Query: We have a situation where a defendant found guilty by a jury of DWI has filed a motion for new trial and an appeal at the same time. The Reporter's and Clerk's Records have been filed with the appellate court, and the hearing on the MNT is pending. TRAP Rule 25.2(g) says that "[O]nce the record has been filed in the appellate court, all further proceedings in the trial court--except as provided otherwise by law or by these rules--will be suspended until the trial court receives the appellate-court mandate." Does this mean that the trial court has no jurisdiction to hold a hearing on the MNT?

We have always taken the position, and prevailed so far, that once the record is filed, the trial court loses jurisdiction on the MNT. I have heard some argue that the bare filing of the notice of appeal is sufficient bar, but it is not. Rule 25.2(g) seems to mean what it says.

Look at State v. Kelley, 20 S.W.3d 147, (Tex.App.-Texarkana 2000, no pet.) ("In Ex parte Drewery, the Texas Court of Criminal Appeals addressed this very issue and held that it is not the filing of the notice of appeal, but the filing of the appellate record in the court of appeals that divests the trial court of its jurisdiction to rule on a timely filed motion for new trial.")


TRAP 25.2(g) used to be art. 44.11. Rule 25.2(g) is not supposed to change the requirements of the statute which are discussed in Gonzalez v. State, 659 S.W.2d 470, 475 (Tex.App. 13 Dist.,1983, pet ref'd).

Belton- It appears a court reporter has won the race here, much to the disdain of a local defense attorney. While a "form" motion for new trial is often utilized to get additional time for court reporters to file the appellate record, that tactic seems to have backfired in a recent appeal here. A motion for new trial must be heard by the court within 75 days of the date a sentence is pronounced. It is very rare for the appellate record to be filed within that time period, especially since an appellant has up to 30 days to request a record be prepared, but that is just what happened in a recent case. The defendant filed both a motion for new trial and a notice of appeal and the court reporter immediately started on the appellate record. Thus the race was on to see whether the trial judge would hold a hearing on the motion for new trial or the record would be filed in Austin first. The court clerk, not to be outdone by the court reporter, got the Clerk's Record filed before the 75th day too. So by the time the court got around to setting the hearing on the motion for new trial, it was determined no hearing was necessary because the trial court had taken too long and lost jurisdiction over the case. The defense attorney said, "next time I'll know better than to request the record be prepared. Of course, I thought I needed it to prepare for the new trial hearing. I feel like I got tricked by the court reporter or the judge. Then, again, now I know why the rules say the hearing on the motion for new trial should take place within the first 30 days, even if the court is permitted to entertain the motion for another 45 days. I never imagined the court reporter could complete his work so quickly."