Oldham v. State

• Decision Date: 30 September 1998
• Docket Number: No. 1350-94,1350-94
• Citation: 977 S.W.2d 354
• Parties: Roslyn Henry OLDHAM, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 354

977 S.W.2d 354

Roslyn Henry OLDHAM, Appellant, v. The STATE of Texas.

No. 1350-94.

Court of Criminal Appeals of Texas En Banc.

Sept. 30, 1998.

Petition for Discretionary Review from the Fourteenth Court of Appeals [Harris County].

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

WOMACK, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and MANSFIELD, KELLER and HOLLAND, Judges, joined.

The State petitioned this Court for review of the Court of Appeals' opinion, Oldham v. State, 889 S.W.2d 461 (Tex.App.--Houston [14th Dist.] 1994), which held that the appellant was denied counsel at a critical stage of the proceedings, and which abated the appeal and remanded the cause to the trial court to allow the appellant to file an out-of-time motion for a new trial. On original submission, this Court dismissed the State's petition for discretionary review as improvidently granted. We then granted the State's motion for rehearing, on which this opinion is issued. We shall reverse.

The appellant was represented by retained counsel at her trial for forgery committed on January 9, 1989, in violation of Texas Penal Code § 32.32. On January 13, 1992, she was found guilty by a jury. On that same date, the trial court sentenced her to three years confinement. The appellant filed a pro se notice of appeal and indigency on February 10, 1992. The next day the appeal was assigned to the Fourteenth Court of Appeals, with a notation on the letter of assignment from the trial court that the attorney of record on appeal was "to be determined." On March 16, 1992, the trial court found the appellant indigent and appointed appellate counsel.

On March 20, 1992, the appellant, through her appellate counsel, filed a motion in the Court of Appeals to abate the appeal. She requested that the court set aside the sentence, start the appellate timetable anew, and remand the case to the trial court to allow the appellant leave to file a motion for new trial, on the ground that she was denied the constitutional right to counsel during a critical stage of the appellate proceedings, namely the time period within which her motion for new trial had to be filed. The Court of Appeals denied this motion on March 26, 1992. On April 9, 1992, the appellant filed a second motion to abate the appeal on the same ground. The Court of Appeals overruled that motion on April 16, 1992. The appellant urged fifteen points of error to the Court of Appeals, four of which dealt with the same subject matter as her motions to abate.

On September 29, 1994, the Court of Appeals issued its opinion, Oldham v. State, 889 S.W.2d 461 (Tex.App.--Houston [14th Dist.] 1994), in which it determined that the appellant had been denied her Sixth Amendment right to counsel. The Court of Appeals abated the appeal, set aside the notice of appeal, and remanded the cause to the trial court to allow the appellant to file her motion for new trial and the orderly conduct of subsequent post-trial proceedings. Id. at 463.

The Court of Appeals began its analysis by stating, "Texas Rule of Appellate Procedure 31(a)(1) requires that if a motion for new trial is to be filed, it must be done within thirty days of sentencing. See Tex.R.App.P. 31(a)(1). However, Texas Rule of Appellate Procedure 2(b) allows this Court to extend the thirty day deadline for 'good cause' shown. See Tex.R.App.P. 2(b)." Oldham v. State, 889 S.W.2d 461, 462 (Tex.App.--Houston [14th Dist.] 1994).

The appellant claimed that she had been denied her right to counsel in violation of the Federal Constitution, the State Constitution, the Code of Criminal Procedure, and various cases interpreting them. The Court of Appeals found a constitutional violation, and it relied on Rule 2(b) ¹ as authority to set aside the sentence and notice of appeal, abate the appeal, and allow the appellant to file her motion for a new trial. The Court of Appeals reasoned that Rule 2(b) could be used to "suspend" Rule 31(a)(1) which required that a motion for a new trial be filed within 30 days after sentencing. In essence, the Court of Appeals used Rule 2(b) to extend the time limit for the filing of the appellant's motion for a new trial some two years and eight months, this being the time from the appellant's sentencing to the date of the Court of Appeals' decision.

We believe the Court of Appeals was in error to rely on Rule 2(b) as a mechanism to extend the time limits for the filing of a motion for a new trial imposed by Rule 31(a)(1).

Rule 2 of the Texas Rules of Appellate Procedure ² 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.

