PD-1406-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
March 11, 2015 Transmitted 3/11/2015 3:00:23 PM
ORAL ARGUMENT REQUESTED
Accepted 3/11/2015 3:03:49 PM
ABEL ACOSTA
PD-1406-14 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
______________________
JOSE RAMIRO DELAROSA,
Appellant
VS.
THE STATE OF TEXAS
Appellee
______________________
REVIEW OF THE DECISION OF THE COURT OF APPEALS, FIFTH
DISTRICT IN OPINION NO. 05-14-01020-CR, APPEALED IN CAUSE NO.
F14-52888-T FROM THE 283RD JUDICIAL DISTRICT COURT
OF DALLAS COUNTY
______________________
APPELLANT’S BRIEF REGARDING JURISDICTION OF THE TRIAL
COURT TO ENTER A NEW JUDGMENT IN
CAUSE NO. F14-52888-CR
AS ORDERED BY THE COURT OF CRIMINAL APPEALS ON
FEBRUARY 25, 2015
_____________________
LESLIE MCFARLANE
State Bar No. 13603500
7522 Campbell Rd. Ste.113-216
Dallas, TX 75248-1726
lwmcfarlane@gmail.com
ATTORNEY FOR APPELLANT
IDENTITY OF ALL PARTIES
As this is an appeal from a criminal conviction, the only parties are:
Respondent/Appellant: Jose Ramiro Delarosa
Attorney of record on appeal: Leslie McFarlane, 7522 Campbell Rd, Suite
113-216, Dallas, Texas, 75248-1726
Petitioner/Appellee: Dallas County District Attorney, Susan Hawk, 133 N.
Riverside Blvd. LB#19, Dallas, Texas 75207
Michael R. Casillas, Assistant District Attorney, 133 N. Riverside
Blvd. LB#19, Dallas, Texas 75207
i
TABLE OF CONTENTS
IDENTITY OF PARTIES…………………………………………….. i
INDEX OF AUTHORITIES …………………………………………. iii
STATEMENT REGARDING ORAL ARGUMENT ……………….. 2
STATEMENT OF THE CASE ……………………………………… 2
STATEMENT OF PROCEDURAL HISTORY ……………………. 3
GROUNDS FOR REVIEW ……………………..………………….. 4
1. The trial court had jurisdiction to take this case to trial on
December 17, 2014 because the granting of the new trial on
August 6, 2014 returned the case to its position before the
jury trial. The failure of the State to appeal the ruling on the
motion for new trial deprived the Court of Appeals of
jurisdiction in this matter.
2. When the trial court granted the motion for new trial in this
case, the previously filed notice of appeal became a
premature motion that cannot deprive the trial court of
jurisdiction or grant jurisdiction to the Court of Appeals.
3. The failure of the State to file a notice of appeal within 20
days of the granting of the motion for new trial deprived the
Court of Appeals of jurisdiction. The trial court retained
jurisdiction in the matter as soon as the motion for new trial
was granted.
ARGUMENT …………………………………………………………. 5
PRAYER FOR RELIEF ……………………………………………… 12
CERTIFICATE OF SERVICE ………………………………………. 13
CERTIFICATE OF COMPLIANCE …………………………………. 13
ii
INDEX OF AUTHORITIES
CASES:
Hall v. State
698 S.W.2d 150 (Tex. Crim. App. 1985) ……………………. 7
McIntire v. State
698 S.W.2d 652 (Tex. Crim. App. 1985) …………………… 7
Olivo v. State
918 S.W.2d 519 (Tex. Crim. App. 1996) …………………….. 7,11
State v. Bates
889 S.W.2d 306 (Tex. Crim. App. 1994) …………………….. 8,9
State v. Gonzales
855 S.W.2d 692 (Tex. Crim. App. 1993) …………………….. 7
State v. Gutierrez
143 S.W.3d 829 (Tex. App. - Corpus Christi, 2004) ………... 7
Waller v. State
931 S.W.2d 640 (Tex. App. – Dallas, 1996) …………………….. 8,9
CODES:
TEXAS CODE OF CRIMINAL PROCEDURE
Article 44.01 (a) (3) …………………………………………… 8
iii
RULES:
TEXAS RULES OF APPELLATE PROCEDURE
Rule 21.1 ………………………………………………………. 8
Rule 21.9 (b) ………………………………………………… 9,10,11
Rule 26.2 (a) ………………………………………………… 6,8
Rule 26.2 (b) ………………………………………………… 7
Rule 27.1 (b) ………………………………………………… 9
iv
PD-1406-14
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
______________________
JOSE RAMIRO DELAROSA,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
______________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The appellant, Jose Ramiro Delarosa, respectfully submits this
brief in the above styled and numbered cause by his appointed counsel of
record, Leslie McFarlane. This brief was ordered by the Court of Criminal
Appeals on February 25, 2015 to determine if the trial court had jurisdiction
to act after the Court of Appeals dismissed the appeal and the State filed a
petition for discretionary review.
