                                                                              PD-1406-14
                                                            COURT OF CRIMINAL APPEALS
March 26, 2015                                                               AUSTIN, TEXAS
                                                          Transmitted 3/26/2015 2:59:29 PM
                                                            Accepted 3/26/2015 3:15:22 PM
                                                                              ABEL ACOSTA
                 IN THE TEXAS COURT OF CRIMINAL        APPEALS                        CLERK

 JOSE RAMIRO DELAROSA,               §        CCA No. PD-1406–14
     APPELLANT                       §
                                     §
 V.                                  §        COA No. 05-14-01020-CR
                                     §
 THE STATE OF TEXAS,                 §
     APPELLEE                        §        TC No. F14–52888-T


      APPEALED FROM CAUSE NUMBER F14-52888-T IN THE 283 RD JUDICIAL
 DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE RICK
 MAGNIS, JUDGE PRESIDING; APPEAL DISMISSED FOR LACK OF
 JURISDICTION BY THE HONORABLE FIFTH COURT OF APPEALS IN CAUSE
 NUMBER 05-14-01020-CR.

                                  §§§

       STATE'S REPLY BRIEF ON THE MERITS ON STATE’S
            PETITION FOR DISCRETIONARY REVIEW

                                  §§§


                                  SUSAN HAWK
                                  Criminal District Attorney
                                  Dallas County, Texas


                                  MICHAEL R. CASILLAS, Assistant
                                  Criminal District Attorney,
                                  Appellate Division
                                  133 N. Riverfront Blvd., LB 19
                                  Dallas, Texas 75207-4399
                                  (214) 653-3600/FAX (214) 653-3643
                                  State Bar No. 03967500
                                  Michael.Casillas@dallascounty.org
                                  Mcasillas@dallascounty.org
                  Identity of Parties, Counsel, and Trial Court Below

Petitioner -- (Appellee Below):   The State of Texas


Represented by:

                    The Honorable Susan Hawk, Criminal District Attorney
                    Michael R. Casillas, Assistant Criminal District Attorney

                    Office of the Criminal District Attorney of Dallas County
                    133 N. Riverfront Blvd., LB 19
                    Dallas, Texas 75207-4399


Respondent – (Appellant Below):      Jose Ramiro Delarosa


Represented by:

                    The Honorable Leslie McFarlane
                    7522 Campbell Road, Suite 113-216
                    Dallas, Texas 75248


                        Identification of Trial Court Below

             The 283 rd Judicial District Court of Dallas County, Texas –
             The Honorable Judge Rick Magnis, Presiding




                                          ii
                        SUBJECT INDEX/TABLE OF CONTENTS

IDENTITY OF PARTIES, COUNSEL,
AND TRIAL COURT BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

SUMMARY OF THE CASE/STATEMENT OF FACTS . . . . . . . . . . . . . . . . . 1

SUMMARY OF STATE’S REPLY ARGUMENTS                                              ..................... 3

THE CERTAIN MATTERS IN DELAROSA’S
RESPONSE BRIEF TO BE ADDRESSED . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,11

        I. DELAROSA’ S ARGUMENTS ARE BASED ON
        MULTIPLE ASSUMPTIONS THAT ARE NOT
        DEFINITIVELY PROVEN BY THE EXISTING
        RECORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii,6

        II. WHILE THE FIFTH COURT’S USE OF THE
        ABATEMENT PROCESS WOULD HAVE PERMITTED
        THE ACCURACY OR INACCURACY OF A NUMBER
        OF DELAROSA’S ASSUMPTIONS TO BE DETERMINED
        LONG AGO, A CONCLUSION BY THIS COURT
        MANDATING THE USE OF THE ABATEMENT
        PROCESS WOULD PERMIT THE ACCURACY OR
        INACCURACY OF ALL OF DELAROSA’S
        ASSUMPTIONS TO BE DETERMINED. .................... .................................iii,7

        III. DELAROSA’S ATTEMPTS TO IGNORE MATTERS
        RELATING TO THE TRIAL COURT’S “JUDGMENT” OF
        DECEMBER 17, 2014 ARE THOROUGHLY UNDERSTANDABLE
        IN LIGHT OF HOW THAT “JUDGMENT” AND THE PLEA
        DOCUMENTS PERTAINING TO IT PROVIDE FURTHER
        SUPPORT FOR THIS COURT TO MANDATE THAT THE
        ABATEMENT PROCESS SHOULD BE USED TO HAVE
        THE RECORD REFLECT THE TRUTH. . . . . . . . . . . . . . . . . . . . . . . . . iii,11

