IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-0065-22, 066-22 & 067-22

DONNELL SLEDGE, Appellant

v.

THE STATE OF TEXAS, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY

MCCLURE, J., delivered the opinion of the Court in which HERVEY, 

RICHARDSON, NEWELL, AND WALKER, JJ., joined. YEARY, J. filed a dissenting 

opinion. KELLER, P.J., KEEL, AND SLAUGHTER, JJ., dissented without opinion.

OPINION

When the trial court grants a motion for new trial based only on the bare 

recitation that “the verdict is contrary to the law and evidence,” without more, may 

the accused be tried again for the same offense without violating principles of double 
SLEDGE — 2

jeopardy? No. This case serves as a cautionary tale. Because the record is void of

explanation for the trial court’s decision to grant Appellant’s motion for new trial 

and because our precedent is clear that the language “contrary to the law and 

evidence,” without additional context, raises a legal sufficiency challenge, 

Appellant’s second trial violated double jeopardy and acquittal is the required result. 

Further, because Appellant was afforded more relief than he originally sought, 

we dismiss the State’s second issue regarding ineffective assistance of counsel as 

improvidently granted. We reverse the judgment of the court of appeals and remand 

to the trial court for proceedings consistent with this opinion. 

BACKGROUND

On June 17, 2017, Appellant and about ten to fifteen others were playing dice 

near an apartment complex. At some point, an argument over the dice game arose 

between Appellant and one of the other participants, Demarcus Johnson. When the 

disagreement escalated to physical violence, Appellant retrieved a handgun and the 

group dispersed. Demarcus and his brother Drevonte ran to their grandmother’s 

apartment and closed the door. Appellant, gun in hand, began searching for the two 

brothers in the apartment complex and another nearby complex. During this search, 

Appellant fired shots into the hallway, kicked in the screen door of a nearby resident,

Rickey Pitts, and held a gun to his head. Appellant fled when he heard someone yell 

that the police were on the way.
SLEDGE — 3

Officers arrived and were interviewing Demarcus and Drevonte’s

grandmother, who reported the gunshots, when she spotted Appellant in his mother’s 

car, driven by his girlfriend. Officers initiated a traffic stop, detained Appellant, and 

conducted a protective sweep of the vehicle. Officers thereupon discovered a plastic 

grocery bag containing small packages of heroin and cocaine and a handgun under 

the driver’s seat. 

Appellant was arrested and charged by indictment with the offenses of 

possession with intent to deliver four grams or more but less than 200 grams of 

heroin, possession with intent to deliver four grams or more but less than 200 grams 

of cocaine, and unlawful possession of a firearm by a felon. The State sought to 

enhance punishment with Appellant’s criminal history as a habitual offender, and an

allegation that Appellant used a deadly weapon in commission of the drug offenses. 

Appellant pled not guilty, but a jury convicted on all three charges. The same jury, 

however, found all enhancement paragraphs “not true.” Because the enhancements 

were rejected, Appellant was sentenced to eleven years’ confinement in each case. 

The trial court subsequently reformed the possession of a firearm by a felon charge 

to ten years, since the eleven-year sentence fell outside the applicable punishment 

range.1

1 The jury charge inaccurately reflected the appropriate sentence range if the jury found 

Appellant guilty of the offense, but found “not true” on the enhancements. The form reflects the
SLEDGE — 4

Five days later, Appellant moved for a new trial in all three convictions, and 

the trial court’s docket sheet indicates the State did not oppose the motions. If there 

was a corresponding hearing on the motion for new trial, it is not included in the 

record of the second trial. Neither party has provided a record of the first trial. The 

trial court granted Appellant’s motion for new trial in all three cases. The motions

summarily recite:

The orders for each of the three corresponding motions are mere invocations

of the grounds alleged in the motion: 

applicable range as 5–99 years, while the sentencing range for a third-degree felony is 2–10 

years.
SLEDGE — 5

Following the motions for new trial, Appellant’s trial counsel made an oral 

motion to withdraw that was granted by the trial court. Appellant did not 

immediately appeal. The next day, new trial counsel was appointed. About three 

months later in October 2018, Appellant filed a motion to appear pro se, which was 

granted by the trial court. In December 2018, Appellant filed an untimely pro se 

notice of appeal in the Fifth Court of Appeals. The State never appealed the trial 

court’s decision to grant Appellant’s motions for new trial.

