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”).
Free access — add to your briefcase to read the full text and ask questions with AI
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”). The Texas Court of Criminal Appeals has expressly declined to apply Rule
329b(e) in criminal cases. See Godfrey, 739 S.W.2d at 49. Accordingly, “[a]fter a motion
for new trial in a criminal case is overruled, the [trial] court does not have an
additional thirty-day period of plenary power to act on the motion.” State v. Zavala,
28 S.W.3d 658, 659 (Tex. App.—Corpus Christi–Edinburg 2000, pet. ref’d) (citing
Godfrey, 739 S.W.2d at 49). The trial court’s plenary power to act on Collier’s new-trial
motion thus expired when the motion was deemed denied on April 25, 2023. See Tex.
R. App. P. 21.8; Godfrey, 739 S.W.2d at 49; Zavala, 28 S.W.3d at 659.
Collier asks us to use Rule of Appellate Procedure 2 to suspend Rule 21.8,
arguing that there is good cause to do so because he had relied on the trial court to
timely rule on his timely filed new-trial motion and because at the May 4 hearing, both
the State and the trial court expressed their belief that the trial court still had plenary
power to grant Collier a new trial. Rule 2 allows us to “suspend a rule’s operation in a
particular case and order a different procedure” in order “to expedite a decision or for
other good cause.” Tex. R. App. P. 2. But we cannot use Rule 2 to suspend Rule
21.8 so that a trial court’s untimely granting a new trial becomes valid retroactively. See
Garza, 931 S.W.2d at 563–64; Godfrey, 739 S.W.2d at 49; Campbell v. State, 77 S.W.3d
918, 920–21 (Tex. App.—Amarillo 2002, order) (per curiam), disp. on merits,
139 S.W.3d 676 (Tex. App.—Amarillo 2003, pet. ref’d); Zavala, 28 S.W.3d at 659.2
2 Rule 2 was changed in 1997, so cases decided before the rule’s September 1, 1997 effective date rely on the rule’s former version, which was substantially the same
6 In short, because the trial court had not ruled on Collier’s timely filed new-trial
motion within 75 days after suspending Collier’s sentence in open court, the motion
was deemed denied on April 25, 2023, and the trial court thus lacked authority to
grant it on May 4, 2023. See Tex. R. App. P. 21.8. The trial court’s new-trial order is
therefore a nullity. We sustain the State’s first point.
IV. Conclusion
Having sustained the State’s first point, we reverse the trial court’s new-trial
order and reinstate the trial court’s “Judgment of Community Supervision.”
/s/ Elizabeth Kerr Elizabeth Kerr Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: November 9, 2023
as the current version. See Tex. R. App. P. 2 cmt. (“Former subdivision (a) regarding appellate court jurisdiction is deleted. The power to suspend rules is extended to civil cases. Other nonsubstantive changes are made.”); see also Campbell, 77 S.W.3d at 921 & n.2 (quoting Garza, which held that “Rule 2(b) does not authorize the retroactive suspension of rules governing events that have already occurred at the trial level before the record has been conveyed to the appellate court,” 931 S.W.2d at 563, and explaining that “[t]he previous Rule 2(b) is substantially the same as Rule 2”).