion for new trial to the trial court, allow a defendant to present the motion to the trial court's court coordinator, or does the rule require that the motion be physically presented to the actual judge of the trial court? We hold, under the facts of this case, that appellant satisfied the presentment requirement by presenting the motion for new trial to the court coordinator.

In an unpublished opinion, we affirmed Steve Allen Butler's conviction for aggravated sexual assault of a child under 14 years of age, in which a jury assessed punishment at life imprisonment. See Act of May 29, 1987, 70th Leg., R.S., ch. 1029, 1, 1987 Tex. Gen. Laws 3474, 3474 (TEX. PENAL CODE ANN. 22.011(a), since amended). Appellant simultaneously filed both a motion for rehearing and a motion for en banc reconsideration, urging separate points of error. A panel of this Court has already overruled the motion for rehearing. Because the motion for en banc reconsideration raises separate points of error that the original panel has not yet considered, the panel will treat the motion for en banc reconsideration as a further motion for rehearing.¹

In point of error two in his further motion for rehearing, appellant contends we erred in not addressing the merits of his point of error 31. In that point, appellant contends the trial court erred by allowing his motion for new trial to be overruled by operation of law without a hearing. We originally concluded appellant waived this point because he did not present the motion for new trial to the trial court. See generally TEX. R. APP. P. 31(c)(1), 11 Tex. Reg. 1944 (Tex. Crim. App. 1986, amended 1997) ("An accused shall present his motion for new trial to the court within ten days after filing it, unless in his discretion the trial court permits it to be presented and heard within 75 days from after date sentence is imposed or suspended in open court.") (now TEX. R. APP. P. 21.6). In his further motion for rehearing, appellant contends he timely presented his motion for new trial by scheduling a hearing date on the motion for new trial with the trial court's court coordinator during the 10-day presentment period.

The trial court did not allow appellant to present evidence that his attorney scheduled a hearing date on the motion for new trial with the trial court's court coordinator during the 10-day presentment period. Based on appellant's further motion for rehearing, the original panel abated the appeal and remanded the cause to the trial court for the limited purpose of holding an evidentiary hearing to determine the facts surrounding the alleged presentment.

The trial court² held an evidentiary hearing and made the following findings of fact:

1. The defendant's lawyer, Charles Freeman, timely filed the document entitled "accused's Original Motion for New Trial" on September 8, 1992.

2. On September 14, 1992, Freeman informed the court coordinator for the 337th District Court, Mr. Kerry Teaff, of the filing of the motion for new trial, and asked that it be set for a hearing.

3. At that time, Teaff made an entry in the Justice Information Management System (J.I.M.S.) reflecting that a hearing on the motion for new trial was scheduled for September 24, 1992. No "agreed setting" form was executed.

4. The date of the scheduled hearing was later changed by Teaff, pursuant to an "off-docket reset," to October 14, 1992.

5. On October 14, 1992, the hearing was rescheduled to occur on October 19, 1992. Teaff's initials appear on the "agreed setting" form on the line designated, "Approved by Court."

6. On October 19, 1992, the judge of the 337th District Court, Hon. Jim Barr, heard arguments on the issue of whether there had been a timely presentment of the motion for new trial and declined to conduct an evidentiary hearing on the motion, which was overruled by operation of law.

7. Prior to October 19, 1992, counsel for the defendant did not physically deliver the motion for new trial to Judge Barr, or verbally inform Judge Barr of its existence.

Based on these facts, we grant appellant's further motion for rehearing and proceed to determine the merits of appellant's point of error two.

History of the Motion for New Trial in Criminal Cases

In 1856, the Texas Legislature enacted the original Code of Criminal Procedure (the "Old Code"). Article 671³ of the Old Code provided that a defendant must apply for a new trial within two days after the verdict is returned. Article 780⁴ of the 1879 Code of Criminal Procedure introduced the requirement that the motion must be in writing. If the trial court did not rule on the motion for new trial before the adjournment of the court's term, the motion was overruled by operation of law. Williams v. State, 269 S.W. 434, 434 (Tex. Crim. App. 1925). Article 671 remained unchanged in the 1879, 1895, 1911, and 1925 versions of the Code of Criminal Procedure, but was slightly modified in 1935.

