      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00400-CR




                                 Craig Jerry Stepan, Appellant

                                                 v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 60726, HONORABLE JOE CARROLL, JUDGE PRESIDING



                                          OPINION


               Appellant Craig Jerry Stepan was convicted of possessing less than one gram of

methamphetamine and sentenced to twenty-one months in state jail. See Tex. Health & Safety Code

Ann. § 481.115(a), (b) (West 2003). The trial court subsequently signed an order granting

appellant’s motion for new trial, but the court later rescinded that order on the ground that it had

been signed by mistake. See Tex. R. App. P. 21.8(b) (new trial must be granted by written order).

In his only point of error, appellant contends that the trial court was not authorized to vacate or

rescind the new trial order. We overrule this contention and affirm the judgment of conviction.

               Appellant was tried and sentenced on April 10, 2007. On April 16, his counsel filed

a motion for new trial alleging that appellant’s guilty plea had been involuntary. Attached to the

motion was a prepared order reading, “On ______, 2007, came on to be considered Craig Jerry

Stepan’s Motion for New Trial and Motion in Arrest of Judgment, and said motion is hereby
(Granted) (Denied).” The trial court set a hearing on the motion for new trial for May 2, but the

record reflects that the hearing was never held.

               On May 9, 2007, the court conducted a hearing on defense counsel’s motion to

withdraw, which had also been filed on April 16, and orally granted the motion. The court also

signed the prepared order attached to the motion for new trial. The court entered the May 9 date and

circled the word “Granted.”

               On June 28, 2007, the court signed a “nunc pro tunc order sua sponte correcting

previous order signed by mistake on May 9, 2007.” This order reads:


              Whereas on May 9, 2007, a hearing was conducted on the Defendant’s
       Attorney’s Motion to Withdraw in the above case. At the conclusion of the hearing
       said motion was granted on the record in open court, but the order was not signed.

               On May 9, 2007, no hearing was conducted on Defendant’s Motion for New
       Trial, but the Order granting the new trial was signed. The court mistakenly signed
       the wrong order.

               Now therefore the court enters this Order Nunc Pro Tunc correcting the
       record to show that the attorney’s Motion to Withdraw was and is granted and the
       Defendant’s Motion for New Trial was not heard or ruled upon.

              Furthermore, the Order Granting the New Trial signed on May 9, 2007, is
       hereby vacated and set aside as being mistakenly signed.


On the same date, the court wrote on the face of the May 9 new trial order, “Signed by mistake” and

“Intended to sign order granting atty mot. to W/D.” Appellant thereafter gave notice of appeal.

               Citing Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998),

appellant argues that a trial court may set aside an order granting a motion for new trial

only during the seventy-five day period prescribed by rule for granting or denying such motions.

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See Tex. R. App. P. 21.8(a) (court must rule on motion for new trial within seventy-five days after

sentence imposed or suspended in open court). June 28, 2007, was the seventy-ninth day after

appellant’s sentence was imposed. Thus, appellant contends that the trial court’s order setting aside

the May 9 order granting the motion for new trial is void. In order to understand the holding in

Awadelkariem and why we conclude that appellant’s reading of it is incorrect, we must review two

earlier opinions regarding the finality of an order granting a new trial.

               In Matthews v. State, 50 S.W. 368 (Tex. Crim. App. 1899), the trial court granted

the defendant’s motion for new trial on the day after he was convicted of cattle theft. Id. Later

that same day, the trial court signed an order setting aside the new trial order and overruling the

motion for new trial. Id. In this later order, the court stated that the previous order had been made

“under a misapprehension of the evidence complained of by defendant in his motion.” Id. The court

of criminal appeals held that the trial court was without authority to set aside its original order:

“[T]he action of the court on the motion [for new trial] ought to be regarded as final, and . . . the

court would have no authority, after he had granted the motion for new trial, afterwards, on the same

day or on some other day of the term, to again call the case up, set the order aside granting the

motion, and overrule it.” Id. at 369.

               The holding in Matthews was reconsidered in English v. State, 592 S.W.2d 949

(Tex. Crim. App. 1980). In English, a visiting judge sitting for the judge who presided over the

defendant’s trial signed an order granting the defendant’s amended motion for new trial. Id. at 955.

Three days later, the visiting judge wrote on the face of this order that it “was signed inadvertently

and by mistake and the order was not intended to have any legal effect.” Id. At a hearing, the



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following day before the regular trial judge, the visiting judge testified that the order was among a

group of papers that had been handed to him (while on the bench) for his signature, he did not intend

to grant the defendant a new trial, he knew nothing about the defendant’s case, no hearing had been

held on the motion for new trial, and he had been under the impression that he was signing an order

granting leave to file the amended motion. Id. The regular trial judge found that the order granting

the new trial was void. Id. The defendant challenged this ruling, citing Matthews. Id. The court

of criminal appeals ruled that Matthews was distinguishable:


        In Matthews it appears that the trial court granted the defendant’s motion for new
        trial, then attempted to set aside its order because it had been under a
        “misapprehension of the evidence complained of by defendant in his motion for new
        trial.” The instant case is distinguishable. The court in this case did not knowingly
        grant the motion for new trial and then decide to retract its decision. The court was
        not even aware that it was granting a motion for new trial when it signed the order.
        No hearing was held in this case; no evidence was adduced from which the court
        could have knowingly granted a new trial. The signing of an order form is not all
        there is to granting a new trial.