The courts of appeals have considered and used Rule 2(b) in a variety of cases. See, e.g., Callis v. State, 756 S.W.2d 826 (Tex.App.--Houston [1st Dist.] 1988) (using Rule 2(b) to abate appeal and remand to allow untimely filing of a motion for new trial upon finding the appellant was denied counsel during time limit to file motion for a new trial); McMillan v. State, 769 S.W.2d 675 (Tex.App.--Dallas 1989) (using Rule 2(b) to suspend time limits to file a notice of appeal after case remanded for a hearing on a motion for a new trial); Boulos v. State, 775 S.W.2d 8 (Tex.App.--Houston [1st Dist.] 1989) (using Rule 2(b) to allow untimely motion for extension of time to file late notice of appeal); Torres v. State, 804 S.W.2d 918 (Tex.App.--El Paso 1990) (holding that use of Rule 2(b) to abate the appeal and return the case to the trial court for a hearing on the appellant's ineffective assistance claim would violate the Rule 2(a) prohibition against enlarging jurisdiction); Bowler v. State, 822 S.W.2d 334 (Tex.App.--San Antonio 1992) (finding no good cause shown under Rule 2(b) to remand for an evidentiary hearing on an ineffective assistance claim because such a claim is cognizable by habeas corpus); Harris v. State, 827 S.W.2d 442 (Tex.App.--San Antonio 1992), and Harris v. State, 818 S.W.2d 231 (Tex.App.--San Antonio 1991) (using Rule 2(b) to abate the appeal and remand for an out-of-time motion for new trial based on newly discovered evidence); State ex rel. Holmes v. Shaver, 824 S.W.2d 285 (Tex.App.--Texarkana 1992) (using Rule 2(b) to abate the appeal and remand to the trial court to conduct a rehearing on out-of-time motions for new trial); Sanchez v. State, 885 S.W.2d 444 (Tex.App.--Corpus Christi 1994) (using Rule 2(b) to allow untimely motion for extension of time to file late notice of appeal); Hilton v. State, 870 S.W.2d 209 (Tex.App.--Beaumont 1994) (abating appeal and remanding to the trial court for a hearing to allow the appellant to attempt to establish good cause under Rule 2(b) to allow an out-of-time motion for new trial); Tuffiash v. State, 878 S.W.2d 197 (Tex.App.--San Antonio 1994) (using Rule 2(b) to abate the appeal and remand to the trial court for an out-of-time motion for a new trial based on newly discovered evidence, conceding that such claim is also cognizable in habeas); Broadnax v. State, 900 S.W.2d 452 (Tex.App.--Texarkana 1995) (refusing to use Rule 2(b) to allow untimely notice of appeal); Garza v. State, 904 S.W.2d 877 (Tex.App.--Corpus Christi 1995) (refusing to use Rule 2(b) to allow trial court's untimely granting of a new trial to become valid retrospectively); Boyette v. State, 908 S.W.2d 56 (Tex.App.--Houston [1st Dist.] 1995) (using Rule 2(b) to abate appeal and remand to allow untimely filing of a motion for new trial upon finding the appellant was denied counsel during time limit to file motion for a new trial); Cooper v. State, 917 S.W.2d 474 (Tex.App.--Fort Worth 1996) (refusing to use Rule 2(b) to allow untimely notice of appeal); Crowell v. State, 949 S.W.2d 37 (Tex.App.--San Antonio 1997) (refusing to use Rule 2(b) to allow untimely hearing on motion for a new trial claiming ineffective assistance of counsel because such claim is cognizable in habeas corpus); Burnett v. State, 959 S.W.2d 652 (Tex.App.--Houston [1st Dist.] 1997) (refusing to use Rule 2(b) to allow remand for an out-of-time motion for a new trial because record did not support claim of denial of counsel).

This Court has also had occasion to use and to comment on the role of Rule 2(b) in the appellate process.

Less than two months after we adopted Rule 2(b), this Court utilized it to grant out-of-time discretionary review on the Court's own motion in Davis v. State, 721 S.W.2d 857 (Tex.Cr.App.1986), and ultimately remanded the case to the Court of Appeals. In a dissent critical of the Court's actions, calling the majority a "loose cannon on deck," Judge Clinton stated:

As I do, the Austin Court will surely wonder what is the "good cause shown," and since presumably it must invite and afford time for the parties to brief the Adams question, the Austin Court would be justified in believing that to review the record again for prejudice to preparation of a defense is certainly not "in the interest of expediting a decision" in this cause.

Id. at 858 (Clinton, J., dissenting).

In Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987), this Court used Rule 2(b) to prohibit entertainment of a motion for rehearing in the case. In Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987), we used Rule 2(b) to grant rehearing in the case on the Court's...