## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
NO. PD-0234-20

C HRISTOPHER MICHAEL RUBIO, Appellant

v. THE STATE OF TEX AS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY K E L L E R 

### , P.J.,filed a dissenting opinion in w hich H E R V E Y 

### and K E E L 

### , JJ., joined . The Court say s that Rule 2 1.4 “does not ex p licitly preclude a defendant from obtaining leave of court to file an amended m o t i o n f o r n e w t r ial after the overruling of an initial motion.” “As a result,” the Court say s, it is c onsistent with the lang uag e o f the rule to understand “it” ( i.e. the rule)
to permit a defendant to file an amended motion even after an initial motion has been ruled on, as long as leave of court is g iven. B ut that c onclusion fails to account for the limited nature of a trial court’s power in the post-judg ment contex t. At most, a trial c ourt in a criminal case h a s p l en a r y p o wer to r e visit a judg ment on anyRUBIO DISSENT — 2

g round within 3 0 day s after the judg ment has been rendered. 1 After that time, the authority to g rant

a new trial must be conferred by statute or r ule. I n criminal cases, a new trial may be g ranted on the basis of a g round in a defendant’s motion if the motion is filed within the time provided by the rules of appellate procedure 2 and if the motion is g ranted within 75 day s after judg ment. 3 I t is not enoug h
to say that R u l e 2 1

. 4 d o e s not preclude the filing of a n amended motion for new trial under the circumstances presented in this case. F or the trial court to h ave authority to g rant a new trial in this case, Rule 21.4 would have to authoriz e the filing of an amended motion under the circumstances before us, and it clearly

does not. Moreover, the Court’s reading of Rule 21.4 conflicts with Tex as Supreme Court precedent construing a substa n t i v e l y identical rule reg arding motions for new trial in civil cases, and it also conflicts with our decision in Moore

. Althoug h the Court attempts to harmoniz e the two cases, they cannot be reconciled if the lang uag e of the rule is read consistently

. A. Opinions f

rom Other Courts F or criminal cases, reg arding amended motions for new trial, Rule 21.4(b) provides: W ithin 30 day s after the date when the trial court imposes or suspends s e n t e n c e in open court but before the court overrules any preceding motio n f o r n e w trial, a defendant may , withou t leave of court, f ile o ne or more amended motions for new

1 See State v. Brent , N o. PD-0020-21, 2 021 Tex

. Crim. App. L EXI S 977, *3-4, *11-12 (October 20, 2 0 21) (stating , in the contex t of judicial clemency after completing co m m u nity supervision, that the trial c ourt does not have n ever-ending jurisdiction and that jurisdiction was limited to thirty -day

plenary power).

2 T E X
. R. A P P
. P. 21.4.

3 T E X
. R. A P P
. P. 21.8(a).RUBIO DISSENT — 3

trial. 4 The civil rule for amending motions for new trial, Rule 329b(b), provides: One or more amend e d m o t i ons for new trial may b e f iled without leave of court before a n y preceding motion for new trial filed b y the movant is overruled and within thirty day s after the judg ment or other order complained of is sig n e d. 5 W h i l e t h e l a ng u ag e of the civil rule has been arrang ed in a d ifferent order from our rule, they are substantively

identical in all way s pertinent to this case. I n Brookshire , the Tex as Supreme Court discussed the history

of the civil rule and noted: [ T] imely am en ded motions for new trial have alway s been limited to those filed before the trial court overruled a preceding motio n , r e gardless of whether leave of court was required. 6 Reading the criminal rule in lig ht of the Supreme Court’s interpretation of its civil counterpart leads
to the conclusion that an amended motion for new trial in a criminal case is u ntimely if filed after the o rig inal motion is overruled—even if the amended motion is filed within 30 day s a nd w ith leave of court. I t is true that a trial court in a civil case mig ht be able to g rant relief on a g round raised in an untimely amended motion for n ew trial. As the Court say s, the issue in Brookshire w as whether an amended motion f

or new trial, filed a fter a ruling o n the initial motion for new trial, can ex tend the trial court’s plenary

power. A different part of Rule 329b confers ex panded plenary p ower when a motion for new trial is timely filed:

4 T E X
. R. A P P
. P. 21.4(b).

5 T E X
. R. C I V
. P. 329b(b).

6 In re Brookshire Grocery Co. , 250 S.W .3d 66, 71 (Tex

. 2008).RUBIO DISSENT — 4

I f a motion for new trial is timely file d by any party , the trial court, reg ardless of w h e t h e r a n appeal has been perfected, has plenary power to g r ant a n e w trial or to vacate, m o d i f

y , c o rrect, or reform the judg ment until thirty day s after all such timely -filed motions are o v e r r uled, either by a w ritten a nd sig ned order or by operation of law [ 75 day s] , whichever occurs first. 7 I n c ivil cases, this rule a ctually ex tends the trial court’s plenary power over a case, a llowing the trial
court to g rant a n ew trial on any basis, as long as it is d one within 30 day s after a timely filed motion for new trial has been overruled. Under Brookshire , an untimely amended motion does not ex tend
t h e p lenary power o f the trial court, but the trial court c ould still g rant a new trial on t h e gr o u n d s raised in the amended motion i f d oing so is within the plenary power that was e x tended by the orig inal motion for new trial. 8 Suppose, for ex ample, that the trial court in a civil c as e d e nied an orig inal motion for new trial on day 15 after judg ment and that a p arty filed an amended motion f or
new trial on day 30. The trial court’s plenary power to g rant a new tri a l i n t h e c i v i l case would

