## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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T O R Y L E V O N K I R K , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E E L E V E N T H C O U R T O F A P P E A L S

D A L L A S C O U N T Y

K E L L E R , P
. J
. , d e l i v e r e d t h e o p i n i o n o f t h e u n a n i m o u s C o u r t
. A L C A L A , J
. , f i l e d a c o n c u r r i n g o p i n i o n .

I n a prior decision, we sug g ested that there was a time limit on the trial court’s power to

resc ind the g ranting of a new trial. We now conclude that there is no specific time limit on the trial court’s pow er to do so. Consequently , we r ever se the judg ment of the c ourt of appe als. 1

We do not addre ss whether the trial court’s ability to resc ind an order g ranting a new trial 1 could be aff

ecte d by events occurr ing after the gra nt of a new trial, such as a S tate’s appeal of the order g ranting a new

trial or the star

t of the newtrial. We need not a ddress, for example, whether a State’s a

ppeal would tempor arily

preve nt the trial court from resc inding an orde r g ranting a newKIR K — 2
I. BACKG ROUND
A. Trial P roce edings
The trial court revoke d appellant’ s defe rre d-adjudica tion probation, adjudicate d him g uilty
of ag g rava ted robber

y , and sentenc ed him to eig ht y ear s’ imprisonment. Appellant’s sentenc e was imposed in open court on Marc h 7, 2013. On Marc h 20, appellant filed a “Motion for Commut ation
of Sentence ,” in which he reque sted a “time cut” and a new sentenc e of zero y ear s. On Marc h 25, appellant f

iled a notice of

appea l. On May

17, the trial court enter ed an order g ranting a new trial

on punishment. On May 20, the State filed a motion to resc ind that order and reque sted that the trial

court rule on the State’s motion no later than May 21. The trial court signe d an order resc inding its
order g ranting a motion for new trial on punishment on May 22, seventy -six day s afte r the imposit ion
of sentenc e. B. App eal Appellant subsequently filed a motion t o d i smiss his appea l on the g round that the trial
court’s latest order (re scinding the previous order g ranting the motion for new trial on punishment)

was u n t i m ely

. Rely ing upon our decision in Awadelkariem v. State , the court of appea ls ag ree d, 2 holding that the trial court lacke d jurisdiction to resc ind the order g ranting a new trial on punishment
beca use the resc inding order was enter ed more than seventy -five day s af t er the judgme nt of

trial by depriving the trial court of jurisdiction of the case wh i le the appea l is pending

. Nor, for
ex ample, do we need to addre ss whether a defenda nt’s double-jeopa

rdy rig hts would aff

ect a trial court’s a bility to rescind a

n order g ranting a new

trial afte r the ne w trial has be g un. 974 S.W .2d 721 (Tex. Crim. App. 1998). 2KIR K — 3

co n v i ct i on had been imposed. The court of appea ls held that the g ranting of the new trial on 3 punishment was never resc inded and the case was there fore restore d to its position afte r the
defe ndant was found g uilty

. As a result, the court of appea ls conclude d, n o fi n al , ap p eala ble 4 judgme nt remains over

which the c ourt of appe als could have jurisdiction. 5

II. ANALYSIS

I n its third g round for revie w, the State seeks to overturn our prior pronounce ment in
Awadelkariem that a trial court’s ability to resc ind an order g ranting a motion for new trial is limit ed

to seventy -five day s afte r the trial court’s judgme nt. The issue in Awadelkariem was not how much 6
time a trial court had to resc ind an orde r gra nting a motion for new t rial; it was about whether the
trial court could resc ind such an order at all. We partially overr uled a line of case s, beg inning with 7
Matthews v. State , that held that the trial court lacke d the p o we r t o resc ind such an order

. 8 9

Kirk v. State , No. 11-13-00130- CR, 20 1 3 T ex
. App. L EXI S 8466, *2-6 (Tex. 3 App.–Eastland July

11, 2013) (not desig nated f or publication).
Id. at *5. 4
Id. The court of appea ls later issued an opinion deny ing the State’s motion for rehe aring

. 5 Kirk v. S t a t e , No. 11-13-00130- CR, 2013 Tex. App. L EXI S 9880 (Tex. App.–Eastland August 8, 2013) (not desig nated f

or publication).
See A wadelkariem , 974 S.W .2d at 726. 6
Id. at 722. 7
40 Tex. Crim . 316, 50 S.W . 368 (1899). 8
Awadelkariem , 974 S.W .2d at 725-28. 9KIR K — 4

Matthews had c oncluded that suc h an orde r “oug ht to be reg arde d as final.” 1 0

I n Awadelkariem , we disag ree d. Noting that a trial court has seventy -five day s in which to
rule on a motion for new trial, we held that a trial court may resc ind its order g ranting or deny ing a
motion for new trial, as long as th e resc inding order was made within that seventy -five- day
window. Part of our rea son for disag ree ing with Matthews was that the Matthews rule “cr eate s a

