State v. Hernandez

The State has filed a motion for leave to late file the certified transcript in this appeal from the trial court's order granting Appellee's motion for new trial. That motion was the result of this Court's notice to the State that the Transcript, received on March 16, 1989, was not timely. Having reconsidered Tex.R.App.P. 54(b), specifically that portion providing, "If a motion for new trial is timely filed, the transcript and statement of facts shall be filed within one-hundred-twenty days after the day sentence is imposed or suspended in open court or the order appealed from had been signed," we have concluded that because there was a timely motion for new trial filed in this case, albeit not one assailing the order appealed,¹ the record was not due to be filed until 120 days after the order was signed granting the motion for new trial. Recognizing that the rule was in place before the State was authorized to appeal from any postjudgment orders and that the literal application of the rule here does not logically mesh with the purpose of allowing an extended time for filing the record when a motion for new trial has *Page 599 been filed,² we reach this conclusion because the literal language of the rule mandates this interpretation.

¹ Cf. American Home Assurance Co. v. Faglie, 747 S.W.2d 5, 6 (Tex.App. — El Paso 1988, writ denied);Kitchens v. Kitchens, 737 S.W.2d 101, 102 (Tex.App. — Waco 1987, no writ), interpreting the rule extending the time allowed for perfecting a civil appeal when there has been a motion for new trial.

² To allow the trial court time to act upon the motion for new trial, Tex.R.App.P. 31(e)(1), without the necessity of filing the record in an appeal that may become moot if the motion for new trial is granted.