*1 III. CONCLUSION judgment
We reverse for it relates to the conviction
appeals as I, three, of the indict- paragraph
Count judgment of the dis-
ment reform the In all
trict court to delete that conviction. judgment of the court respects,
other appeals is affirmed.
MEYERS, J., participate. did not
The STATE Texas
Billy MOORE, Appellee.
No. PD-0359-06. Appeals Criminal of Texas.
Court of
June Austin, Gonzalez, Appel- M.
David lant. Horton, County Atty., Assistant
Gisselle Austin, Paul, Atty., State’s Matthew State.
OPINION PRICE, J., opinion delivered WOMACK, MEYERS, Court in which JOHNSON, KEASLER, HOLCOMB and COCHRAN, J.J., joined. petition granted appellee’s
discretionary in this case to deter- review whether, circum- mine and under what stances, entertain an a trial trial that amended motion for new *2 thirty-day mentation, 20, 2005, time limit May appel- and on the amended motions for new trial without lee filed a second amended motion for new 21.4(b) leave court Rule of the Texas trial, alleging grounds the same but includ- Appellate Rules of Procedure. We hold ing documentary support, affidavits and that, at least so as the State does not along another with motion for leave to file. timely object ato late-filed amended mo- granted The trial court the motion for trial, tion for new the trial court does not leave to file the second amended motion grant err to it. filed, day for new trial on the same was a heаring
and set on the second amended motion for new trial to be on conducted FACTS AND PROCEDURAL 3, 2005, day June the 73rd after sentence POSTURE imposed. was appellee was convicted of the misde- meanor offense of driving while intoxicat- 3rd, After a hearing brief on June the 22, 2005, ed. On March the trial court trial granted appellee’s court the second imposed sentence at days a term of 100 ground for new trial on the Brady jail. incarceration in the county The next 14, 2005, alone. On June the State filed a day, 23, 2005, March trial counsel filed a motion requesting the trial court to recon- timely motion for new trial a and motion to sider granting appellee’s its order the sec- counsel, withdraw as the latter of which trial, ond motion for new asserting for the granted. Newly appointed appellate first time that the trial court au- lacked counsel filed an amended motion for new thority such motion because it and motion for leave to file that had not been accordance 13, 2005, May motion on more 21.4(b).2 with Rule The trial court con- thirty days than after sentence was im- ducted another hearing brief on the State’s posed. The amended motion raised two motion, but, convinced appellee’s grounds that had not appeared in the ini- argument authority that it lacked to act on trial, tial motion for new including Brady the State’s motion because it was filed claim that the State failed to disclose evi- beyond 75-day period on a dence that would impeached have the cred- trial,3 ibility of the the trial court denied State’s chief at witness trial.1 This amended motion incorporate failed to State’s motion for reconsideration. any supporting affidavits or other docu- appealed.4 The State Brady Maryland, 373 U.S. imposes suspends 83 S.Ct. court open sentence in 10 L.Ed.2d appel- After the pre- but before the court overrules lee’s his new counsel learned ceding may, a defendant during police the trial itself the officer without leave of file one or more initially who had pulled appellee over and trial.”). amended motions for new discovered he was intoxicated was himself investigation by under federal authorities for Tex.R.App. (“Time 21.8(a) 3. See P. Rule of, in, possession trafficking por- child Rule. The court must rule on a motion for nography. He was later indicted in federal imposing new trial within 75 after pendency investigation, court. But the court.”). suspending open sentence in might which impeach have been used to officer, credibility of the was never revealed express opinion defense. We no with 44.01(a)(3) 4. See Tex.Code Crim. Proc. art. respect to the merits of this claim. (“The appeal state is entitled to an order aof in a criminal case if order ... TexR.App. 21.4(b) (‘To P. Rule Amend. trial[.]”) grants a new Within 30 after the date when the triаl petition opinion, granted appellee’s Austin We unpublished