The Fifth Court of Appeals dismissed the appeal for want of jurisdiction, on 

grounds the granted motions for new trial restored the cases to their pretrial status. 

Sledge v. State, Nos. 05-19-00085-CR, 05-19-00086-CR, & 05-19-00087-CR, 2019 

WL 457692, at *1 (Tex. App.—Dallas Feb. 6, 2019, no pet.) (mem. op., not 

designated for publication). Based on the appellate record in the Fifth Court of 

Appeals, it is unclear whether the record from the first trial was ever transcribed or 

requested by the parties.

In a pre-trial hearing in April 2019, Appellant was initially provided standby 

counsel, but requested the trial court appoint the standby counsel to represent him. 

It did so, and the case was continued to October 2019.

Throughout pre-trial matters, all parties appeared to agree that the State would 

try Appellant again. Appellant’s counsel for the second trial made several comments 

referencing that impression including that the trial court was “going all the way back 
SLEDGE — 6

to scratch,”2 and was “back to square one.”3 At arraignment, however, defense 

counsel contradicted her earlier comments, defense counsel argued double jeopardy 

barred a second trial at Appellant’s arraignment: 

Defense Counsel: Your Honor, my client would like to offer exhibit 

Defendant’s Exhibit 1 after the trial that he was convicted in the 

previous trial [the] same day he was granted a motion for new trial. So 

while awaiting his trial he was sent to T.D.C. and given a T.D.C. 

number and actually went up for parole. So he’s alleging basically that 

would be double jeopardy due to the fact he’s already been to the pen, 

given a T.D.C. number and already gone before the parole board.4

The Court: Counsel.

The State: Your Honor, I obviously disagree with the argument. Based 

on the defendant’s motion for new trial and the granting of it we’re back 

at square one. There is no double jeopardy in this case. 

The Court: Yeah, I think it would be the same as if a man were 

convicted and sentenced and sentenced to the pen and went up on 

appeal. And on appeal they sent it back for new trial. It would not be 

double jeopardy, but if you have case law to look at certainly—

Defense Counsel: I will. Thank you. 

2 “[S]ince we’re going all the way back to scratch then I guess he can go ahead and file a 

Motion to Suppress based on other issues that were not addressed on with the first one.”

3 “We’re back to square one. We would like to do a normal Motion to Suppress with the 

Officer.”

4 A motion for continuance filed by one of Appellant’s appointed counsel for the interim 

period between the first and second trials recites “It was only after the undersigned had received 

and reviewed the foregoing, and attempted to discuss same with the Defendant, that it was 

discovered the Defendant had been inadvertently shipped to TDC. A bench warrant was 

immediately prepared and presented...and Appellant was returned to Dallas October 5, 2018.” 
SLEDGE — 7

If the double jeopardy objection arose again, it is not included in the record. 

In the second trial, Appellant was tried on the original drug offenses and the felonin-possession charge. Also in this second trial, the State included an additional 

indictment for aggravated assault in connection with Appellant’s conduct in holding 

a gun to the Rickey Pitts’s head.5 The State likewise sought to enhance the drug and 

felon-in-possession charges with the original enhancements from the first trial, 

despite the fact the first jury found each of them “not true.” The jury ultimately

acquitted on the new allegation of aggravated assault, convicted on all three original 

charges, and found all of the enhancement allegations to be true. As a result, the jury

assessed punishment at twenty-eight years’ confinement in each case, to run 

concurrently.6

DIRECT APPEAL

In the Fifth Court of Appeals, Appellant presented four grounds for review: 

