*1 cate the punitive damages actual and phases responsibility which at least some for the but the error was harmless assigned accident is to Martinez and the because Martinez offered no evidence of manufacturers, wheel evidence of other Goodrich’s net worth and the evidence of against claims Goodrich is excluded until a against other lawsuits Goodrich properly- proper predicate admission, is laid for its I already admitted. have shown that the list punitive damages separately are tried as re- of lawsuits should not have been admitted quired by Moriel. Because the Court denies predicate without a showing similarity be- relief, respectfully Goodrich dissent. tween each of the lawsuits and this ease. But even if the list of other lawsuits was
properly admitted, it required alone a bifur-
cation punitive of the actual and damage
claims. notes,
As the Court [Transportation “[i]n
Insurance Co. Moriel u] we held that ‘a trial
court, presented if motion, timely should bifurcate the determination of the Roslyn Henry OLDHAM, Appellant, punitive amount of damages from the re- maining Although issues.”33 we reasoned in
Moriel that evidence of a defendant’s net The STATE of Texas. worth punitive damage offered on a claim No. 1350-94. unfairly prejudice could plain- a defendant on tiffs claim for damages, actual we did not Texas, Court of Criminal suggest that net worth only evidence was the En Banc. prejudice in trying punitive actual and dam- age together. case, claims present In the Sept. repeated
Martinez’s counsel’s references to
other against claims Goodrich plainly were
intended to insinuate that if others had been
injured trying to mount Goodrich’s 16” tires wheels, defective, 16.5” the tire was injuries.
the defect caused Martinez’s lawsuits,
list of other properly even if admit- ted, unfairly prejudiced Goodrich on Mar- liability
tinez’s claim as much as evidence of
its net worth would have.
The district court refused Goodrich’s mo-
tion to bifurcate the trial before evidence was
offered and regard without to whether Mar-
tinez would offer evidence of net worth. The
record shows that the district court refused
to follow Moriel because Martinez did not
want bifurcated trial. The court’s error
clearly prejudiced Goodrich. record this case shows that Good-
rich’s including warning tire label was defectively designed as a matter of law. so,
Even if that were not Goodrich is entitled liability
to have its determined a fair trial Moriel, Transportation Ante at 342 (quoting Ins. Co. v. 1994)).
OPINION ON STATE’S MOTION FOR REHEARING WOMACK, Judge, opinion of delivered the McCORMICK, Presiding Court, in which MANSFIELD, Judge, KELLER and HOLLAND, joined. Judges, The for review petitioned Appeals’ opinion, Court of Oldham — Houston 1994), appel which held that the [14th Dist.] at a lant was counsel critical denied appeal proceedings, and which abated the cause to the trial court remanded file mo appellant allow the an out-of-time submission, original tion for a new trial. On this Court dismissed State’s improvidently grant discretionary review as granted the ed. We then State’s motion rehearing, opinion is issued. on which We shall reverse. represented retained appellant was forgery trial for committed at her
January 9, in violation of Texas Penal 13, 1992, January § was she Code 32.32. On date, jury. On guilty found that same years the trial court sentenced her to three pro filed a se confinement. February indigency notice day as- 1992. The next Appeals, signed to Fourteenth assignment the letter of notation on attorney of from “to record on be determined.” 16, 1992, the found the On March trial court appointed appellate indigent and counsel. 20, 1992, appellant, On March through (Tex.App . —Hous counsel,
her
filed a motion
[14th Dist.]
ton
to abate the
She
claimed that she had been
requested that the court set aside the sen-
denied her
to counsel
violation
tence,
anew,
*3
appellate
start the
timetable
Constitution,
Constitution,
Federal
the State
remand the case to the trial court to allow
Procedure,
the Code of Criminal
and various
appellant
leave to
a
file motion for new
interpreting
eases
Ap-
them. The Court of
ground
on the
that she was denied the
peals
violation,
a
found
constitutional
and it
right
constitutional
to counsel
a criti-
2(b)1
relied on Rule
to set aside
cal
of the
proceedings, name-
appeal,
sentence and notice of
abate the
ly
period
the time
within which her motion
appeal,
appellant
and allow the
to file her
for new trial had to be filed. The
of
Court
motion
a
Appeals
for new trial. The Court of
26,
denied
motion
this
on March
Appeals
2(b)
reasoned that Rule
could be
used
9, 1992,
April
1992. On
filed a
31(a)(1)
“suspend”
required
second motion to abate the
on the
a
trial
new
be filed within 30
ground.
Appeals
same
of
Court
over-
days
sentencing.
essence,
after
the Court
April
ruled that motion on
1992. The
2(b)
Appeals
used Rule
to extend the time
appellant urged
points
fifteen
of error to the
filing
limit for the
appellant’s
of the
motion
Appeals,
Court of
four of which dealt with
years
for a new trial some
eight
two
subject
the same
matter as her motions to
months,
being
from
appel-
abate.
sentencing
lant’s
to the date of the
29, 1994,
September
On
Ap
the Court of
Appeals’ decision.
peals issued
opinion,
its
Oldham v.
(Tex.App
S.W.2d 461
[14th Dist.]
. —Houston
Appeals
We believe
1994), in which it
appel
determined that the
in
rely
error to
on
as a mechanism
lant had been denied her Sixth Amendment
to extend the
time limits for the
of a
to counsel. The
abat
imposed by
motion for a
new
appeal,
appeal,
ed
set aside the notice of
31(a)(1).
and remanded the cause to the trial court to
Appellate
of the Texas Rules of
allow the
to file her motion for new
provides:
Procedure2
orderly
trial and the
subsequent
conduct of
(a)
post-trial proceedings.
Relationship
Id. at
to Jurisdiction.
These
rules shall not be construed to extend or
Appeals began
The Court of
analysis by
its
limit
of the
courts
stating,
Appellate
“Texas Rule of
Procedure
peals,
the Court of Criminal
or the
31(a)(1) requires
if
a motion for
Supreme
Court as established
law.
filed,
thirty
is to be
it must be done within
(b)
days
Suspension
sentencing.
Tex.R.App.P.
of Rules
Criminal Mat-
See
31(a)(1). However,
Appellate
Except
provided
ters.
Texas Rule of
as otherwise
rules,
Procedure
allows this
expediting
Court to extend
these
the interest of
thirty day
‘good
shown,
good
deadline for
cause’
decision or for other
cause
2(b).”