In an hold examine Appeals Court of “overruled” the these contentions. 21.4(b) prohibit Rule does defendant granting court’s order new trial and cause to the court.5 from an amended motion remanded the *3 motion, prescribed, trial after reaching thirty-day period the merits of the Without the 21.4(b) hold, also the held that even with leave of court. We appeals court of Rule however, prohibits any prohibition for that does not de- amendment a motion this jurisdiction; attempted beyond prive new the the trial court of nor trial that is the deprive with does it the trial court of au- thirty-day period, even leave of thority tardy lacked a amendment to a jurisdiction and that the trial court rule on trial, at any amendment, citing timely this motion for new least absent rule on such State,6 objection any v. an at time opinions Dugard Court’s from the Combined, days the for seventy-five these two within on Drew State.'7 support motion for trial. We therefore re- proposi eases be read the appeals. the court of statutory predecessor judgment tion that the to Rule verse of the 21.4(b) jurisdictional interposes bar to entertaining trial an amended mo court’s STATUTORY HISTORY tion trial if the for new amendment was AND THE RULE days expires filed after the 30 for appellee The first contends we trial. or amended 21.4(b)’s Rule present-day should construe review, discretionary petition his (i.e., provision for unfettered “without the appellee argues language court”) leave of amendment of a motion for 21.4(b) sufficiently Rule is different from implicitly thirty within statutory predecessor need not authorize trial court to entertain an the argues cases. He further follow these thirty days the so amendment filed after event, that, any regard we should not the first seeks and long as defendant ob- 21.4(b) any ju- Rule prohibition within as disagree tains lеave of court to do so. We risdictional, light opinion recent fully this In order to with contention. Supreme Court in Eber- United States our explain disagreement, pro- also hart con- v. United States.8 Eberhart question perspective vide some on procedural the federal rules with strued against tardy whether prohibition
respect
to the time limits
a mo-
filing of an
motion for new trial
trial
to allow a late-filed
21.4(b)
“jurisdiction-
embodied in Rule
to a motion
new trial so
amendment
al,”
history
it is
necessary to examine
does
complain
as the Government
statutory
rule
of the
and its
antecedents.
timeliness of the amendment.
the lack of
Court reasoned that such
Supreme
Early
Incarnations of
Statute
regarded
“claim-process-
rules are to be
of Crimi-
absolutely
Article 671 of the first Code
ing
rather than rules that
rules”
required
nal
the defen-
jurisdiction.9
trial court’s
Procedure of 1857
circumscribe the
Moore,
03-05-00395-CR,
(Tex.Crim.App.1987).
7.
whichever Because the statute as should occur first. the trial provided court could still still enlarge the time for an extension of time to either an motion or an file and amended motions for new refusing abused discretion in request to allow trial court to withdraw his notice of *6 defendant to file meritorious amended appeal). motion though for new trial even defendant had al- State, ready appeal); filed notice of v. Hanks 1951, 464, 818, Leg., p. 23. See Acts 52nd ch. 218, 228, 106, 99 Tex.Crim. 269 S.W. 111 2, 8, 1951, §§ days 1 & eff. 90 after June date (1925) (trial court abused discretion refus- rewritten, adjournment. of As Article 755 ing to allow defendant to file meritorious read: trial); amended motion for new Bottom v. trial; apply Art. 755. Time to for new State, 75, 77, 1091, 105 Tex.Crim. 286 S.W. amendment (1926) (trial 1092 court had discretion wheth- A Motion for new trial shall be filed within er to allow amended motion for new trial (10) days by ten after conviction as evidenced time, during term but did not abuse discretion jury, may the verdict of the and be amended to refuse to allow defendant to file unmerito- by leave of the court at time before it is State, motion); Millsaps rious amended 118 (20) twenty acted on within after it is 491, 493, 339,
Tex.Crim.
38 S.W.2d
340
presented
filed. Such motion shall be
(1931) (same);
State,
Abraham v.