1 1 split betwee n criminal and civil jurisprudenc e without a g ood rea son for doing so.” I n holding that 1 2
a trial court could resc ind an order gra nting a new trial, and in articula ting t h e o u t er b o u ndary for doing so ( seventy -five da y s), we r elied hea

vily upon case law fr om the Texas Supreme Court. 1 3
The Supreme C ourt has since overr uled prior case law to the extent that it imposed the
seventy -five- day time limit

. The Supreme Court ref err ed to the rule imposing a seventy -five- day 1 4
time limit as “unique” and observe d, “Nowhe re but Texas can one find a single appellate opinion 1 5

40 Tex. Crim. at 318, 50 S.W

. at 369. I n English v. State , we distinguished Matthews by 1 0 holding that the rule of that case would apply only to situations involving judicial er ror a nd would not apply when a trial court had err oneously g rante d a new trial as a result of cler ical err or. 592 S.W .2d 949 (Tex. Crim. App. 1980). Under Matthews as modified by English , the preva iling rule, prior to Awadelkariem , was that a trial court was barr ed from resc inding an order g ranting a new trial “abse nt cleric al er

rors.” Ex parte Dre wery , 677 S.W .2d 533, 536 (Tex. Crim. App. 1984).
974 S.W .2d at 728. 1 1
Id. at 726. 1 2
See id. at 726-27 (citing Fruehauf Corp. v. Carril lo , 848 S.W .2d 83, 84 (Tex. 1993) and 1 3 concluding that the ca se “c arr ies persua sive weig ht conce rning the issue at hand” ).

In re Bay lor Med. Ctr. at Garland , 280 S.W .3d 227, 229-32 (Te x . 2008). 1 4
Id. at 229. 1 5KIR K — 5

discussing when a court can ‘ung rant’ a motion.” Fur ther, the Supreme Court found that the 1 6
seventy -five- day rule stemmed from a provision that had long since been amende d and that the rule
was inconsist ent with g ener al rules of plenar y power
. When a new trial is g rante d, the S upreme

1 7

Court observe d, the case stands “the same as though no trial was had,” and acc ording ly , the trial

court should have the power to set aside a new trial order “any time befo re a fi n al judgme nt is

enter ed.” The Supreme Court conclude d, “The re is no sound rea son why the court may not

1 8

rec onsider its ruling g ranting a new trial at any

time.” 1 9
Other state supreme courts have ag ree d with this c o n c lu s io n in th e c o n te x t of criminal trials. 2 0
The California

Supreme Court obser

ved the non- final nature of an or der g ranting a new trial:

Id. 1 6
Id. at 230. 1 7
Id. at 230-31. 1 8
Id. at 232 (quoting 6A J AMES WM. MO OR E, MOORE' S FED ERAL PRACTI CE P 1 9 59.13[1] , at 59-277 (2d e d. 1996)) ( brac kets and interna l quotations marks omitt ed). People v. DeLouize , 89 P.3d 733, 738 (Cal. 2004); People v. Mink , 565 N.E.2d 975, 978- 2 0 79 (I ll. 1990) (uphol ding trial court’s rec onsideration and withdrawa l of new- trial order and observing that “[a] court in a criminal case has inhere nt power to rec onsider and corr ect its own ruling s, even in the absenc e of a statute or rule g ranting it such authority ”); Ussery v. State , 758 P.2d 319, 321 (Okla. Crim. App. 1988) (“A trial court may , at any time pr ior to the time f inal judgme nt is enter ed in a cr i m i n al prosec ution, exercise its sound discretion and rec onsider its interlocutory order g ranting or deny

ing a motion for a new trial.”); People v. W eller , 679 P.2d 1077, 1081 (Colo. 1984) (“[I ]t would make littl e sense to hold that i f a judge responsible for the final judgme nt perc eived that a motion for a new trial h ad b een g rante d err oneously , he nonetheless could not rec onsider his order befor e final judgme nt is enter ed or a notice of appea l filed. I t also would make littl e sense for us to require the expense and burdens of a new trial if the judge who origi n all y order ed the tria l believes that he erred in g rantingthe new tr ial motion. . . . W e ag ree that in some
case s a district cour

t might abuse its discr etion by revoking its pre vious or der g ranting a new trial, but here there was no abuse of discretion whe re the motion for reconsider ation was filed nineteen day s after the new tr ial was orde red a nd befor e it commence d.”).KIR K — 6

An order g ranting a new trial is not final in the sense of being a final resolution of the
case or a final deter

mination of the defe ndant’s g uilt or innocenc e. On the contra ry , an order g ranting a new trial does not finally dispose of the matter. I n a criminal case , the g ranting of a new tri al place s the parties in the same position as if no trial had been had. Thus, an order g ranting a new trial is an interim order

in the sense that it require s further

proce eding s befor e the case may be re solved and judg ment may be pronounce d. 2 1
The California Supreme Court further found practical reasons for allowing a trial court t o re s cind
an orde r g ranting a new

trial in criminal ca ses:
Be cause new trials substantially prolong criminal proce eding s, allowing trial courts some authority to rec onsider and to vacate order s g ranting new trials may lead to ear lier resolution of the matter and there by promote the interests underly ing judicial finality rules.

