Taylor v. State

• Decision Date: 14 April 2005
• Docket Number: No. 03-03-00624-CR.,03-03-00624-CR.
• Citation: 163 S.W.3d 277
• Parties: Blake TAYLOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

163 S.W.3d 277

Blake TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 03-03-00624-CR.

Court of Appeals of Texas, Austin.

April 14, 2005.

Keith S. Hampton, Austin, for Appellant.

Richard J. Miller, Belton, for Appellee.

Before Chief Justice LAW, Justices PURYEAR and ONION.^*

OPINION

JOHN F. ONION, JR., Justice (Retired).

Appellant Blake Taylor appeals her conviction for operating a motor vehicle in a public place while intoxicated, a Class B misdemeanor. See Tex. Pen.Code Ann. § 49.04 (West 2003). The jury found appellant guilty. The trial court assessed punishment at ninety days in the county jail and a fine of $1,000. The imposition of the sentence was suspended and appellant was placed on probation for one year subject to certain conditions.

Points of Error

Appellant advances eight points of error. First, appellant contends that the trial court erred in denying her a timely hearing on the motion for new trial based on the lack of jurisdiction. Second and third, appellant asserts that the trial court erred in admitting testimony regarding the field sobriety tests of horizontal-gaze mystagmus and the one-leg stand. Fourth, appellant claims that the trial court erred by excluding testimony regarding her medical condition at the time of her arrest. Fifth, sixth, seventh, and eighth, appellant challenges the legal and factual sufficiency of the evidence to support the conclusion that appellant had lost the normal use of her mental and physical faculties by the introduction of alcohol into her body. We will abate the appeal.

A Jurisdiction Issue

We turn first to appellant's claim that the trial court erred in holding that it had no jurisdiction to hear the timely filed, timely presented motion for new trial within the seventy-five day period from the suspension of the imposition of the sentence because the appellate record had been filed in the appellate court prior to the hearing. See Tex.R.App. P. 25.2(g).

Background

The jury trial was conducted on September 9 and 10, 2003. On October 8, 2003, the hearing on punishment was held by the trial court. Appellant was placed on probation as described. On October 20, 2003, appellant filed a notice of appeal followed by a motion for new trial on November 6, 2003, both documents being filed within the thirty-day periods required. See Tex. R.App. P. 21.4,¹ 26.2.² The record reflects and the trial court acknowledged that the motion for new trial was timely filed and presented³ to the court on November 6, 2003, and that a hearing was set on the motion for December 15, 2003, within the seventy-five day period for hearing motions for new trials. See Tex.R.App. P. 21.8.

Six days later, on November 12, 2003, the court reporter's record was filed in this Court followed by the filing here of the clerk's record on November 21, 2003.

On December 15, 2003, when the trial court called for a hearing on the timely filed and presented motion for new trial within the 75-day period, the State objected on the basis that the trial court had lost jurisdiction as the appellate record had been filed in this Court. See Tex.R.App. P. 25.2(g). The trial court sustained the State's objection. The record of this "aborted" hearing is reflected in the supplementation of the reporter's record by the court reporter and filed in this Court on December 19, 2003.

The trial court relied upon Rule 25.2(g) that provides:

Once the record has been filed in the appellate court, all further proceedings in the trial court—except as provided otherwise by law or by these rules—will be suspended until the trial court receives the appellate-court mandate.

Tex.R.App. P. 25.2(g).⁴

Pursuant to Rule 25.2(g), it is the filing of the "record" that ends the trial court's power to act. See 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 43.09 (2d ed.2001) (hereinafter Dix).

The time periods for filing the appellate record in criminal cases are governed by Rule 35.2 of Texas Rules of Appellate Procedure.⁵ The time periods provided therein for the filing of the appellate record are clearly dependant on whether a motion for new trial is timely filed. Tex.R.App. P. 35.2(a), (b). The responsibility for filing the clerk's record in the appellate court is placed on the trial court clerk. See Tex.R.App. P. 35.3(a). The court reporter has the responsibility for the appellate filing of the reporter's record. See Tex.R.App. P. 35.3(b). There are provisions to ensure the filing of the appellate record,⁶ but they are not here applicable as the filing of the appellate record appears to be premature in light of the pending motion for new trial.⁷

The record that deprives the trial court of jurisdiction when filed in the appellate court⁸ consists of both the trial clerk's record and the court reporter's record. See 43A Dix § 43.321. It is observed that Rule 37.3(a)(2) concerning the delay in filing the appellate record uses the term "either part of the record." Tex.R.App. P. 37.3(a)(2). Normally then, both the clerk's and court reporter's record must be filed in the appellate court before Rule 25.2(g) is applicable.

