Texas Stamp


PD-0234-20 07/01/2020

“Did the Court of Appeals resolve a procedural issue relating to the timely filing and hearing of an amended motion for new trial in a manner that conflicts with Courts of Appeals and Court of Criminal Appeals precedent?”

On the day he was sentenced to life without parole, Rubio filed a motion for new trial (MNT). It was denied that same day. Less than a month later, newly appointed appellate counsel filed an amended MNT and a motion for leave to file such a motion. The State objected that, once a MNT had been overruled, the trial court could not hear an amended MNT. The trial court overruled this objection, conducted a hearing on the amended motion, and denied it.

Rubio appealed. The court of appeals affirmed and agreed with the State that a MNT could not be amended after a preceding motion had been overruled. It relied on Tex. R. App. P. 21.4(b), which provides, “Within 30 days [of sentencing] in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.” It distinguished Awadelkariem v. State, 974 S.W.2d 721 (Tex. Crim. App. 1998), and Kirk v. State, 454 S.W.3d 511 (Tex. Crim. App. 2015), because they involved the granting of a MNT followed by a written rescission by the trial court. Here, Rubio did not file a written motion to rescind.

Rubio contends that the court of appeals grafted a new requirement onto the plain language of Rule 21.4 and “effectively held that … the overruling of a motion for new trial terminated any possible relief on a motion for new trial without regard to the trial court’s subsequent actions or plenary jurisdiction.” He notes that the twenty-year-old cases the court of appeals relied on construed a precursor to Rule 21.4 and that more recent courts of appeals decisions appear to treat an amended MNT differently when there has been leave of court, as there was here. He also argues that by conducting a hearing on the amended MNT and overruling the State’s objection the trial court essentially rescinded its previous denial of the MNT. He urges that it is better policy to permit development of the record at the MNT stage than requiring claims be put off until habeas corpus when indigent defendants may be without counsel.

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