                                                          iii
       IV. DELAROSA’S ARGUMENTS CONTENDING THAT
       THE RECORD IS CLEAR REGARDING HOW THE TRIAL
       COURT GRANTED DELAROSA A NEW TRIAL – AND
       HAD INTENDED TO DO SO – HAVE RAISED ADDITIONAL
       ISSUES PERTAINING TO THE NATURE OF DELAROSA’S
       SOLE CLAIM AND WHAT AN ACTUAL RULING IN
       DELAROSA’S FAVOR WOULD HAVE REQUIRED OF THE
       TRIAL COURT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv,11

       V. IN LIGHT OF THE SUBSEQUENT ACTIONS OF THE
       TRIAL COURT THAT ARE INCONSISTENT WITH WHAT
       WOULD BE REQUIRED HAD THE TRIAL COURT RULED
       IN DELAROSA’S FAVOR, THE SUBSEQUENT ACTIONS OF
       THE TRIAL COURT PROVIDE MORE GROUNDS FOR A
       CONCLUSION BY THIS COURT MANDATING USE OF THE
       ABATEMENT PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv,11

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE/PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20




                                                      iv
                                INDEX OF AUTHORITIES

CASES                                                                                             PAGES

Bogan v. State, 180 S.W. 247 (Tex. Crim. App. 1915) . . . . . . . . . . . . . . . . . . . . . 14

Ex Parte Seidel, 39 S.W.3d 221 (Tex. Crim. App. 2001)                  . . . . . . . . . . . . . . . . . . 16n

Gonzales v. State, 689 S.W.2d 900 (Tex. Crim. App. 1985) . . . . . . . . . . . . . . . . . 14

Schneider v. State, 594 S.W.2d 415 (Tex.
      Crim. App. [Panel Op.] 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State v. Herndon, 215 S.W.2d 901(Tex. Crim. App. 2007)                     . . . . . . . . . . . . . . . . . 15

State v. Morales, No. 05-12-01297-CR, 2013 Tex. App.
       LEXIS 13047 (Tex. App. – Dallas October 17,
       2013, no pet.)(not designated for publication) . . . . . . . . . . . . . . . . . . . . . 16n

State v. Savage, 933 S.W.2d 497 (Tex. Crim. App. 1996)                   . . . . . . . . . . 14,15,16,16n

State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . 14

Taylor v. State, 247 S.W.3d 223 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . 3

Taylor v. State, No. 05-06-01076-CR, 2008 Tex. App.
      LEXIS 6981 (Tex. App. – Dallas September
      19, 2008, no pet.)(not designated for publication) . . . . . . . . . . . . . . . . . . . . . 7




                                                    v
ARTICLES, RULES, CODES, AND CONSTITUTIONS

Tex. R. App. P. 4.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. R. App. P. 9.4(i)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tex. R. App. P. 9.4(i)(2)(C)              . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tex. R. App. P. 38.3            ................................................ 2

Tex. R. App. P. 38.6(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2




                                                          vi
                  IN THE TEXAS COURT OF CRIMINAL APPEALS

JOSE RAMIRO DELAROSA,                               §     CCA No. PD-1406–14
     APPELLANT                                      §
                                                    §
V.                                                  §     COA No. 05-14-01020-CR
                                                    §
THE STATE OF TEXAS,                                 §
    APPELLEE                                        §     TC No. F14-52888-T


     APPEALED FROM CAUSE NUMBER F14-52888-T IN THE 283 RD JUDICIAL
DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE RICK
MAGNIS, JUDGE PRESIDING; APPEAL DISMISSED FOR LACK OF
JURISDICTION BY THE HONORABLE FIFTH COURT OF APPEALS IN CAUSE
NUMBER 05-14-01020-CR.

TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:

       The instant State’s Reply Brief is submitted to this Court on behalf of Susan

Hawk, the Criminal District Attorney of Dallas County, Texas, in regard to the State’s

Petition For Discretionary Review which this Court previously granted.

               SUMMARY OF THE CASE/STATEMENT OF FACTS

       Based on the content of the State’s Opening Merit Brief, this Court is well aware

of the historical facts and procedural posture of this case.1 Accordingly, the State will

not repeat those matters in the instant State’s Reply Brief, but instead directs this Court

to the discussion of those matters that is contained in the State’s Opening Merit Brief.



