in the Interest of T. B. D., a Child ( 2006 )

NO. 07-06-0008-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 24, 2006

______________________________ IN THE INTEREST OF T.B.D., A CHILD _________________________________

FROM THE 47^TH DISTRICT COURT OF RANDALL COUNTY;

NO. 51,976-A; HONORABLE HAL MINER, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ORDER

Appellant Eric Maiwald has filed a motion seeking an order directing the trial court to correct the clerk's record filed in this appeal by including two omitted documents. This motion was filed in this court on February 3, 2006. Appellant enclosed a copy of his request to the trial court clerk to supplement the clerk's record dated January 27, 2006. See Tex. R. App. P. 34.5(c)(1). The trial court clerk has filed two supplemental records which include the documents listed in appellant's motion. We therefore dismiss the motion as moot.

Per Curiam

eration of law. We deny the motion.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant alleges by a motion filed with the clerk of this court on April 13, 2000, that sentence was imposed in this matter on January 29, 2000. He further alleges that notice of appeal was timely filed, motion for new trial and amended motion for new trial were timely filed, and that hearing was held on the amended motion for new trial on April 12, 2000. In his motion, appellant alleges that attorneys for the State and appellant agreed to a schedule for presenting a transcript of the hearing on the motion for new trial and briefs respecting positions of the parties to the trial court, and that the trial court accepted the agreement in lieu of making a ruling on appellant's motion for new trial at the time of the hearing on April 12, 2000. The agreed schedule provided for the trial court to rule on appellant's amended motion for new trial sometime after May 15, 2000.

Rule 21.8(a) and (c) result in appellant's amended motion for new trial having been overruled by operation of law upon the expiration of 75 days following January 29, 2000, when sentence was imposed, unless the trial court ruled on the motion within such 75-day period. The 75-day period expired on April 13, 2000.

LAW

In Oldham v. State, 977 S.W.2d 354 (Tex.Crim.App. 1998), the Court of Criminal Appeals considered a cause in which the court of appeals suspended the provisions of then Rule 31(a)(1) which required a motion for new trial to be filed within 30 days after sentencing of the defendant. The suspension was under provisions of Rule 2(b), which was the predecessor rule to current Rule 2. The suspension was based on "good cause" in that appellant Oldham had allegedly been deprived of counsel in violation of her constitutional rights, and had not filed a motion for new trial in regard to her forgery conviction. The court of appeals abated and remanded the case so that appellant could file a motion for new trial to assert the constitutional violation. Oldham v. State, 977 S.W.2d at 355-57. The Court of Criminal Appeals, in reversing the decision of the court of appeals, stated that

In essence, the Court of Appeals used Rule 2(b) to extend the time limit for the filing of the appellant's motion for a new trial some two years and eight months, this being the time from the appellant's sentencing to the date of the Court of Appeals' decision. . . . We believe the Court of Appeals was in error to rely on Rule 2(b) as a mechanism to extend the time limits for the filing of a motion for a new trial imposed by Rule 31(a)(1). . . . Rule 2(b) is in essence an escape valve to be used by an appellate court when a case becomes unduly stalled or delayed in the appellate process due to procedural rules, and the interests of justice compel speeding up the process; although Rule 2(b) may be used to shorten the time limits when justice so requires, it should not be used as a method to lengthen procedural time limits absent truly extraordinary circumstances, even in an effort to protect the substantive rights of litigants. Oldham v. State, 977 S.W.2d at 356, 360.

In State v. Riewe, No. 699-99 (Tex.Crim.App. Mar. 8, 2000), the court reiterated its statements in Oldham to the effect that Rule 2 is not to be used to enlarge timeframes established by the appellate rules for appeals: "[Rule 2] was not intended to be used to lengthen procedural time limits, even in an effort to protect the substantive rights of litigants."

ANALYSIS

Granting appellant's motion would expand the time limits established by the TRAP for appellant's appeals process. As Rule 2 has been interpreted in Oldham and Riewe, we cannot suspend the operation of Rule 21.8 and extend the time for the trial court to rule on appellant's amended motion for new trial under the circumstances presented by appellant. Thus, assuming appellant, the State, and the trial judge agreed on the proposal as described in appellant's motion, we still must, and therefore do, deny appellant's motion.

Per Curiam

Do not publish.

1. Further references to the rules of appellate procedure will be by reference to "Rule" or "TRAP."