118 Tex.
(10) days
filing
court within ten
after the
of
136, 137-38,
(1931)
Crim.
trial cause this Court continued construe to afford trial statutory fact that derscored permit courts discretion late-filed expressly provide not amendment did motions for new trial.24 Because such mo- presentment extensions of time for and for under the could tions new statute be filed ruling by holding the trial court’s re- during time or a succeeding even vacation peatedly that the defendant’s failure to acknowledged term of that timely present or obtain on an of the trial court entertain or amended motion for new such late-filed could motions extend even authority act deprived the trial court beyond during the term court which it, any attempt by on that the defen- and defendant was convicted.25 the absence dant to amend a motion for new trial file, of such extension of time to or a already by operation had been “overruled however, appeal, withdrawal of a notice law,” upon, ruled because need we held trial court not reach the merits of could either an amended not be entertained.27 State, 421, untimely 24. See Atkinson of a for new trial "[t]he 164 Tex.Crim. 423, 951, (1957) (trial motion.”); 299 prevents S.W.2d 952 consideration authority State, 298, had late-filed amended mo- (Tex. Robinson v. 505 S.W.2d leave to file trial when had been Crim.App.1974) ("good fil cause for belated granted timely pre- amended motion State, made.”); ing was not McIntosh v. upon). sented ruled 143, (late- (Tex.Crim.App.1976) S.W.2d were filed amended motions for new trial 115, 116, 25. Hunt v. 160 Tex.Crim. "untimely” granted for absent extensions 385, (1954); S.W.2d Thurman v. shown”). "good cause 478, 162 Tex.Crim. 286 S.W.2d 27. See, e.g., Mahan v. 163 Tex.Crim. See, e.g., Burris v. 161 Tex.Crim. (al (1956) 288 S.W.2d 509-510 (1953) (trial 263-64 though time for permit court did not refuse to err to defen extended, may presentmеnt and time for dant to file not, ruling upon said motion and be twenty-day filed after deadline because defen cause court did not rule motion with on *7 court); to dant failed seek leave of Heath v. twenty days, said motion was overruled State, 325-26, 323, 161 276 S.W.2d Tex.Crim. State, law”); “by operation DeHay of v. 163 534, (trial (1955) 535-36 court did err to not 401, 516, 517, 294 402 Tex.Crim. S.W.2d refuse late-filed amended motion for new trial (1956) (motion by for trial overruled because defendant to ask that his notice failed twenty operation ruled of law if not on within State, withdrawn); appeal v. of be Barnett 163 State, 582, days); Barton v. 165 Tex.Crim. 270, 276-77, 234, Tex.Crim. 290 S.W.2d 238- 583, 90, (1958) (same); 310 S.W.2d 91 Brink State, (1956) (same); v. 39 411 Mendoza State, 472, 475, ley v. 320 167 Tex.Crim. 546, (same); (Tex.Crim.App.1967) S.W.2d 547 855, (1958) (same); v. S.W.2d 856-57 Torrez 817, State, 128, (Tex. v. 460 S.W.2d 129 Defore State, 25, 320 818 167 S.W.2d Tex.Crim. (no Crim.App.1970) overruling error in late- State, (1958) (same); Brantley v. Tex. 167 good filed motion for new tried where no 146, 825, 145, (1959) Crim. 320 S.W.2d 826 State, 834, cause); Nelson 464 S.W.2d v. 836 385, State, (same); v. Obarts 167 Tex.Crim. (trial (Tex.Crim.App.1971) court did err in not 386, 816, (amended (1959) 817 320 S.W.2d failing motion to consider amended by operation of mоtion new trial overruled for sentencing trial filed months after fourteen 299, State, 298, law); v. 171 Tex.Crim. Grimes State, appeal); and notice of Roberts v. 493 598, (1961) (trial did 349 599 court S.W.2d (trial (Tex.Crim.App.1973) S.W.2d 851 refusing on not to hear evidence err court should not have entertained late-filed original for new trial where cause); motion good motion for new trial absent already by operation of State, (Tex. overruled motion Morton 502 S.W.2d 122-23 State, law); (where Morgan v. 378 S.W.2d 322 Crim.App.1973) defendant seek fails to cause, (amended for (Tex.Crim.App.1964) motion leave to file it out-of-time for Dugard/Drew The 1981 Amendment & that, pressly provided seventy- once the if trial court passed, five had had Legislature In 1981 the amended Article it, already upon ruled the motion 40.05.28 Under this last amendment by would operation be deemed overruled statute, the time for an original mo- Though law.29 the time in which the tion for new trial was extended from ten to present original defendant must his or thirty days. require- Removed was the days, amended motion remained ten ment that the defendant must obtain leave expressly granted trial court was now dis- motion; original to amend the he was ex- cretion expand period long