       1
           See State’s Opening Merit Brief, at pp. 3-8.

                                                   1
         Delarosa’s Response Brief was accepted by this Court on March 17, 2015.

Based on the claims in Delarosa’s Response Brief, this Court is well aware of

Delarosa’s responses to the contentions contained in the State’s Opening Merit Brief.2

The State wishes, however, to address certain matters raised in Delarosa’s Response

Brief.

         As per the literal text of the applicable rule of appellate procedure, the State files

the instant State’s Reply Brief in an effort to address certain matters in Delarosa’s

Response Brief. See Tex. R. App. P. 38.3. According to Tex. R. App. P. 38.6(c), an

appellant must file any reply brief within twenty (20) days of the filing of the

appellee’s brief. As noted above, Delarosa’s Response Brief was accepted by this

Court on March 17, 2015. As calculated in accordance with the applicable rule of

appellate procedure, the twentieth (20 th) day after March 17, 2015 would be April 6,

2015. See Tex. R. App. P. 4.1(a). As per the language of the relevant rules of the

Texas Rules of Appellate Procedure, the instant State’s Reply Brief is timely so long

as it is filed no later than Monday, April 6, 2015. See Tex. R. App. P. 4.1(a); Tex. R.

App. P. 38.6(c).




         2
             See Delarosa’s Response Brief, at pp. 1-15.

                                                    2
              SUMMARY OF STATE'S REPLY ARGUMENTS

      Delarosa’s arguments proceed from multiple assumptions that are in no way

conclusively proven by the existing record. Delarosa assumes that the interlineation

(that does not encircle the “(granted)” option on the order portion of the motion for

new trial) was intended to indicate that the trial court had granted the motion for new

trial. Delarosa also assumes that the trial court signed the order portion of the

motion for new trial on the same day that the motion for new trial was faxed to the

court and file-stamped, August 6, 2014. Delarosa further assumes that the record

contains no inaccuracies. Finally, Delarosa assumes that the notation “Motion for

new trial granted per Judge Rick Magnis” in the “judgment” of December 17, 2014

refers to the order portion of the motion for new trial that Delarosa assumes granted

Delarosa a new trial.

      While the record does not definitively demonstrate that any of Delarosa’s

assumptions are correct, the accuracy or inaccuracy of Delarosa’s first three

assumptions could have been determined long ago had the Fifth Court simply made

use of the abatement process as per Taylor v. State, 247 S.W.3d 223 (Tex. Crim.

App. 2008). Furthermore, should this Court determine that the “judgment” of

December 17, 2014 was void ab initio (because this Court had exclusive jurisdiction

over the case by virtue of the pendency of the State’s timely-filed petition for

                                           3
discretionary review) and that the abatement process should be used for the trial court

to clarify whether it intended to grant a new trial or for an appeal to proceed, the trial

court can also clarify the at-least-somewhat cryptic nature of the notation in the

“judgment” of December 17, 2014 that reads “Motion for new trial granted per

Judge Rick Magnis.”

      Delarosa’s attempts to ignore matters relating to the irregularities that led to

the “judgment” of December 17, 2014 are thoroughly understandable in light of how

those irregularities provide more support for the State’s position herein. Moreover,

since that “judgment” of December 17, 2014 – on its face – was rendered at a time

when only this Court had jurisdiction over the case (by virtue of the State’s having

timely filed its petition for discretionary review) and since the plea papers related to

the “judgment” of December 17, 2014 contain discrepancies regarding when the

parties signed the documents and when the trial court signed them, the “judgment”

of December 17, 2014 supports this Court’s mandating that the abatement process be

used to make certain that the appellate record reflects the truth of what occurred

during the proceedings below and when those occurrences transpired.

      In addition to the aforementioned matters, Delarosa’s arguments that the

record is clear that the motion for new trial was actually granted raise the issues of

the content of the motion for new trial and – assuming the trial court did mean to

                                            4
grant Delarosa a new trial – the only action that the trial court could subsequently

take properly as a matter of law. In regard to these latter issues, this Court’s binding

precedents make clear that the motion for new trial made one claim only, a claim of

insufficiency of the evidence. According to this Court’s other binding precedent, the

trial court had to enter a judgment of acquittal, which the trial court did not do. As

such, the nature of Delarosa’s claims and the trial court’s subsequent conduct

actually support the conclusion that the trial court did not originally intend to grant

the motion for new trial. In the alternative, the trial court’s conduct as a whole

provides only additional support for the conclusion that this Court should order that

resort to the abatement process is required.

