## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00417 - CR
Ex parte Larry Gene Cross § § § § § From County Criminal Court No. 7

o f Tarrant County ( 1194614 ) February 28, 2013
P er C uriam (nfp) 

### JUDGMENT
This court has c onsidered the record on appeal in this case and holds that there was error in the trial court’s judgment. It is ordered that the judgment of the
trial court is reversed and this case is remanded to the trial court for a new trial or for further proceedin g s consistent with this opinion

.
S ECOND DISTRICT COURT OF APPEALS

PER CURIAM2 

## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00417 - CR

EX PARTE LARRY GENE CROSS

------------ FROM COUNTY CRIMINAL COUR T NO. 7 OF TARRANT COUNTY

------------ 

### MEMORANDUM OPINION 1

------------ Appellant Larry Gene C ross was convicted of driving while intoxicated and was assessed punishment of $400 fine and ni nety days ’ confinement on March 23, 2011. The trial court suspended imposition of the sentence and placed Cross

on community s upervision for twelve months

. Cro ss timely filed a motion for new trial on April 21, 2011

. The trial court signed an order granting Cross’s motion for

1 See Tex. R. App. P. 47.4.2

new trial on May 25, 2011, but on August 10, 2011, the trial court set aside the order granting a new trial. At a hearing on October 5, 2011, the trial court stated that it had granted the motion for new trial “in error” and was rescinding and setting aside the order granting new trial. 2 On April 21, 2012, Cross filed an application for writ of habeas corpus

. See Tex. Code Crim. Proc. Ann. art. 11.072 (West 20 05 ). Cross claim ed that the trial court lacked authority to rescind its order granting a new trial because it did so after its plenary power had expired, more than seventy

- five days after it had placed Cross on community supervisi on

. See Tex. R. App. P. 21.8(a) (“ The court must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court. ”). The trial court denied Cross’s application for a writ of habeas corpus by written order and adopted the State’s amended proposed memorandum, findings of fac t, and conclusions of law. Cross now appeals the denial of his application for a writ of habeas corpus

. See Tex. Code Crim. Proc.
Ann. art. 11.072, § 8; T ex. R. App. P. 31. 1

– .7. Within seventy

- five day s following imposing or suspending sentence in open court , an order granting a motion for new trial can be freely revisited and

s et aside, but after the seventy

- five

- day period has expired , an order granting a motion for new trial can be set aside only if it was inadvertently signed as a result of clerical error. Stepan v. State , 244 S.W.3d 642, 643

– 46 (Tex. App.

— Austin

2 The trial court also stated on the record that Cross was first notified of the court’s rescindment of its order granting a new trial on the day of the hearing, October 5, 2011

.3

2008, no pet.); see Awadelkariem v. State , 974 S.W.2d 721, 728 (Tex. Crim. App. 1998). A clerical error does not result from judicial rea soning. Alvarez v. State , 605 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1980); see also English v. State , 592 S.W.2d 949, 955

– 56 (Tex. Crim. App.) (reasoning that trial court’s grant of a motion for new trial when it was not aware that it was doing so was akin to clerical error), cert. denied , 449 U.S. 891 (1980). Here, because the trial court rescinded its order granting a new trial outside of the seventy

- five

- day timeframe, it could only do so to correct a clerical

error. See Awadelkariem , 974 S.W. 2d at 728; Stepan , 244 S.W.3d at 643

– 46.
T he record on appeal originally did not reflect whether the trial court’s granting Cross a new trial was based on a clerical or a judicial error , so w e abated this case and remanded to the trial court for additiona l findings and conclusions

. 3 After an abatement hearing, the trial court adopted the parties’ joint proposed findings of fact , which show the following

. After Cross was convicted of driving while intoxicated, his attorney presented his motion for new tr ial to the presiding judge who was not familiar with the case because a visiting judge had presided over Cross’s trial. The presiding judge “thought that Cross’s case was a case where he pled guilty and received probation” ; in the presiding judge’s experi ence, “sometimes defendants who have pled guilty and received probation change their

3 The findings and conclusions that the trial court adopted when it denied Cross’s application for a writ of habeas corpus state that the court granted a new trial “based on a misunderstanding f rom the applicant’s counsel ” ; th ey do not state what that “mis understanding” was or otherwise give insight into th e trial court’s reason for setting aside the order granting new trial

.4

mind and decide instead to serve jail time,” in which case, motions for new trial are “routinely granted with a notation to re

- p lead the case for jail time.” The presidin g judge decided to grant the motion for new trial “in the late afternoon
rush with multiple people in chambers ” ; she “does not remember if [Cross’s attorney] stated the reas on Cross wanted a new trial.” The judge’s decision to sign the order granting Cros s a new trial was based on a miscommunication between her and Cross’s attorney; she was aware that she was granting a new
trial and made a conscious decision to do so. These findings show that the trial judge’s granting Cross a new trial was
not the re sult of a clerical error ; she decided to grant a new trial, upon defense counsel’s request, because she thought Cross no longer wanted community supervision

. But b ecause the trial court rescinded its order granting a new trial more than seventy
- five days after placing Cross on community supervision, the trial court did not have the power to do so

. 4 See Awadelkariem , 974 S.W.2d at 728 ; Stepan , 244 S.W.3d at 643

– 46 ; see also Tex. R. App. P. 21.8(a)

. We

reverse the trial court’s August 10, 2012 judgment de nying Cross’s application for a writ of habeas corpus and remand the case for a new trial or further

4 The clerk’s record does not contain a written order setting aside the order granting a new trial, but the docket sheet includes the following entries: on August 10, 2011, “Order for New Trial set aside. Case set for a hearing” ; and on October 6, 2011, “Order to vacate Judgment rescinded. Original sentencing stands.” In our abatement order, we questioned whether a written orde r was required to rescind the order granting a new trial, see Tex. R. App. P. 21.8(b) (requiring a written order to grant a motion for new trial; a docket entry does not suffice ), but because we decide that the trial court lacked the power to do so in any event, we need not address this issue.5

proceedings consistent with this memorandum opinion. See Tex. R. App. P.
31.3. PER CURIAM

PANEL: WALKER, MEIER , and GABRIEL , JJ. DO NOT PUBLISH Tex. R . App. P. 47.2(b)
DELIVERED: February 28, 2013