Ex Parte Larry Gene Cross

• Court: Court of Appeals of Texas
• Decided: February 28, 2013
• Docket: 02-12-00417-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00417-CR

Ex parte Larry Gene Cross § From County Criminal Court No. 7

§ of Tarrant County (1194614)

§ February 28, 2013

§ Per Curiam

§ (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. It is ordered that the judgment of the

trial court is reversed and this case is remanded to the trial court for a new trial or

for further proceedings consistent with this opinion.

SECOND DISTRICT COURT OF APPEALS

PER CURIAM COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

EX PARTE

LARRY GENE CROSS

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FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY

MEMORANDUM OPINION1

Appellant Larry Gene Cross was convicted of driving while intoxicated and

was assessed punishment of $400 fine and ninety days’ confinement on March

23, 2011. The trial court suspended imposition of the sentence and placed Cross

on community supervision for twelve months. Cross timely filed a motion for new

trial on April 21, 2011. The trial court signed an order granting Cross’s motion for

1 See Tex. R. App. P. 47.4.

2 new trial on May 25, 2011, but on August 10, 2011, the trial court set aside the

order granting a new trial. At a hearing on October 5, 2011, the trial court stated

that it had granted the motion for new trial “in error” and was rescinding and

setting aside the order granting new trial.2

On April 21, 2012, Cross filed an application for writ of habeas corpus.

See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005). Cross claimed that the

trial court lacked authority to rescind its order granting a new trial because it did

so after its plenary power had expired, more than seventy-five days after it had

placed Cross on community supervision. See Tex. R. App. P. 21.8(a) (“The court

must rule on a motion for new trial within 75 days after imposing or suspending

sentence in open court.”). The trial court denied Cross’s application for a writ of

habeas corpus by written order and adopted the State’s amended proposed

memorandum, findings of fact, and conclusions of law. Cross now appeals the

denial of his application for a writ of habeas corpus. See Tex. Code Crim. Proc.

Ann. art. 11.072, § 8; Tex. R. App. P. 31.1–.7.

Within seventy-five days following imposing or suspending sentence in

open court, an order granting a motion for new trial can be freely revisited and

set aside, but after the seventy-five-day period has expired, an order granting a

motion for new trial can be set aside only if it was inadvertently signed as a result

of clerical error. Stepan v. State, 244 S.W.3d 642, 643–46 (Tex. App.—Austin 2 The trial court also stated on the record that Cross was first notified of the court’s rescindment of its order granting a new trial on the day of the hearing, October 5, 2011.

2 2008, no pet.); see Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim.

App. 1998). A clerical error does not result from judicial reasoning. Alvarez v.

State, 605 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1980); see also English

v. State, 592 S.W.2d 949, 955–56 (Tex. Crim. App.) (reasoning that trial court’s

grant of a motion for new trial when it was not aware that it was doing so was

akin to clerical error), cert. denied, 449 U.S. 891 (1980).

Here, because the trial court rescinded its order granting a new trial

outside of the seventy-five-day timeframe, it could only do so to correct a clerical

error. See Awadelkariem, 974 S.W.2d at 728; Stepan, 244 S.W.3d at 643–46.

The record on appeal originally did not reflect whether the trial court’s granting

Cross a new trial was based on a clerical or a judicial error, so we abated this

case and remanded to the trial court for additional findings and conclusions.3

After an abatement hearing, the trial court adopted the parties’ joint proposed

findings of fact, which show the following. After Cross was convicted of driving

while intoxicated, his attorney presented his motion for new trial to the presiding

judge who was not familiar with the case because a visiting judge had presided

over Cross’s trial. The presiding judge “thought that Cross’s case was a case

where he pled guilty and received probation”; in the presiding judge’s experience,

“sometimes defendants who have pled guilty and received probation change their 3 The findings and conclusions that the trial court adopted when it denied Cross’s application for a writ of habeas corpus state that the court granted a new trial “based on a misunderstanding from the applicant’s counsel”; they do not state what that “misunderstanding” was or otherwise give insight into the trial court’s reason for setting aside the order granting new trial.

3 mind and decide instead to serve jail time,” in which case, motions for new trial

are “routinely granted with a notation to re-plead the case for jail time.” The

presiding judge decided to grant the motion for new trial “in the late afternoon

rush with multiple people in chambers”; she “does not remember if [Cross’s

attorney] stated the reason Cross wanted a new trial.” The judge’s decision to

sign the order granting Cross a new trial was based on a miscommunication

between her and Cross’s attorney; she was aware that she was granting a new

trial and made a conscious decision to do so.

These findings show that the trial judge’s granting Cross a new trial was

not the result of a clerical error; she decided to grant a new trial, upon defense

counsel’s request, because she thought Cross no longer wanted community

supervision. But because the trial court rescinded its order granting a new trial

more than seventy-five days after placing Cross on community supervision, the

trial court did not have the power to do so.4 See Awadelkariem, 974 S.W.2d at

728; Stepan, 244 S.W.3d at 643–46; see also Tex. R. App. P. 21.8(a). We

reverse the trial court’s August 10, 2012 judgment denying Cross’s application for

a writ of habeas corpus and remand the case for a new trial or further 4 The clerk’s record does not contain a written order setting aside the order granting a new trial, but the docket sheet includes the following entries: on August 10, 2011, “Order for New Trial set aside. Case set for a hearing”; and on October 6, 2011, “Order to vacate Judgment rescinded. Original sentencing stands.” In our abatement order, we questioned whether a written order was required to rescind the order granting a new trial, see Tex. R. App. P. 21.8(b) (requiring a written order to grant a motion for new trial; a docket entry does not suffice), but because we decide that the trial court lacked the power to do so in any event, we need not address this issue.

4 proceedings consistent with this memorandum opinion. See Tex. R. App. P.

31.3.

PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: February 28, 2013