Ex parte Drewery, 69225

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: CAMPBELL; MILLER
• Citation: 677 S.W.2d 533
• Parties: Ex parte Charles Ray DREWERY.
• Docket Number: No. 69225,69225
• Decision Date: 26 September 1984

Page 533

677 S.W.2d 533 Ex parte Charles Ray DREWERY. No. 69225. Court of Criminal Appeals of Texas,
En Banc. Sept. 26, 1984.

Page 534

Charles Ray Drewery, pro se.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr. and Steve McCarthy, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

CAMPBELL, Judge.

This is a post conviction writ of habeas corpus. See Art. 11.07, V.A.C.C.P.

The question presented is whether the trial court was divested of jurisdiction to grant a motion for new trial once notice of appeal was filed by the applicant herein. We answer in the negative and we grant relief.

Applicant alleges that the trial court acted without lawful authority in rescinding its order granting his motion for a new trial. The State argues that the original motion for new trial was void inasmuch as it was granted after applicant had filed notice of appeal.

On November 3, 1982 applicant was tried for aggravated robbery in Cause No. 362,829. The jury convicted of the lesser included offense of aggravated assault and applicant, having two prior felony convictions, was sentenced to life imprisonment. Applicant filed notice of appeal. On November 16, 1982 applicant filed a pro se motion for new trial. On January 12, 1983 the trial court granted a new trial. Applicant then successfully moved to dismiss his appeal.

Between November 16, 1982 and January 12, 1983, applicant pled guilty to the offense of attempted capital murder in Cause No. 354,693, a crime arising out of the same transaction as that in Cause No. 362,829. Thus, once the trial court granted applicant's motion for new trial, applicant was left in the position of having one final conviction, that being in Cause No. 354,693.

Subsequently, the State attempted to retry applicant for the aggravated assault. On March 22, 1983 applicant filed a pre-trial writ of habeas corpus attempting to foreclose retrial on Cause No. 362,829.

Relief was denied by the trial court and appeal was filed with the Fourteenth Court of Appeals on May 5, 1983. On May 9, 1983, the trial court, on motion of the State, rescinded its original order granting the motion for new trial in Cause No. 362,829, holding that it was without jurisdiction five months earlier to grant it in view of the prior filing of notice of appeal. The trial court further held that since applicant had withdrawn his appeal in Cause No. 362,829, said conviction was now a final conviction. Accordingly, the Fourteenth

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Court of Appeals denied applicant's pre-trial writ. This Art. 11.07 writ of habeas corpus, challenging the conviction in Cause No. 362, 829, followed.

Applicant argues that the filing of notice of appeal does not divest the trial court of jurisdiction to hear and rule upon an otherwise timely filed motion for new trial. He contends that a notice of appeal which is filed prior to the overruling of a motion for new trial is prematurely filed and cites Art. 44.08 and Art. 44.11, V.A.C.C.P., and cases dating back to 1966.

The State alleges that the 1981 amendments to the Code of Criminal Procedure vitiated all of the past precedents of this Court and that the 1981 amendments were intended to limit the trial court's "quasi-appellate" jurisdiction. Thus, the State argues that the filing of notice of appeal divests the trial court of jurisdiction, said jurisdiction only being restored upon applicant withdrawing his original appeal. With this we cannot agree.

The State's position would render meaningless Art. 44.11, supra, as well as conflict with what we perceive to be the legislative intent to simplify criminal appellate procedure, vis-a-vis motions for new trial and notice of appeal.

Prior to 1981, a motion for new trial had to be filed prior to sentence being imposed and the notice of appeal filed after sentence was imposed. See Art. 40.09 and Art. 44.08, V.A.C.C.P. pre-amendment. In 1981 the Courts of Civil Appeals obtained primary jurisdiction over criminal appeals and the amendments at issue followed.

As the Code is presently written, a sentence and judgment are joined and the appellate procedure time limits for motions for new trial and notices of appeal begin running as of the date of judgment and sentence. See 13 St. Mary's Journal, at 223. Finally, unchanged, except for deletion of Art. 40.09, supra, by the 1981 amendments, was Art. 44.11, supra, which provides for jurisdiction in the trial court until such time as the appellate record is filed with the Court of Appeals, Art. 44.11, supra. See Duncan v. Evans, 653 S.W.2d 38 (Tex.Cr.App.1983).

Criminal appeals are governed by Chapter 44 of the Code of Criminal Procedure. Art. 44.01, V.A.C.C.P., et seq. Art. 44.02, supra, specifically provides for the right of appeal from a criminal conviction. ¹ Art. 44.08, supra, provides for the procedures for perfecting an appeal to properly invoke the jurisdiction of the courts of appeals. ² Finally, Art. 44.11, supra, specifies that upon the filing of the record in the Court of Appeals or this Court, all further proceedings are arrested until mandate is received by the district court. ³ We note that nowhere in Chapter 44 is there any reference to terminating the trial court's jurisdiction upon the filing of notice of appeal.

Motions for new trial are governed by Art. 40.01, V.A.C.C.P., et seq. Art. 40.05, V.A.C.C.P., provides that a motion for new trial shall be filed prior to or within 30 days after the date of sentencing. ⁴ As discussed

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ante at pg. 3, prior to the 1981 amendment, sentence was not imposed until the motion for new trial was overruled. ⁵ Art. 40.08, supra, provides that the effect of the granting of a motion for new trial is to place the cause in the same position as if no trial had ever taken place. Nowhere in Art. 40.01 et seq. is the trial judge authorized to rescind the granting of a motion for new trial.

This Court has long held that a trial court cannot rescind an order granting a new trial absent clerical errors; nor can it grant a motion for new trial once the time limits have expired. See English v. State, 592 S.W.2d 949 (Tex.Cr.App.1980) and the cases cited therein; Ex parte Ybarra, 629 S.W.2d 943 (Tex.Cr.App.1982).

This Court has repeatedly held that a notice of appeal which was filed prior to the...