      For all the aforementioned reasons and the reasons stated in the State’s

Opening Merit Brief and the State’s Jurisdictional Brief, the State respectfully

reiterates that the Fifth Court still erred by failing to make use of the abatement

process based on the conclusion that it did not have jurisdiction and that only this

Court had jurisdiction once the State’s petition for discretionary review was filed in

a timely fashion.




                                           5
                     THE CERTAIN MATTERS IN DELAROSA’S
                       RESPONSE BRIEF TO BE ADDRESSED

      I. DELAROSA’ S ARGUMENTS ARE BASED ON MULTIPLE
      ASSUMPTIONS THAT ARE NOT DEFINITIVELY PROVEN
      BY THE EXISTING RECORD.

      II. WHILE THE FIFTH COURT’S USE OF THE ABATEMENT
      PROCESS WOULD HAVE PERMITTED THE ACCURACY OR
      INACCURACY OF A NUMBER OF DELAROSA’S ASSUMPTIONS
      TO BE DETERMINED LONG AGO, A CONCLUSION BY THIS
      COURT MANDATING THE USE OF THE ABATEMENT PROCESS
      WOULD PERMIT THE ACCURACY OF INACCURACY OF ALL
      OF DELAROSA’S ASSUMPTIONS TO BE DETERMINED.

      Delarosa’s Response Brief expressly states, “The Court of Appeals properly

dismissed this appeal for lack of jurisdiction due to the unambiguous granting of the

motion for new trial in this matter.” 3 Delarosa’s Response Brief also states that “the

record does not contain inaccuracies.” 4 Furthermore, Delarosa’s Response Brief states

that, “A Motion for New Trial was filed and granted on August 6, 2014.” 5 Lastly,

Delarosa’s Response Brief asserts that when the “judgment” was entered on the date

of December 17, 2014, “the fact that the trial court had earlier granted the motion for

new trial was acknowledged in the notes of the judgment.” 6



      3
          See Delarosa’ Response Brief at p. 4.
      4
          See Delarosa’s Response Brief at p. 4.
      5
          See Delarosa’s Response Brief at p. 3.
      6
          See Delarosa’s Response Brief at p. 5.
                                                   6
      Each of Delarosa’s aforementioned contentions constitutes an assumption that

is not conclusively or definitively proven by the existing record.      While Delarosa

contends that the record is “unambiguous” regarding how the trial court granted the

motion for new trial, the State’s Opening Merit Brief has already shown how it is

unclear whether the trial court’s interlineation on the order portion of the motion for

new trial was intended to show that the trial court had granted the motion for new trial

or had stricken through the “(granted)” option (which would indicate that the motion

for new trial had been overruled).7

      Additionally, the State’s Opening Merit Brief noted how the trial court’s docket

sheet provided no guidance relative to the motion for new trial as it in no way reflected

that any motion for new trial was even filed, much less that there was ever any ruling

in regard thereto.8 Furthermore, the State’s Opening Merit Brief, citing the Fifth

Court’s own case of Taylor v. State, No. 05-06-01076-CR, 2008 Tex. App. LEXIS

6981 (Tex. App. – Dallas September 19, 2008, no pet.)(not designated for publication),

noted how the jurisprudence of the Fifth Court had recognized that the existence of

even an order that clearly seemed on its face to grant a new trial could actually be the




      7
          See State’s Opening Merit Brief at pp. 4-5.
      8
          See State’s Opening Merit Brief at p. 5.
                                                     7
result of an inadvertent mistake by the trial court.9

      Similarly, the combination motion for new trial and order bears a facsimile

transmission date of August 6, 2014 and a file-stamp date of August 6, 2014. (CR:

64). The trial court’s signature, however, bears no date whatsoever. (CR: 64).

Accordingly, Delarosa’s assertion that the motion was granted on August 6, 2014 is

not definitively proven by the existing record, especially since the docket sheet fails to

reflect anything regarding Delarosa’s motion for new trial.