Tex.R.App.P.
shown. See
Oldham v.
or the Court of Criminal
1. All references to
expedite
Rules are the Texas
Rules
a decision or for other
—to
Appellate Procedure in effect at the time
suspend
operation
a rule’s
shown.—
By
trial and direct
Order
particular
pro-
in a
case
and order
different
20, 1997,
adopted
dated March
this Court
cedure; but a court must not construe this rule
Procedure,
Appellate
revised Texas Rules of
ef-
suspend any provision
Crimi-
Code of
September
Approval
fective
Final
perfect-
nal
or to
Procedure
alter the time for
Revisions to the
Texas Rules
Proce-
ing
in a civil case.
dure,
(Texas Cases)
(Aug.
948-949
XLII
reads;
change
Comment to the 1997
"Former
15, 1997).
(a) regarding appellate
jurisdic-
subdivision
power
suspend
tion is deleted.
rules
rules,
September
2. The new
effective
civil
extended to
cases. Other nonsubstantive
provide:
changes are made.”
Suspension
party’s
Rule 2.
of Rules.
aOn
on its
motion or
own initiative
a hear
remanding to the trial court for
may suspend requirements and
any
attempt
provisions
rule
es
particular
ing
to allow
own
party
of a
or on its
application
good cause
allow
tablish
trial);
proceedings in ac-
order
motion and
an out-of-time
Tuf
Provided,
with its direction.
(Tex.App.—
cordance
fiash
however,
nothing in
1994)
rale shall
(using Rule
to abate
Antonio
San
to allow
court to
construed
court for
and remand to the trial
provisions
requirements or
of the Code
new trial based
motion for a
an out-of-time
Criminal Procedure.
evidence, conceding
newly
discovered
habeas);
cognizable
is also
such claim
courts of
have considered
Broadnax
See,
variety
used Rule
in a
of cases.
*4
1995)
use
(refusing to
Rule
(Tex. App.
State,
e.g.,
756
826
Callis v.
S.W.2d
— Texarkana
2(b)
untimely
appeal);
1988)
to allow
notice
App.
(using Rule
[1st Dist.]
—Houston
State,
2(b)
(Tex.App.
904
877
v.
S.W.2d
appeal and
to allow Garza
to abate
remand
1995) (refusing to use Rule
upon —CorpusChristi
untimely filing of a motion for new tidal
2(b)
untimely granting
trial court’s
finding
appellant was denied counsel dur
to allow
trial);
retrospective
ing
file
trial to become valid
time limit to
motion for a new
of a new
(Tex.
State,
(Tex.
State,
56
ly); Boyette
v.
769
675
v.
908 S.W.2d
McMillan
S.W.2d
1989)
2(b)
1995)
App.
(using
(using
Rule
to sus
Rule
App.
[1st Dist.]
—Dallas
— Houston
to abate
pend
appeal
2(b)
file
time limits to
a notice of
to
and remand
allow
hearing
upon
after
for a
on a mo
untimely filing
case remanded
of a
for new trial
motion
trial);
State,
tion for a new
v.
775
Boulos
counsel dur
finding the
was denied
(Tex.App.
trial);
Dist.]
S.W.2d 8
[1st
file
ing time limit to
— Houston
1989)
2(b)
(using
untimely
State,
Rule
to
mo
allow
(Tex.App.—
Cooper v.
917
474
S.W.2d
1996)
2(b)
tion for extension of time
file late notice of
to
Rule
(refusing
Fort
to use
Worth
State,
appeal);
v.
918
Torres
804 S.W.2d
untimely
appeal);
notice of
Crowell
to allow
1990)
(Tex.App.
(holding that use
Paso
State,
(Tex.App.—San ton
v.
Finally, importantly, in our view are not most 2(b) that Rule be reserved not authorize the retroac- we stated Rule does actually suspending a rule suspension governing rules events where will tive cases through the processing the case already that have occurred at the facilitate conveyed appellate has court. level before the record been Adams, remand, 1996). Nos. 01-92- Court affirmed the Texarkana 3. On the First 01-92-00195-CR, 00194-CR, trial, citing 1998 WL granting the motions court’s 15, 1998). State, (Tex.App.— (Tex.App. Dist.] [1st Jan. Driggers v. —Houston suggested It has been abating long an legally as such methods are endorsed. allowing an Moreover, out-of-time motion for constitutionally guaran- denial of new trial will have the ultimate effect of remedied, teed counsel will be and the use of See, speeding up appellate process. e.g., remedy effectuate this is not Driggers 699, 940 S.W.2d necessary. App. 1996); Sanchez v. — Texarkana turn We now to review of the Court 885 S.W.2d (Tex.App. Corpus — Appeals’ holding 1994); Christi Tuffiash denied counsel. The State asserts that the 1994);4 201 (Tex.App. Antonio —San record in this case (2) (Tex. support does not Torres v. appellant’s counsel, claim of App. denial of Despite Paso argu —El argues that the appeal, persuaded ment’s claim of denial we are not appropriate application is the counsel should be heard on an give vehicle to post-conviction effect. corpus While a small number of writ of cases the habeas rath litigation process may ultimately er than on parte be short her direct In Ex ened, we think that the delays Duffy, associated (Tex.Cr.App. restarting 1980) appellate process of the upon such we stated: speculation makes improper this an use of Experience taught has us that in most See Torres instances where the claim of ineffective 1990) (“we Paso — El raised, assistance of counsel is the record disposed encourage practice of dis on direct simply shape, rupting orderly prompt flow of direct perhaps because very alleged inef- appeals by what could well become a routine below, fectiveness adequately would practice defense seeking abatement failings reflect of trial counsel. In- trolling random signs of the record for deed, this, in a case such as where the assistance”). ineffective inis es alleged primarily derelictions are errors of sence escape valve to be used omission de hors the record rather than appellate court unduly when a ease becomes record, commission revealed in the trial delayed stalled or appellate process may just collateral attack the vehicle rules, procedural due to and the interests of which a thorough and detailed examination justice compel speeding up process; al alleged ineffectiveness be devel- though be used to shorten the oped *7 spread upon a record. justice time limits requires, when so it should However, a appeal claim on direct of denial not be lengthen used as a method to proce upheld of counsel should be entertained and dural truly extraordinary time limits absent See, supported by if e.g., the record. Warren circumstances, protect even in an effort to State, v. 744 (Tex.Cr.App.1988). S.W.2d 614 the substantive rights litigants. While we have holding
Our
held that a defendant
strictly
this issue is
limited
2(b).
to the
entitled to
hearing
use of Rule
counsel at a
on a
should not
motion
We
trial,
State,
for a new
restricting
understood as
a
Trevino v.
appeals’
565 S.W.2d
938,
power to
appeal
abate an
940 (Tex.Cr.App.1978),
and remand a
Court has
yet
other than Rule
to address the
When
issue of whether a defen-
judicial
can
resources
be conserved
dant is entitled
during
to counsel
the time
justice,
interest
encourage
filing
the courts of
limit for
a motion for new trial to assist
appeals
adopt
and continue to
preparing
use methods
the defendant in
the motion. See
resolving
for
later,
issues sooner
Wayne
Israel,
rather than
R. LaFave & Jerold H.
Crimi-
State,
197,
v.
requiring appellant
201
2
post-conviction
n.
to seek
re-
Tuffiash
(Tex.App.