ex tend 30 d ay s past the time it denied the orig inal motion—day 45. B ecause the civil rule ex tends the trial court’s plenary power to d ay 45, the trial court could g rant a new trial for any reason up to that day —including any g r ounds in a n untimely motion. (Had the amended motion been timely , the trial court’s plenary power would have lasted long er—to day 105 ( 75 + 30) if the amended motion had not been overruled). B u t there is n o c r i m i n al c ounterpart to the civil provision ex tending a trial court’s plenary power. I n criminal cases, the trial court does not retain plenary power to g rant a new trial after thirty day s. Rather, the rules confer the specific authority to g rant a motion for new trial until 75 day s have

7 T E X
. R. C I V
. P. 329b(e). F or 75-day requirement, see T E X
. R. C I V
. P. 329b(c).

8 Brookshire , 250 S.W .3d at 69-70.RUBIO DISSENT — 5

p a s s ed

. 9 And the motion must be one that the rules a uthoriz e a defendant to file. 1 0 An amended

m o tion for new trial is authoriz ed by the rules only if filed within 30 day s and befor e a p r e c e d i n g motion is overruled. Also, as the Court a cknowledg es, courts of a ppeals in Amarillo, Corpus Christi, D allas, and Houston have all h eld that an amended motion for new trial may not be filed after the trial court has ruled o n an earlier motion for new trial, even with leave of court. The Court d oes not cite a sing le court of appeals case that holds what the Court holds today , and I have not found one. 1 1 Perhaps the reasoning in Brookshire would support the g ranting o f a g round in an untimely amended motion for new trial in a c riminal case under limited circumstances. The trial c ourt mig ht be a ble to g rant a new trial during the 30 d ay s after judg ment, on the basis that it still had plenary power to g rant a new trial on any g round. Or p erhaps th e t r i a l co u r t c ould g r ant leave to amend during the 30-day plenary -period. B ut we do not decide those issues because n either occurred here. B. The language of

Rule 21.4 and Moore W i t h r e gard to amendments, Rule 21.4(b) includes two c lauses: a timing c lause an d a n authoriz ation clause. The timing c lause refers both to the amendment being filed within 3 0 day s and
to the amendment being filed before the motion is overruled. Pairing the timing clause to the words that invoke the timing e lements, w e have: “W ithin 30 d ay s . . . but before the court overrules.” The authoriz ation clause then refers to the defendant, “without leave of court,” being p ermitted to file an

9 T E X
. R. A P P
. P. 21.8(a).

1 0 See T E X
. R. A P P
. P. 21.4.

1 1 Appellant cites a number of cases for the proposition that a trial c ourt may rescind an order deny ing a motion for new trial. The Court does not address that issue.RUBIO DISSENT — 6

amended motion for n ew trial. This structure shows that both the “30 d ay s” part of the timing clause and the “before the court overrules” part of that clause modify the authoriz a tion clause in the same way . I f the lang uag e o f the rule permits the filing of an amended motion for new trial with leave of
court a fter a trial court o verrules the motion (as the Court holds today ), then the lang uag e necessarily also permits the filing of a motion for new trial with leave of court after the 30 day period. B u t Moore h eld to the contrary with respect to the 30 day period, holding that n o amendment is a llow e d after 30 d ay s, even with leave of court. 1 2 I f we interpret the lang uag e of the rule consistently , we must hold that the r ule a lso does not permit a mendment, even with leave of court, after the motion has been overruled. The Court attempts to d isting uish Moore by pointing o ut that Rule 21.4(a) imposes a 30-day limit in which to file a motion for new trial. That is true, but Rule 2 1

. 4 ( a ) d e als with orig inal motions for new trial, not amended motions for new trial. The log ic of the Court’s analy sis of Rule 21.4(b) would lead to the conclusion that an ame n d e d ( b u t n ot orig inal) motion for new trial may indeed be filed after 30 day s as long as leave of court is g iven.

C. P o licy reasons The Court say s that its h olding today is consistent w ith recent decisions such a s A wadelkarim and Kirk , w here the trend has b een to affirm the trial court’s discretionary a uthority in ruling upon motions for new trial. B ut those cases dealt with a trial court’s a uthority to rescind an earlier order on a motion for new trial, not with the meaning of Rule 21.4(b). And policy r e a s o ns w ould seem to counsel a conclusion contrary to what the Court holds

1 2 State v. Moore , 225 S.W .3d 556, 566 (Tex . Crim. App. 2007).RUBIO DISSENT — 7

today

. F rom the fact that the rule “does not ex p l i c i t l y preclude” a defendant from d oing a certain thing , the Court concludes that the rule permits it. I would hesitate to hold that a rule’s silence on an issue amounts to permission. I respectfully

dissent.

F iled: J a nuary 26, 2022 Publish