By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Cannot challenge adjudication by motion for
new trial filed after transfer to TDCJ under determinate sentence act (99-4-34)
On November 24, 1999, the Fort Worth Court of Appeals held that a motion for
new trial cannot challenge the lawfulness of the original adjudicaton when the
motion is not filed until after the transfer/release hearing under the
determinate sentence act.
99-4-34. In the Matter of R.V., ___ S.W.2d ____, No. 2-98-385-CV, 1999 WL
1063051, 1999 Tex.App.Lexis ___ (Tex.App.—Fort Worth 11/24/99)[Texas Juvenile
Law 357 (4th Edition 1996)].
Facts: A jury convicted appellant of capital murder, and on November 7, 1995 the
juvenile court committed him to the Texas Youth Commission for 30 years. On
direct appeal, we affirmed the juvenile court's judgment. See In re R.V., Jr.,
No. 2-96-065-CV (Tex.App.--Fort Worth May 22, 1997, writ denied) (not designated
for publication). At appellant's subsequent transfer hearing that concluded on
November 11, 1998, appellant was transferred to the Institutional Division of
the Texas Department of Criminal Justice for the remainder of his sentence.
Appellant then filed another motion for new trial based upon newly
"available" or newly "discovered" evidence after the
transfer hearing. The trial court denied his motion as untimely. Appellant
appeals the trial court's denial of his motion for new trial claiming it was
timely because it was filed within one day of the trial court's ruling.
He also challenges the trial court's rulings on jury instructions and the
State's jury arguments as well as the failure to read the indictment and the
denial of his right to plead "not guilty" before the jury.
Held: Affirmed.
Opinion Text: The decision to grant or deny a motion for new trial is left to
the sound discretion of the trial court and in the absence of abuse of
discretion an appellate court should not reverse. See Lewis v. State, 911 S.W.2d
1, 7 (Tex.Crim.App.1995); State v. Gonzales, 855 S.W.2d 692, 696
(Tex.Crim.App.1993). Additionally, motions for new trial based on newly
discovered evidence are not favored by the courts and are viewed with great
caution. See Drew v. State, 743 S.W.2d 207, 225 (Tex.Crim.App.1987).
Newly Discovered Evidence
In issue four appellant challenges the trial court's denial of his motion for
new trial asserting that it was a timely filed motion authorized under Section
40.001 of the Code of Criminal Procedure. According to article 40.001 of the
Code of Criminal Procedure, a motion for new trial may be filed upon the
discovery of new and material evidence. See TEX.CRIM. PROC. ANN. art. 40.001
(Vernon Supp.1999). Rule 40.001 itself contains no time constraints. But
according to Rule 21.4(a), a motion for new trial must be filed within 30 days
of imposition of sentence. See Tex.R.App. P. 21.4(a). A trial court lacks
jurisdiction outside the thirty day deadline. See Drew, 743 S.W.2d at 222-23.
Appellant argues that the recent availability of co-defendant Ellex Arevalo's
perhaps favorable testimony falls within the definition of newly discovered
evidence because it is only now newly available evidence. Arevalo originally
refused to testify at appellant's trial but is now available because Arevalo has
since been convicted and has no further right to assert his privilege against
self-incrimination.
In his other arguments, appellant assumes rule 21.4(a) applies. He does not,
however, address its application to rule 40.001, yet he asks us to hold there is
no time limit to a motion under rule 40.001. This we decline to do. Because we
believe rule 21.4(a) applies to a rule 40.001 motion for new trial, whether we
classify Arevalo's testimony as newly discovered within Article 40.001 is
irrelevant because this particular testimony would relate only to his
adjudication not his release/transfer hearing. Accordingly, such a motion would
have to have been brought within thirty days of sentencing or by a
post-conviction writ. Thus, the trial court properly dismissed this aspect of
appellant's motion for new trial as untimely. We overrule issue four.
Motion for New Trial
In issues one through three, appellant contends that the confession and
testimony of co-defendant Arevalo is now available and therefore justifies a new
trial. Arevalo's confession and testimony, that were admitted at appellant's
transfer hearing, are somewhat exculpatory to appellant because they tend to
show that the offense (murder) might not have been committed in furtherance of
the conspiracy (robbery).
Here, appellant and the State agree that a motion for new trial is governed by
rule 21.4(a) of the Texas Rules of Appellate Procedure. See Tex.R.App. P.
21.4(a). Appellant argues that sentence is not imposed until the transfer order
committing him to the custody of the Institutional Division of Texas Department
of Criminal Justice is signed. The State argues because appellant's sentence was
imposed at the original disposition hearing in 1995, it is now too late for him
to file a motion for new trial, i.e., there is no right to file a motion for new
trial after a transfer hearing once a juvenile turns eighteen. This, the State
argues, would leave the trial court with only one alternative: to dismiss any
motion for new trial filed after any transfer hearing as being untimely. We do
not read Rule 21.4 so narrowly.
Under the State's interpretation, nothing that takes place at a juvenile's
transfer hearing would ever be subject to review by the trial court by a motion
for new trial. The supreme court's decision in In re M.A.F. does not require
this result. In re M.A.F., 966 S.W.2d 448, 449-50 (Tex.1998). There, the supreme
court addressed the applicability of former appellate Rule 30(b), now Rule
21.3(f), that allowed a new trial if a jury received additional evidence after
retiring to deliberate. The Family Code mandates that juvenile proceedings, that
are technically civil, are to be governed generally by the Texas Rules of Civil
Procedure but that the Criminal Rules of Evidence and Chapter 38 of the Code of
Criminal Procedure should alo apply. See Tex. Fam.Code Ann. § 51.17(a) (Vernon
1996). The court was faced with determining whether an appellate criminal rule
like former Rule 30(b), that specified the circumstances that mandate a motion
for new trial as a prerequisite for appeal should apply in a juvenile case. The
court held that because former Rule 30(b), now 21.3(f), was more in the nature
of a rule of evidence relating to a criminal proceeding, it should apply. See In
re M.A.F., 966 S.W.2d at 450. It did not hold that former Rule 31(a)(1) that
contains the thirty day rule, now 21.4, also controlled a juvenile case such
that there is never a right to file a motion for new trial after a
transfer/release hearing. See id.
Thus, while we agree with the state that "sentencing" does not
magically reoccur at the release/transfer hearing, we believe that a juvenile
has a right to file a motion for new trial requesting only a new
release/transfer hearing within thirty days of that hearing. Appellant's motion
after his release/transfer hearing should have been limited to the sole issue
before the court then: whether appellant was to be released or incarcerated.
Therefore, any attempt to attack his original adjudication or disposition is
barred due to lack of jurisdiction. See Drew, 743 S.W.2d at 224. We overrule
issue one to the extent it claims sentence was imposed at the conclusion of the
transfer/release hearing and affirm the trial court's dismissal of appellant's
motion for new trial on that basis. Because we have determined that sentence is
imposed when the original adjudication took place, we also overrule appellant's
constitutional challenges to the trial court's denial of his motion for new
trial set forth in issues two and three. Because, issues five through nine all
raise challenges to appellant's original adjudication and because the trial
court correctly dismissed as untimely appellant's motion for new trial on these
grounds, we overrule issues five through nine.
Conclusion
Because appellant's motion for new trial was filed after the transfer hearing
and solely attacked the initial adjudication determination, the trial court
correctly dismissed the motion as untimely filed. We therefore affirm the
judgment of the trial court.