Garza v. State

• Decision Date: 27 July 1995
• Docket Number: No. 13-93-260-CR,13-93-260-CR
• Citation: 904 S.W.2d 877
• Parties: Ramiro Ramirez GARZA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 877

904 S.W.2d 877

Ramiro Ramirez GARZA, Appellant, v.The STATE of Texas, Appellee.

No. 13-93-260-CR.

Court of Appeals of Texas Corpus Christi.

July 27, 1995.

Rehearing Overruled Sept. 7, 1995.

Stephen S. Ross, Victoria, Ramiro Garza, Beeville, John A. George, Fly & Moeller, Victoria, for appellant.

George J. Filley, III, Dist. Atty., Victoria County, Victoria, for appellee.

Before the court en banc.

OPINION

DORSEY, Justice.

This out of time appeal is granted by reason of an order of the Texas Court of Criminal Appeals, delivered May 5, 1993.The original appeal of this case was denied for want of jurisdiction by this Court.Garza v. State, No. 13-91-630-CR (Tex.App.--Corpus Christi, January 3, 1992).

Ramiro Ramirez Garza, appellant, appeals his conviction for aggravated sexual assault.Garza was found guilty by a jury and assessed a sentence of 40 years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000.00 on October 2, 1991.

PROCEDURAL HISTORY

Appellant was first convicted of aggravated sexual assault on June 21, 1991 and was sentenced to ten (10) years confinement in the Institutional Division of the Texas Department of Criminal Justice.Appellant timely filed a motion for new trial which was granted and a docket entry was made to that effect.However, no written order was signed by the Judge and entered in the record.

A new trial before a jury was begun on September 30, 1991, and on October 2, 1991, appellant was found guilty, sentenced to forty (40) years imprisonment, and assessed a fine of ten thousand ($10,000.00) dollars.

Garza failed to timely file a notice of appeal from the October 2, 1991 judgment, and this Court dismissed the appeal for want of jurisdiction.Garza filed a post-conviction application for writ of habeas corpus pursuant to the provisions of Article 11.07 of the Code of Criminal Procedure with the Court of Criminal Appeals which granted an out-of-time appeal on May 5, 1993, and returned the case to this Court for our disposition.

JURISDICTION

By point of error one, appellant complains that the trial court lost jurisdiction over his cause when his motion for new trial was overruled by operation of law because the trial court failed to sign an order granting the motion.TEX.R.APP.P. 31(e)(3).¹ The Rule provides that unless the trial court grants the motion for new trial by signed, written order within 75 days from the date the sentence was imposed, the motion is automatically overruled.

In the case before us, the court never signed a written order, although the trial court announced that he was granting the motion for a new trial.A docket sheet entry was made reflecting the court's pronouncement.

The plain language of the Rule requires a written order to prevent the overruling of the motion by operation of law.Id.An oral pronouncement, absent a written order, is insufficient.In State Ex. Rel. Cobb v. Godfrey, 739 S.W.2d 47, 49(Tex.Crim.App.1987), the Court of Criminal Appeals granted mandamus relief to require a trial court to vacate its order granting a new trial when the order was not signed within the seventy-five day period.In that case, the motion itself was timely, a hearing was held within the seventy-five days, the court orally granted the motion but did not sign the order until eighty days after sentencing.The Court found that the trial court did not have jurisdiction to grant the new trial because the motion had been overruled by operation of law on the seventy-fifth day.Id.

We find no cases analyzing the effect of a docket sheet entry to satisfy the written order requirement in the criminal jurisprudence of Texas, but Rule 329b of the civil rules contains identical language requiring a signed written order.TEX.R.CIV.P. 329b.In Taack v. McFall, 661 S.W.2d 923, 924(Tex.1983), the Texas Supreme Court held that a docket sheet entry did not suffice.The language of the rule is mandatory.The motion is overruled after the statutory time expires unless the trial court signs a written order.

That is the case here.Appellant's motion for new trial was overruled by operation of law when the time for ruling expired because the trial court did not sign a written order.When the motion was overruled, the trial court then lost jurisdiction over the case including over the indictment.The indictment had combined with the plea of the defendant and evidence to produce the judgment.Accordingly, the trial judge lacked jurisdiction to retry appellant on the case that is now before us on appeal.The second conviction is void.