      While it is possible that the trial court may have signed the order on August 6,

2014 and may have intended for the aforementioned interlineation to indicate that the

motion for new trial was being granted (as Delarosa assumes), the face of the order

itself fails to establish definitively either when the act of signing occurred and/or that

the interlineation was intended to indicate that the motion for new trial had been

granted. (CR: 64). Again, the docket sheet is of absolutely no help regarding these

matters. Finally, if the trial court signed the order on August 6, 2014 and if that order

was so obviously intended to indicate that Delarosa’s motion for new trial was being

granted, why did Delarosa wait until September 22, 2014 – a period of 47 days – to

move for a dismissal of the appeal? Had Delarosa appreciated that the trial court’s

interlineation and signature clearly meant that the motion for new trial had been


      9
          See State’s Opening Merit Brief at p. 12.
                                                  8
granted, would not Delarosa have filed the motion to dismiss the appeal well before a

period of 47 days had elapsed?

       Since Delarosa’s having waited 47 days to file a motion to dismiss the appeal

is at least inconsistent with any immediate appreciation that the trial court had

obviously and undoubtedly granted Delarosa a new trial, it is far from clear whether

the appellate record is or is not accurate. However, the use of the abatement process

would have clarified – many months ago – whether the matters discussed above were

or were not inaccuracies in the appellate record.

       Finally, Delarosa claims that the “judgment” of December 17, 2014 contains a

notation that indicates that the trial court had granted the previous motion for new trial.

However, a review of the face of the “judgment” of December 17, 2014 demonstrates

that Delarosa has again assumed what a less-than clear matter actually means.

       The “judgment” of December 17, 2014 appears in the supplemental Clerk’s

Record that was subsequently filed pursuant to this Court’s order. (CR-S: 18-19). The

second page of the “judgment” of December 17, 2014 contains a heading that reads,

“Furthermore, the following special findings or orders apply:” (CR-S: 19). Beneath

that heading appears the language, “Motion for new trial granted per Judge Rick

Magnis.” (CR-S: 19).

       While Delorosa claims that this language indicates that the trial court previously

                                             9
granted the motion for new trial, that is not what the language literally states.

Delarosa’s attempt to attribute to the language a meaning akin to “motion for new trial

was previously granted” is thoroughly understandable in light of how an order on

December 17, 2014 granting a motion for new trial would have been an outright nullity

based on the July 2014 date that the original judgment had been entered.10 While the

matter of the content of the “judgment” of December 17, 2014 would not have been

clarified by any use of the abatement process that would have pre-dated the issuance

of the “judgment” of December 17, 2014, there is no doubt that a conclusion by this

Court that mandated use of the abatement process would permit the resolution of the

ambiguous nature of the language upon which Delarosa has relied. Accordingly, the

fact that Delarosa is compelled to rely on unproven assumptions amply demonstrates

why this Court still should order the Fifth Court to make use of the abatement process

to ensure that a clear record will exist showing not only what actually occurred in the

trial court, but also when those occurrences actually transpired.




       10
         The State’s Opening Merit Brief discussed how any order granting a motion for new trial
on December 17, 2014 would be of absolutely no force and effect relative to the judgment of July
9, 2014. See State’s Opening Merit Brief at pp. 19-21.
                                               10
      III. DELAROSA’S ATTEMPTS TO IGNORE MATTERS RELATING
      TO THE TRIAL COURT’S “JUDGMENT” OF DECEMBER 17, 2014
      ARE THROUGHLY UNDERSTANDABLE IN LIGHT OF HOW
      THAT “JUDGMENT” AND THE PLEA DOCUMENTS PERTAINING
      TO IT PROVIDE FURTHER SUPPORT FOR THIS COURT TO
      MANDATE THAT THE ABATEMENT PROCESS SHOULD BE
      USED TO HAVE THE RECORD REFLECT THE TRUTH.

      IV. DELAROSA’S ARGUMENTS CONTENDING THAT THE
      RECORD IS CLEAR REGARDING HOW THE TRIAL COURT
      GRANTED DELAROSA A NEW TRIAL – AND HAD INTENDED
      TO DO SO – HAVE RAISED ADDITIONAL ISSUES PERTAINING
      TO THE NATURE OF DELAROSA’S SOLE CLAIM AND WHAT
      AN ACTUAL RULING IN DELAROSA’S FAVOR WOULD HAVE
      REQUIRED OF THE TRIAL COURT.