                Further, the court’s error in this case does not strike us as a judicial error, as
        certainly was the case in Matthews. The error here is more akin to clerical error,
        which can be corrected.


Id. 955-56. In clarifying its holding, the court in English overruled Matthews to the extent that it

could be construed to conflict with its holding. Id. at 956. Thus, under Matthews as modified by

English, the rule was established that “a trial court cannot rescind an order granting a new trial absent

clerical errors.” Ex parte Drewery, 677 S.W.2d 533, 536 (Tex. Crim. App. 1984).

                This remained the rule until Awadelkariem. In that case, the defendant, after pleading

not guilty, was convicted of the charged offense and sentenced to eight years’ imprisonment,



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probated.   974 S.W.2d at 722.       Later that day, the defendant and his counsel approached

the trial court and offered to change his plea to guilty if the court would grant him deferred

adjudication. Id. at 723. The court agreed and signed an order granting the defendant a new trial.

Id. The defendant later reneged on his promise to enter a guilty plea, and the trial court rescinded

its new trial order. Id. The court of appeals, citing Matthews, held that the trial court was not

authorized to set aside the order granting a new trial that it had knowingly and deliberately signed.

Id.1 The court of criminal appeals, after tracing the history of the Matthews rule through English and

other later opinions, and after discussing the practice in other jurisdictions and in Texas civil cases,

concluded that “the Matthews rule, having always rested on questionable foundations, is no longer

viable.” Id. at 728. The court continued:


       Nevertheless, . . . [we] conclude that a time limitation must exist on the power to
       rescind a new trial order. The appellate rules give a trial court 75 days after judgment
       is imposed or suspended in open court to rule upon a motion for new trial.[2] We
       hold that an order granting or denying a motion for new trial may be freely rescinded
       so long as such action occurs within the 75 days provided by the rules (i.e., current
       Rule 21.8(a) & (c)); to the extent that Matthews and its progeny were held to apply
       during this time period, they are overruled. However, after the 75 day period expires,
       an order granting or denying a new trial becomes “final,” and Matthews and its
       progeny control.


Id. Because the trial court rescinded its order granting Awadelkariem a new trial within the seventy-

five days allowed by rule 21.8, the recision was effective. Id.

   1
      See Awadelkariem v. State, No. 05-95-00779-CR, 1997 Tex. App. LEXIS 1754, at *10-11
(Tex. App.—Dallas Apr. 4, 1997) (not designated for publication).
   2
     The court is using the term “judgment” synonymously with the term “sentence.” Per Texas
Rule of Appellate Procedure 21.8, the time limit begins to run when sentence is imposed or
suspended in open court.

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               In summary, before Awadelkariem, a trial court could not set aside an order granting

a new trial that it had knowingly and intentionally signed, even if it had done so under a

misapprehension of the pertinent facts or law (Matthews), but a trial court could set aside a new

trial order that it had unintentionally and inadvertently signed (English). After Awadelkariem, a

trial court may freely set aside an order granting a motion for new trial, regardless of the

circumstances under which it was signed, so long as the court acts within the seventy-five day period

after sentence is imposed.

               Appellant argues that the Awadelkariem opinion should be read to create a bright-line,

seventy-five day period within which an order granting a new trial can be changed and outside of

which it is final and cannot be altered for any reason. However, contrary to appellant’s interpretation

of Awadelkariem, the trial court does not lose all authority to revisit an order granting a new trial

after the seventy-five day period has expired. Instead, according to Awadelkariem, after the

expiration of seventy-five days, “Matthews and its progeny control.” Id. We read this to mean that

the court of criminal appeals intended to overrule the pre-Awadelkariem rule for the seventy-five day

period after sentence is imposed, and then to revert to the pre-Awadelkariem rule after the seventy-

five day period ends. This would include not only Matthews, but also English and other post-

Matthews “clerical error” opinions discussed in Awadelkariem as the “progeny” of Matthews.

Therefore, we believe that the most comprehensive reading of Awadelkariem is that within seventy-

five days following the imposition of sentence, an order granting a motion for new trial can be freely

revisited and set aside, but after the seventy-five days, an order granting a motion for new trial can

be set aside only if it was inadvertently signed as a result of clerical error. Otherwise, we would be




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reading the phrase “and its progeny” (when referring to Matthews) out of the Awadelkariem opinion.3

                The circumstances of this case are substantially the same as those presented in

English. The trial court never intended to grant appellant’s motion for new trial; indeed, for the

reasons stated in English, it could be argued that the motion was never actually granted. Instead, it is

apparent from the record that the trial court inadvertently signed the May 9 new trial order believing

that it was signing an order granting defense counsel’s motion to withdraw. We hold that because

the May 9 order was signed as a result of clerical error rather than judicial error, the trial court was

authorized to set it aside even after the time for acting on the motion for new trial had expired. See

State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (stating that trial court may use nunc

pro tunc procedure to correct clerical error in order even after expiration of its plenary power).

                The point of error is overruled, and the judgment of conviction is affirmed.




                                                __________________________________________

                                                G. Alan Waldrop, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed

Filed: January 17, 2008

Publish


   3
      Had the court of criminal appeals intended a bright-line, seventy-five day cut-off for the trial
court’s power to revisit an order granting a new trial, there would have been no need to mention the
“progeny” of Matthews, i.e. English and following cases. The court would simply have stated that,
after the expiration of the seventy-five day period, the rule set out in Matthews controlled. While
such a rule of absolute finality is arguably viable, it does not appear to be the rule that the court
adopted.

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