The State urges us to suspend Rule 31(e)(3) in this case pursuant to Appellate Rule 2(b).TEX.R.APP.P. 2(b).We may not use the Rules to extend our jurisdiction, nor should we suspend the Rules to extend the jurisdiction of the trial court.SeeGarza v. State, 896 S.W.2d 192(Tex.Crim.App.1995)(refusing to allow Court of Appeals to modify its opinion seventeen days after the fifteen day deadline provided by Rule 101).The effect of our suspending Rule 31(e)(3) in this case would be to give jurisdiction to the district court where it had lapsed.That is not the intent of the rule.The trial court had no jurisdiction; the second conviction is void; and the first conviction is final.We sustain appellant's first point of error.We need not address his remaining points of error.TEX.R.APP.P. 90(a).

The JUDGMENT of conviction and sentence of October 2, 1991, is REVERSED.

BILL J. STEPHENS, J. (Retired), dissents.

STEPHEN F. PRESLAR, J.(Retired), joins in the dissent.

STEPHENS¹, Justice, dissenting.

PROCEDURAL FACTS OF THE CASE

Appellant was first convicted of aggravated sexual assault on June 21, 1991 and was sentenced to ten (10) years confinement in the Institutional Division of the Texas Department of Criminal Justice.Appellant timely filed his motion for new trial which was granted and a docket entry was made to that effect.However, no written order was signed by the Judge and entered in the record.

A new trial before a jury was begun on September 30, 1991, and on October 2, 1991, appellant was found guilty and sentenced to serve forty (40) years in the Institutional Division of the Texas Criminal Justice, and assessed a fine of ten thousand ($10,000.00) dollars.

The majority holds that the trial court was without jurisdiction to hear the new trial because of the trial judge's failure to sign and file a written order granting the new trial as required by TEX.R.APP.P. 31(e)(3).Normally I would agree with this decision, however, under the facts of this case I disagree and accordingly, I dissent.

Garza relies on TEX.R.APP.P. 31(e)(3) to support his argument that because no signed, written order was filed of record, the trial court lost jurisdiction after 75 days lapsed from the date the sentence was imposed and thus the new trial was a nullity.

TEX.R.APP.P. 31(e)(1), (2), and (3) provide:

(1) Time to Rule.The court shall determine a motion for new trial within 75 days after the date sentence is imposed or suspended in open court.

(2) Ruling.The judge shall not sum up, discuss or comment on evidence in the case.The judge shall grant or refuse the motion for new trial.

(3) Failure to Rule. A motion not timely determined by written order signed by the judge shall be considered overruled by operation of law upon expiration of the period of time prescribed in section (e)(1) of this rule.

The case before us appears to be one of first impression because of its peculiar facts.The rule was intended to control when a timely motion for new trial had been filed, and the court had failed to rule on it.

In our case, the court timely ruled on the motion, granted a new trial and the new trial was held.A new jury was empaneled, evidence was presented, the attorneys argued their positions, the jury rendered a verdict, and the judge sentenced the defendant and entered a judgment.This goes far beyond the mere failure to act on a motion for new trial.

The State urges us to suspend TEX.R.APP.P. 31(e)(3), as is allowed by TEX.R.APP.P. 2 which provides:

(a) Relationship to Jurisdiction.These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals, the Court of Criminal Appeals or the Supreme Court as established by law.

(b) Suspension of Rules in Criminal Matters.Except as otherwise provided in these rules, in the interest of expediting a decision or for other good cause shown, a court of appeals or the Court of Criminal Appeals may suspend requirements and provisions of any rule in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.Provided, however, that nothing in this rule shall be construed to allow any court to suspend requirements or provisions of the Code of Criminal Procedure.

In State ex rel. Cobb v. Godfrey, 739 S.W.2d 47(Tex.Crim.App.1987), an original proceeding was brought by the State by and through its District Attorney, Jerry Cobb, Relator, complaining of Judge Hollis Godfrey, Judge of County Court at Law Number Three of Denton County, Respondent, seeking mandamus to order the trial judge to set aside an order granting a new trial after the 75 day time limit had expired.

The facts in that case show that on December 23, 1986, defendant, Allen Scott Brown, was found guilty of the misdemeanor offense of criminal negligent homicide by a jury and was assessed punishment by the jury at one year confinement in the Denton County Jail, plus a fine of $2,000.00, with the term of incarceration and fine to be probated.The judgment of conviction and sentence was signed on December 23, 1986.Then, on January 21, 1987, the defendant filed a Motion for New Trial.On March 4, 1987, the defendant filed a First Amended Motion for New Trial, and the motion was heard.On that date the trial judge orally granted the motion, but did not sign a written order granting a new trial.The...