Re: this week's CCA decision on the meaning of TRAP 21.8, the commentator says, "what happens if the new trial is granted on the basis of insufficient evidence? May a trial court acquit a defendant, then turn around 90 days later and say, “Never mind, you’re guilty after all”?

I must disagree that this issue will ever exist. If the evidence is deemed insufficient as a matter of law, the remedy is not the granting of a new trial. Rules 21.3(h) and 21.9(b) do not address this situation.

I must be misunderstanding your post. What is TRAP 21.3(h) if not a challenge to legal sufficiency (post-Brooks)? See Charlton, 847 SW2d 443.

It's hard to imagine a trial judge granting a new trial due to insufficient evidence after a verdict. But, I'm sure stranger things have happened. Why not just direct the verdict instead? State can't appeal.

But, when a defendant raises a legal sufficiency claim in a motion for new trial, the trial court can't replace the jury as fact finder. It must conduct the same legal sufficiency test as the appellate court. See Charlton.

Burks v. United States, 437 U.S. 1 either effectively changed the meaning of the phrase "contrary to the law and the evidence" or rule 21.3(h) became unconstitutional in stating that a new trial must be granted for that reason. That language would have meaning only in conformity with Tibbs v. Florida, 457 U.S. 31 after 1978. Indeed, the court cited rule 21.3(h) as a basis for ordering a new trial based on factually insufficient evidence in Ward, 48 S.W.3d at 391. See also Youens, 988 S.W.2d at 407 fn. 2. Brooks did not deal with rule 21.3(h), only with the authority of an appellate court under Clewis to grant a new trial (or reverse a verdict) based on factual insufficiency.

Cases such as Charlton, Mercier, 164 S.W.3d 799, Moore, 749 S.W.2d 54 have assumed a trial court could use a motion for new trial as a basis to determine the legal sufficiency of the evidence, but this is simply not true. Such a motion is clearly a motion for judgment notwithstanding the verdict. In any event, Savage, 933 S.W.2d 497 answered the question posed. If the State can successfully appeal from such an order, then under Kirk the trial court must also have authority to rescind its order for acquittal without violating the double jeopardy clause. See also Ramirez, 587 S.W.2d 144, 147: "The primary thrust of the double jeopardy clause is the avoidance of multiple trials, and there is no need for a second trial when the trial court can correct its own mistakes."

This message has been edited. Last edited by: Martin Peterson,

The meaning of rule 21.3(h) may be clarified by the decision in Delarosa, PD-1406-14. There the trial court purportedly did exactly what I hypothesized it could do, granting a true new trial in response to a motion for that relief based on the jury's verdict being contrary to the law and the evidence. If the August 6 order should instead have granted a judgment of acquittal, then the appeal should not have been dismissed by the COA, but rather the propriety of the motion and order for new trial should have been determined, since I do not believe a void order can deprive the appellate court of jurisdiction (even assuming the state was not entitled to have the appeal abated to further sort things out). Delarosa at a minimum seems to demonstrate the need for the ruling in Kirk about an extended time for rescission of an order for new trial, as the mere circling of a word on a form order can create a jurisdictional mess and make the prosecution's job much harder than it should be. Surely the December 17, 2014 judgment in Delarosa will not defeat the jurisdiction of the CCA, as the order of August 6 could not become final based only on the non-final October 2 order of the COA, right?

The only thing that is clear to me is that trial courts should be wary of conducting postverdict review of its own cases. Chase, 573 SW2d 247, (following Burks) says that double jeopardy bars the retrial of a person whose conviction is overturned on the basis of insufficient evidence. Savage says a trial court can’t grant a JNOV. Perhaps Charlton and its ilk aren’t “assuming” that trial courts are using a MNT to conduct sufficiency review. Maybe they are interpreting it in such a way so as to make a trial court’s postconviction review appealable as a MNT rather than an unreviewable judgment of acquittal?

I think Rule 21 could use some work.

Since the opinion is not published, Delarosa offers no advice at all. In any event, the court did not reach any issue based on Rule 21.3(h) vis-à-vis Burks. But, it did clarify that it was not deprived of jurisdiction over the State's petition by reason of the post-appeal proceedings in the trial court because Rule 25.2(g) rendered those proceedings void. I would still maintain that the August 6 order for a new trial in Delarosa was void too and thus would not serve to moot the appeal (or justify dismissal), but that issue will have to be decided on another day. Delarosa

I have now felt the need to clarify my comments about the decision in Delarosa in relation to the overruling of Matthews.

Delarosa.pdf (228 Kb, 6 downloads) Delarosa Critique