      V. IN LIGHT OF THE SUBSEQUENT ACTIONS OF THE TRIAL
      COURT THAT ARE INCONSISTENT WITH WHAT WOULD BE
      REQUIRED HAD THE TRIAL COURT RULED IN DELAROSA’S
      FAVOR, THE SUBSEQUENT ACTIONS OF THE TRIAL COURT
      PROVIDE MORE GROUNDS FOR A CONCLUSION BY THIS
      COURT MANDATING USE OF THE ABATEMENT PROCESS.

      Delarosa’s Response Brief states, “The appellant will not address the issues

regarding the alleged irregularities in the new trial held on December 17, 2014. That

proceeding is not before this court except as a reason for dismissing the previously

granted petition for discretionary review.” 11 As the State’s Response To Delarosa’s

Dismissal Motion, the State’s Jurisdictional Brief, and the State’s Opening Merit Brief

all either noted or alluded to, a discrepancy exists in the plea documents related to the



      11
           See Delarosa’s Response Brief, at p. 12.
                                                 11
“judgment” of December 17, 2014 and that discrepancy pertains to the dates when the

parties affixed their signatures thereto and the date when the trial court affixed its

signature thereto.12 Since the plea documents are contained in the supplemental

Clerk’s Record, the record before this Court now shows that the parties signatures were

affixed on December 10, 2014, but the trial court’s signature was affixed on December

17, 2014. (CR-S: 16). This discrepancy – along with the undisputed fact that the

“judgment” of December 17, 2014 was entered while this Court’s exclusive

jurisdiction had been invoked – destroy any potential applicability of the presumption

of regularity. See, e.g., Schneider v. State, 594 S.W.2d 415, 418 (Tex. Crim. App.

[Panel Op.] 1980). Finally, the record contains no docket sheet that reflects that any

plea bargain was ever consummated and accepted by the trial court. (CR-O: 1-75; CR-

S: 1-24).

       In light of the aforementioned matters, Delarosa’s attempts to ignore matters

related to the “judgment” of December 17, 2014 are completely understandable.

Moreover, consideration of the “judgment” of December 17, 2014 in light of relevant

portions of this Court’s jurisprudence leads to the conclusion that the “judgment” of

December 17, 2014 and the trial court’s actions in regard to the case actually provide




       12
          See State’s Response To Delarosa’s Dismissal Motion, at pp. 13-15; State’s Jurisdictional
Brief, at pp. 6-7; State’s Opening Merit Brief, at pp. 7, 20-21 n.12.
                                                 12
more support for the State’s position that the abatement process should be used to

make certain that the record reflects the truth regarding what the trial court ruled and

when and whether Delarosa’s appeal should have proceeded from the original

judgment of conviction that was entered in July 2014.

       As the State noted in its response to Delarosa’s motion to dismiss and in the

State’s Jurisdictional Brief, the “judgment” of December 17, 2014 makes clear on its

face that it was entered on a date when only this Court had jurisdiction over the case

because of the State’s having timely filed the State’s petition for discretionary review

in regard to the Fifth Court’s judgment and the pendency thereof as of the date of

December 17, 2014.13 Accordingly, the “judgment” of December 17, 2014 facially

reflects that it was entered at a time when the trial court had no jurisdiction to dispose

of the case because this Court’s sole and exclusive jurisdiction had already been

invoked and was still pending.14            Furthermore, consideration of the content of


       13
          See State’s Response To Delarosa’s Dismissal Motion, at pp. 4-11; State’s Jurisdictional
Brief, at pp. 1-23.
       14
          Delarosa’s Jurisdictional Brief argued that the trial court had jurisdiction under the Texas
Rules of Appellate Procedure because the trial court had granted Delarosa’s motion for new trial.
See Delarosa’s Jurisdictional Brief, at pp. 1-11. In light of how the State’s Jurisdictional Brief
expressly argued that a conclusion contrary to the State’s position herein would constitute granting
trial courts the ability to deprive this Court of its already-invoked jurisdiction at a time when this
Court was still deciding whether to review the judgment of a court of appeals, Delarosa’s
Jurisdictional Brief not only actually demonstrates the outcome predicted by the State, but also
constitutes an effort to benefit from depriving this Court of its already-invoked jurisdiction before
this Court had even determined – and expressed its opinion regarding – whether the Fifth Court’s
judgment should or should not be reviewed. See State’s Jurisdictional Brief, at pp. 16-20.
                                                    13
Delarosa’s motion for new trial and what would have been required by law had the trial

court meant to grant Delarosa’s motion for new trial provide even more support for this

Court to conclude that use of the abatement process is required in the instant case.

