State v. Herndon

Decision Date28 February 2007
Docket NumberNo. PD-1954-03.,PD-1954-03.
Citation215 S.W.3d 901
PartiesThe STATE of Texas v. Ronald HERNDON, Appellee.
CourtTexas Court of Criminal Appeals

Michael H. Hummell, Corpus Christi, for Appellant.

Joe C. Lockhart, Asst. District Atty., Corpus Christi, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which PRICE, JOHNSON, KEASLER, and HOLCOMB, JJ., joined.

A jury convicted Ronald Herndon of driving while intoxicated. Herndon then filed a motion for new trial claiming, in part, that the court reporter failed to record a bench conference in which he objected to the prosecutor's final argument. The trial judge granted Herndon's motion for new trial. The State appealed and the court of appeals reversed. It concluded that the trial court abused its discretion in granting Herndon a new trial on the ground that the court reporter failed to record a bench conference because Herndon had not objected to this failure during the trial.1 We granted Herndon's petition for discretionary review to decide whether the court of appeals erred in concluding that the trial court had abused its discretion when it granted a new trial on this particular basis. We conclude that the court of appeals erred in holding that Herndon was required to make a timely objection during trial to the court reporter's failure to hand-record the bench conference before the trial court could consider the merits of his motion for new trial. Although Herndon did not preserve error for appeal, he did not appeal. Instead, he filed a motion for new trial in the trial court, and that court granted it. We hold that Texas law does not require a party to preserve error for purposes of appeal as a precondition for the trial court to consider the merits of a motion for new trial. We therefore reverse the court of appeals and remand the case to that court to consider the State's claims concerning the merits of the motion for new trial and whether any error affected Herndon's substantial rights.

I.

At the jury trial on this misdemeanor DWI charge, the State offered evidence of Herndon's guilt through the testimony of two police officers. The defense did not offer any evidence. During its closing argument, the State noted the following:

This Defendant decided what evidence you're going to consider today, but what's on there is pretty incriminating. It shows this Defendant was intoxicated. Also, keep in mind the Defendant admitted to the officer to drinking that night. He admitted that he had been drinking alcohol. And this Defendant didn't present any evidence of who he was drinking with, he didn't—he didn't bring any other witness forward to testify how many drinks he had that night or, you know, what he was doing that night, how long ago—

Defense: Your honor, I'm going to object, comment on the Defendant's failure to testify.

Court: Come forward, please.

(Bench conference not recorded.)

(Following was transcribed from audio cassette.)

State: Your Honor, I'm talking about another witness. He didn't present another witness to his whereabouts that evening.

(Inaudible from tape.)

(Reporter back on record.)

Defense: I'd ask the jury be instructed to disregard.

Court: The jury is instructed not to regard the failure of the Defendant to testify as it was instructed in the Charge.

The jury found Herndon guilty. Herndon later filed a motion for mistrial complaining both of the prosecutor's closing argument and of the court reporter's failure to record the bench conference. The State filed a written response, arguing that (1) its closing argument did not violate Herndon's right against self-incrimination, (2) the mistrial motion was procedurally barred as untimely,2 (3) Herndon failed to preserve error by continuing to object until there was an adverse ruling, (4) any error is presumed cured by the trial court's instruction to disregard, and (5) Herndon failed to demonstrate reversible error. The trial court denied the motion for mistrial and sentenced Herndon to 90 days in jail probated for twelve months and a $500 fine.