1
STATEMENT REGARDING ORAL ARGUMENT
Should the court deem oral argument necessary, the appellant
requests oral argument in this matter to reinforce the fact that once the trial
court granted the motion for new trial in this matter the court retained
jurisdiction to take the case to trial on December 17, 2014, after the State
filed a petition for discretionary review. The failure of the State to appeal
the granting of the motion for new trial deprived the Court of Appeals of
jurisdiction in this matter and allowed the trial court to retain jurisdiction in
this matter.
STATEMENT OF THE CASE
The appellant was indicted on March 31, 2014 for the offense of
unauthorized use of a motor vehicle. The trial began on July 8, 2014 with a
plea of not guilty before the jury. On July 9, 2014 the appellant was found
guilty by the jury and sentenced to 18 months confinement and a $1000
fine.
2
STATEMENT OF PROCEDURAL HISTORY
On July 8, 2014 the appellant entered a not guilty plea before
the jury to the charge of unauthorized use of a motor vehicle. The jury
found him guilty on July 9, 2014. On July 9, 2014 the trial court entered the
Trial Court’s Certification of the Defendant’s Right to Appeal. On August 1,
2014 the appellant filed a pro se notice of appeal. On August 5, 2014 the
undersigned counsel was appointed to represent the appellant on appeal.
A Motion for New Trial was filed and granted on August 6, 2014. The
appellant filed a Motion to Dismiss the Appeal in the Court of Appeals on
September 22, 2014. On that same date the Assistant District Attorney filed
a Motion to Abate the Appeal. On September 24, 2014 the appellant filed a
Response to the Motion to Abate. On October 2, 2014 the Court of Appeals
granted the Motion to Dismiss the appeal for lack of jurisdiction. The State
filed a Petition for Discretionary Review on October 17, 2014. The trial
court heard the case on December 17, 2014. The Court of Criminal
Appeals granted the petition for discretionary review on January 28, 2015
and ordered briefs prepared in the matter. The State filed its brief on
February 17, 2015. The appellant’s brief is due on March 19, 2015. On
February 25, 2015 the Court of Criminal Appeals ordered additional briefs
3
filed on the question of the jurisdiction of the trial court to act after the State
filed a petition for discretionary review. This brief is filed in response to that
order and is due on March 12, 2015.
GROUNDS FOR REVIEW
1. The trial court had jurisdiction to try this case on
December 17, 2014 because the granting of the new trial on
August 6, 2014 returned the case to its position before the
jury trial. The failure of the State to appeal the ruling on the
motion for new trial deprived the Court of Appeals jurisdiction
in this matter.
2. When the trial court granted the motion for new trial in this
case, the previously filed notice of appeal became a
premature motion that cannot deprive the trial court of
jurisdiction or grant jurisdiction to the Court of Appeals.
3. The failure of the State to file a notice of appeal within 20
days of the granting of the motion for new trial deprived the
4
Court of Appeals of jurisdiction. The trial court retained
jurisdiction in the matter as soon as the motion for new trial
was granted.
APPELLANT’S ARGUMENT REGARDING THE TRIAL COURT’S
JURISDICTION AFTER THE STATE FILED A PETITION FOR
DISCRETIONARY REVIEW.
Analysis for Grounds One, Two and Three
The question before the Court of Criminal Appeals concerns the
jurisdiction of a trial court to exercise jurisdiction in a criminal case after a
motion for new trial is granted without an appeal by the State on the issue
of granting a new trial. When the Court of Appeals dismissed the appeal for
lack of jurisdiction, the State filed a petition for discretionary review, which
was subsequently granted by the Court of Criminal Appeals. Specifically,
this court now wants to know if the trial court had jurisdiction to act after the
State filed a petition for discretionary review. It is the position of the
appellant that both the statutory law and case law provided the trial court
5
with the jurisdiction to act once the motion for new trial was granted and the
State did not file an appeal on that ruling.
