Texas Stamp


PD-0562-22 04/26/2023

“The Court of Appeals erred by declaring that the evidence developed in the hearing on Petitioner’s motion for new trial was void because the trial court had no authority to hold the hearing beyond the trial court’s 75-day plenary period, even though the trial court relied on the plain language in the 1st Emergency Order.”

After Flores was convicted and sentenced, he filed a motion for new trial.  Citing the First Emergency COVID-19 Order from the Supreme Court of Texas and the Court of Criminal Appeals, he moved to extend the hearing deadline and the trial court’s plenary power for approximately two months until May 8, 2020.   The trial court granted the motion and denied the new trial motion after a hearing on May 8th.

On appeal, Flores complained about the denial of his new trial motion.  As a threshold matter, the court of appeals considered whether the trial court had the authority to rule on the new trial motion on May 8th.   The court turned to In re State ex rel. Ogg, which held that the COVID-19 Order did not authorize trial courts to extend authority that does not exist.  618 S.W.3d 361 (Tex. Crim. App. 2021).   Applying Ogg, the court held that a motion for new trial is jurisdictional, and therefore, “the trial court impermissibly sought to ‘create jurisdiction for itself where the jurisdiction would otherwise be absent.’”  The court determined that the motion for new trial was overruled by operation of law in the seventy-five-day period.  It then reviewed the new trial claims based on the record during that period and overruled his points of error.

Flores argues that the lower court misapplied Ogg.  First, Flores points to the text of the COVID-19 order, which authorizes courts to: “Modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted[.]”  On its face, the Order allows a court to move deadlines.  Further, Ogg, Flores argues, differed because the trial court sua sponte ordered a bench trial in violation of the State’s substantive right to demand a jury trial.   Here, “there is no oppression of a party’s right”; all the jurisdictional prerequisites were satisfied, so jurisdiction was not contested or controversial.   The trial court intended to advance the administration of justice under the dire circumstances of the pandemic.   The case should be remanded for the lower court to consider the hearing record in its review of the denial of the motion for new trial.

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