Delarosa, Jose Ramiro
PD-1406-14
| Tex. App. | Mar 17, 2015Background
- Jose Ramiro Delarosa was tried on July 8–9, 2014 on a jury verdict of guilty for unauthorized use of a motor vehicle and sentenced to 18 months and a $1,000 fine.
- The trial court signed the statutorily required certification of the defendant’s right to appeal on the day the verdict was entered (July 9, 2014).
- Appellant filed a pro se notice of appeal (Aug. 1, 2014); appellate counsel was later appointed (Aug. 5, 2014).
- The trial court granted a motion for new trial on Aug. 6, 2014; the Court of Appeals dismissed the appeal for lack of jurisdiction on Oct. 2, 2014.
- The State filed a petition for discretionary review, seeking to overturn the dismissal based on Taylor v. State (arguing the certification and grant of new trial are inconsistent); appellant argues Taylor does not apply because his conviction followed a not-guilty plea to a jury and he retains an absolute right to appeal.
- Procedural dispute centers on whether a trial-court certification of appeal rights signed before a new-trial grant creates an appellate-record inconsistency that requires abatement or confers appellate jurisdiction despite the new-trial grant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court of Appeals erred by dismissing for lack of jurisdiction after the trial court granted a motion for new trial | The State: Taylor requires abatement or correction when the record shows both a certification of right to appeal and a later grant of new trial because they are inconsistent | Delarosa: Taylor applies to plea-bargain (limited-appeal) cases; here Delarosa had an absolute right to appeal a jury conviction, so certification before a new-trial grant does not divest the trial court of authority to grant a new trial | Court of Appeals dismissed for lack of jurisdiction; appellant urges CCA to limit Taylor to plea-bargain contexts and uphold dismissal |
| Whether the appellate court should have abated to determine the trial court’s actual intent regarding the new-trial grant | The State: Abatement appropriate to resolve facial inconsistency in the record (certification vs. new-trial grant) | Delarosa: No facial error exists; the record unambiguously shows a new-trial grant and dismissal was proper; abatement not required | Appellate dismissal stands; Delarosa argues abatement unnecessary because no correctable record error existed |
| Whether the certification of right to appeal, signed before appointment of counsel, can bar a later motion for new trial | The State: Certification indicates trial court intended to allow appellate review, creating a conflict with a subsequent new-trial grant | Delarosa: Certification is ministerial when a defendant has an absolute right to appeal; it cannot nullify the statutory right to file/obtain a new trial, nor preclude the trial court from later granting one | Appellant argues certification does not strip the court of jurisdiction to grant a new trial; dismissal was proper |
| Whether the Court of Appeals was required to address other alleged appellate-record inaccuracies or issues raised by the State | The State: Appellate rules (e.g., Rule 47.1, Rule 44.4) permit remand or correction for inconsistent records | Delarosa: Those rules cannot create jurisdiction where the Code of Criminal Procedure does not; the State failed to timely appeal the new-trial grant and so forfeited relief | Court of Appeals lacked jurisdiction after new-trial grant; appellate rules cannot substitute for statutory requirements |
Key Cases Cited
- Taylor v. State, 247 S.W.3d 223 (Tex. Crim. App. 2008) (addresses inconsistency between certification of appeal and later trial-court action; relied on by State to argue for abatement)
- McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985) (recognizes the statutory right to file and have heard a motion for new trial as absolute when timely asserted)
- LaPointe v. State, 225 S.W.3d 513 (Tex. Crim. App. 2007) (Rule 44.4 requires a correctable error in the record to justify remand or correction)
- Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (an appellate court cannot exercise jurisdiction it does not have; appellate rules cannot confer jurisdiction contrary to statute)
- Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998) (reiterates that appellate rules do not create jurisdiction where the statutory prerequisites are absent)