Kirk, Tory Levon
2015 Tex. Crim. App. LEXIS 40
| Tex. Crim. App. | 2015Background
- Defendant (appellant) was adjudicated guilty of aggravated robbery and sentenced on March 7, 2013; he filed a notice of appeal on March 25 and a motion seeking a "time cut" on March 20.
- On May 17 the trial court granted a new trial on punishment; the State moved to rescind that order and the trial court signed an order rescinding the new-trial grant on May 22 (76 days after sentencing).
- The court of appeals held the rescission was untimely under Awadelkariem v. State and therefore that the trial court lacked jurisdiction to rescind, leaving no final, appealable judgment.
- This Court reviewed whether a trial court’s power to rescind an order granting a new trial is limited by a 75-day rule announced in Awadelkariem.
- The Court concluded there is no specific time limit for rescinding a new-trial order before final judgment; it overruled Awadelkariem to the extent it imposed a 75-day limit and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may rescind an order granting a new trial only within 75 days after judgment | State: trial court may rescind at any time before final judgment; no 75-day limit | Appellant: rescission after 75 days is untimely under Awadelkariem; trial court lacked jurisdiction | Court: No fixed 75-day limit; power to rescind continues until final judgment; Awadelkariem limited to extent it imposed a 75-day deadline was overruled |
| Effect of a late rescission on appellate timetables and appealability | State: late rescission should reset appellate deadlines and be appealable | Appellant: late rescission cannot revive jurisdiction or prejudice defendant’s appeal rights | Court: Rescinding order entered after 75 days is an appealable order under Rule 26.2; appellate timetables are recalculated from the rescission; premature notices are treated as timely for the rescission |
| Whether prior caselaw creating a bar to rescission should be retained | State: Matthews line was wrongly categorical; trial courts have plenary power pre-final judgment | Appellant: argued reliance on earlier precedents restricting rescission | Court: Reaffirmed power to rescind (as in Awadelkariem) but removed the artificial time constraint derived from prior rule interpretation |
| Whether this decision addresses limits imposed by other events (e.g., State’s interlocutory appeal, start of retrial, double jeopardy) | State: not directly argued here; Court reserved questions | Appellant: raised none that resolved the broader timing rule | Court: Reserved questions about how pendency of an appeal, commencement of retrial, or double-jeopardy concerns may affect rescission power |
Key Cases Cited
- Awadelkariem v. State, 974 S.W.2d 721 (Tex. Crim. App. 1998) (previously held trial court could rescind new-trial order but only within 75 days)
- Matthews v. State, 50 S.W. 368 (Tex. Crim. App. 1899) (earlier authority treating orders granting new trials as final and not subject to rescission)
- In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227 (Tex. 2008) (Texas Supreme Court decision rejecting the unique 75-day restriction and recognizing plenary power before final judgment)
- People v. DeLouize, 32 Cal.4th 1223 (Cal. 2004) (California Supreme Court explaining that an order granting a new trial is interlocutory and may be reconsidered before final judgment)
- State v. Thomas, 428 S.W.3d 99 (Tex. Crim. App. 2014) (reaffirming requirement that there be a valid legal basis to grant a new trial)