to that time so pressly permitted to file his amendment court,” seventy-five day still ruled within the “without leave of so as he did thirty day period. imposed so within the Should the deadlines period original fall period happen beyond motion. The to the term of court in on the motion or which imposed amended motion was the sentence was or sus- expanded twenty court, from seventy-five pended open the trial court re- days. The statute for rule, the first time ex- tained either in vaca- law); by (c) operation trial overruled original St. In the event an or amended State, (Tex.Crim. Jules v. 438 S.W.2d motion is not determined (motion App.1969) even if signed time written order within 75 after the filed, ly by operation was overruled of law imposed suspеnded date the sentence is or when trial court failed twenty to rule within open it shall be considered overruled days); Jones v. 501 S.W.2d by operation expiration of law on of that 1973) (trial (Tex.Crim.App. erred con period. hearing duct on (d) “second” motion for new duty proponent It shall be the trial after by operation first motion overruled original an or amended motion for new trial law, and "we need not and will not consid present the same to the court within 10 motion”); er the untimely record made on the However, days after the same is filed. at the Boykin (Tex. 516 S.W.2d judge, discretion of the or amend- Crim.App.1974) (timely filed motion for new may presented ed motion for new trial law, by operation trial overruled and hear hearing completed 10-day thereon after such ing "unauthorized”); thereon was Resendez period. delayed hearing Such oper- shall not 523 S.W.2d (Tex.Crim.App. 75-day ate to extend the time limit within 1975) (same); Clopton v. which or amended motion must (trial (Tex.Crim.App.1978) be determined. authority” “was without extension of (e) prescribed Within the time limits in this time to file amended motion for new trial article, a motion for new trial be filed when already overruled expiration of the term at which the law). operation of imposed suspended date the sentence was open during either a new term of *8 1981, 291, 803, 28. Leg., See Acts p. 67th ch. vacation, during court or and a motion for 107, 1, amended, § Sept. eff. 1981. As Arti- may be determined in vacation or at cle 40.05 read: court, a new and term of need not be deter- trial; apply Art. 40.05. Time to for new during mined the term at which filed. amendment filed, (a) 1981, A motion new for if shall be 29. Legislature Between 1965 and prior days imposed "duty” filed to or within 30 after the date aon trial court to consider imposed suspended open the sentence is sponte or in sua whether to a new trial be- court. appellate tween the time the briefs were filеd (b) One or more amended motions for new and the time the clerk transmitted the briefs may appellate trial be filed without leave of be- court and the record to this Court. This 1981, any preceding fore duty expressly repealed part motion for new trial filed was in as by days the movant is piece legislation overruled and within 30 same that amended 1981, imposed Leg., after the date the sentence is or Article 40.05. See Acts 67th ch. 291, 108, 804, suspended open p. Sept. § in court. eff. meant that Legislature time or at the next term of so a motion ruling did not as its come for new trial be filed and amended seventy-five days passed. had any times without number of leave thirty court so it done within long as was
But of an amended for new what motion imposed after is or sus- sentence thirty- trial that not filed until after pended in court. open See Atkinson v. day period in the prescribed amend Tex.Crim. time, S.W.2d ment Article 40.05? For the first discussing (Tex.Cr.App.1957), amend- expressly statutе did not an permit of time to file either trial extension ment of motion for new with leave or an trial “for Y.A.C.C.P., of court Article under good shown.” In the of that cause absence 40.05, Article forerunner of express grant authority, a trial was V.A.C.C.P., also 1965. See 25 Tex. prohibited the first time from Jur.3rd, Law, § p. Criminal granting relief on an or amended filed outside the statu statutory method set forth in Ar- tory filing period, even when the defendant 40.05, ticle as amended does not 1) 2) late, sought leave to file his motion provide amendment the mo- 3) cause, could and show filed it days, tion for trial after the said within the term of even even court. This repre- with leave of next term of court in some cases?30 We change sents an intentional of the for- question this time addressed the first mer requir[es] statute and State}31 