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Texas Court of Criminal Appeals Announces Overruled Motion for New Trial May Be Amended With Court’s Leave Within 30-Day Period After Sentenced Imposed

by Matt Clarke

The Court of Appeals of Texas held that a motion for a new trial that has been overruled by the trial court may be amended with leave of the court within the 30-day period provided for in Rule 21.4(b) of the Texas Rules of Appellate Procedure for filing an amended motion for a new trial.

Christopher Michael Rubio was convicted of capital murder and sentenced to life without parole. His attorney filed a general form motion for a new trial to provide the court reporter additional time to file the record with the Court of Appeals. The trial court overruled the motion.

Rubio obtained new counsel who, on the 30th day following conviction and sentencing (which occurred on the same day since a life sentence was automatically imposed because the death penalty was not sought), filed a motion for leave to file an amended motion for a new trial along with an amended motion for a new trial that included new grounds and 11 additional exhibits in support of the motion. The State objected, arguing that it was untimely. The court overruled the State’s objection and held a hearing on the amended motion, which it denied on the merits.

On appeal to the Court of Appeals, Rubio argued that his trial counsel provided constitutionally ineffective assistance of counsel (“IAC”). The Court of Appeals examined whether the amended motion was timely in order to determine what arguments and evidence it could consider as part of the record in resolving Rubio’s claim. It ruled that the amended motion was untimely because it was filed after the trial court had already denied his initial motion and the State objected to the amended motion. The Court of Appeals also concluded that the trial court didn’t sua sponte rescind nor even impliedly rescind its original order. Consequently, the Court of Appeal resolved Rubio’s IAC claim by examining only the trial record, declining to consider the arguments, exhibits, or any other evidence supporting his amended motion.

Rubio’s petition to the Court of Criminal Appeals for discretionary review was granted.

The Court framed the issue as follows: “What happens when a defendant timely files a motion for new trial, the trial court overrules that motion, and then the defendant tries to file an amended motion, all within the same 30-day window of time within which motions for new trial are permitted to be filed? Is a trial court vested with discretion to grant leave of court permitting a defendant to file an amended motion for new trial even after the trial court has overruled an initial motion for new trial?” The Court ruled that “the trial court does have that discretion.”

The Court stated that the issue before it is the proper construction of Rule 21.4(b), which reads: “(b) To Amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.” It noted that Rule 21.4(b) appears to grant “an implied authority” to a trial court to grant leave to file an amended motion, even after the trial court has overruled the original motion provided that it’s done within the 30-day period. The Court based this on the fact Rule 21.4(b) states an amended motion may be filed “without leave of court” before the overruling of the initial motion. Nor does Rule 21.4(b) expressly preclude the scenario at issue in this case, the Court stated.

Thus, the Court concluded that “it is consistent with the language of the rule to understand it to permit a defendant to file an amended motion, even after a prior motion has been overruled, as long as he obtains leave of court to do so, and at least as long as he does so within the original 30-day time period.”

The Court instructed that there aren’t any “formal requirements for the trial court to follow when granting leave.” It explained: “it only matters whether the record reflects in some form that the trial court eventually, within the time for it to act on motions for new trial, manifested its decision to grant that motion for leave, either implicitly, by its actions, or by taking some more formal action on the amended motion itself within the period when it was authorized to act.”

Turning to the present case, the Court concluded that the trial court’s statement on the record—“Well, I’m going to let you present your motion because you have done all this work”— together with the act of holding a hearing on the amended motion constitute sufficient evidence that the trial court granted leave, thereby properly permitting the court to consider the amended motion. As a result, the evidence and exhibits in support of the amended motion should have been considered by the Court of Appeals, the Court ruled.

Accordingly, the Court reversed the judgment of the Court of Appeals and remanded the case to that court to consider the arguments and evidence presented at the hearing on the amended motion for new trial. See: Rubio v. State, 638 S.W.3d 693 (Tex. Crim. App. 2022). 

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