(1) trial counsel was ineffective for failing to object to the State’s deadly weapon 

allegations and habitual offender enhancement paragraphs on grounds of collateral 

5 Although re-indicted before the second trial, the aggravated assault indictment was 

previously filed along with the original charges prior to the first trial. Those charges included 

aggravated assault of Demarcus Johnson, aggravated assault of Rickey Pitts, and possession of

marijuana. Although arising out of the same transaction, these cases were not tried in the first 

trial and only the Pitts aggravated assault charge was re-indicted and tried in the second trial. 

6 Had the jury convicted on the additional charge of aggravated assault in the second trial, 

the State could have argued that the conviction for that charge could stand despite the motion for 

new trial. Because the jury acquitted on that charge, however, only the three original charges are 

before us.
SLEDGE — 8

estoppel when the jury from Appellant’s first trial found them “not true;” (2) the trial 

court erred by submitting an instruction on the law of parties in the absence of 

evidence demonstrating Appellant’s specific intent to promote or assist the 

commission of the drug offenses when he left the apartments; (3) court costs were 

improperly assessed in two of the three judgments and should be deleted; and (4) the 

judgments in each case incorrectly reflect Appellant’s jail credits. 

In response, the State argued that (1) the record was insufficient to show 

ineffective assistance of trial counsel and trial counsel was nevertheless not 

ineffective; and (2) the trial court did not err in its instruction on the law of parties 

and any error was harmless. It agreed that the judgments should be modified to delete 

erroneous court costs and correct jail time credit. 

With respect to the first issue, both parties’ arguments centered on Appellant’s 

entitlement to collateral estoppel on the punishment enhancements. Responding to

the parties’ allegations, the court of appeals analyzed the applicability of collateral 

estoppel only in relationship to the punishment enhancements. Sledge v. State, 637 

S.W.3d 770, 777–78 (Tex. App.—Dallas 2021), reh'g denied, 637 S.W.3d 967 (Tex. 

App.—Dallas 2022, pet. granted). It recognized that “there is no motion to set aside 

a verdict favorable to the accused.” Id. at 777 (citing U.S. CONST. amend. V; TEX.

CODE CRIM. PROC. art. 45.040). It further found no “authority suggesting the 

defendant must forego favorable portions of a verdict as a condition of challenging 
SLEDGE — 9

the balance of the verdict that was answered against him” or an indication that such 

was the intent of trial counsel since the motion was granted “without any specific 

grounds identified.” Id. at 775, 777. Finally, the Fifth Court of Appeals found 

conclusive support for the contention that the State was precluded from relitigating 

the enhancement allegations. Id. at 776 (citing Rollerson v. State, 227 S.W.3d 718, 

730 (Tex. Crim. App. 2007) for the premise that “the government may not litigate a 

specific elemental fact to a competent factfinder (judge or jury), receive an adverse 

finding, learn from its mistakes, hone its prosecutorial performance, and relitigate 

that same question of fact.”). As a result of that conclusion and although the record 

was concededly silent as to trial counsel’s justification for the failure to argue 

collateral estoppel, the court of appeals found trial counsel ineffective and remanded 

for a new hearing on punishment.7 Id. at 779. 

In response to the appellate court’s decision to sustain Appellant’s first issue 

regarding ineffective assistance, the State filed a motion for rehearing in which it 

noted, for the first time, that the motions for new trial granted in all three cases were

not void of specific grounds as the court of appeals had recited, but were explicitly 

based on insufficiency of the evidence. It also noted that the State lost its opportunity 

7 As to the second issue, the appellate court found the jury instruction on the law of 

parties harmless. As to the third and fourth issues, it modified the judgment to delete court costs 

inappropriately assessed and reflect the correct jail credits.
SLEDGE — 10

to challenge the orders under the Texas Code of Criminal Procedure when it did not 

appeal and twenty-one days passed after the orders were entered. TEX. CODE. CRIM.