Dugard all a motion for amending of In Dugard the defendant filed two time- within and not the said 30 thereaf- ly for new trial. The that had motions one ter.33 properly been filed his trial сounsel was alternative, went in the explain, We on to verified, ap- but one his new argued, contrary if it “[e]ven could be pellate attorney was not. Neither motion 40.05, supra, to the clear intent of Article timely presented days, was within ten that with of court the motion leave 40.05(d). required by Article the sev- On trial could amended after have been the 30 enty-third day imposed, after sentence was (a), days provided §in we note that leave a motion counsel filed for a hear- requested of court was not obtained ing on the unverified motion for new trial Because the instant case.”34 he first had filed. For the time he at- timely presented motion was not and the tached supporting grounds an affidavit his (if was) “amendment” that is what it was for new trial. observed that coun- “[i]f We filed, held that sel intended this affidavit as an amend- it had correctly nothing concluded ment of his he rule on upon before which to the 73rd 40.05(b), supra.”32 too Article latе. day. explained: (b) nothing explicitly § We said about the trial reading
It Arti- is clear from predecessor court’s to rule on the cle immediate late-filed 40.05 *9 State, State, supra; at 32. Id. 529. 30. See Bullock v. Cowan v. State, supra; supra; Bundick v. Bankston v. State, supra; supra; Hanks Alvarado at 33. Id. 530. State, supra; Tyson supra; Atkin- State, supra. son v. 34. Id. (Tex.Crim.App.1985).
31.
(b) assuming thаt days after motion for new trial To Amend. Within 30 “abridge, enlarge, or imposes doing the trial court so would not the date when right in but of a liti- suspends open modify sentence be- the substantive any preceding fore the courts overrules not resolve question we need gant[,]” may, a defendant motion for new today), could easi- given disposition our or more without leave of file one language autho- ly express have reinserted trial. amended motions for new “for cause rizing filings such late shown,” equivalent. We or the functional language again has been Although into that discretion back will not now read essentially incorporating an ac- changed, by implication. the rule construc- passive rather than a verb tive (i.e., or amended mo- tion from motion thirty days “may be amended” within JURISDICTIONAL RULES V. “CLAIM 31(a)(2), leave of Rule without RULES ” PROCESSING court,” may, without leave of “a defendant Rule question The remains whether amendments within the file one or more 21.4(b)’s mo- requirement that an amended time, 21.4(b)), in Rule we do not
prescribed thirty trial be filed within tion for new meaning is dif- think the substantive imposed days of the date sentence ferent. jurisdictional. open court is suspended 21.4(b) Late- Rule Prohibit Does Drew, an that the late we held Amendments? Filed deprived Ar- jurisdiction under former trial court of en- argues that when we appellee 40.05(b). note ticle We clause, court,” “without leave closed the deadline for 21.4(b), we intended in commas Rule only of motion for aspect trial is not the Dugard interpre- thereby abandon the has de- practice that this Court that we ratified tation of Article 40.05 “juris- affecting the trial court’s scribed as 31(a)(2). placing how fail to see Rule held that example, For we have diction.” present in the ver- in commas that clause new trial is overruled “once a motion for meaning changes of the rule sion law, trial court loses by operation explain does not way, appellee this and the
567
upon
only interposed mandatory
to rule
it.”40 Additional-
rule of
but
ly, while we did
in
speak explicitly
not
procedure the Government was entitled to
“jurisdiction,”
terms
the trial
court’s
it
upon,
insist
but which
could forfeit
other
we
cases
have held that a trial court
failing
timely object.43
“authority”
“power”
lacks
and
Supreme
The
Court
Eberhart essen-
motion,
new trial on its own
in the absence
tially posited binary
According
world.
motion,
late,
from the
world,
jurisdictional,
a rule is either
defendant.41
subject
being
and therefore
invoked for
that,
appellee argues
The
like the Su-
appeal,
pre-
the first time on
even if not
Eberhart,
preme
Court
we should re-
level,
jurisdiction-
served at the trial
or not
21.4(b)
gard Rule
as a “claim-processing”
al, in
case it
which
must be raised
rule,
jurisdictional
rather than a rule with
proeedurally
trial court or else it is
de-
Eberhart,
implications.
Supreme
faulted. The
procedural
law
dеfault
expressly
“ju-
Court
declined to attach the
quite
simple.
