File: 090802F - From documents transmitted: 10/02/2009
VACATE and REINSTATEand Opinion Filed October 2, 2009
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00802-CR
............................
THE STATE OF TEXAS, Appellant
V.
EDWARD VALADEZ, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-80040-07
.............................................................
MEMORANDUM OPINION
Before Justices Wright, Richter, and Fillmore
Opinion By Justice Fillmore
After the trial court denied appellee Edward Valadez's motion to suppress, appellee pleaded
guilty to possession with intent to deliver cocaine in an amount more than 400 grams. Pursuant to
a plea agreement, punishment was assessed at fifteen years' imprisonment. Punishment was
assessed in open court on March 26, 2009. Appellee filed a motion for new trial on March 26, 2009
and amended motion for new trial on April 17, 2009. Appellee filed his notice of appeal on May
14, 2009. See Footnote 1 Appellee's motion for new trial was overruled by operation of law on June 9, 2009, and
on June 15, 2009, the trial court signed an order granting appellee's motion for new trial. The State appealed the order granting appellee's motion for new trial.
The Court now has before it the parties' joint brief on the merits of the State's appeal. The
State asserts, and appellee concedes, that the trial court's order granting the new trial is void because
it was entered more than seventy-five days after sentence was imposed in open court. The parties
ask that we vacate the order granting the motion for new trial, reinstate the judgment of conviction,
and allow the appeal in cause no. 05-09-01093-CR to proceed. After reviewing the record, we agree
with the parties.
The trial court has authority to rule on a timely-filed motion for new trial up to the seventy-
fifth day after sentence is imposed or suspended in open court. See State v. Moore, 225 S.W.3d 556,
569 (Tex. Crim. App. 2007); Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998).
“A motion not timely ruled on by written order will be deemed denied when the [seventy-five day]
period” expires. Tex. R. App. P. 21.8(c). An order granting a motion for new trial signed after the
seventy-fifth day after sentence was imposed or suspended in open court is void. See State v. Bates,
889 S.W.2d 306, 310 (Tex. Crim. App. 1994).
In this case, sentence was imposed in open court on March 26, 2009 and appellee filed a
timely motion for new trial. The motion for new trial was deemed denied when the trial judge did
not rule on it by written order by June 9, 2009, the seventy-fifth day after March 26, 2009. See Tex.
R. App. P. 21.8(c). Therefore, the trial court's June 15, 2009 order granting appellee's motion for
new trial was void. See Bates, 889 SW.2d at 310; see also Moore, 225 S.W.3d at 569;
Awadelkariem, 974 S.W.2d at 728. We sustain the parties' joint issue.
We vacate the trial court's June 15, 2009 order granting appellee's motion for new trial. We
reinstate the March 26, 2009 “Judgment of Conviction by Court - Waiver of Jury Trial.”
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
090802F.U05
Footnote 1
The original appeal, which was docketed as cause no. 05-09-00669-CR, was transferred to the Eighth District Court of Appeals pursuant to a
transfer order from the Texas Supreme Court. Because of that appeal's relationship to this State's appeal, the appeal from the judgment of conviction
was transferred back to this Court by order of Texas Supreme Court. It is now docketed as cause no. 05-09-01093-CR.
File Date[10/02/2009]
File Name[090802F]
File Locator[10/02/2009-090802F]