P. 44.01(a)(3). In explaining its change of heart, the State explained:

After this Court issued its opinion, undersigned counsel was assigned 

to the case for purposes of deciding whether or not to file a petition for 

discretionary review in the Court of Criminal Appeals. During that 

review, undersigned counsel and another colleague discovered that the 

new-trial motions and attached orders are in the transferred clerk’s 

records, and that they state the grounds for the motions.8 It appears that, 

because the motions were buried in the records from the original 

dismissed appeals, neither side saw them or realized their significance 

during original briefing.

The State went on to posit that, if the trial court intended to grant the motions 

on grounds of legal insufficiency, it was required to enter a judgment of acquittal. 

The State requested abatement in order to determine the basis on which the motions 

were granted. The court of appeals denied the State’s motion for rehearing in a 

summary response which reiterated its grounds for granting a new punishment 

hearing, but it did not address the effect the “contrary to” language had on 

Appellant’s right to avoid a subsequent trial for the same offenses in detail. The 

appellate court recited only that it is “obliged by the presumption of regularity to 

reject the notion that trial counsel entered into a secret agreement contrary to the 

8 The motions “state the grounds” in that they provide “the verdict is contrary to the law 

and evidence.”
SLEDGE — 11

record and the premise of this appeal and failed to record it or disclose it to this 

Court.” Sledge, 637 S.W.3d at 969.

STATE’S PETITION AND APPELLANT’S RESPONSE

The State Prosecuting Attorney’s Office petitioned this Court, requesting

clarification on the effect of a motion for new trial granted on grounds that “the 

verdict is contrary to the law and evidence.” The State concedes that this Court has 

explicitly held the contrary-to-law language translates to legal insufficiency as 

decided in State v. Zalman, 400 S.W.3d 590, 594 (Tex. Crim. App. 2013). It also 

notes that such an interpretation of the contrary-to language would necessitate 

removal of the ground from Rule 21.3 of the Texas Rules of Appellate Procedure, 

which outlines the grounds for which a new trial must be granted. TEX. R. APP. P.

21.3(h). It further posits that the State could have appealed the ruling, but where it 

failed to do so and appreciating Zalman as precedential, “a motion with only these 

magic words requires Appellant and others like him to be acquitted.” 

The State would encourage a narrower application of Zalman, however, based 

on the use of contrary-to language as a “catch all” category and the unusual 

circumstances of this case which purportedly suggest the motion for new trial was 

granted on grounds other than legal insufficiency. The State’s support for such an 

interpretation in this case lies in the fact the motion was neither opposed nor 

appealed by the State and that there is an absence of express reasoning in the record 
SLEDGE — 12

for the decision to grant a new trial. The State argues that specificity in the ruling 

operated solely to the benefit of the State. As such, it could waive that benefit as it

did here. 

Appellant opposes the State’s interpretation of the motions, but not the 

applicable law. He agrees that the interpretation of “contrary to the law and 

evidence” as constituting a legal sufficiency challenge is inapposite with Texas Rule 

of Appellate Procedure 21.3 permitting a new trial on those grounds. Because the 

motions and orders provided no more context than the bare recital, however, the 

default interpretation must be based on the plain language of the motions, not an 

imagined justification outside the record. 

This case thus pivots on this Court’s interpretation of silence and the bare 

language, “the verdict is contrary to the law and evidence.”