Texas is not
In Marin v.
risdiction” label to Federal Rule of Crimi-
33(a),
essentially
divided the
nal Procedure
universe
requires
which
“(1)
filing of a motion for
categories:
new trial within seven
of rules into three
absolute
days of a
finding
guilty,
(2)
verdict or
un-
requirements
prohibitions;
rights
and
the trial
enlarge
less
court should
the time
litigants
implemented by
which must be
for filing
seven-day
within that
peri-
same
waived;
system
expressly
unless
od. The Seventh Circuit had construed
(3) rights
litigants
which are to be
requirement
“jurisdictional,”
to be
al-
implemented upon request.”44
went
lowing the
complain
Government to
about
explain:
on to
untimely
petitioner’s
nature of the
mo-
“procedural
“Forfeit” and
default” are
tion for new trial for the first
time on
synonymous; both refer to the loss of a
appeal.
Supreme
Court declared that
right
claim or
upon
for failure to insist
jurisdictional
label should be reserved
objection,
motion,
requеst,
or some
“for prescriptions delineating the classes of
other behavior calculated to exercise the
(subject-matter jurisdiction)
cases
and the
right in a manner comprehensible to the
persons (personal jurisdiction) falling with-
system’s impartial representative, usual-
in a court’s adjudicatory authority.”42
ly
judge.
a trial
Zillender v.
557
33(a)
Finding that Rule
was not a rule that
515,
(Tex.Crim.App.1977).
S.W.2d
517
“jurisdiction”
affected the
of the court in
Rights
only,
are
senses,
which
waivable
as well
either of
Supreme
these
Court
systemic requirements
concluded that
as absolute
prescribed
the deadline it
did
limit
jurisdiction,
subject
the trial court’s
prohibitions, cannot be made
Garza,
560,
(Tex.
Id.,
40. State v.
("claim-process-
931 S.W.2d
43.
at
126 S.Ct.
406-07
Crim.App.1996), citing
33(a)
State ex rel. Cobb v.
ing” rales such as Rule
"assure relief to
47,
Godfrey,
(Tex.Crim.App.
739 S.W.2d
them,
party properly raising
but do not
1987).
compel
party
the same result if the
forfeits
them”).
Zaragosa
326-27
1979);
Ybarra,
(Tex.Crim.App.
parte
Ex
1993).
(Tex.Crim.App.
S.W.2d
(Tex.Crim.App.1982).
S.W.2d
-,
42.
568 because, appeal on are not affect- by complaint of his procedural default
rules of by of a waiver or forfei- definition, ed the existence they are not forfeitable.45 ture at trial. above, category we describing the first that It within the context of this scheme that the “clearest case” of is observed appellee’s the conten- would we must evaluate prohibition requirement or absolute jurisdiction the tion.48 “affecting a law the of be that
courts.”46 But we also observed
21.4(b)’s limitation on
hold that Rule
We
“[ojther
prohibi-
and
requirements
such
timely
origi-
a
filing an amendment
tions,
com-
always jurisdictional,
not
are
neither
nal
for new trial affects
the
47
that
system.”
explained
mon
the
authority of the
jurisdiction nor the
prohibitions:
requirements
such
law,
subject-
the
court. Under current
lawfully
par-
can’t
avoided even with
trial court over
be
matter
extends,
any party
Accordingly,
case and the
should
tisan consent.
the
defendant
appeal
timely
authorized to com-
file a sufficient notice
entitled to
the defendant
appeal,
point
in time at which
plain
requirement
that an absolute
violated,
appellate
in the
court.49
and the merits
record is filed
prohibition was
Davis,
so,
explained
Even
we
under some
45.
Id.
"authority” in a
the lack of
circumstances
Id.
distinguished
“juris
as
from its
diction,”
purported
can render
its
actions
Court,
Supreme
Id. Like the
this Court has
also Ex
"void.”
This peremptory right by consistent with our deci- inaction. sion v. prohibition against Awadelkariem State.50 There we late-filed amendments held that a trial court retains the authori- to motions for trial constitutes a for- ty, scheme, within the seventy-five days right subject that it has in the feitable Marin State, Leg., § p. dure. Acts 513, 59th ch. 51. See Cowan v. supra; Bundick v. See, eff. Jan. State, e.g., State, Mercado v. supra; supra; Banks v. Bankston
State,
(Tex.Crim.App.
supra;
supra;
v.
v.
