We have all kinds of cases dealing with presentation of complaints for appellate review under Rule 33.1. But, to what extent does the policy expressed in Zillender apply to a court granting a new trial under Rule 21.3(b) or 21.3(h)? Is it possible to say the error is waived because no objection was raised at trial? As a matter of policy shouldn't the trial court decline to consider the issue, just as the appellate court would? In my case, the court could clearly have prevented the error if an objection had been raised, or could have prevented the harm with an instruction had that been requested. But the defendant stood mum until after the verdict.

I've thought about this in both civil and criminal contexts, and it makes sense. A party shouldn't be allowed to lay behind the log, hoping to win with the jury, and then complain about something that could have been fixed during trial. That said, I've never put it on paper. It just doesn't arise much.

[This message was edited by John Rolater on 11-14-05 at .]

If I understand this thread -- like you, I am not comfortable with a defendant waiting until a verdict is reached before lodging his objection to a trial event. But one thing in favor of the ploy is that we have a chance to respond and the trial court the opportunity to address the claim, which underlies all error preservation. In the end though, I would vigorously argue that any complaint was untimely and waived for failure to raise it at the first opportunity.

JS, I plan on arguing it vigorously. My only problem is there does not seem to be much caselaw to support the argument. I am citing Transcontinental Ins. Co., 135 SW3d at 839, but if anyone knows of additional cases I would appreciate learning of them.

I would surely employ Ethington, 819/854,858 somewhere. How about Valle, 109/500,509 too?

John, the problem I see is those cases deal with Rule 33.1 (though my very point is that the basis for waiver at the appellate level applies with equal force at the post-trial level in the trial court). I am going to provide the court with Tanner, 438 SW2d at 402. I just wish there were a criminal case saying these things.

Here's a case that may help. State v. Herndon
115 S.W.3d 231, 234-235 (Tex.App.-Corpus Christi 2003, pet. granted) ("The record in this case shows appellee did not object to the court reporter's failure to record the bench conference. Accordingly, we hold that appellee failed to preserve error. Because the trial court expressly relied on this ground in granting appellee's amended motion for new trial, *235 we conclude the trial court abused its discretion in granting the motion. Therefore, we sustain the State's second sub-issue.")

OTOH, the "interest of justice" ground for granting a new trial gives a trial court an awful lot of discretion. State v. Trevino, 930 S.W.2d 713, 716 (Tex.App.-Corpus Christi 1996, pet. ref'd) (despite failure to preserve jury charge complaint, trial court can still grant new trial without a showing of egregious harm); see also State v. Kelley, 20 S.W.3d 147 (Tex.App.-Texarkana 2000).

Thanks, David. I guess the granting of review in Herndon may be some cause for concern, but it certainly seems the 13th Court must have been thinking along the same line as we are. Mr. Norman, is this issue dealt with in the briefs in the CCA in Herndon?

Here's the issue in Herndon

03-1954 HERNDON, RONALD 04/21/04

APPELLANT'S NUECES DWI

WHETHER THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE TRIAL [COURT] ABUSED ITS DISCRETION WHEN IT GRANTED A NEW TRIAL.

http://www.cca.courts.state.tx.us/issues/ISSUES11102004.htm

I can't think of any sensible justification for distinguishing a tardy objection during a MNT from a tardy objection at trial. Waiver is waiver (in the sense used by Judge Womack in Ley). Perhaps an analogy to Judge Cochran's opinion in Neal, PD-1559-03 (11/17/03)(untimely challenge to indictment), would assist. Good luck in creating some precedent on this issue.

I am most hopeful the trial court will not grant a new trial- and thus no need for me to be the one creating any precedent (except in my district)! But, I guess it couldn't hurt to have raised the point at the MNT hearing if I were going to appeal under 44.01(a)(3). But, the cases where the State has won one of those appeals are very few and far between, so I still think my effort to convince the trial judge is paramount.

The Court in my case did not grant the motion, so the issue remains for another day. But I would note that Lewis, 151 S.W.3d 213 certainly seems to give us all hope that 44.01(a)(3) can be effectively used (at times). It appears the appellate court will in fact require a valid reason for the granting of a new trial and use a de novo standard of review.

Just saw this interesting topic.

I recently briefed an analogous issue in a State�s appeal from the granting of a post-jury verdict �instructed verdict� (yep, a JNOV) in a misdemeanor DWI. The judge not only acquitted the Def. of DWI, he also found him guilty of PI and fined him $175--!!

Def. asserted in his motion for instructed verdict that, inter alia, the traffic stop (for speeding) was �without probable cause.� One of my backup arguments was that, even if this order could be considered the functional equivalent of the granting of a NT, the Def. had waived this issue because he never filed or urged a suppression motion, and did not object when the officer testified about the stop and the events occurring after the stop that resulted in the DWI arrest. I cited Hardeman, 1 S.W.3d 689, 690 (TCA 1999) and Reed, 888 S.W.2d 117, 123 (SA 1994, no pet.).

This case is not good news. Justice Prevails

Things are not getting any better. And still no decision in Herndon. McKnight

The Fourth Court found in McNight that a trial court can grant a new trial if there was any error, regardless of whether an error was harmful. It is not my case, but I think the attorney in our section handling it is preparing a PDR.

Also, it is very interesting to see that the CCA has ordered Rule 21.8 amended as of January 1 so that a trial court "may make oral or written findings of fact" in ruling on a motion for new trial. See TCCA Misc. Docket No. 06-100, signed and entered on September 25, 2006, published in the Texas Bar Journal, November 2006 at page 960.

[This message was edited by kyeary on 12-04-06 at .]

McKnight got remanded in short order (1/31/07) based on Igo, which held the trial court should consider harm in a jury charge differently on motion for new trial if there was no objection. This certainly seems to be movement in favor of applying Zillender across the board. At least, I hope the rule is not limited exclusively to jury charge error. The case which prompted my initial question is now under submission, so I am keeping my fingers crossed that Herndon was correctly decided in Corpus, since neither McKnight nor Igo mention Belcher.

[This message was edited by Martin Peterson on 02-18-07 at .]

Oh well, at least there is still a footnote 39 argument. My guess is the State will be far less likely to challenge orders granting a new trial from here on out. Herndon

Here's what I'm working on. Def. filed a motion for new trial, arguing 21.3(e) claim. Def. argued that the victim was kept from the punishment phase by the State telling her she need not come and that the State would ask for 7 years. (State asked for 20).

Def. did not request the victim to be there during punishment.
Nor did Def. attempt to call the victim.
Victim was under State's subpoena.
Def. actually used in his closing that the absence of the victim clearly indicated that she did not want Def. to get a whole bunch of time.

I'm thinking that he should have drawn it to the Trial Court's attention at trial and failure to do so waives his argument.

This seems different from the above mentioned cases. The MNT was not granted. He's complaining on direct appeal that this was a material issue and the Trial Court abused its discretion by not granting the New Trial hearing.

What do y'all think?

There is new hope for these appeals. Congrats to Dallas County on this victory. Choice. Hard to understand why the court would think this decision does not deserve precedential value.