A brief summary of the relevant dates regarding this case is
helpful in understanding the application of the appellate rules and case law:
July 8 - 9, 2014 Jury trial on a not guilty plea
July 9, 2014 Sentence imposed
July 24, 2014 Notice of Appeal mailed to trial court
August 1, 2014 Notice of Appeal received in court
August 5, 2014 Counsel appointed on appeal
August 6, 2014 Motion for New Trial filed and granted
September 22, 2014 Motion to Dismiss Appeal filed in Court of
Appeals
October 2, 2014 Motion to Dismiss appeal granted
October 16, 2014 State files Petition for Discretionary Review
December 17, 2014 Re-trial held in original case
January 28, 2015 State’s Petition for Discretionary Review
granted
February 6, 2015 Appellant’s Motion to Dismiss the State’s
Petition for Discretionary Review for Lack of a
Justiciable Issue
February 25, 2015 Order to submit brief on jurisdictional issue
Jurisdiction is invoked in the Court of Appeals in a criminal case
when the defendant files a notice of appeal within 30 days after the
sentence is imposed. Tex. R. App. P. 26.2 (a) 1. The State must file a notice
of appeal within 20 days of the court entering of an appealable order, ruling
1
26.2 Criminal Cases.
(a) By the Defendant. --The notice of appeal must be filed:
(1) within 30 days after the day sentence is imposed or suspended
in open court, or after the day the trial court enters an appealable order; or
(2) within 90 days after the sentence is imposed or suspended in
open court if the defendant timely files a motion for new trial.
6
or sentence to invoke jurisdiction in the Court of Appeals. Tex. R. App. P.
26.2 (b) 2 . “The Rules of Appellate Procedure do not establish courts of
appeals’ jurisdiction; they provide procedures which must be followed by
litigants to invoke the jurisdiction of the courts of appeals so a particular
appeal may be heard.” Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim.
App. 1996).
It is undisputed that the appellant filed a notice of appeal in this
case on August 1, 2014. With the timely filing of the notice of appeal the
appellant invoked the jurisdiction of the Court of Appeals. However, the trial
court retains the jurisdiction to rule on a timely filed motion for new trial.
Hall v. State, 698 S.W.2d 150 (Tex. Crim. App. 1985), State v. Gutierrez,
143 S.W.3d 829 (Tex. App. - Corpus Christi, 2004). The right to file and
have heard a motion for new trial is absolute provided it is asserted within
the statutory timelines. McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim.
App. 1985). It is undisputed that the motion for new trial was timely filed in
this case on August 6, 2014. The court granted the motion on that same
date. Clearly the trial court was had jurisdiction to grant the motion for new
trial. State v. Gonzales, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).
2
26.2 (b) By the State. --The notice of appeal must be filed within 20 days after the
day the trial court enters the order, ruling, or sentence to be appealed.
7
Once the trial court granted the motion for new trial on August
6, 2014 the verdict was set aside the case was returned to the position
before the trial. Tex. R. App. P. 21.13. State v. Bates, 889 S.W.2d 306, 311
(Tex. Crim. App. 1994); Waller v. State, 931 S.W.2d 640, 643-644 (Tex.
App. Dallas, 1996).
When the motion for new trial was granted, the State had the
right to appeal that ruling within 20 days of granting the motion. Tex. R.
App. P. 26.2 (b) 4 and Tex. Code Crim. Proc. art 44.01 (a) (3) 5 . It is
undisputed that no appeal was filed by the State in this case. Had a timely
appeal been filed by the State, the Court of Appeals would have had
jurisdiction in the matter regarding the granting of the motion for new trial.
However, absent an appeal by the State, the Court of Appeals dismissed
the appeal as there was no conviction pending so there could be no
appellate jurisdiction.
3
21.1 Definition.
(a) New trial means the rehearing of a criminal action after the trial court
has, on the defendant's motion, set aside a finding or verdict of guilt.
4
26 (b) By the State. --The notice of appeal must be filed within 20 days after the day
the trial court enters the order, ruling, or sentence to be appealed.
5
Tex. Code of Crim. Proc. art. 44.01
(a) The state is entitled to appeal an order of a court in a criminal case if the
order:
(3) grants a new trial;
8
Once the time expired for the State to file an appeal in this
case, the trial court had jurisdiction in the matter as the case was returned
to the position as it was at the time of indictment. Tex. R. App. P. 21.9 (b) 6.
Bates, supra at 311; Waller, supra at 643-644. The notice of appeal that
was filed by the appellant on August 1, 2014 became a prematurely filed
document. Tex. R. App. P. 27.1 (b) 7. The notice of appeal was not effective
before a finding of guilt or before the court received a jury verdict. Tex. R.
App. P. 27.1 (b) 8 While jurisdiction in the Court of Appeals was invoked
when the notice of appeal was filed, that jurisdiction was lost when the
motion for new trial was granted. Once the trial court granted the motion for
new trial, the Court of Appeals lost jurisdiction and had no alternative but to
dismiss the appeal. Bates, supra at 311. While the Court of Appeals lost
6
21.9 Granting a New Trial.
(b) Granting a new trial restores the case to its position before the former
trial, including, at any party's option, arraignment or pretrial proceedings initiated
by that party.