ANALYSIS

Double Jeopardy

Because double jeopardy concerns affect fundamental, constitutional rights, 

they “may be raised for the first time on appeal, or even for the first time on collateral 

attack when the undisputed facts show the double jeopardy violation is clearly 

apparent on the face of the record and when enforcement of usual rules of procedural 

default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 

(Tex. Crim. App. 2000). Here, the issue was raised for the first time on appeal, and 
SLEDGE — 13

the court of appeals addressed the effect of the motion for new trial on both the 

convictions and the enhancements. Sledge v. State, 637 S.W.3d at 776–78. On 

rehearing, the State attempted to correct the appellate court’s misconception about 

the motions for new trial. The Fifth Court of Appeals then addressed the issue in its 

opinion on rehearing. Because the double jeopardy concerns were raised before the 

court of appeals, and the court of appeals addressed them in its decision, the issue is 

properly before us. TEX. R. APP. P. 66.1; Stringer v. State, 241 S.W.3d 52, 59 (Tex. 

Crim. App. 2007) (“In our discretionary review capacity we review ‘decisions’ of 

the courts of appeals.”) (quoting Lee v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 

1990)). 

Double jeopardy is a legal issue rooted in the Texas and federal constitutions. 

U.S. CONST. amend. V; TEX. CONST. art. I, § 14. Where a subsequent conviction has 

potentially violated double jeopardy and its resolution requires application of the law 

to facts not involving credibility and demeanor determinations, we review the issue 

de novo. State v. Stevens, 235 S.W.3d 736, 739–40 (Tex. Crim. App. 2007); see 

United States v. Arreola-Ramos, 60 F.3d 188, 191 (5th Cir. 1995).

Under principles of double jeopardy, no person may be “subject for the same 

offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. The Fifth 

Amendment offers three distinct protections: “protection against a second 

prosecution for the same offense after acquittal;” “protection against a second 
SLEDGE — 14

prosecution for the same offense after conviction;” and “protection against multiple 

punishments for the same offense.” Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. 

App. 2008). Our review in this case concerns the first category, namely whether 

Appellant’s first prosecution and conviction—which culminated in the trial court’s 

decision to grant a boilerplate motion for new trial—constituted an acquittal such 

that Appellant’s second prosecution for the same offenses violated the Fifth 

Amendment. 

“The verdict is contrary to the law and evidence”

Under Texas Rule of Appellate Procedure 21.3, “a defendant must be granted 

a new trial, or a new trial on punishment,” for any of the eight listed reasons in that 

rule, including (h), “when the verdict is contrary to the law and the evidence.” TEX.

R. APP. P. 21.3(h). This provision, standing alone, “raise[s] a sufficiency challenge 

and only a sufficiency challenge.” Zalman, 400 S.W.3d at 594 (citing Bogan v. State, 

180 S.W. 247, 248 (Tex. Crim. App. 1915)) (grounds the verdict is contrary to the 

law and evidence “raise the issue of the sufficiency to sustain the verdict.”). In 

Zalman, we found that such a recital was insufficient to put the State on notice of 

additional claims, such as evidentiary issues under the Fourth Amendment. Id. We 

also noted that the contrary-to language was insufficient to give the trial court notice 

of Zalman’s claims. Id. (quoting State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. 

App. 1993)). In fact, we sought to emphasize the importance of specificity in a 
SLEDGE — 15

motion for new trial by reiterating that specificity is an “essential element.” Id. Citing

our decision in Gonzalez, we made clear that the “wisdom of [requiring a motion for 

new trial to be specific] lies in the fact that reasonable notice should be given not 

only to the trial court but the State, as well, as to the misconduct relied upon and to 

prevent a purely fishing expedition on the part of the accused.” Id. We would add 

that, as illustrated here, specificity also operates to the benefit of the parties before a 

reviewing court. Gonzalez, 855 S.W.2d at 695 (commenting on the purpose of 

former Texas Rule of Appellate Procedure 31(d)) (“The hearing requirement 

provides either party an opportunity to develop a record for appellate review, should 

either party elect to appeal the decision on the motion for new trial.”). 

