State v. Kelley

Decision Date05 April 2000
Docket NumberNo. 06-99-00079-CR,06-99-00079-CR
Citation20 S.W.3d 147
Parties(Tex.App.-Texarkana 2000) THE STATE OF TEXAS, Appellant v. BRANDON DUWANE KELLEY, Appellee
CourtTexas Court of Appeals

On Appeal from the 6th Judicial District Court Fannin County, Texas Trial Court No. 18871

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

Opinion by Justice Ross

OPINION

This is an appeal from the trial court's granting of a motion for new trial in favor of the defendant, Brandon Duwane Kelley. The State appeals, contending that (1) the trial court lacked jurisdiction to grant Kelley's motion for new trial, and in the alternative, (2) the trial court abused its discretion in granting Kelley a new trial. After reviewing the record, we affirm.

I. Jurisdiction

Kelley was charged by indictment for the offense of possession of a controlled substance with intent to deliver.1 Kelley pled guilty and stipulated that he exhibited a deadly weapon in the commission of the charged offense. On March 30, 1999, a jury assessed the maximum punishment allowable, twenty years' confinement and a fine of $10,000.00.

Ten days later, on April 9, 1999, Kelley filed a pro se notice of appeal and requested that he have appellate counsel appointed. On April 28, 1999, Kelley's newly appointed counsel filed, in the trial court, a motion to withdraw the notice of appeal, and the trial court purportedly granted the motion. At this same time, in order to preserve the trial court's jurisdiction, Kelley filed a "blanket" motion for new trial asserting all permissible grounds for relief. After appellate counsel familiarized herself with the case, Kelley filed an affidavit in support of this "blanket" motion, narrowing his grounds for relief to the ineffective assistance of trial counsel and the improper impaneling of the jury.

On June 14, 1999, the trial court held a hearing on Kelley's motion for new trial. At the hearing, the State raised the issue of jurisdiction. The State contended that the trial court lost its jurisdiction to grant a new trial when Kelley filed his pro se notice of appeal. However, after hearing the evidence and the argument by counsel, the trial court found that it did have jurisdiction and entered an order vacating the plea of guilty, vacating the judgment and sentence, and granting a new trial. The State appealed.

In its first point of error, the State reasserts its contention that the trial court did not have jurisdiction to grant Kelley's motion for new trial. The State contends that the filing of the notice of appeal divested the trial court of all jurisdiction and conferred jurisdiction on the court of appeals. According to the State, Kelley could have reinstated the trial court's jurisdiction by properly filing, in the court of appeals, a motion to withdraw his notice of appeal, but Kelley's failure to do so deprived the trial court of jurisdiction.

Contrary to the State's contentions, the filing of a notice of appeal does not divest the trial court of its jurisdiction to act on an otherwise timely filed motion for new trial. Ex parte Drewery, 677 S.W.2d 533, 536 (Tex. Crim. App. 1984), overruled on other grounds, Awadelkariem v. State, 974 S.W.2d 721 (Tex. Crim. App. 1998); see also Hall v. State, 698 S.W.2d 150, 152 (Tex. Crim. App. 1985). In Ex parte Drewery, the Texas Court of Criminal Appeals addressed this very issue and held that it is not the filing of the notice of appeal, but the filing of the appellate record in the court of appeals that divests the trial court of its jurisdiction to rule on a timely filed motion for new trial. Id. In reaching this conclusion, the court relied on Article 44.11 of the Texas Code of Criminal Procedure (current version at Tex. R. App. P. 25.2), which provides that the trial court's jurisdiction will be suspended on the filing of the appellate record in the court of appeals. Id. Although the Drewery case has recently been overruled on other grounds, we find that this basic premise still holds true. There has been no change in the case law or the statutes since Drewery that would suggest otherwise.

