Garza v. State , 904 S.W.2d 877 ( 1995 )

OPINION

DORSEY, Justice.

This out of time appeal is granted by reason of an order of the Texas Court of Criminal Appeals, delivered May 5, 1993. The original appeal of this case was denied for want of jurisdiction by this Court. Garza v. State, No. 13-91-630-CR (Tex.App.—Corpus Christi, January 3, 1992).

Ramiro Ramirez Garza, appellant, appeals his conviction for aggravated sexual assault. Garza was found guilty by a jury and assessed a sentence of 40 years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000.00 on October 2, 1991.

PROCEDURAL HISTORY

Appellant was first convicted of aggravated sexual assault on June 21, 1991 and was sentenced to ten (10) years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed a motion for new trial which was granted and a docket entry was made to that effect. However, no written order was signed by the Judge and entered in the record.

A new trial before a jury was begun on September 30, 1991, and on October 2, 1991, appellant was found guilty, sentenced to forty (40) years imprisonment, and assessed a fine of ten thousand ($10,000.00) dollars.

Garza faded to timely file a notice of appeal from the October 2,1991 judgment, and this Court dismissed the appeal for want of jurisdiction. Garza filed a post-conviction application for writ of habeas corpus pursuant to the provisions of Article 11.07 of the Code of Criminal Procedure with the Court of Criminal Appeals which granted an out-of-time appeal on May 5,1993, and returned the ease to this Court for our disposition.

JURISDICTION

By point of error one, appellant complains that the trial court lost jurisdiction over his cause when his motion for new trial was overruled by operation of law because the trial court failed to sign an order granting the motion. Tex.RApp.P. 31(e)(3).¹ The Rule provides that unless the trial court grants the motion for new trial by signed, written order within 75 days from the date the sentence was imposed, the motion is automatically overruled.

In the case before us, the court never signed a written order, although the trial court announced that he was granting the motion for a new trial. A docket sheet entry was made reflecting the court’s pronouncement.

The plain language of the Rule requires a written order to prevent the overruling of the motion by operation of law. Id. An oral pronouncement, absent a written order, is insufficient. In State Ex. Rel Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex.Crim.App.1987), the Court of Criminal Appeals granted mandamus relief to require a trial court to vacate its order granting a new trial when the order was not signed within the seventy-five day period. In that case, the motion itself was timely, a hearing was held within the seventy-five days, the court orally granted the motion but did not sign the order until eighty days after sentencing. The Court found that the trial court did not have jurisdiction to grant the new trial because the motion had been overruled by operation of law on the seventy-fifth day. Id.

We find no cases analyzing the effect of a docket sheet entry to satisfy the written order requirement in the criminal jurisprudence of Texas, but Rule 329b of the civil rules contains identical language requiring a signed written order. Tex.R.Civ.P. 329b. In Taack v. McFaM, 661 S.W.2d 923, 924 (Tex.1983), the Texas Supreme Court held that a docket sheet entry did not suffice. The language of the rule is mandatory. The motion is overruled after the statutory time expires unless the trial court signs a written order.

That is the case here. Appellant’s motion for new trial was overruled by operation of law when the time for ruling expired because the trial court did not sign a written order. When the motion was overruled, the trial court then lost jurisdiction over the case, including over the indictment. The indictment had combined with the plea of the defendant and evidence to produce the judgment. Accordingly, the trial judge lacked jurisdiction to retry appellant on the case that is now before us on appeal. The second conviction is void.

The State urges us to suspend Rule 31(e)(3) in this case pursuant to Appellate Rule 2(b). Tex.R.App.P. 2(b). We may not use the Rules to extend our jurisdiction, nor should we suspend the Rules to extend the jurisdiction of the trial court. See Garza v. State, 896 S.W.2d 192 (Tex.Crim.App.1995) (refusing to allow Court of Appeals to modify its opinion seventeen days after the fifteen day deadline provided by Rule 101). The effect of our suspending Rule 31(e)(3) in this case would be to give jurisdiction to the district court where it had lapsed. That is not the intent of the rule. The trial court had no jurisdiction; the second conviction is void; and the first conviction is final. We sustain appellant’s first point of error. We need not address his remaining points of error. Tex.R.App.P. 90(a).

The JUDGMENT of conviction and sentence of October 2, 1991, is REVERSED.

BILL J. STEPHENS, J. (Retired), dissents. STEPHEN F. PRESLAR, J. (Retired), joins in the dissent.

1 . The Rule provides:

(1) Time to Rule. The court shall determine a motion for new trial within 75 days after the date sentence is imposed or suspended in open court.

(2) Ruling. The judge shall not sum up, discuss or comment on evidence in the case. The judge shall grant or refuse the motion for new trial.

(3)Failure to Rule. A motion not timely determined by written order signed by the judge shall be considered overruled by operation of law upon expiration of the period of time prescribed in section (e) of this rule.