1994)
(which
Antonio
makes the
again
follow
lief
taxes
resources of the
— San
ing argument:
appeals)
court of criminal
a
to obtain new trial
contentions,
many years
If there is
from now.
If there is no merit to
merit
contentions,
hearing
granting
appellant's
a
it is also most efficient
motion for
trial at
point
certainly
more efficient than re-
establish that fact now and allow it to be
quiring
this court and the
following
court of criminal
raised on direct
the denial of
incomplete appeal,
to consider an
then
the motion for new trial.
ed.1992) (defen
11.2(b) (2nd
a
if
to file a motion for
claimed that
she were
§
nal Procedure
a new
right
post-trial proceed
she would be entitled to
dant’s
to counsel
new trial that
challenge
judge
trial,
The
ings
hearing
before the trial
that
a
her motion.
or even
clear).
very
This is
conviction is
her
or
not claimed that
appellant has
in Connor v.
question we left unanswered
way
injured
due
rights
other
were
State,
325,
(Tex.Cr.App.
326-27
trial,
file a
for a new
or
her failure to
motion
1994).
cases have
Some courts
to raise certain
that she was
able
See,
right.
e.g.,
that
is such
held
there
a
mo-
grounds
she did not first file a
because
State,
Boyette
(Tex.App.—
v.
The Court of Appeals Ortega also relied on three time. counsel appeals’ other courts of at 832. opinions making determination appellant its that the had been case, In the Court of followed counsel. denied Cox, and Ortega Callis and criticized on the ground San Antonio had State, In Callis Ward, correctly applied the rule set forth in 1988), ap [1st Dist.] — Houston although namely attorney there anwas pellant’s appointed trial filed a counsel notice record, appellant nonetheless essen- appeal sentencing. on the date of The tially received no assistance at all because assignment sheet and docket notice of con mistakenly rep- trial counsel believed that his tained appeal notations that counsel was resentation had ended. determined,” be “to but trial counsel never (Tex. In Steel v. appellant motion to filed withdraw. Cr.App.1970), recognized that “retained complained that his counsel was not counsel, fully even one who has not been until appointed filing- after the limit for time compensated past compensat services or a motion for new passed. trial had The trial service, ed for further cannot wait until conducted a hearing and found that the stage proceedings critical is reached appointment date counsel’s could and bow out without notice to the court determined. The held that it and ‘frustrate forever accused’s accused speculation would sheer conclude that ” right protect his vital interests.’ represented counsel at (Tex. Ward v. 796-97 stage proceedings, and that the Cr.App.1987), we stated that “it is abundant successfully had his met burden of ly legal an appointed attorney’s clear that showing that represented by he was not responsibilities magically do not and auto- during prosecu counsel a critical matically terminate at the conclusion of Id. tion. continuity representation trial.... In Cox v. appeal from trial necessary to correct 1990), App. [1st First Dist.] — Houston ambiguity representation too which all again of coun found denial often parte conviction.” In Ex follows period sel a motion Axel, (Tex.Cr.App.1988), a new trial. that case counsel, we held that “trial retained or appointed appellate days after pointed, obligation respon- duty, had the sentencing. The fur court did not elaborate sibility fully with and his to consult to advise case, ther on the details of other than concerning meaning and effect of client cite Callis and find denial of counsel. court, judgment rendered his necessity appeal judgment, from Ortega v. The San Antonio Court in giving taking notice of other (Tex.App Antonio . -San steps appeal, express- pursue aswell 1992), issue, distinguished considered the but ing professional judgment possible his as to held, The court Callis. based Ward grounds merit, de- and their (Tex.Cr.App.1987), ap lineating advantages and disadvantages pointed counsel remains as the defendant’s The decision to belongs purposes expressly per counsel for all until the client.” withdraw, appointment mitted to if even only. nothing for trial The court found have scoured the record in search We *9 support showing record to that the a conclusion trial the evidence that trial counsel permitted completed was the thought counsel withdraw other duties were his replaced by counsel the end and had wise until of the thereafter aban- appointed, twenty days appellant us appellant. points counsel was after the doned the none, points time limit for a motion for trial the Court of us expired. none, no motion had The mere fact that and we can find none ourselves. filed, reasoned, a only for new trial that was the court relevant facts the record shows not mean appellant appellant pro appeal did that the was denied the filed a se notice of alleged devel- twenty-eighth day after ineffectiveness indigency on the and upon oped spread and a record. sentencing, is a letter of there notation the assignment attorney record on (Tex.Cr. parte Duffy, 607 S.W.2d Ex determined, appellate counsel to be is we have held App.1980). “For reason sixty-two appointed days after sentenc- was provided an that, appeal has not when direct ing. a claim which adequate record to evaluate through additional might be substantiated hold that such facts do not rebut We corpus pro in a gathered habeas evidence rep appellant was presumption the general doc ceeding, we apply will acted by counsel and that counsel resented raising claim on habeas trine that a forbids effectively. Dyches v. Cf. rejected Ex corpus after it was (“there (Tex.Cr.App.1964) nothing is (Tex.Cr. Torres, 469, parte in the record to show or indicate State, 973 App.1997).” Jackson v. by harmed the failure of his appellant was 1998). (Tex.Cr.App., trial”). counsel file motion for new There nothing suggest that the is record to judgment is attorney the merits of a mo did discuss reversed, the case remanded to is appellant, a which tion for new trial with the appellant’s re- of the consideration rejected. a appellant motion When maining points error. case, new trial not filed a rebuttable presumption by is that was considered MEYERS, J., dissents. rejected. Additionally in this case, pro the fact that the se filed OVERSTREET, J., dissenting files notice of is evidence that must she opinion. have been informed of her at least some of appellate rights, presume was we she PRICE, J., dissenting opinion. files a adequately affir counseled unless record matively displays otherwise. BAIRD, dissenting on Judge, state’s rehearing. motion for
We hold record shows that officially by represented was coun- forgery Appellant was convicted litigation, all sel at times and the judge punishment three at trial assessed pre- appellant has failed to overcome the Tex. Penal Code years confinement. sumption acting effectively that counsel was ap § remanded 32.21. The Court at all times. healing pellant’s Experience taught has us that most untimely trial. Oldham where the claim of ineffective
instances — Houston raised, of counsel the record assistance consideration, due Dist.] After [14th shape, simply on direct not in a petition for discre dismissed the State’s very inef- perhaps alleged because tionary Oldham review.1 below, adequately fectiveness that would (Tex.Cr.App.1996). Because failings In- reflect counsel. majority of the State’s the Court sustains this, deed, in a case such as where rehearing, respectfully dissent. alleged primarily are errors derelictions than omission de hors the record rather I. record, in the trial commission revealed represented by retained Appellant ... the collateral attack vehicle day twenty-eighth On thorough examination counsel trial. and detailed suspend applica- May granted petition for originally We the State’s appellate procedure review determine: tion the rules of appel- burden is it to show that an 1. Whose firm in the record without basis lant was or not abandoned finding good cause? prose- critical *10 cution? sentencing, appellant pro timely after appeal, filed a notice se the case will be appeal requested appoint- notice of and refiled court. appeal. ment of counsel for her The trial Accordingly, the and notice of sentence complied, sixty-two
judge
days
and
after sen-
appeal
are set aside
the cause is re-
imposed
thirty-three days
tence was
af-
hearing
manded to
the trial
for a
filing
ter the
a
deadline for
motion for new
the motion for
trial
and for
order-
trial,
attorney
appointed
an
represent
ly
subsequent
pro-
conduct of
post-trial
appellant.