If the position taken by the State is correct, then at the point the court clerk filed the clerk's record in this Court, the trial court lost jurisdiction to hear the timely filed and presented motion for new trial duly set for a hearing by the trial court itself. Surely, the clerk and court reporter knew or should have known that a proper motion for new trial was pending, that the record for appeal was not complete, and that there was not yet any finality to the normal trial court's procedures. Under the State's theory, it is the trial court clerk and court reporter who decide when jurisdiction of a criminal case passes under the rules from the trial court to the appellate court.

Motion for New Trial Procedure

The motion for new trial procedure has long been an important and integral part of our criminal trial system as provided for in our codes of criminal procedure. Now its procedural and substantive requirements are found in the Texas Rules of Appellate Procedure. See Tex.R.App. P. 21.1-21.9. A motion for new trial is not a requisite for raising a point of error or issue on appeal. See generally Tex.R.App. P. 21.1. Nevertheless, a motion for new trial is sometimes necessary in order to "adduce facts of a matter not otherwise shown in the record." Tex.R.App. P. 21.2.

In Prudhomme v. State, 28 S.W.3d 114 (Tex.App.-Texarkana 2000), the Court in an order-opinion abating the appeal wrote:

We also find it to be beyond dispute that a motion for new trial can be an extremely important tool for presenting an appeal. A motion for new trial is generally not a prerequisite to an appeal, but it can be indispensable for a meaningful appeal of issues which are reliant on facts outside the record. See Tex.R.App. P. 21.2; 43 George E. Dix & Robert O Dawson, Texas Practice: Criminal Practice and Procedure § 41.01 (1995 & Supp.2000).

Id. at 118.⁹

The right to file and have heard a motion for new trial is deemed absolute provided the right is asserted within the time period specified by law. McIntire v. State, 698 S.W.2d 652, 660 (Tex.Crim.App.1985).

For over one hundred and thirty years, our trial courts have had the discretion to grant new trials in the interest of justice. See State v. Gonzalez, 855 S.W.2d 692, 694 (Tex.Crim.App.1993); Mullins v. State, 37 Tex. 337, 339-40 (1872-73). Rule 21.3 of the Rules of Appellate Procedure does not provide an exclusive list of the grounds for granting a new trial. See Kelley, 20 S.W.3d at 151. The granting or denying of a motion for a new trial is within the sound discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995).

Appellant had a right to have his timely filed motion for new trial heard. The trial court clerk and the court reporter forwarded their records to this Court without regard to or without being aware of the pending motion for a new trial. Such premature actions which could affect the times when courts lose or obtain personal jurisdiction of a case should be avoided, whether done inadvertently or by design. Such clerical actions could be the subject of great abuse.¹⁰

Under these circumstances, we do not interpret the jurisdictional bar of Rule 25.2(g) to foreclose the trial court's consideration of a timely filed motion for new trial. See Gipson v. State, 669 S.W.2d 351 (Tex.App.-Fort Worth 1984, no pet.) (interpreting article 44.11 of the Code of Criminal Procedure, forerunner of Rule 25.2(g)). In Gipson, the Court wrote:

Under the particular facts of the case, where the filing of the record preceded the running of the thirty-day period for the filing of a motion for new trial, the proper remedy requires that appellant be afforded an opportunity to file her motion for new trial with the trial court.

Id. at 353. And in Gonzalez v. State, 659 S.W.2d 470, 475 (Tex.App.-Corpus Christi 1983, pet. ref'd), the Court observed that where the defendant was timely seeking to have his motion for new trial heard before the filing of the appellate record, the trial court had jurisdiction to hear the motion. Cf. Harris v. State, 137 S.W.3d 829, 831 (Tex.App.-Waco 2004, no pet.) (appeal abated after record filed as certificate of right of appeal was defective).

In Green v. State, 906 S.W.2d 937 (Tex.Crim.App.1995), a capital murder prosecution, the trial court originally failed to make findings of fact and conclusions of law regarding the voluntariness and admissibility of the defendant's confession as required by law. See Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (West 1979). When the failure to make these findings was made an issue on appeal, the trial court made the findings one year after the appellate record had been filed in the reviewing court. Id. at 938. Green held that these belated findings were null and void as the trial court lacked jurisdiction at the time because the filing of the...