IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1310-00

 

DAVID M. DONOVAN, Appellant


v.



THE STATE OF TEXAS




ON DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY


Womack, J., filed a dissenting opinion in which Johnson, J., joined.



The Court holds that because Rule of Appellate Procedure 21 says a motion for new trial may not be filed later than 30 days after the date of sentence, (1) and must be decided within 75 days after the date of sentence, (2) no new trial may be sought or granted at any time in a case in which there is no sentence. I believe this gives more weight to the rule than it will bear. The most that can be said about the rule is that it is silent about time deadlines in cases in which there is no sentence. I would not be bound to infer from such silence that the rule-makers made and promulgated any rule about the availability of a new trial in a case in which there was no sentence.

Rather than force the parties and the courts to go through the agonizing decisions and needless procedures involved in obtaining a sentence in order to come within the deadline-rule, I would say this: There is nothing in the law that permits, forbids, or provides deadlines for, new trials in criminal cases in which there is no sentence. The people, through the legislative and executive branches of government, have given this Court authority to establish procedures for granting new trials in criminal cases. (3) Until the Court can amend Rule of Appellate Procedure 21 later this year to speak specifically to cases in which there is no sentence, for purposes of calculating time deadlines in such a case the term impose or suspend sentence shall include imposing community supervision.

I respectfully dissent.



En banc.

Delivered January 30, 2002.

Publish.

1. See Tex. R. App. P. 21.4(a).

2. See id., R. 21.8.

3. See Tex. Gov't Code 22.108.