points
through
In
error
twelve
ceedings, in
opinion.
accordance with this
fifteen, appellant
she
contended
was denied Ibid, (citations omitted).
during
her
right
constitutional
counsel
stage
Id.,
judicial
critical
proceedings.
II.
The
Trevino,
In
565 S.W.2d at
the defen-
agreed.
right
dant was denied the
to counsel at the
holding,
To reach its
the Court of
hearing oh his motion for new trial. We held
appellant
first concluded
was denied the
remedy
proper
was to return the case to
Id.,
counsel.
(citing
at 462
v.Ward
point
where the defendant was denied
(Tex.Cr.App.
counsel:.
1987)).
then, relying
The
upon
Trevi
appellant
...
Because
the instant case
no
(Tex.Cr.App.
a stage
was denied counsel at
the review
1978);
(Tex.
Cox
process prior to sentence and notice of
1990);
App.
and,
[1st Dist.]
Callis
— Houston
appeal, we set aside the sentence and no-
S.W.2d 826
— Houston
appeal
return
tice
the cause for a
1988);
appointment
[1st
of an
Dist.]
held
hearing on motion
for new trial and an
attorney
period
filing
after the time
for
orderly
subsequent
course of
events.
expires
motion
new trial
was a denial of
event appellant’s
motion for new trial
stage
proceedings.
counsel at
critical
of the
denied,
pro-
sentence
should then
Cox,
Oldham,
See,
the time constraints for
motion
hearing
trial court for a
the motion
31(a).
Tex.R.App.
new trial under
P.
Old
orderly
new trial and for the
conduct of
ham,
365
rules,
“suspend” the
guage purported to
Appeals
reconsider
case to the Court
to
Oldham,
id.,
the
“remand”
case.
right
attorney,
an
877 “abate” and
the defendant’s
to
However,
327,
Court,
this action was
unpublished
at 463.
at
that
S.W.2d
ap-
unnecessary
when the Court determined
opinion,
the ease to the trial
remanded
right to counsel
point
pellant’s
to
Amendment
and returned the defendant
Sixth
holdings in Trevino and
he
v. was violated. Our
was denied counsel. Connor
3-89-229-CR,
rely upon
principles,
(Tex.App. Austin, Nos.
Axel
constitutional
—
3-89-231-CR,
3-89-230-CR,
Rules
Procedure.
delivered Decemberthe Texas
7,
1994)
(unpublished).3
provides:
Constitution
The United States
Axel,
(Tex.Cr.
parte
In Ex
Ante limitation, held, flatly opinion that: unpublished the citation of forbids Appeals correctly recognized that However, "The Court of solely authority. this citation is stage’ a motion for new trial is 'critical taken of the action inform the reader representation entitled to which a defendant is history complete in order by counsel.” Connor v. published opinion. of the case after our (Tex.Cr.App.1994)(citingTrevinov. (Tex.Cr.App.1978))("Without a Gana, upon majority's State v. reliance hearing motion for new trial is a doubt the critical on a (Tex.Cr.App.1996) misplaced. only proceedings. It is precedence deprivation takes A present constitutional certain opportunity to trial court any procedural rule. See Sixth Amendment matters warrant over make record those matters discussion infra. review.”) *12 366 being represented relief of during counsel
III.
period
has
opportu-
wherein she
judicial power
Our
does
include the
nity
pursuant
to file a
power
advisory opinions.
parte
to issue
Ex
31(a)(1).
Tex.R.App.Pro.
I am satisfied that
Ruiz,
217,
(Tex.Cr.App.1988)
750 S.W.2d
218
appeals’ opinion effectively
the court of
ac-
(“It
is well-established that
this Court
is
complishes this end and believe the court of
statutory
without
constitutional
appeals decision should be sustained.
advisory
to ...
opinions-”);
render
Arm
State,
791,
(Tex.Cr.
strong v.
794
Appellant
charged by
indictment with
and,
App.1991);
V, §§
Tex.
art.
1
Const.
forgery,
the offense of
Tex. Penal Code Sec
State,
784,
5.
In Garrett v.
803
(Vernon 1989), alleged
tion 32.21
to have
(Tex.Cr.App.1986) (opinion
rehearing),
on
January 9,1989,
been committed on or about
held
advisory opinion
that “[a]n
results when
13,
County.
January
1992,
in Harris
On
attempts
a court
to decide an issue that does
jury
Appellant
forgery;
guilty
found
controversy
an
capable
arise from actual
punishment
trial court assessed
three
See,
adjudication_”
of final
Ibid.
Gon
years
Department
confinement
Texas
zales
(Tex.Cr.App.
to dismiss the State’s
for discretion-
I. SUMMARY OF PERTINENT FACTS
ary
improvidently granted
review as
was er-
13, 1992,
jury
January
Appel-
On
found
roneous,
grants
and instead
the State’s mo-
guilty
forgery;
lant
sentenced the
she was
rehearing
grants
tion for
relief. To that
day.
undisputed
same
It is
respectfully
action I
dissent.
had
the trial
retained counsel
my
10,1992,
what I
concurring
sentencing.
February
reiterate
stated in
On
opinion
original
I fully agree
pro
filed
notices of indigency
submission.
se
and of
peal.
