Mason Scott Black v. State

• Court: Court of Appeals of Texas
• Decided: November 13, 2013
• Docket: 09-13-00230-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ___________________

NO. 09-13-00230-CR NO. 09-13-00231-CR ___________________

MASON SCOTT BLACK, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 12-14164 and 12-14166 __________________________________________________________________

MEMORANDUM OPINION

Pursuant to plea bargain agreements, appellant Mason Scott Black pleaded

guilty to two charges of deadly conduct. In both cases, the trial court found the

evidence sufficient to find Black guilty, but deferred further proceedings, placed

Black on community supervision for three years, and assessed a fine of $500. The

State subsequently filed a motion to revoke Black’s unadjudicated community

supervision in both cases. Black pleaded “true” to one violation of the conditions

1 of his community supervision in each case. In both cases, the trial court found that

Black had violated the conditions of his community supervision, found Black

guilty of deadly conduct, assessed punishment at eight years of confinement,

ordered that the sentences would run concurrently, and signed judgments

adjudicating guilt and pronouncing sentence on May 6, 2013.

Black’s appellate counsel filed a brief in both cases that presents counsel’s

professional evaluation of the records and concludes the appeals are frivolous. See

Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.

Crim. App. 1978). On June 13, 2013, we granted an extension of time for

appellant to file a pro se brief in each case. We received no pro se response to the

Anders brief from Black.

On September 26, 2013, after these appeals were submitted to this Court,

Black filed a motion to dismiss the appeals, in which he asserted that the trial court

had granted his motion for new trial in both cases. The trial court’s orders granting

new trial and vacating its judgment and sentence in both cases have been filed with

this Court in supplemental clerk’s records. On August 5, 2013, in both cases, the

trial judge signed orders in which the trial judge purported to vacate its prior

judgments and sentences, grant Black’s motions for new trial, and reinstate Black’s

community supervision. On October 21, 2013, Black filed motions to withdraw his

2 motions to dismiss, in which he asserted that dismissal of the appeals would “not

serve [Black’s] best legal interests[,]” and that dismissal “will have an adverse

[e]ffect upon the Appellant’s legal rights and will actually harm those rights.”

Texas Rule of Appellate Procedure 21.8 “allocates seventy-five days

following the imposition of the sentence in open court for the trial court to rule on

the motion [for new trial]; if the motion is not timely ruled on within that period,

the authority to grant the motion expires, and the motion is deemed denied by

operation of law.” State v. Holloway, 360 S.W.3d 480, 485 (Tex. Crim. App.

2012); see also Tex. R. App. P. 21.8(a), (c). The Court of Criminal Appeals has

explicitly held that Texas Rule of Civil Procedure 329b(e), which provides trial

courts with an additional thirty days of plenary power after the seventy-five-day

period has expired and a motion for new trial has been overruled by operation of

law, does not apply to criminal cases. State ex rel. Cobb v. Godfrey, 739 S.W.2d

47, 49 (Tex. Crim. App. 1987); see also Tex. R. Civ. P. 329b(e).

As previously discussed, the trial judge signed the orders adjudicating

Black’s guilt and imposing sentence on May 6, 2013; therefore, the trial judge’s

plenary power expired on July 22, 2013, seventy-five days from the date he signed

these orders. See Tex. R. App. P. 21.8(a); see also Tex. R. App. P. 4.1(a) (If the

last day of a time period falls on a Saturday, Sunday, or legal holiday, the period

3 extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.).

The trial judge signed its orders purporting to grant Black’s motion for new trial on

August 5, 2013. Because the trial judge in the cases at bar did not sign a written

order granting Black’s motion for new trial within seventy-five days after sentence

was imposed, the motions for new trial were overruled by operation of law. See

Tex. R. App. P. 21.8(a), (c); see also Holloway, 360 S.W.3d at 485.

Where the time in which to rule upon a motion for new trial has expired and the defendant’s motion for new trial has been overruled by operation of law, the trial court lacks authority to subsequently grant a new trial. Any action on the motion by the trial court after this time expired is a nullity.

Bacey v. State, 990 S.W.2d 319, 336 (Tex. App.—Texarkana 1999, pet. ref’d); see

also Meek v. State, 628 S.W.2d 543, 547 (Tex. App.—Fort Worth 1982, pet. ref’d).

Accordingly, the trial court’s orders of August 5, 2013, are nullities, and the

operative judgments are the trial court’s aforementioned judgments of May 6,

2013, which adjudicated Black guilty and imposed sentences of eight years of

confinement. See Holloway, 360 S.W.3d at 485; Meek, 628 S.W.2d at 547; see also

Tex. R. App. P. 21.8(a), (c).

We have reviewed the appellate records, and we agree with counsel’s

conclusion that no arguable issues support these appeals. Therefore, we find it

unnecessary to order appointment of new counsel to re-brief the appeals. Compare

4 Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). However, we note

in both cases, that page two of the judgment references a fine, but page one does

not. The State filed a letter in which it conceded that the judgments arguably

contained a fine which had not been orally pronounced, and the State filed a

motion for entry of judgment nunc pro tunc with the trial court in both cases.

However, the trial court did not act on the State’s motions.

This Court has the authority to modify the trial court’s judgments to correct

a clerical error. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993).

Therefore, we delete the following language from page two of the judgments: “The

Court ORDERS Defendant punished as indicated above. The Court ORDERS

Defendant to pay all fines, court costs, and restitution as indicated above.” We

substitute the following language in its place: “The Court ORDERS Defendant

punished as indicated on page 1. The Court ORDERS Defendant to pay court costs

and restitution as indicated on page 1.” We affirm the trial court’s judgments as

modified. 1

1 Appellant may challenge our decision in these cases by filing a petition for discretionary review. See Tex. R. App. P. 68. 5 AFFIRMED AS MODIFIED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on September 16, 2013 Opinion Delivered November 13, 2013 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.