Pertinent caselaw has recognized the requirement of specificity and the 

construction of the contrary-to language in relationship to an appellant’s assertion of

issues other than sufficiency where that issue was the sole complaint in the motion 

for new trial. See generally Zalman, 400 S.W.3d at 590 (motion for new trial alleging 

the verdict was contrary to the law and evidence was insufficient to raise evidentiary 

suppression issues). This case, however, presents the novel issue of whether a 

motion for new trial granted on explicit sufficiency grounds, operates to preclude a 

second trial on the same offenses. The State asks this Court to employ a double 

standard and hold that, where an appellant complains the verdict is contrary to the 

law and evidence, he is confined to litigating only sufficiency on appeal, but 
SLEDGE — 16

otherwise where the order granting a new trial is not appealed and an appellant is 

tried a second time, we may imply an alternate meaning in the motions and 

corresponding orders. We refuse to subscribe to this reasoning.

Here, Appellant submitted three motions for new trial as to each of his 

convictions on grounds “the verdict is contrary to the law and evidence.” The State 

was unopposed to the motions. It is unclear from the record whether a hearing was 

held. If there was a hearing, it is not included in the record. The orders signed in 

each cause likewise obscure any alternate meaning which the State suggests existed 

at the time the motions were granted. The State provides no evidence to that effect. 

As a result, we cannot infer any alternate meaning as to the motions for new trial, 

and the trial court’s decision to summarily grant them. While we find it strange that 

the State was unopposed to Appellant’s motions and subsequently did not appeal the 

trial court’s decision to grant them, those facts alone do not sufficiently alert us to 

any specific, alternate meaning behind the trial court’s decision to grant the motions. 

If, as the State suggests, this Court could imply an alternate meaning whether based 

on evidence recited in the motion, the arguments presented at the hearing, or the trial 

court’s oral justifications for its decision to grant the motions, we certainly cannot 

do so where the record is silent, or worse yet, absent.9

9 Some courts have been willing to imply alternate meanings where the record reflects 

another, specific ground for the motion for new trial. See e.g. State v. Hinojosa, No. 13-13-
SLEDGE — 17

We share the State’s concern that, if the contrary-to language is listed in Texas 

Rule of Appellate Procedure 21.3 as a ground for a motion for new trial, it logically 

would contain some meaning other than legal insufficiency. Indeed, we have so held. 

See Ortega v. State, 668 S.W.2d 701, 707 (Tex. Crim. App. 1983) (op. on reh’g), 

overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 

1997) (finding that the fact the instruction varied from the proof, making the guilty 

verdict “contrary to the law and evidence,” and acquitting as a result); see also 

Idrogo v. State, 589 S.W.2d 433, 434 (Tex. Crim. App. 1979) (finding the verdict 

was contrary to the law where the jury convicted on an offense not submitted to them 

in the jury instructions).

Again, we would stress that no such alternate meaning has been presented to 

this Court. We cannot imply such meaning by the parties’ false impression that the 

orders “reset” the trial, rather than require acquittal. Moreover, we have held that 

Rule 21.3’s grounds for rehearing are not exhaustive. State v. Herndon, 215 S.W.3d 

901 (Tex. Crim. App. 2007). If the motion sought to allege an error omitted from 

Rule 21.3, it could have done so. Id. That fact also makes the State’s allegation that 

00419-CR, 2015 WL 1957092 (Tex. App.—Corpus Christi-Edinburg Apr. 30, 2015, no pet.)

(contrasting State v. Mercier, 164 S.W.3d 799 (Tex. App—Corpus Christi-Edinburg 2005, pet. 

ref’d) with Hinojosa where the appellee alleged “contrary to” language in the motion for new 

trial, but specifically argued Fourth Amendment issues). 
SLEDGE — 18

Rule 21.3(h) may function as a catch-all phrase unlikely, especially when 

unaccompanied by a record demonstrating the alternate meaning.