16, 1992,
in entitled to
the trial court
ease is
On March
Adams,
ref'd),
(Tex.Cr.App.
(Tex.App.
pet
In State
the First
— Texarkana
1996),
we asked the
First Court
held the trial court did have
appeals may,
hearing
consider whether a court of
to conduct a
on the defen
Adams,
time limits
31 and
dants’ motions for new trial. State v.
01-92-00194-CR, 01-92-00195-CR,
allow a
file
defendant to
an "out-of-time” motion
Nos.
Id.,
Relying
[1st
for new trial.
points through error twelve were of fifteen dispositive of the case and declined discuss question/ground In answer to State’s points through of error eleven. one Oldham one, proof number the burden of for review (Tex.App— upon show abandonment of counsel is 1994). points In of [14th Dist.] Houston case, the court appellant. In instant of fifteen, through appellant error twelve con that that bur- appeals found met that she tended was denied her constitutional ques- In answer the State’s den. right during phase to counsel a critical of the two, tion/ground ap- number for review judicial proceedings. The Fourteenth Court good for causes pellate court shown agreed of and remanded the ease to provisions suspend requirements and hearing trial court for a on the motion for Appellate Procedure in a Rules trial. In accordance with Texas case, In particular case. the instant Appellate Procedure good appeals found cause sus- appeals held that had demonstrat pend the rules. “good extending ed cause” deadline for new Id. motion trial. Arcila, decline supra, on we should Based judgment our in the instant
to substitute appeals. of the court of cause that II. OF STATE’S CLAIMS ANALYSIS judgment of the court of Therefore the contends that there is no evi- State by this Court and peals should be sustained on the sheet that dence docket original improvident grant dismissal on our released, attorney and that there- appropriately did so. I also note submission by technically represented fore was still she defendant, pro unschooled se appeals counsel. The court of held that points legal advocacy, finer who is without right was clear was denied her very pressed legal would be hard counsel judicial at a critical procedure proper know the to create proceedings. a record to show he is without present addition, urges to mandate us legal counsel. a foundation “good cause” be evinced now, majority this Court Because a upon Appel- record Rules of before the rehearing years opinion after our two over suspended late a court Procedure can submission, original its chooses substitute by this or even Court. The court appeals, I judgment that of the court of held shown suspend respectfully dissent. the Rules of Procedure.
PRICE,
Judge, dissenting on state’s
time motions for new
I
because believe
rehearing.
type
not the
case which to resolve
the Rule
out-of-time
for new trial
background
I.Procedural
of the case.
raised,
even if it
issue
were
because I
do
Appellant
The Court of
held that
agree
majority’s
holding
on that
was denied her
to counsel
issue,
majority
and because I believe that the
file a
which to
motion for new trial.
scope
twice exceeds the
the State’s motion
Oldham v.
462-63
rehearing,
respectfully
dissent.
[14th
DistJ
- Houston
used
presented.
III.: The issue
period,
that time
and the court remanded the
whether Rule
addresses
case to
Appellant
the trial court so
could file
*14
authorized the court’s action. The State nev
a motion for new trial.
Id. at 463.
complained
er
has
that
does not. The
petition
discretionary
The State’s
for
re-
petition
discretionary
State’s
for
ques
review
grounds
view raised
for
two
review:
sup
whether
tioned
the
record
1. Whose
is it to
that
burden
show
ported the
Appeals’
conclusion that
by
was not abandoned
Appellant
right
was denied his
to counsel
during
prose-
critical
a
of the
the
time in
to file a motion for
which
cution?
petition
new trial. The State’s
did not con
May
2.
an appellate
suspend appli-
2(b).
court
scope
test
the
of Rule
The State’s
cation of
of appellate procedure
the rules
rehearing complains
for
motion
the
any
without
firm basis in
for
the record
authority
of
lacked
to restore
finding good cause?
jurisdiction to the trial court for a
for
motion
trial.
In support
ground
new
of its
for re
granted
We
grounds,
review both
but we
hearing, the
opin
State
on this
relies
petition
later
having
dismissed the
as
been
(Tex.
ion in Olivo v.
improvidently granted. Oldham v.
Crim.App.1996),
intervening
as the
circum
1350-94,
No.
(Tex.Crim.App.
pointed
stance. The State
out that the trial
1996). The State filed a motion
rehear
for
jurisdiction
court lost
hear
to
motion
ing urging
jurisdictional complaint
a
for the
31(a)(1).
new trial under former Rule
following
first
ground
rehear
appeals may
State contends that a court
ing,
granted:
which we
Appellate
not utilize
the Texas Rules
Pro
in allowing
This Court erred
to
stand
jurisdiction
to
cedure
create
where none ex
appeals,
decision of the court of
ists,
Olivo,
citing
523. The
jurisdiction
the court
appeals gave
argues
the trial
because
court had
hearing
the trial
court
hold a
on a
already
jurisdiction
lost
hear a
motion for
trial
when the trial court
the Court of
did not have
jurisdiction
already
had
lost
over the case.
give
jurisdiction
rehearing
court. The
State’s motion
does
II.Introduction.
argue
not
mention
much
even
less
Because neither
State’s
for re-
operates.
position
motion
how that rule
The State’s
hearing
petition
nor the
simply
jurisdic-
State’s
for discre-
court
once a trial
loses
tionary
tion,
review asserts that Rule
give
a court of
the trial
Texas
Rule of
does not
Procedure
court
to entertain a motion for
authorize courts of
out-of-
allow
new trial.1
Ironically,
sparked by complaint
cy
granting
petition
discretionary
case
a
State's
counsel,
concerning
deciding
inquiry
has
there
been
case
review
without
Appellant's
disturbing.
no
brief
on
behalf
filed
in this Court.
into the lack of an
brief is
Appellant's
April
appeals may
appeal
due
brief was
on
1995. Al-
decide an
Courts
19, 1996,
though
inquiry.
on June
we
dismissed
criminal case without such an
Tex.
38.8(b).
petition
having
improvidently
R.App.P.
State’s
been
do so in
This Court
granted,
granted
penal-
we
the State's motion for re-
of a
direct
case in which
death
hearing
(briefs
poli-
ty
Tex.R.App.P.
October
This Court’s
has been assessed.
71.3
hearing
for new trial.
majority
question
proper
never answers the
(Tex.Crim.
State,
judgment
a court of
do
arise when
discretionary re
very
heart of
peals
to allow for an out-of-
uses
review
power, which is that we
view
trial.
time motion
appeals. Tex. Const.
decisions of courts of
44.45(a), (b), V.A.C.C.P.;
V,
5;§
Art.
Art.
contrary
majority’s
Additionally,
67.1,
Tex.R.App.P.
