Depew v. State

OPINION

Appellant and the State jointly moved to remand this cause for a new punishment trial under rule 80(c). See TEX.R.APP.P. 80(c). We deny the parties' joint motion.

The jury convicted appellant of theft of property over the value of $20,000 and assessed a 20-year sentence on June 14, 1991. Appellant's timely filed motion for new trial was overruled by operation of law. This cause is presently pending submission in this Court.

APPLICABLE RULES No rule expressly provides the relief which the parties seek.

The rules give this Court power to "make any other appropriate order, as the law and the nature of the case may require." TEX.R.APP.P. 80(c). Rule 80 contemplates disposition of cases after submission. See TEX.R.APP.P. 80(a). A "remand" order under rule 80 is inappropriate for a case that has not been submitted.

Rule 59(a) (entitled "Civil Cases") allows an appellate court to finally dispose of a pending civil appeal by the parties' agreement. TEX.R.APP.P. 59(a)(1)(A). The Code Construction Act provides that the headings of titles, subtitles, chapters, subchapters or sections do not limit the meaning of a statute. TEX.GOV'T CODE ANN. § 311.024 (Vernon 1988). However, the clear wording of the Rules of Appellate Procedure distinguish civil appellate procedure from criminal appellate procedure.

The intent of Rule 59(a) is to dispose of civil disputes. To hold otherwise distorts the rules. The rules provide for options in civil cases that are not available in criminal cases. Rule 59(b) (entitled Criminal Cases) does not provide for remand by the parties' agreement. Logically, if the Code Construction Act allows rule 59(a) to apply in criminal cases, then it must allow rule 59(b) to apply in civil cases. If this reasoning is valid, the Court, at its whim, could deny parties to a civil appeal the right to agree to anything but dismissal of their appeal.¹ APPLICABLE CASE LAW Some precedent exists for granting this motion. Seegenerally Geter v. Fortenberry, 849 F.2d 1550, 1551 (5th Cir. 1988).² The State and Geter jointly moved for new trial before the Texas Court of Criminal Appeals. TheGeter court granted the motion for new trial. Upon remand to the trial court, the State dismissed the indictment.

In Trevino v. State, 565 S.W.2d 938 (Tex.Crim.App. 1978), the court remanded the cause for another motion for new trial hearing at the State's request.³ Judge Dally dissented from the court's use of "its own muscle" to amend the Code of Criminal Procedure.⁴ Id. at 942.

Appellant and the State have agreed upon plea bargains in several other criminal cases pending against appellant. This cause is an integral part of those plea bargain agreements. The parties ask this Court to order that which the rules do not allow. We cannot confer jurisdiction in the trial court where none exists.

The Geter and Trevino courts responded to constitutional violations⁵. Here the parties' motion requests this Court amend the rules to clear a trial court's docket. We should not promulgate rules of procedure to accommodate the parties. If the Court of Criminal Appeals wishes to change the *Page 89 rules, they will do so. Until they do, we are bound by the rules as they exist today.

CONCLUSION We cannot manipulate procedural rules in the name of expediency or stretch the rules to fit a situation at the whim of the Court. We should examine this cause on submission to determine if error exists in the punishment phase. If reversible error exists, we should reverse and remand for a new trial on punishment⁶.

We deny the motion.

¹ If appellant wanted to dismiss his appeal, we would grant his motion — if he complied with the rules.

² This procedural information is found in the background facts contained in the federal opinion on the civil appeal. Geter sued the various State agents that participated in his arrest and trial.

³ This cause was pending appeal when the State filed its motion. It was unquestioned that the trial court erred in denying appellant his constitutional right to have counsel present at his hearing on motion for new trial.

⁴ Judge Dally maintained the court's decision effectively gave the State the right to file a motion for new trial.

⁵ In Geter, there was alleged prosecutorial and police misconduct. In Trevino, the trial court committed error.

⁶ The dissent concedes the parties' motion alleges no error. It cites Owens v. State, 763 S.W.2d 489, 493 (Tex.App. — Dallas 1988, pet. ref'd), as authority for our remanding this cause to the trial court for a hearing on punishment. In Owens, the trial court committed error.