Alvarado
1986) ("The
trial court retainеd
supra; Tyson
supra;
Hanks v.
appeal
appel
until the record on
reached State, supra.
Atkinson v.
court.”).
Code,
late
Prior to the 1965
as we
seen,
already
have
other than to assemble the
Garza, supra;
ex rel. Cobb
See State
State
record,
jurisdic
the trial court lost
Godfrey, supra.
appeal
tion when the notice of
was filed.
1998).
(Tex.Crim.App.
50.
Procedure amended motion for appellee’s ness of the ly objection.53 until its motion for recon- sideration, win- seventy-five-day 21.4(b) Rule summary, we hold that trial court has au- dow within which the the trial court’s sub- neither circumscribes ruling.54 appellee thority to revise its nor curtails its ject jurisdiction, matter the trial court that was pointed out to timely original to rule on a mo- authority authority change that time without untimely аmend- tion for new even as did not err in ruling, and the *14 ed, seventy-five-day period within the judgment The of the refusing to do so. original motion must be which the within reversed, therefore and appeals court of by opera- upon or else it is overruled ruled remanded to that court to the cause is 21.4(b) permit the tion of law. Rule does arguments that consider the State’s seventy-five those State to insist within granting merits in trial court erred on the only upon the days that the trial court rule motion for new appellee’s originally trial timely motion for new trial. amended, un- not as filed or but the trial timely amended. Should KELLER, P.J., concurring filed a limit to the refuse to HERYEY, J., joined. opinion which of the motion and relief on basis objection, P.J., KELLER, concurring amendment over the State’s a HERVEY, J., joined. only the in which appellate opinion court should consider any timely validity of the proposi- the curious The Court advances trial, and for new should amended motion authоrity to that a trial court lacks a any ruling granting reverse untimely amended motion consider an raised for the first upon based matters objects. appel- The the State if untimely in an amendment. More- time say that the trial court’s rule does not late over, be sufficient to the record should contingent presence on the authority is a was afforded demonstrate State simply rule objection. an absence of object meaningful opportunity may provides that a motion amendment, pur- order untimely or to thirty-day period. within the be amended it, seventy-five- grant within the porting to trial court has no That means that However, an ob- absent such day period. untimely amend- authority to an consider (and assuming opportunity an jection an ment, or not regardless of whether ordinary principles procedural object), was made. objection to the amendment and the will not be apply, default will State in- objectiоn does not The absence of authority; simply time outside it complain for the first with heard vest a court any com- the un- the State forfeits seventy-five-day period of means of the matter. plaint about the timely amendment. State, supra, 33.1(a)(1) (“As at 728 prereq- 54. See Awadelkariem P. Rule TexR.App. ("We denying granting that an order hold presenting complaint for uisite to freely review, rescinded ... must show that the record within the 75 as such actions occurs so complaint made to the trial [.]"). ”). days provided the rules timely request, objection, or motion.... case, object did this State
the timeliness defendant’s amended until elapse of the seven-
ty-five day period ruling upon motions point, trial. At that was too late upon
for the trial court to act the State’s
motion for reconsideration because
court had lost of the case.1 In had recognized
Davis we past
sometimes in the “authori- conflated
ty” “jurisdiction,” sought to with and we
clarify distinguish concepts.2 those opinion upon past
The Court’s relies those again concepts.
cases and conflates the two comments,
With these I concur in the judgment.
Court’s *15 WHITE, Appellant
Natalie
The STATE of Texas.
No. PD-0118-06. Appeals
Court of Criminal of Texas.
June Patrick, 1. See Awadelkariem v. ter. State v. 86 S.W.3d (Tex.Crim.App.1998)("after day the 75 (Tex.Crim.App.2002)(discussing Awadelkar- period expires, granting denying an order ). iem ”). Saying a new trial becomes ‘final’ disposition the trial court’s the new trial (Tex.Crim.App. 2. 956 S.W.2d 558-559 say motion became “final” is tantamount 1997). ing the trial court lost of the mat