Davis v.
68.1.
holding regarding
contemplated
uses of
(this
(Tex.Crim.App.1994)
opinion in
I read this Court’s
have not
Court cannot review issues which
Godfrey as
rel. Cobb v.
do Professors Dix
ex
to and ruled on
properly presented
first been
Ap-
“The Court of Criminal
Dawson:
appeals);
the court of
Montalbo v.
peals
power
has
it has the
to sus-
assumed
160, 161
(Tex.Crim.App.1994)
n.
thirty
pend
day requirement
(this
authority to
is without
address
31(e) but
ease
it did not call
found the
before
legal
by the
issue not addressed
power.”
of that
G. Dix & R.
exercise
appeals); Owens v.
Dawson,
Practice and Procedure
Criminal
(the
(Tex.Crim.App.1992)
n. 7
discre
917-18
(Texas
1995)
§
(citing
43.349 n.
Practice
tionary
system
Texas Con
under the
Godfrey,
State ex rel. Cobb v.
the function of this
stitution dictates that
pass only on
noncapital
cases is to
*17
legal questions that have been resolved
B. Tallant v.
State
appeals);
the
v.
791
courts of
Lee
disregarding rules.
(under
(Tex.Crim.App.1990)
majority
44.45,
also relies on our decision in
V,
for
§
Art.
Art.
Tex. Const.
(Tex.Crim.
v.
200(a),
Tallant
mer Rule
this Court reviews decisions
App.1987),
proposition
for
“the
the
that
for
appeals,
of courts of
so case remanded
Oldham,
may
disregarded.”
Rules
not be
the merits of an
address
Tallant,
instance).
In
motion for new trial. The Court
2(b).
Rule
Limitations on use of
judgment
set the
aside.
agreed and
second
agree
this Court’s characterization
with
Court of
declined the State’s
2(b)
permissive,
as
in State v. Garza
of Rule
2(b)
suspend
Rule
invitation to invoke
appeals
of
cannot be said
such that
31(e)(3).
peti-
granted the State’s
Rule
We
by failing
invoke
abused its discretion
have
and addressed
tion for
2(b).
agree
I also
Rule
2(b)
that,
in
Rule
issue. We observed
2(b)
that Rule
in
v. Garza
conclusion
State
essence,
that the
complaining
the State was
retroactively
restore
not be used to
of
its
in
abused
discretion
court, thereby making
jurisdiction in the trial
failing retroactively to re-confer
void
valid.
an action
ab initio
which
grant
on the trial court to
for new
appeared
Garza,
stated,
only
the State
contend
we
In State v.
“The
presented good
as a matter’ of
cause
boundary
upon
have
of
set
courts
law,
2(b)
so that
abused its
appeals in
their Rule
discre-
exercise of
refusing
suspend
in
Rule
discretion
preclude
suspending a
tion is to
them from
31(e)(3).
Garza,
at
State
Thus, as the
rule under some circumstances.
rejected
argument
563. We
State’s
noted,
has
here
this Court
First,
failed
three reasons.
the State
2(b) does
held that Rule
not authorize
good
present
in the
even colorable
jurisdiction.
appellate court to
its own
extend
2(b)
Secondly,
ease.
Id. at 563.
Rule
State, supra, 896
at 194.”
Garza v.
terms,
phrased
permissive
and it does not
Garza,
at 563. Unfortu-
State
contemplate
thing
good
such a
cause as a
nately, in
failed to take
Garza we
State
matter
law so that
opinion
notice of our
in Olivo.
option
suspend
would have no
but to
a rule.
previously
opinion,
pointed out
in this
As
Id.
we retreated from the dicta in Garza
Olivo
Finally,
importantly,
and most
in our
concerning
operation of Rules
view Rule
does not authorize
ret-
2(a)
explained in
We
Olivo
suspension
governing
roactive
of rales
2(a) prohibits
nor
neither
already
events that have
occurred at the
suspending
appellate
court from
has
trial level before the record
been con-
Olivo,
at
procedural time limits.
True,
veyed
court.
on its
Olivo,
Nevertheless,
con-
522-23.
suspension
provi-
face
rale
allows
cerned the use
“any” rale,
governing
those
sions
even
file motion for
time which to
extension
Nevertheless,
trial.
to file a notice of
only
suspension
permitted
rule is
41(b),
we did not end our examination
accordance with the conditions enumerated
point.
role
rale,
expedit-
viz: “in the interest of
when a notice of
ing
stated that
decision or
other
cause We
fifteen-day
signifies
period
language
filed within
This
shown[J”
way
contemplates in
but without a concomitant motion
what Rule
time,
appeals lacks
relatively
a court of
“good cause” is one
rare
extension
*19
rule,
ap-
suspending
jurisdiction
dispose
purported
of the
in which
a
rath-
to
situations
it,
by dismissing it for lack of
peal
than
following
actually
than
will
facilitate
other
er
Olivo,
jurisdiction.
at 523. We
through
appellate
processing the case
situation,
court,
a
of
explained
in that
court
by “expediting a
or other-
that
decision”
jurisdiction
purported
of
lacks
over
It does not authorize courts
wise.
back,
power to
Rule
appeal, so it lacks the
invoke
peals
reach
after
has been
to
2(b)
filed,
jurisdiction
to
in an effort
obtain
perfected and the record
and alter
rationale,
level,
we reaffirm-
Id.
that
of events at the trial court
case.
Under
the course
provisions
any
particular
ed the
from
in a
statements
Garza v.
896 and
rule
194,
Jones,
S.W.2d at
and
796 S.W.2d at
“in
expediting
case”
a
interest of
decision
may
that a
shown,”
not utilize Rule
good
“except
or for other
as
cause
2(b)
jurisdiction
to create
where none exists.
provided
By
rules.”
otherwise
these
its
Olivo,
2(b)
terms,
very
may
Rule
be used to sus-
rule,
pend any
except
provided
as otherwise
recognize
We failed
v.
to
State
Garza
2(b)
by
literally pro-
the rules.5 Rule
also
although
appellate
may
that
an
court
not
may
appellate
that an
court
suspend
vides
2(b)
jurisdiction
utilize Rule
to create
where
any
expediting
rule “in the
a
interest
exists,
prohibition
none
the rationale for
good
or for other
decision
cause shown.”
2(a)
operation
not based on the
of Rules
2(b),
suggested by
and
as
v.
Garza
State.
contemplates
The rule
two instances
Instead, our
that an
rationale
Olivo was
suspended.
rule
The first
appellate
jurisdic-
court in that instance lacks
decision,
expediting
is in the
interest
and
and,
result,
power
tion
as a
lacks the
good
the second is for
cause shown.
other
2(b). Simply put,
invoke Rule
under the
“being
“Other” means
the ones distinct from
“particular
terms
Rule
there
no
the those
first mentioned.” State
John
case”
appellate
over which the
court has
son,
(Tex.Crim.App.