We acknowledge that the State is correct in pointing out that a motion to withdraw a notice of appeal should be filed in the court of appeals, not in the trial court as Kelley's was. See Tex. R. App. P. 42.2. However, under the circumstances of this case, it was not necessary for Kelley to withdraw his notice of appeal. As previously discussed, it is the filing of the appellate record, not the filing of the notice of appeal, that divests the trial court of its jurisdiction to rule on a timely motion for new trial. The proper withdrawal of a notice of appeal ensures that the appellate record is not filed in the court of appeals, thereby terminating the trial court's jurisdiction. In the present case, despite Kelley's failure to properly withdraw his notice of appeal, the appellate record was still not filed in the court of appeals at the time the trial court granted his motion for new trial. Therefore, we conclude that Kelley's filing of a notice of appeal and his subsequent failure to properly withdraw such notice did not deprive the trial court of jurisdiction to grant the motion for new trial. Point of error one is overruled.

II. The Motion for New Trial

In its second point of error, the State contends that even if the trial court had jurisdiction to grant Kelley's motion for new trial, it abused its discretion in so doing.

The State is entitled to appeal a trial court's granting of a motion for new trial. Tex. Code Crim. Proc. Ann. art. 44.01(a)(3) (Vernon Supp. 2000). However, it is well established that the granting or denying of a motion for new trial rests within the sound discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (1995). We will reverse only when the trial court's decision was clearly wrong and outside the zone of reasonable disagreement. State v. Gonzalez, 855 S.W.2d 692, 695 n.4 (Tex. Crim. App. 1993), quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We will not substitute our judgment for that of the trial court, but will only decide whether the trial court's decision was arbitrary or unreasonable. Lewis, 911 S.W.2d at 7; State v. Dixon, 893 S.W.2d 286, 288 (Tex. App.-Texarkana 1995, no pet.). The ruling of the trial court is presumed to be correct, and the burden rests on the appellant to establish the contrary. Lee v. State, 167 Tex. Crim. 608, 322 S.W.2d 260, 262 (1958).

Kelley's motion for new trial was based on the grounds of ineffective assistance of trial counsel and improper impaneling of the jury. More specifically, the motion focused on the following three alleged errors: (1) the failure to get a ruling on a motion to dismiss for the violation of Kelley's right to a speedy trial; (2) the conflict of interest presented by the undisclosed familial relationship between Kelley's appointed trial counsel and an assistant prosecuting attorney; and (3) the improper seating of a peremptorily challenged venireman on the jury panel and trial counsel's failure to object thereto. Although none of these alleged errors are listed in Rule 21 of the Texas Rules of Appellate Procedure as mandatory grounds for the granting of a new trial, any of these alleged errors may be permissible grounds for a new trial. See Tex. R. App. P. 21; State v. Evans, 843 S.W.2d 576 (Tex. Crim. App. 1992).

For more than 120 years, trial courts have had authority to grant a motion for new trial in the interest of justice, based on grounds that are not specifically enumerated in the procedural rules. Gonzalez, 855 S.W.2d at 694 (Baird, J., with three judges concurring and two judges concurring in the result), citing Mullins v. State, 37 Tex. 337, 339-40 (1872-73); Dixon, 893 S.W.2d at 288. Moreover, the Texas Court of Criminal Appeals has specifically determined that trial courts have authority to grant a motion for new trial for errors amounting to ineffective assistance of counsel. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Because the trial court's order in the present case did not state on which grounds the relief was granted, we will uphold the order if it is correct on any legal theory applicable to the issues raised. See State v. Gill, 967 S.W.2d 540, 541 (Tex. App.-Austin 1998, pet. ref'd); State v. Read, 965 S.W.2d 74, 77 (Tex. App.-Austin 1998, no pet.).

To prove ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that (1) his counsel's representation was deficient, and (2) the deficient performance was so serious that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To successfully attack a guilty plea for ineffective assistance of counsel, the defendant must show that counsel's alleged deficiencies caused his plea to be unknowing and involuntary. Rodriguez v. State, 899 S.W.2d 658, 666 (Tex. Crim. App. 1995). This standard requires a defendant to show that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999); Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999).

In reviewing the trial court's granting of a motion for new trial based on ineffective assistance of counsel, we do not apply the aforementioned Strickland test in a de novo fashion. Gill, 967 S.W.2d at 542. Instead, we review the trial court's application of the Strickland test through the prism of the abuse of discretion standard. Gill, 967 S.W.2d at 542; State v. Thomas, 768 S.W.2d 335, 336 (Tex. App.-Houston [14th Dist.] 1989, no pet.); Messer v. State, 757 S.W.2d 820, 827 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd). As such, we will only determine...

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