Owens v. State
| Decision Date | 21 December 1988 |
| Docket Number | No. 05-88-00032-CR,05-88-00032-CR |
| Citation | 763 S.W.2d 489 |
| Parties | Roosevelt OWENS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Ross Teter, Dallas, for appellant.
John Vance, Dist. Atty., Karen R. Wise, Asst. Dist. Atty., Dallas, for appellee.
Before WHITHAM, HECHT and LAGARDE, JJ.
Appellant appeals a conviction for possession of a controlled substance; to wit: cocaine under twenty-eight grams. The trial court assessed punishment at ten years in the Texas Department of Corrections, probated for three years. On the State's motion, the trial court revoked appellant's probation and sentenced him to ten years in the Texas Department of Corrections. Appellant timely filed a motion for new trial. The trial court denied the motion. In his fifth point of error, appellant contends that the trial court erred in denying his motion for new trial without a hearing. We agree. Accordingly, the judgment revoking probation, the sentence and the notice of appeal are set aside and the cause is remanded to the trial court for a hearing on the motion for new trial and for the orderly conduct of subsequent post-trial proceedings. See Trevino v. State, 565 S.W.2d 938, 941-42 (Tex.Crim.App.1978).
At the outset, we must dispose of the State's procedural challenge to the motion for new trial. The State insists that the motion is not supported by a properly sworn affidavit. The State argues that, although the affidavit was signed by appellant, it was not properly sworn to and notarized. In this connection, the State asserts that it is well established that no (a) Except as provided by Subsection (b), an unsworn declaration made as provided by this chapter by an inmate in the Texas Department of Corrections or in a county jail may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by rule, order, or requirement adopted as provided by law.
error is presented for review when a motion for new trial is unsworn, citing cases decided before September 1, 1987. We conclude that cases decided before September 1, 1987, are no longer applicable. We reach this conclusion because sections 132.001, 132.002 and 132.003 of the Texas Civil Practice and Remedies Code became effective September 1, 1987. Appellant filed his motion for new trial on November 2, 1987. Section 132.001 of the Code reads:
(b) This chapter does not apply to an oath of office or an oath required to be taken before a specified official other than a notary public.
Section 132.002 of the Code reads:
An unsworn declaration made under this chapter must be:
(1) in writing; and
(2) subscribed by the person making the declaration as true under penalty of perjury.
Section 132.003 of the Code reads:
The form of a declaration under this chapter must be substantially as follows:
Appellant made the following "affidavit" to his motion for new trial:
I, the undersigned, being presently incarcerated in a penal institution, do hereby declare under oath and penalty of perjury that the facts, statements and allegations set forth in the foregoing Motion for New Trial are within my personal knowledge and are true and correct.
Executed on this 23rd day of October, 1987.
/s/ Roosevelt Owens
Defendant
Dallas County Jail
Appellant argues that this writing constitutes an unsworn declaration in substantial compliance with sections 132.001, 132.002 and 132.003. Appellant further maintains that an unsworn declaration as provided for in sections 132.001, 132.002 and 132.003 may be used in lieu of any sworn declaration, verification, oath or affidavit requirement applicable to his motion for new trial.
First, we consider the question of whether appellant's writing constitutes an unsworn declaration in substantial compliance with sections 132.001, 132.002 and 132.003. We begin by noting certain variances from the statutory suggested form of declaration. Appellant's writing omits an inmate identification number and county jail name. Appellant's writing fails to insert his name or place of incarceration in its contents above his signature. Instead, appellant refers to himself in his writing as the "undersigned, being presently incarcerated in a penal institution," and by his signature provides his name. Below his signature, appellant indicates his place of penal incarceration as the "Dallas County Jail," without further name or location description of that county jail place. We conclude that these variances from the statutory suggested form of declaration are not fatal to the permitted declaration. Therefore, we conclude further that appellant's writing constitutes an unsworn declaration in substantial compliance with sections 132.001, 132.002 and 132.003.