2(b).
jurisdiction
so that
it
use Rule
1996) (citing The New Merriam-Webster
2(b)
boundary
previously
of Rule
estab-
(1989)).
Dictionary
obviously
“Other”
refers
by
lished
this Court was created
a basic
“in
expediting
the interest of
decision.”
jurisdiction
lack of
over a case in which to
plain
logical
and
of the rule
construction
2(b).4
invoke Rule
“good
leads
the conclusion that
cause
something
shown”
distinct from “in
means
Construing
Rule
expediting
the interest of
a decision.”
I believe this
Rule
Court misconstrued
accurately
Garza this Court
ascer
disagree
in State v.
Garza.
with this
contemplated
use “in
tained
rule’s
Court’s determination in
State Garza
expediting
plainly
a decision.” It
interest
language
signifies
it is to be
logically
a suspension
follows that
of a
only
used
processing
facilitate
rule in this
first instance
to facilitate the
through
appellate
expediting
court
processing
through
appellate
of a case
or
Rule
decision
otherwise.
does not
However,
good
court.
since “other
application
purport to limit its
to the facilitat-
necessarily
something
shown”
means
distinct
processing
plain
logical
ed
of cases. The
“in
expediting
from
the interest
deci
construction of Rule
does
lead
sion,” this
Court’s similar construction
conclusion this
reached in
Court
State v.
2(b)’s contemplated
Rule
use in
second
Garza.
instance
rule
does
follow. The
does not
Literally,
provides
appel-
provide
that an
“or
similar
cause shown.”
suspend
so,
“may
requirements
interpretation
late court
Had
done
our
the rule
explained
holding
operation
4. This is consistent -with the ultimate
of which was
in Olivo. Rule
2(a)
applies
prohibit
case.
specifically
Garza
to rules that
an
of a
action,
taking
from
certain
such
jurisdiction,
vests
appeals
courts
74(0(2) (appellant's
as former Rule
failure to file
jurisdiction
are extended limited
a brief shall not authorize dismissal of
formerly
Rule
appeals attempts
to act. If a court of
(a
except
provided)
judg-
and former
give
rule
shall
or
ment
affirmed
reversed or
opinion
itself
time in which to issue an
more
procedural
irreg-
dismissed
defects
reconsideration, that encroaches on this Court's
allowing
ularities without
defect),
time to correct the
primary jurisdiction. That
far
different from a
require
rules
higher
suspends
in which a
situation
rule
action,
court to take certain
such as former Rule
court,
lower
reinvest
in a
as the
74(0(2) (requiring appellate court to take certain
Appeals sought
present
do
filed)
steps when no
brief is
and for-
case.
every
(appellate
address
mer
court shall
disposition
necessary
final
"except
issue raised and
phrase
I5.
construe the
as otherwise
*20
2(a),
provided by
appeal).
the
these rules” to refer to Rule
the
El Paso
Id. The
The
fective assistance.”
in
would make sense.
Garza
that,
Rule
may
conclude
but for
exactly
says
rule
did not
what it
rule means
—a
2(a),
an
use of Rule
abate
suspended
good
cause shown other
the
be
im-
court would
a decision.
to remand to the trial
expediting
than in the interest of
and
process.
disrupt
appellate
the
The
properly
Therefore,
by
except
provided
as otherwise
abating
remanding
court concluded
rules,
may
applied to
the
Rule
specify
general request, which does not
aon
good
expedite a
shown or to
rule
cause
deficiencies,
pur-
for the
suspected
counsel’s
decision, provided
appellate
the
court has
determining
the
pose of
whether
Olivo,
case,
jurisdiction
the
over
counsel,
assistance of
received effective
doing
appellate
at
in
so the
disruption of the
improper
to the
would lead
upon
primary
does not encroach
this Court’s
words,
El
In
the
appellate process.
other
jurisdiction.
at
Garza
find that the
Paso Court of
did not
good
suspending
appellant showed
cause for
rules,
to exercise
and that court declined
Policy
E.
considerations.
suspending
by
the rules
its discretion
Rule-2(a)
2(b), had the court believed
majority
policy
The
discusses
consider
2(b).
prohibit
that use of Rule
did
holding
scope
support
in
of its
ations
majority recognizes
of Rule
pro-
majority
on the
focuses
argument suggested by
appeal of the
courts
itself,
than as a means
cess as an end
rather
abating
appeals,
an
and allow
majority
an
believes that Rule
end.
ing
trial will
an out-of-time
for new
jus-
may
when the interests of
be used
speeding up
have the ultimate effect of
appellate pro-
compel speeding up
tice
Oldham,
appellate process.
at
cess,
rejects
majority
the notion that
but
concludes,
However,
majority
359-360.
justice
compel
cor-
also
the interests
litiga
in
number
“While
a small
of cases
Oldham,
rect
result
in
shortened,
process
ultimately
tion
2(b)]
(“[Rule
not be
at 360
should
delays
think that the associated
and restart
lengthen procedural
used
a method to
ing
process upon
specu
the appellate
such
truly extraordinary cir-
limits absent
improper
lation makes
use
cumstances,
protect
in
even
an effort
2(b).”
(citing
Id. at 360
Torres v.
disagree
rights
litigants”).
substantive
Paso
— El
procedure
approach which elevates
with this
pet. ref'd),
in
grounds
overruled on other
resulting glorification
and the
over substance
M.B. v.
procedure
procedure’s
sake.
writ)).
1995,no
App.