Herndon then filed a motion for new trial, making the same claims that he had made in his motion for mistrial. Specifically, he stated, "The prosecutor's comments coupled with the reporting protocol justifies the Court granting the Defendant a new trial in the interest of justice." The State filed a second written response making the same arguments that it had made in its response to the motion for mistrial, but also noting that the court reporter had, in fact, made an audio recording of the bench conference.3 During the hearing on the motion for new trial, the court reporter confirmed that she had not hand-recorded the bench conference. The trial court later granted Herndon's motion for new trial "on the ground that a bench conference was not recorded during the trial."4 At the time that the trial judge granted Herndon's motion for new trial, he was not permitted to explain the factual basis for his ruling either granting or denying a motion for new trial.5

The State appealed, arguing, inter alia, that Herndon had not preserved error.6 The court of appeals agreed. It explained that "[f]ormer Rule 11(a) of the Texas Rules of Appellate Procedure required a record of proceedings be made only when requested by the trial court or any party to the case."7 Thus, formerly, an appealing party was required to object to the court reporter's failure to record the proceedings, including bench conferences. The court of appeals stated that this rule was amended and renumbered in 1997 as Rule 13.1(a). The rule now requires that the official court reporter must, "unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings[.]"8 The court of appeals noted that it had previously interpreted Rule 13.1(a) as "dispens[ing] with the requirement that a defendant had to object to the court reporter's failure to record bench conferences."9 Under its precedent, "a court reporter's failure to record a bench conference that occurs after the trial proceedings have begun, absent an agreement by the parties to do so, was error."10 The court of appeals then noted that, more recently, this Court had held that a defendant is still required to object to the court reporter's failure to record bench conferences to preserve error for appeal.11 Thus, because Herndon had not objected at the time the court reporter failed to hand-record the bench conference, he did not preserve error, and the trial court therefore abused its discretion in granting the motion for new trial.12

II.

In State v. Gonzalez,13 we said, "For more than one hundred and twenty years, our trial judges have had the discretion to grant new trials in the interest of justice."14 We noted that, as early as 1873, the Texas Supreme Court (which, at that time, had criminal jurisdiction), waxed eloquent on the trial court's discretion to grant a new trial in the interest of justice and had stated,

The discretion of the District Court, in granting new trials, is almost the only protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Court[s] should never hesitate to use that discretion whenever the ends of justice have not been attained by those verdicts.15

Historically, we have consistently held that a trial judge has the authority to grant a new trial "in the interest of justice" and that his decision to grant or deny a defendant's motion for new trial is reviewed only for an abuse of discretion.16 That discretion is not, however, unbounded or unfettered. A trial judge has discretion to grant or deny a motion for new trial "in the interest of justice," but "justice" means in accordance with the law.17

A trial judge does not have authority to grant a new trial unless the first proceeding was not in accordance with the law. He cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is innocent or "received a raw deal." The legal grounds for which a trial court must grant a new trial are listed in Rule 21.3, but that list is illustrative, not exclusive.18 A trial court may grant a motion for new trial on other legal grounds as well. In federal courts, "[a]ny error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial."19 Even errors that would not inevitably require reversal on appeal may form the basis for the grant of a new trial, if the trial judge concludes that the proceeding has resulted in "a miscarriage of justice."20 Although not all of the grounds for which a trial court may grant a motion for new trial need be listed in statute or rule, the trial court does not have discretion to grant a new trial unless the defendant shows that he is entitled to one under the law.21 To grant a new trial for a non-legal or legally invalid reason is an abuse of discretion.22 As we have explained before, the test for abuse of discretion

"is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse."23

While a trial court has wide discretion in ruling on a motion for new trial which sets out a valid legal claim, it should exercise that discretion by balancing a defendant's "interest of justice" claim against both the interests of the public in finality and the harmless-error standards set out in Rule 44.2.24 Trial courts should not grant a new trial if the defendant's substantial rights were not affected. Otherwise, the phrase "interest of justice" would have no substantive legal content, but...

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    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2015 Contents
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    ...to grant or deny a motion for new trial in the interest of justice, but “justice” means in accordance with the law. State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007). While a trial court has wide discretion in ruling on a motion for new trial which sets out a valid legal claim, it sho......
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    ...to grant or deny a motion for new trial in the interest of justice, but “justice” means in accordance with the law. State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007). While a trial court has wide discretion in ruling on a motion for new trial which sets out a valid legal claim, it sho......
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