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In Beeler v. State, 122 SW3d 814(Amarillo 2003) D filed notice of appeal and motion for new trial on same day. COA says that trial court could rule on MNT because COA does not have jurisdcition until record has been filed. We have a case where NOA was filed 3 days prior to the MNT. Under this interpretation it looks as though trial court has jurisdiction. But Ramirez v. State 104 SW3d 549 (CCA 2003) indicates the notice of appeal takes jurisdiction away from the trial court except for limited purposes. If the record is not filed until after the trial court rules on MNT does the trial court retain jurisdiction?
Posts: 419 | Location: Abilene, TX USA | Registered: December 16, 2002Reply With QuoteReport This Post
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Seems to be an open question. Whitehead v. State
130 S.W.3d 866, 874 n.34 (Tex. Crim. App. 2004) (noting inconsistency between caselaw and TRAP 25.2(g); Cochran v. State, 78 S.W.3d 20, 25-26 (Tex.App.-Tyler 2002, no pet.) (NOA barred MNT). I'd bet they hold that a MNT is not barred by a NOA. State v. Gutierrez, 2004 WL 1833511 at *2(Tex.App.-Corpus Christi Aug 12, 2004, no pet. h.). Also, since TRAP 21.8(a) gives the trial court 75 days, might that not fit within the "provided otherwise by law" language of 25.2(g)?

Interestingly, former CCP 44.11 provided:

"Upon the appellate record being filed in the court of appeals or the Court of Criminal Appeals, all further proceedings in the trial court, except as to bond as provided in Article 44.04, shall be suspended and arrested until the mandate of the appellate court is received by the trial court."
Not clear whether the CCA was authorized to limit the substance of that statute when it created the TRAP's. See Lemmons v. State, 818 S.W.2d 58, 62 n.5 (Tex.Crim.App. 1991) (court's new "rules may not abridge, enlarge, or modify the substantive rights of a litigant"); Taylor v. State, 916 S.W.2d 680, 685 (Tex.App.-Waco 1996, pet. ref'd) (CCA was not authorized to change the proviso of former art. 44.02)
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001Reply With QuoteReport This Post
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