7
27.1 Prematurely Filed Notice of Appeal.
(b) Criminal Cases. --In a criminal case, a prematurely filed notice of
appeal is effective and deemed filed on the same day, but after, sentence is
imposed or suspended in open court, or the appealable order is signed by the
trial court. But a notice of appeal is not effective if filed before the trial court
makes a finding of guilt or receives a jury verdict.
8
27.1 Prematurely Filed Notice of Appeal.
(b) Criminal Cases. --In a criminal case, a prematurely filed notice of
appeal is effective and deemed filed on the same day, but after, sentence is
imposed or suspended in open court, or the appealable order is signed by the
trial court. But a notice of appeal is not effective if filed before the trial court
makes a finding of guilt or receives a jury verdict.
9
jurisdiction on August 6, 2014, the trial court retained jurisdiction pursuant
to Tex. R. App. P. 21.9 (b) 9 . Under that authority the trial court had
jurisdiction to take the case to trial on December 17, 2014.
Since the only notice of appeal of record in this case is the
prematurely filed notice of appeal, the Court of Appeals had no choice but
to grant the motion to dismiss this appeal. Since there was no appellate
jurisdiction in this matter the filing of a petition for discretionary review did
not create appellate jurisdiction nor could it deny the trial court the
jurisdiction it retained under Tex. R. App. P. 21.9 (b) 10. Had the State timely
filed a notice of appeal, the Court of Appeals would have had jurisdiction in
the case and the filing of a petition for discretionary review would have
been appropriate had the State received a disappointing ruling. To allow
the State to take an issue to the Court of Criminal Appeals without first
properly invoking the procedural requirements necessary to invoke
appellate jurisdiction is allowing the State to create jurisdiction out of thin
9
21.9 Granting a New Trial.
(b) Granting a new trial restores the case to its position before the former
trial, including, at any party's option, arraignment or pretrial proceedings initiated
by that party.
10
21.9 Granting a New Trial.
(b) Granting a new trial restores the case to its position before the former
trial, including, at any party's option, arraignment or pretrial proceedings initiated
by that party.
10
air. Olivo, supra at 523. If the trial court retains jurisdiction and the Court of
Appeals does not have jurisdiction, why should the filing of a petition for
discretionary review suddenly deprive the trial court of jurisdiction? It is
undisputed that the State did not file a notice of appeal in this case. Without
first establishing appellate jurisdiction pursuant to the Texas Code of
Criminal Procedure or the Texas Rules of Appellate Procedure, the State
cannot now create appellate jurisdiction when it is clear the trial court
retained jurisdiction once the motion for new trial was granted.
Once the trial court granted the motion for new trial and the
State chose not to appeal that decision, the trial court retained jurisdiction
over this criminal matter and properly took the case to trial on December
17, 2014. Pursuant to the appellate rules and case law herein cited,
specifically Tex. R. App. P. 21.9 (b) 11, the trial court retained jurisdiction in
this matter.
11
21.9 Granting a New Trial.
(b) Granting a new trial restores the case to its position before the former
trial, including, at any party's option, arraignment or pretrial proceedings initiated
by that party.
11
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the appellant prays
that this Court find the trial court had jurisdiction in this matter in the
December 17, 2014 proceeding and that this Court deny relief the State’s
Petition for Discretionary Review as the State failed to properly file a notice
of appeal when the motion for new trial was granted. The Respondent
further prays that the Court hold the Court of Appeals did not have
jurisdiction in this matter and the appeal was properly dismissed.
Respectfully submitted,
/s/ Leslie McFarlane
State Bar No. 13603500
7522 Campbell Rd., Ste 113-216
Dallas, TX 75248-1726
(972) 934-1721
lwmcfarlane@gmail.com
ATTORNEY FOR RESPONDENT/APPELLANT
12
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that a true and
correct copy of the foregoing brief was electronically served on Michael
Casillis of the Dallas County District Attorney’s Office at the time of the
efiling of this brief and a paper copy was mailed to the Dallas County
District Attorney, 133 N. Riverfront Blvd, LB#19, Dallas, TX, 75207 by
delivering same to the United States Postal Service on this 11th day of
March, 2015.
/s/Leslie McFarlane
WORD COUNT CERTIFICATE OF COMPLAINCE
The undersigned attorney certifies that this document was
prepared on the computer program Word for Mac 2011 and contains 3138
words.
/s/ Leslie McFarlane
13
Delarosa, Jose Ramiro
Combined Opinion