In 1951, the legislature made numerous amendments to the Penal Code and Code of Criminal Procedure based on suggestions from the State Bar of Texas. See Criminal Revision, 14 TEX. B.J. 121 (1951). Under the revised law, a defendant had 10 days in which to file a written motion for new trial. Act of June 6, 1951, 52d Leg., R.S., ch. 464, 1951 Tex. Gen. Laws 818. The revised law eliminated the arbitrary time period in which the trial court must rule-the adjournment of the court's term-and substituted a 20-day period in which the trial court must rule or the motion was overruled by operation of law. Id. The revised law also provided that a timely filed motion survived the adjournment of the trial court's term. Id.

The revised law also introduced the presentment requirement. Presentment requires a defendant to go beyond simply filing the motion for new trial with the clerk of the trial court. Instead, the motion for new trial had to be "presented to the court within ten (10) days after the filing of the original or amended motion." Id. The rationale for the presentment requirement appears to be a procedural safeguard for the defendant; otherwise, the trial court might never know the motion for new trial was on file with the clerk, and the motion would be overruled by operation of law merely because 20 days passed while the motion went unnoticed. The presentment requirement allows the trial court to review the merits of the motion. The 1951 revised law was nonsubstantively codified into the 1965 Code of Criminal Procedure as article 40.05. Code of Criminal Procedure of the State of Texas, 59th Leg., R.S., ch. 722, 1, art. 40.05, [2] 1965 Tex. Gen. Laws 317, 477.

In 1986, the Court of Criminal Appeals exercised its newly acquired rulemaking authority and moved article 40.05 to the Texas Rules of Appellate Procedure. TEX. R. APP. P. 31, 11 Tex. Reg. 1944 (Tex. Crim. App. 1986, amended 1997) (now TEX. R. APP. P. 21.4-.8); see TEX. GOV'T CODE ANN. 22.108 (Vernon 1988 & Supp. 1999) (rules of appellate procedure in criminal cases). Under former rule 31, a defendant must file a motion for new trial within 30 days after sentence is imposed or suspended in open court. Id. The trial court now has 75 days to rule on the motion, and former rule 31 specifically provides that the motion shall be considered overruled by operation of law after 75 days. Id. These changes-from 10 to 30 days for filing the motion for new trial and from 20 to 75 days for the court to rule on the motion for new trial-were made as part of an overall goal of the Texas Rules of Appellate Procedure to harmonize appellate practice in civil and criminal cases insofar as no substantial reason for differences exists. Clarence A. Guittard, Proposed Uniform Rules of Appellate Procedure, 48 TEX. B.J. 24, 24 (1985); see TEX. R. CIV. P. 329b(a), (c) (motions for new trials in civil cases).⁵ Former rule 31 was nonsubstantively recodified in 1997 into current Texas Rule of Appellate Procedure 21.4-.8.

Presentment

Because presentment has not been specifically defined by the legislature, it is to be defined according to "common usage." Code Construction Act, TEX. GOV'T CODE ANN. 311.011(Vernon 1987). The Court of Criminal Appeals has recently held that "presentment" "means the record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court." Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). "The presentment must be directed to the trial court or another authorized to act on behalf of the trial court. The presentment must result in actual notice to the trial court and may be evidenced by the judge's signature or notation on a proposed order or by a hearing date set on the docket." Id. at 79.

Though, like the definition, the purpose of the presentment requirement is left unclear by the legislature, the trial courts have employed it as a tool to alert them that a motion for new trial has been filed and now requires some action on their part. Gray v. State, 928 S.W.2d 561, 563 (Tex. Crim. App. 1996) (Keller, J., dissenting). The presentment requirement forces the defendant's attorney to attempt to compel the judge to study the merits of the motion.

Court Coordinators

An interim committee of the Sixty-eighth Legislature recommended...