. . . I f, as here , the trial court afte r rec onsideration co n cl u d es t hat it
err ed in g ranting a new trial, and it reinstates the jury verdic ts, then rec onsideration avoids repe titive litigation of the char g es and permits an ear lier resolution of the case in the trial court by

pronounce ment of judg ment. I n this way , rec onsideration of a n err oneously g rante d new trial promotes confide nce in the judicial sy stem, conser ves judicial re s o u rces, and spare s the parties from the inconvenienc e and expense of a second tria l. 2 2

We find the rationale s articula ted by our sist er court and courts from other states to be

persua sive. Our rules of appellate proce dure do not expressly presc ribe a time limit for when a trial

court can resc ind an order g ranting a new trial in a criminal case
. Rule 21.8 simply provides that a
trial court “must rule on a motion for new trial within 75 day s afte r imposing or suspending sentenc e
in open court” and that any mot i o n “n o t t imely ruled on by written order will be deeme d denied”
afte r expiration of the seventy -five- day period. Although the rule clea rly require s a trial court to 2 3

DeLouize , 89 P.3d at 738 (quotations and citations omitted). 2 1
Id . at 738-39. 2 2
T E X

. R. A P P

. P. 21.8(a) , (c)

. See also Stokes v. State , 277 S.W .3d 20, 21 (Tex. Crim. App. 2 3 2009).KIR K — 7

either gr ant or deny a mot ion for new t rial wit hin a specific ti me period, it s ay s n othing ex plicitly about how long a trial court would have, after g ranting such a motion, to withdraw or set aside its ruling g ranting a new trial. I n fac t, as we observe d in Awadelkariem , the curr ent proce dural rules 2 4
do not even “‘pur

port[] to addre ss the trial court’s authority or lack of authority to resc ind an order

g ranting a new

trial,’” le t alone impose a time limit on that authority

. 2 5
We f ollowed the Supreme Court’s lead in inf err ing a time limit to resc ind the g ranting of a

new trial from the rule that g ives the t ri al co u rt o nly seventy -five day s to g rant a motion for new
trial. But in overr

uling its prior case s, the Supreme Court rec og nized that its rule reg arding motions 2 6
for new trial imposes a time limit only on the g ranting of a new trial. Be cause the same is true with 2 7

respe ct to the counter

part appellate rule that applies in criminal case s, and for the rea sons discussed above, we are now persua ded that we should abandon t h e t i m e l imit previously imposed in
Awadelkariem

. We continue to adher e to the holding in Awad elkariem that a trial court has the

power to rescind an order g ranting a new trial, but we ove rrule Awadelkariem to the extent it held that this power wa s subject to a seve nty -five- day time limi t.
The Supreme Court noted that the seventy -f i v e- d ay time limit for resc inding an order

g ranting a new trial may have been designe d to pre v ent the l ate reinstatement of a judgment from depriving a party of t he abil ity to appea l, but the C ourt observe d that this conce rn was adequately

See T E X

. R. A P P

. P. 21.8. 2 4
974 S.W .2d at 724 (quoting Rodriguez v. State , 852 S.W .2d 516, 519 n.4 (Tex. Crim. 2 5 App. 1993)).

Id. at 726, 728. 2 6 Baylor Me d. Ctr. , 280 S.W .3d at 230. 2 7KIR K — 8

addre ssed by rules that allowed the appellate timetables to be rese t. We share this conce rn and hold 2 8
that resc inding an order g rant ing a new trial outside the seventy -five- day time limit results in recalc ulating appellate timetables. I n that situation, the resc inding order shall be trea ted as an “appe alable order ” under Texas Rule of Appellate Procedur e 26.2, and appellate timetables will be
calc ulated from the date of that order

. I f the defe ndant previously filed a notice of appea l with 2 9

respe ct to the trial court’s judgme nt of conviction, that notice shall be trea ted as a prema turely filed
notice of appea l w ith r espec t to the resc inding order , and the defe ndant will be entitled to appea l, 3 0

not only the trial court’s decision to resc ind the order g ranting a new trial, but also any issue that he
could have appea led if the motion for ne w trial had ne ver be en g rante d.

We reve rse the judgme nt of the court of appea ls and rema nd the case to that court for further

proce eding s consistent with our opinion.
Deliver ed: J anuar

y 28, 2015 Publis h

Baylor Me d. Ctr. , 280 S.W .3d at 231.

2 8
See T E X

. R. A P P

. P. 26.2(a) (1). 2 9
See T E X

. R. A P P

. P. 27.1(b). 3 0