      Delarosa’s motion for new trial asserted that a new trial was merited for one

reason and for one reason only, that the verdict was contrary to the law and evidence.

(CR: 64). Under this Court’s binding precedents, Delarosa’s motion for new trial – by

having claimed only that the verdict was contrary to the law and evidence – made only

a claim of insufficiency of the evidence. See State v. Zalman, 400 S.W.3d 590, 594

(Tex. Crim. App. 2013), citing (among others): Gonzales v. State, 689 S.W.2d 900

(Tex. Crim. App. 1985) and Bogan v. State, 180 S.W. 247, 248 (Tex. Crim. App.

1915). Additionally, this Court’s binding precedent establishes that Texas trial courts

do have the authority “to order new trials for evidentiary sufficiency in criminal cases.”

State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996). However, when a trial

court does grant a motion for new trial for evidentiary insufficiency after a jury has

already returned a guilty verdict, “double jeopardy prevents the trial court from

entering any other judgment than an acquittal.” Savage, 933 S.W.2d at 499.

      If the trial court granted Delarosa’s motion for new trial, the trial court – in order

to have done so properly – would have to had done so based on the sole claim that had

been alleged therein – insufficiency of the evidence. Had the trial court granted

                                            14
Delarosa’s motion for new trial for some grounds other than the sole ground Delarosa

had alleged therein, that would be inconsistent with – if not violative of – the

limitations this Court has placed on the discretion any trial court has relative to ruling

on any motion for new trial.15 See State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim.

App. 2007). Since the trial court could only have properly granted Delarosa’s motion

for new trial on grounds of insufficiency of the evidence, the trial court would have

been required to enter a judgment of acquittal (assuming arguendo that the trial court

meant for the file-stamped order of August 2014 to indicate that Delarosa’s motion for

new trial had been granted). See Savage, 933 S.W.2d at 499.

       The record is undisputed, however, that the trial court never entered any

judgment of acquittal, which supports the conclusion that no motion for new trial was

granted (or was not granted properly or on the sole ground alleged in Delarosa’s motion

for new trial). In regard to this point, Delarosa has not even claimed that the trial court

ever intended to grant a judgment of acquittal in Delarosa’s favor. Moreover, the




       15
         Since the record contains nothing to indicate that any hearing was ever conducted regarding
Delarosa’s motion for new trial and since Delarosa’s combination motion and order contains no
language indicating that the District Clerk was ever directed to serve the parties with copies of the
signed order with a file-stamp date of August 6, 2014, the instant case actually presents the question
of whether trial courts should be permitted to grant motions for new trial for evidentiary sufficiency
without holding a hearing thereon and/or without directly ordering that the clerk of the court serve
the parties with copies of any issued orders that grant new trials based on insufficiency of the
evidence (especially in those instances where – like here – a jury has already determined that the
defendant was guilty beyond a reasonable doubt).
                                                  15
“judgment” of December 17, 2014 shows that the trial court sought to assume

jurisdiction over the case again, but not for any purpose of making clear that the trial

court had previously found the evidence insufficient. Accordingly, the trial court’s

own conduct fails to support the conclusion that the trial court granted Delarosa’s

motion for new trial in accordance with the law because the trial court – in order to

have properly granted Delarosa a new trial in accordance with the law – would have

had to have entered a judgment of acquittal.16 See Savage, 933 S.W.2d at 499.

        Since the very existence of the “judgment” of December 17, 2014 and the trial

court’s treatment of the case are entirely inconsistent with any conclusion that the trial

court properly granted Delarosa’s motion for new trial in August 2014 on the sole,

evidentiary sufficiency grounds Delarosa had asserted in his motion for new trial, the

