The State of Texas v. Frederick LLoyd Collier

Court of Appeals of Texas·Decided November 9, 2023·No. 02-23-00121-CR·Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-23-00121-CR ___________________________

THE STATE OF TEXAS

V.

FREDERICK LLOYD COLLIER, APPELLEE

On Appeal from County Criminal Court No. 5 Denton County, Texas Trial Court No. CR-2021-04257-E

Before Kerr, Birdwell, and Womack, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

A jury found Appellee Frederick Lloyd Collier guilty of misdemeanor indecent

assault, and the trial court assessed his punishment at 365 days in jail, suspended for

24 months. See Tex. Penal Code Ann. § 22.012(a)(1), (b). Collier timely moved for a

new trial, which the trial court granted 84 days after it had sentenced him. The State

has appealed and raises two points: (1) the trial court could not grant Collier’s new-

trial motion more than 75 days after it had suspended Collier’s sentence and (2) the

trial court abused its discretion by granting Collier a new trial based on a Brady

violation. Because the trial court lacked authority to grant Collier a new trial, we will

reverse the trial court’s order granting his new-trial motion and reinstate the trial

court’s judgment.

I. Procedural Background

The trial court suspended Collier’s sentence in open court on February 9, 2023.

Collier timely moved for a new trial on February 23, 2023. See Tex. R. App. P. 21.4(a).

The trial court heard Collier’s new-trial motion on March 22, 2023. At the hearing’s

conclusion, the trial-court judge asked the parties for additional briefing and did not

rule on the motion.

Because the trial court did not rule on the new-trial motion by written order

within 75 days after it had suspended Collier’s sentence, the motion was deemed

denied on April 25, 2023. See Tex. R. App. P. 21.8. On May 4, 2023, the trial court

held a second hearing on Collier’s new-trial motion. Later that same day, the trial

2 court signed a written order granting the motion “based on a violation of Brady v.

Maryland.” Soon after, the State moved to vacate the new-trial order, arguing that

(1) the trial court lacked jurisdiction to grant Collier’s new-trial motion because its

plenary power had expired and (2) the State did not commit a Brady violation. The

trial court did not rule on the State’s motion.

The State timely appealed from the trial court’s new-trial order. See Tex. Code

Crim. Proc. Ann. art. 44.01(a)(3); Tex. R. App. P. 26.2(b). Because the State’s first

point—whether the trial court had authority to grant Collier’s new-trial motion—is

dispositive, we address it and do not address the State’s second point, which

challenges the merits of Collier’s new-trial motion. See Tex. R. App. P. 47.1.

II. Applicable Law

Texas Rule of Appellate Procedure 21.8 requires a trial court to rule on a new-

trial motion within 75 days after imposing or suspending sentence in open court. Tex.

R. App. P. 21.8(a). If the trial court does not rule on the motion by written order

before the 75-day period expires, the motion is deemed denied. Tex. R. App. P.

21.8(c); see State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987).1

When the time in which to rule on a new-trial motion has expired and the new-

trial motion has thus been deemed denied, the trial court lacks authority to grant a

Godfrey and other cases decided before Rule 21.8’s September 1, 1997 effective 1

date discuss former Rule 31(e), which was substantially similar to current Rule 21.8. Compare Godfrey, 739 S.W.2d at 48–49 (quoting former Rule 31(e)(1), (3)), with Tex. R. App. P. 21.8(a), (c).

3 new trial. See Godfrey, 739 S.W.2d at 49; see also Parks v. State, Nos. 02-15-00419-CR, 02-

15-00420-CR, 2017 WL 444378, at *3 (Tex. App.—Fort Worth Feb. 2, 2017, pet.

ref’d) (mem. op., not designated for publication) (citing Godfrey, 739 S.W.2d at 49).

Simply put, a trial court cannot grant a new trial more than 75 days after sentencing.

See Godfrey, 739 S.W.2d at 49; see also State v. Garza, 931 S.W.2d 560, 562 (Tex. Crim.

App. 1996) (“[O]nce a motion for new trial is overruled by operation of law, the trial

court loses jurisdiction to rule upon it.”). Any action on a new-trial motion after that

time expires is a nullity. Godfrey, 739 S.W.2d at 49; see Smith v. State, 559 S.W.3d 527,

533 (Tex. Crim. App. 2018) (“A trial judge has no authority to issue a new judgment

and sentence some five months after adjudication.”); State v. Bates, 889 S.W.2d 306,

310 (Tex. Crim. App. 1994) (concluding that trial court’s new-trial order entered more

than 75 days after judgment was void).

III. Analysis

Here, the trial court signed the order granting Collier’s new-trial motion on

May 4, 2023—84 days after it had suspended Collier’s sentence. The State argues that

because more than 75 days had elapsed since sentencing and Collier’s motion had

thus been deemed denied, the trial court had no authority to grant Collier’s motion,

and the trial court’s new-trial order was thus a nullity. We agree. See, e.g., Godfrey,

739 S.W.2d at 49; see also Maxey v. State, Nos. 05-21-00353-CR, 05-21-00354-CR, 05-

21-00355-CR, 2022 WL 2255720, at *4 (Tex. App.—Dallas June 23, 2022, no pet.)

(mem. op., not designated for publication) (“Here, Mr. Maxey’s December 4,

4 2017 motion for new trial in cause no. F17-75257-M was filed and granted more than

four and one-half months after the trial court’s July 10, 2017 adjudication and

sentencing in that case. Thus, the granting of his motion for new trial and the

subsequent proceedings and judgments in that case were nullities.”).

Collier counters that the trial court still had plenary power on May 4, 2023, to

grant his new-trial motion. Relying on Texas Rule of Civil Procedure 329b(e), he

asserts that the trial court did not lose plenary power until 30 days after the new-trial

motion was overruled by operation of law. See Tex. R. Civ. P. 329b(e) (extending a

trial court’s plenary power over a judgment for 30 days after a timely filed new-trial

motion is overruled “either by written and signed order or by operation of law,

whichever occurs first”). He thus reasons that the trial court retained its plenary

power until May 25, 2023, making the trial court’s May 4, 2023 new-trial order valid.

We disagree.

The rules regarding new-trial motions in civil cases do not apply to criminal

cases:

There are civil rules (located in the Rules of Civil Procedure) that guide the pursuit of motions for new trials in civil cases, and there are criminal rules (located in the Rules of Appellate Procedure) that guide the pursuit of motions for new trial in criminal cases. The language of these different sets of rules is different, and the proper construction of the different rules requires recognizing distinctions.

Rubio v. State, 638 S.W.3d 693, 703 (Tex. Crim. App. 2022); see Tex. R. Civ. P.

2 (stating that the Texas Rules of Civil Procedure govern “all actions of a civil

5 nature”).

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Related

State v. Bates
889 S.W.2d 306 (Court of Criminal Appeals of Texas, 1994)
State v. Garza
931 S.W.2d 560 (Court of Criminal Appeals of Texas, 1996)
Campbell v. State
139 S.W.3d 676 (Court of Appeals of Texas, 2004)
State Ex Rel. Cobb v. Godfrey
739 S.W.2d 47 (Court of Criminal Appeals of Texas, 1987)
Jonathan Campbell v. State
77 S.W.3d 918 (Court of Appeals of Texas, 2002)
State v. Gustavo Zavala
28 S.W.3d 658 (Court of Appeals of Texas, 2000)
Smith, Fernando
559 S.W.3d 527 (Court of Criminal Appeals of Texas, 2018)