Paso
— El
majority’s
cost-
Even under the
economic
Toms,
sought
an abate-
analysis of
benefit
pending appeal
he
devel-
ment
his
so
could
litigation process
ulti-
that the
accedes
op
support
claim
a record
his
of ineffective mately
in a small number of
be shortened
El
counsel. The
Paso Court of
assistance of
courts
were authorized to
cases if
Appeals denied the motion to abate because
motion for new
restore
2(a),
prohibition imposed
however,
majority,
believes
courts. The
Olivo,
rejected in
which this Court later
restarting
delay
the costs of
good
appellant failed to establish
because the
high.
appellate process are too
2(b) by
specific,
identifying
cause under
matter,
suspension of
per-
As a historical
suspected deficiencies
trial counsel’s
Torres,
prior to
was authorized
920. The
rules
formance.
stated,
adoption of
Rules of
dis-
the Texas
are not
“[W]e
2(b) was
derived
practice
disrupting
Procedure
posed
encourage
of Post Trial and
from Rule
of the Rules
orderly
prompt
flow of direct
Cases,
Appellate Procedure
Criminal
well become a routine defense
what could
part, “In
the interest of
provided
for ran- which
practice
seeking
such abatement
expediting
of inef-
a decision or
other
trolling
signs
of the record for
dom
*21
shown,
appeals
authority
a court of
of
allowing
or
to exercise discretion in
Appeals may, except
Criminal
as
untimely appellate
otherwise
a completely
is not
events
rules,
provided
in
require
these
concept.
ments
provisions
or
of
of these
in a
rules
jurisdic-
Before the
of criminal
extension
particular
application
party
case on
of
on
1981,
appeals
tion to courts of
in
former Art.
own
proceedings
its
motion and
order
in
40.09(9), V.A.C.C.P., required a defendant to
accordance with its discretion.” This Court
file
in
appellate
brief
the trial court. The
referred to former Rule 4
several
on
occa
thirty days
trial court had
in which it was
sions.
McGee
required
briefs,
to determine from the
and
(Tex.Crim.App.1986); Lopez v.
argument
court,
oral
if
desired
trial
1 (Tex.Crim.App.1986)
447 n.
granted
whether the
defendant should
(circumstances
Lopez
in
explained
Shanks
40.09(12). Judge
new trial. Former Art.
(Tex.Crim.App.
commentary
Morrison’s
to former
40.09
Art.
1986) (Clinton, J., concurring)); Mead v.
states
“if a
judge
given
were
State, 656
494 (Tex.Crim.App.1983)
opportunity
study
record
J.,
(Campbell,
dissenting) (discussing proce
presided,
over which he
read
had
briefs and
ease);
Reyes
dural circumstances of the
raised,
argument
points
many
hear
on the
(Tex.Crim.App.
recognize
eases he would
fact that re-
opinions, Lopez
Of these
is the most
versible error was in the case and that he
case,
instructive.
this Court invoked
promptly grant
would
a new trial and
set
4;
309(f),
suspended
former Rule
retrial,
avoiding
case down at once
thus
provided
that a party
file a motion for
delay
inherent
an appeal
occasioned
rehearing
opinion
if the Court
delivers
protecting
his
record of which
rehearing that changes
disposition
many
judges
justifiably
so
able trial
are
cause
disposition
original
from the
sub-
40.09, V.A.C.C.P.,
proud.” Former Art.
In-
mission;
granted
the State leave
file a
(Vernon’s 1979).
terpretive Commentary
rehearing
denying
second motion for
after
Commenting on
procedure, Judge
Onion
initial
rehearing.
State’s
Lo-
observed, “While the time between conviction
1; Shanks,
pez,
6. For (Texas appeals, among § Dix Practice area the courts of see 43.349 Meaning majority’s holding presented G. issue is the State’s motion rehearing, issue. grant didwe rehear- ing on the Court’s own motion. The dismiss- my Notwithstanding disagreement with having improvidently al of a been majority’s scope ultimate view of the granted having *23 is tantamount to refused 2(b), majority’s regard- Rule conclusion petition place. in the first Tex.R.App.R. See ing puzzling. is exploring After 202(k). 69.3, former Rule A motion for re- 2(b), appeals courts of decisions on Rule this hearing after the refusal of petition had to rule, Court’s decisions on policy con- have been intervening limited to circum- siderations, majority arrives at the con- stances of controlling substantial and effect. 2(b) may clusion that Rule be used (current Tex.R.App.R. Former lengthen procedural truly time limits absent 79.2(c) provides that a rehearing motion for extraordinary Oldham, circumstances. anof order that peti- refuses dismisses a at 360. Did the err discretionary ground- tion be truly extraordinary in this cir- ease because only intervening ed on substantial circum- present? cumstances were not Does a court stances). rehearing The motion for claimed appeals authority have jurisdiction that once the trial court lost permit rules and an out-of-time motion for trial, motion for new if the Court of truly new trial ex- filed there are authority lacked traordinary May to restore circumstances? trial court for a lengthen procedural used to trial. The time limits
only they if pertain intervening do not State cited Olivo as the to motions for new circum- trial, as stance. long truly extraordinary argument there are Olivo and the State’s doing rehearing circumstances for so? the motion for question pertain Is the do not truly of whether there extraordinary Appellant cir- whether the record shows that present really question cumstances about denied counsel. so,
whether shown? this is If will disagree majority’s I with the decision to of appeals’ Court review courts determina- issue, address denial of cause, regarding good despite tions this this If going before Court. Court contrary to the indication State v. to hold that the courts of have been Garza? wrong using to allow out-of-time motions for this Court should V. The denial of counsel issue. in a least do so case in which we follow our majority After the decides the Court rules ourselves.7 utilizing erred in the ma- jority recognize seems that courts of peals have to restore trial courts VI. Conclusion.
jurisdiction to entertain a for new reasons, foregoing respectfully For the trial even without use of Rule Of majority’s dissent to the decision reverse course, that was pre- the extent of the issue Appeals’ judgment. the Court of rehearing sented the motion for —whether authority. courts of have majority hints at an answer the actual posed by expressly
issue but
leaves it unaddressed.
Nevertheless, plows onward Appeals’ holding
and reviews the
Appellant
was denied counsel. That
say
question
pending
squarely
7. This is
of whether
Court. We have a case
issue,
present
yet
presents
although
record
as the one in the
such
case dem-
we have not
onstrates that
has been denied
acted on the
review:
Stamper
reviewing.
(Tex.App.—
counsel is not worth
If this
No. 02-96-486-CR
issue,
Worth,
5, 1998),
February
inclined to address that
in a
should do so
Fort
delivered
PDR
properly
case which that issue is
before
No. 450-98.
issue that the
notes
larly,
petition
discretionary
a
re
when
addressing.
it
is
filed,
au
appeals
view
loses
is
days
appeals
thority
act on the case once fifteen
have no need to resort to
to
Courts
thirty
101
passed
in this
In
have
former Rule
or
type
of situation.
cases
days
passed
Rule 50.
improperly
in which a defendant is
denied
have
under new
Garza
State,
(Tex.Crim.App.
192
hearing
a
a
v.
896
counsel at
on motion
1995).
trial,
However,
a
this Court can remand
appellate courts remand the case for
appellant’s
prepared
brief in courts of
in a
and filed in
into the lack
an
direct
should
appeals
penalty appeals,
petitioning party
in
but then to
and
death
accordance
inquiry
a dis-
discretionary
fail to make
an
ourselves in
a brief
review
such
must file
after
is
setting.
(Tex.
cretionary
granted.
Hunter v.