Belcher, James Clive v. State

• Court: Court of Appeals of Texas
• Decided: September 2, 2004
• Docket: 14-00-00812-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed September 2, 2004

Dismissed and Memorandum Opinion filed September 2, 2004.

In The

Fourteenth Court of Appeals

____________

 NO. 14-00-00811-CR

NO. 14-00-00812-CR

JAMES CLIVE BELCHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston County County, Texas

Trial Court Cause Nos. 99CR0496 & 99CR0497

M E M O R A N D U M   O P I N I O N

After a jury trial, appellant was convicted of the offenses of aggravated kidnapping and aggravated robbery.  On May 17, 2000, the trial court sentenced appellant to concurrent thirty-year sentences. 

Appellant filed a motion for new trial alleging, among other things, a juror was improperly permitted to be seated as a member of the jury.  During the motion for new trial hearing, the trial court expressed its concern regarding the eligibility of the juror and discussed the deadline for ruling on appellant=s motion for new trial.  The court=s calculation of the deadline was erroneous, and the court ultimately signed an order granting a new trial after the deadline had passed. 

If a motion for new trial is not ruled on by written order within seventy-five days after imposing sentence, it is overruled by operation of law.  Tex. R. App. P. 21.8(c).  Here, the final date for the trial court to rule before the motion was automatically overruled was July 31, 2000.  The trial court signed an order granting appellant a new trial on August 2, 2000.  Because the trial court acted too late on appellant=s new trial motion, the motion was overruled by operation of law.

On appeal, appellant asserted that he was denied effective assistance of counsel because counsel failed to correct the trial court when it miscalculated the time period for ruling on appellant=s motion for new trial.  By order filed November 27, 2002, we concluded appellant was constructively denied the assistance of counsel at the motion for new trial hearing.  We determined that the appropriate remedy was to abate the appeals and remand the causes to the trial court for a new hearing on appellant=s motion for new trial.  See Massingill v. State, 8 S.W.3d 733, 738 (Tex. App.CAustin 1999, no pet.) (abating appeal to permit hearing on appellant=s untimely motion for new trial asserting reasonable grounds entitling appellant to hearing had they been timely).

Accordingly, on November 27, 2002, we abated these appeals and remanded the causes to the trial court for a new hearing on appellant=s motion for new trial.  The State moved for en banc rehearing of this court=s order, which was denied.  The State then filed a petition for discretionary review with the Court of Criminal Appeals.  This court=s records were then forwarded to the Court of Criminal Appeals for review of the petition.  On May 12, 2004, the Court of Criminal Appeals dismissed the State=s petition.  On June 16, 2004, the Court of Criminal Appeals returned this court=s records.  Accordingly, on July 15, 2004, we directed the trial court to proceed with the hearing as ordered on November 27, 2002. 

The hearing was set for August 9, 2004, and the trial court signed an order granting new trials in both causes on August 23, 2004.  Granting a new trial restores a case to its position before the former trial.  Tex. R. App. P. 21.9; State v. Bates, 889 S.W.2d 306, 310 (Tex. Crim. App. 1994).  Thus, there are no sentences to be appealed, rendering the appeals moot.

Accordingly, the appeals are ordered dismissed for want of jurisdiction.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 2, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).