The State could have prevented acquittal in this case only by appealing the 

motion for new trial. It did not. The propriety of the motion for new trial is not before 

this Court. If the State sought to argue that ground (h)’s “contrary to” language, 

without more, is too vague to preserve any issue on appeal, it could have appealed 

the trial court’s order granting the motions for new trial. TEX. CODE. CRIM. PROC. 

art. 44.01(a)(3). Likewise, if the State sought to allege Appellant failed to produce 

sufficient evidence to support the motion for new trial under Herndon, it could have 

appealed the order and provided the record for a reviewing court to conduct a 

sufficiency review. State v. Herndon, 215 S.W.3d at 909 (“[A] trial court would not 

generally abuse its discretion in granting a motion for new trial if the defendant: (1) 

articulated a valid legal claim in his motion for new trial; (2) produced evidence or 

pointed to evidence in the trial record that substantiated his legal claim; and (3) 

showed prejudice to his substantial rights under the standards in Rule 44.2 of the 

Texas Rules of Appellate Procedure.”). Allowing the State to litigate the legitimacy 

of the motion for new trial where it has otherwise sat on its rights, would improperly 

provide it a second opportunity not permitted in the Rules of Appellate Procedure. 

As a result, we stress that our opinion should not be construed to endorse vague

motions for new trial, especially when unaccompanied by a corresponding hearing. 
SLEDGE — 19

The Motion’s Effect

Because our caselaw finds that a bare recital that “the verdict is contrary to 

the law and evidence” constitutes a legal sufficiency challenge and only a sufficiency 

challenge, we must next ask what effect the trial court’s decision to grant the motion 

had on Appellant’s convictions. Zalman, 400 S.W.3d at 594. When a trial or 

appellate court determines that the evidence is insufficient to support the verdict, the 

defendant or appellant must be acquitted. Hudson v. Louisiana, 450 U.S. 40, 43, 101 

S. Ct. 970, 972 (1981) (citing Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 

2150 (1978)). Likewise, the fact a defendant sought a new trial as his remedy does 

not alter this holding. Id. (citing Burks, 437 U.S. at 17). In mandating such a result, 

the Supreme Court has reasoned:

In holding the evidence insufficient to sustain guilt, a[]. . .court 

determines that the prosecution has failed to prove guilt beyond a 

reasonable doubt. . . to permit a second trial in which the prosecution 

would be afforded another opportunity to supply evidence that it failed 

to muster in the first trial. 

Burks, 437 U.S. at 2. As we stated above, the trial court’s reasoning for 

granting a second trial is unknown. The record, motion, and order are altogether void 

of explanation. As a result, we must assume that the plain language used in the 

motion for new trial reflects the intention of the trial court, despite the perplexing 

reactions of the parties, including the State’s acquiescence in the motion, subsequent 

failure to appeal, and both parties’ false impressions that Appellant could be tried 
SLEDGE — 20

again for the same offenses. Giving effect to the language at issue, a second 

prosecution would violate principles of double jeopardy. 

CONCLUSION

As we stressed at the outset and stress again here, where the parties plan to 

agree to a motion for new trial, especially without the benefit of a hearing, it would 

behoove both litigants and the trial court to inspect the contents of the motion. 

Caveat emptor: let the buyer beware. 

Because we cannot address any alternate intention of the parties on such an 

absent record, the plain language of the motion raises a sufficiency challenge. The 

Supreme Court of the United States has been clear that findings as to legal 

sufficiency in favor of the accused constitute acquittal, thus the Fifth Amendment 

precludes a second trial. Importantly, this opinion does not stand for the proposition 

that the language “the verdict is contrary to the law and evidence” always raises a 

legal sufficiency challenge. Rather, we merely hold that a contrary interpretation 

cannot be reached beyond the confines of an absent record. Further, the propriety of 

such a vague motion for new trial and corresponding order cannot be addressed 

beyond the State’s opportunity to appeal it. TEX.CODE.CRIM. PROC. art. 44.01(a)(3).

We reverse the judgment of the court of appeals and remand the causes to the 

trial court for proceedings consistent with this opinion.
SLEDGE — 21

Delivered: March 8, 2023

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