Christopher Jackard Stevens v. State ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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CHRISTOPHER JACKARD STEVENS, No. 08-14-00042-CR
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Appellant, Appeal from the
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v. 401st District Court
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THE STATE OF TEXAS, of Collin County, Texas
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Appellee. (TC# 380-82267-10)
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O R D E R
Pending before the Court is Appellant’s motion to dismiss the appeal pursuant to
TEX.R.APP.P. 42.2(a). The stated basis for the motion to dismiss is that the trial court granted
Appellant’s motion for new trial and in arrest of judgment. The State has filed a response
requesting that we hold the motion to dismiss in abeyance because the trial court, on December
19, 2013, signed one order denying the motion for new trial and another order granting it. The
State requests that we abate the appeal and order the trial court to clarify its ruling. Appellant
objects to the State’s request.
Appellant has two appeals pending before us, 08-14-00041-CR (trial court cause number
380-81232-08) and 08-14-00042-CR (trial court cause number 380-82267-10). The clerk’s
record has not yet been filed in either appeal. It appears the trial court granted the State’s motion
to adjudicate in cause number 380-81232-08 (08-14-00041-CR) and sentenced Appellant to
imprisonment in TDCJ-ID for ten years. The trial court revoked Appellant’s probation in cause
number 380-82267-10 (08-14-00042-CR) and sentenced Appellant to imprisonment in TDCJ-ID
for two years. The sentence in each of these cases was imposed on November 20, 2013.
Appellant filed a motion for new trial and in arrest of judgment in each case. On
December 19, 2013, the trial court signed an order granting Appellant’s motion for new trial and
in arrest of judgment. Both trial court cause numbers are listed at the top of the order. On that
same date, the trial court signed an order denying Appellant’s motion for new trial and in arrest
of judgment. Again, both trial court cause numbers are listed at the top of the order. Appellant
has provided the Court with a print-out of Collin County’s case management system for both of
his cases. Even though the orders have both cause numbers on them, the order granting the
motion for new trial was filed on January 6, 2014 only in cause number 380-81232-08 (08-14-
00041-CR) while the order denying the motion was filed only in cause number 380-82267-10
(08-14-00042-CR) on that same date. The record does not reflect why the trial court clerk filed
the orders in this manner.
Appellant contends it is “clear” that the order granting the motion for new trial applied
only to cause number 380-1232-08 (08-14-00041-CR), yet he has moved to dismiss both of his
appeals on the ground that the trial court granted a new trial in each case. If the trial court
granted Appellant a new trial in each case, the appeals are moot and we are compelled to dismiss
them. On the other hand, if the trial court erroneously signed the order granting the new trial in
each case, or if the court intended to only grant a new trial in one of the cases, Appellant is
forfeiting his right to appeal by moving to dismiss.
The only thing clear in this case is that it is unclear what the trial court intended by
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signing one order which granted a new trial and by signing a second order which denied the
same motion for new trial. These orders cannot validly co-exist as written. Appellant argues
that any error in the granting of the motion for new trial cannot be corrected because the State
did not file a motion to reconsider or notice of appeal. These are not the only methods of
correcting an erroneous order granting a new trial. An order granting a motion for new trial can
be freely revisited and set aside within seventy-five days following the imposition of sentence in
open court. Stepan v. State, 244 S.W.3d 642, 643-46 (Tex.App.--Austin 2008, no pet.). In this
case, the seventy-five day period expired on February 3, 2014. After the seventy-five-day period
has expired, an order granting a motion for new trial can be set aside only if it was inadvertently
signed as a result of clerical error. Stepan, 244 S.W.3d at 643-46. A clerical error does not
result from judicial reasoning. Alvarez v. State, 605 S.W.2d 615, 617 (Tex.Crim.App. [Panel
Op.] 1980). In English v. State, the Court of Criminal Appeals held that a trial court, which
acted inadvertently in signing order granting the defendant’s motion for a new trial, had authority
to correct its mistake by setting aside the order, because it was in the nature of a clerical error.
English v. State, 592 S.W.2d 949, 955–56 (Tex.Crim.App. 1980).
Under the unusual circumstances presented by this case, we abate the appeal and direct
the trial court to correct any clerical errors in the orders granting and denying Appellant’s motion
for new trial. The trial court may, if necessary, conduct a hearing in order for the parties to be
heard on the matter. The trial court may also enter written findings of fact and conclusions of
law. The trial court shall file the corrected and/or clarification orders and the findings of fact and
conclusions of law, if any, with the trial court clerk who shall prepare and file with this Court a
supplemental clerk’s record containing same. The supplemental clerk’s record is due to be filed
in this Court no later than ten days after the trial court files the order with the trial court clerk.
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In the event a hearing is held, the court reporter is directed to prepare a transcription of the
hearing and file it with this Court within ten days after the hearing is concluded.
February 12, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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