Next, we address the question of whether an unsworn declaration as provided for in section 132.001, 132.002 and 132.003 may be used in lieu of any sworn declaration, verification, oath or affidavit requirement applicable to a defendant's motion for new trial in a criminal case. As noted, these sections of the Code became effective September 1, 1987, and appellant filed his motion for new trial November 2,
1987. Although found in state statutory law codified as "Civil Practice and Remedies," we conclude that an unsworn declaration as provided for in sections 132.001, 132.002 and 132.003 may be used in lieu of any sworn declaration, verification, oath or affidavit requirement applicable to a defendant's motion for new trial in a criminal case. We reach this conclusion in light of the origin of sections 132.001, 132.002 and 132.003. The legislature enacted sections 132.001, 132.002 and 132.003 as section 60 of Senate Bill 245. Tex.S.B. 245, 70th Leg., 1987 Tex.Gen.Laws 3517. The beginning language of section 60 of S.B. 245 reads: "Section 60. Title 6, Civil Practice and Remedies Code, is amended by adding Chapter 132 to read as follows:
CHAPTER 132. UNSWORN DECLARATIONS
(a) Except as provided by Subsection (b), an unsworn declaration made as provided by this chapter by an inmate in the Texas Department of Corrections or in a county jail may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by rule, order, or requirement adopted as provided by law.
(b) This chapter does not apply to an oath of office or an oath required to be taken before a specified official other than a notary public.
Section 132.002. REQUIREMENTS OF DECLARATION.
An unsworn declaration made under this chapter must be:
(1) in writing; and
(2) subscribed by the person making the declaration as true under penalty of perjury.
The form of a declaration under this chapter must be substantially as follows:
The heading of S.B. 245 identifies the legislation as "AN ACT relating to the composition, operations, and continuation of the Texas Board of Corrections, to the manner in which defendants are sentenced, confined, and released from confinement, and to limitations of personal actions by inmates." Tex.S.B. 245, 70th Leg., 1987 Tex.Gen.Laws 3517. (emphasis added). Therefore, we conclude that sections 132.001, 132.002 and 132.003 apply to criminal trials and not just to civil trials. We reason that the trial of an accused for a criminal offense includes a motion for new trial and that such a criminal trial involves the manner in which defendants are sentenced, confined and released from confinement. We conclude, therefore, that it is immaterial that the legislature placed sections 132.001, 132.002 and 132.003 in the Civil Practice and Remedies Code.
Therefore, having concluded that an unsworn declaration as provided for in section 132.001, 132.002 and 132.003 may be used in lieu of any sworn declaration, verification, oath or affidavit requirement applicable to a defendant's motion for new trial in a criminal case, it follows that appellant's use of an unsworn declaration as provided for in sections 132.001, 132.002 and 132.003 meets the requirement that the defendant must first present to the trial court a sworn motion for new trial or the requirement that the motion must be verified. See Dugard v. State, 688 S.W.2d 524, 529 (Tex.Crim.App.1985); Brown v. State, 561 S.W.2d 484, 488 (Tex.Crim.App.1978); Dillon v. State, 165 Tex.Crim. 217, 305 S.W.2d 956, 957 (1957). 1
Having disposed of the State's procedural challenge to appellant's motion for new trial, we turn to two further issues concerning whether the trial court erred in denying appellant's motion for new trial without a hearing. Therefore, in disposing of appellant's fifth point of error, we must first determine if his motion comprised a sufficient pleading to present matters which should have been taken up in a hearing. See McIntire v. State, 698 S.W.2d 652, 657 (Tex.Crim.App.1985). Omitting formal parts, we attach appellant's motion for new trial as an appendix to this opinion. We conclude that appellant's motion seeks to show that in matters involving revocation of probation the trial court has established and pursued a policy which deprived appellant of various constitutional rights, which was arbitrary and which...
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