        16
          If the trial court actually agreed with Delarosa’s new-trial claim of evidentiary
insufficiency, but merely granted Delarosa a new trial without entering a judgment of acquittal, the
trial court may very well have entered a void order by merely granting Delarosa a new trial. A trial
court’s ruling or judgment can be rendered void as a result of certain non-jurisdictional errors that
pertain to a trial court’s lack of authority to act in a particular manner. See, e.g., State v. Morales,
No. 05-12-01297-CR, 2013 Tex. App. LEXIS 13047, at *14-15 n.4 (Tex. App. – Dallas October 17,
2013, no pet.)(not designated for publication), citing Ex Parte Seidel, 39 S.W.3d 221, 224 (Tex.
Crim. App. 2001). If the trial court truly was ruling that the evidence was insufficient, the trial court
– according to Savage – only had the authority to enter a judgment of acquittal, such that –
according to Ex Parte Seidel – any ruling merely granting a motion for new trial was void from the
moment the trial court entered it. See Ex Parte Seidel, 39 S.W.3d at 224; Savage, 933 S.W.2d at
499. Again, whether a trial court should have the authority to override the verdict of a jury and
declare the evidence insufficient without even holding a hearing to announce such a ruling and/or
without directing the court clerk to provide copies of the trial court’s ruling directly to the parties
is yet another important question that is embedded in the instant case. Finally, it cannot be stated
enough that the meaning and basis of the trial court’s interlineation could have been clarified long
ago if the Fifth Court had merely made use of the abatement process as the State had requested.

                                                   16
very existence of the “judgment” of December 17, 2014 and the trial court’s treatment

of the case provide further proof in support of the State’s position and reasons why the

abatement process should be used to determine as best as possible what actually

transpired in the trial court. As such, the claims in Delarosa’s Response Brief include

matters that actually provide further support for this Court to reach a conclusion

mandating that the abatement process be used in the instant case.




                                           17
                         CONCLUSION AND PRAYER

      In accord with and based on all the legal authority cited by the State in both the

State’s Opening Merit Brief and the instant State’s Reply Brief, the Fifth Court clearly

erred by dismissing Delarosa’s appeal for want of jurisdiction without first having

made use of the abatement process to make an accurate determination of whether the

Fifth Court did or did not have jurisdiction. Accordingly, the State reiterates the prayer

that this Court will vacate the Fifth Court’s judgment through the issuance of an

opinion that makes clear that the Fifth Court should have not only addressed the issues

raised by the State and necessary to the appeal’s disposition regarding whether the

record contained any inaccuracies that had prevented the proper presentation of the

case to the Fifth Court, but also that the Fifth Court should have made use of the

abatement process to ascertain whether the Fifth Court did or did not have jurisdiction.

      For all the aforementioned reasons and based on all the legal authority cited in

conjunction therewith, the State again prays that the erroneous judgment of the Fifth

Court in this case will be vacated or reversed and that the Fifth Court will be directed

to make use of the abatement process to develop a record that makes clear what

actually occurred in the trial court and when such occurrences transpired.

                                         Respectfully submitted,

                                         SUSAN HAWK
                                         Criminal District Attorney
                                            18
                                         Dallas County, Texas




                                         _________________________________
                                         MICHAEL R. CASILLAS, Assistant
                                         Criminal District Attorney,
                                         Appellate Division
                                         133 N. Riverfront Blvd., LB 19
                                         Dallas, Texas 75207-4399
                                         (214) 653-3600/FAX (214) 653-3643
                                         State Bar No. 03967500
                                         Michael.Casillas@dallascounty.org
                                         Mcasillas@dallascounty.org




                     CERTIFICATE/PROOF OF SERVICE

      I hereby certify that – no later than April 6, 2015 – a true, electronically-

formatted copy of the instant State's Reply Brief has been served on opposing counsel,

the Hon. Leslie McFarlane, and has also been served on the State’s Prosecuting

Attorney, the Hon. Lisa McMinn, by use of the electronic service function that

accompanies the State’s filing of the instant State’s Reply Brief with this Court through

the electronic filing service provider to which the State subscribes.




                                         ____________________________________
                                         MICHAEL R. CASILLAS

                                           19
                       CERTIFICATE OF COMPLIANCE

      By affixing my signature below, I hereby certify – based on the word count

function of the word-processing software program that was used in connection with

the preparation of the instant State’s Reply Brief – that the entirety of the body of the

instant State’s Reply Brief is comprised of 4,108 words. Additionally, I hereby certify

that the relevant portions of the instant State’s Reply Brief – as defined by Tex. R.

App. P. 9.4(i)(1) – are comprised of 3,099 words. Accordingly, I also hereby certify

that the number of words in the instant State’s Reply Brief is in no way in excess of

the 7,500-word limit specified in Tex. R. App. P. 9.4(i)(2)(C).




                                         ____________________________________
                                         MICHAEL R. CASILLAS




                                           20
