                             COURT OF APPEALS FOR THE
                        FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER ON MOTION

Appellate case name:        Lature Robert Irvin v. The State of Texas

Appellate case numbers:     01-15-00139-CR

Trial court case numbers: 1282104

Trial court:                263rd District Court of Harris County

       On February 25, 2011, appellant, Lature Robert Irvin, was indicted by a grand jury
for the second-degree felony offense of sexual assault. See TEX. PENAL CODE ANN. §§
22.011(a)(1)(A) (West Supp. 2014). On January 28, 2015, after appellant was convicted
as charged in the indictment following a jury trial, the trial court found the first
enhancement paragraph true that appellant had a prior sexual-assault conviction, and
assessed appellant’s punishment at life imprisonment. See id. §§ 12.32(a), 12.42(b)
(West Supp. 2014). The trial court certified appellant’s right of appeal because this was
not a plea-bargain case. See TEX. R. APP. P. 25.2(a)(2)(B). On January 28, 2015,
appellant, through trial counsel, timely filed a notice of appeal from the judgment of
conviction by jury. See id. 26.2(a)(1). After appellant requested the appointment of
counsel, the trial court appointed Kurt B. Wentz as his appellate counsel.

       On July 9, 2015, the Clerk of this Court granted the ninety-day motion for an
extension of time to file appellant’s brief by his appointed counsel until October 2, 2015,
but with no further extensions. On August 11, 2015, this Court granted appellant’s
motion to substitute counsel, construed as a notice of appearance of lead counsel, by his
recently-retained appellate counsel, Robert L. Sirianni, Jr. On September 11, 2015,
appellant’s retained counsel filed a “Motion for Stay of Appellate Proceedings and
Relinquishment of Jurisdiction to Trial Court for Consideration of Renewed Motion for
New Trial” (hereinafter, “Motion to Stay”).

      Appellant’s Motion to Stay attaches his proposed second motion for new trial,
which counsel claims would be filed in the trial court upon this Court’s granting of this
Motion to Stay, and is based on the alleged ineffectiveness of trial counsel for failure to
call a witness, Lizette Ramirez. Appellant claims that his “trial counsel never received”
appellant’s “informed consent to proceed” to trial without Ms. Ramirez, who he asserts
was not properly subpoenaed, and that “trial counsel’s failure to disclose th[is] conflict
constitutes fraud on the court.” Appellant further contends, without citation to any
authority, that “the trial court would have jurisdiction to grant a new trial should this
court relinquish jurisdiction.” Thus, appellant claims that, because of this alleged
ineffectiveness of counsel which he asserts would be demonstrated at an evidentiary
hearing, “[if] he is successful, the trial court would be compelled to grant a new trial, and
this appeal would become moot.” The Court denies the motion.

        The trial court’s jurisdiction expires when a criminal case becomes final or is
taken to a higher court. Yarbrough v. State, 703 S.W.2d 645, 649 (Tex. Crim. App.
1985); see also In re State ex rel. Sistrunk, 142 S.W.3d 497, 503 (Tex. App.—Houston
[14th Dist.] 2004, orig. proceeding). A trial court in a criminal case then has only limited
jurisdiction to perform functions specified by statute, such as finding facts on an
application for writ of habeas corpus. State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim.
App. 2002); Sistrunk, 142 S.W.3d at 503. Without jurisdiction, the trial court has no
power to act. Patrick, 86 S.W.3d at 594; Sistrunk, 142 S.W.3d at 503. Plenary power
does not create jurisdiction where none exists under the law. Ex parte Donaldson, 86
S.W.3d 231, 234 (Tex. Crim. App. 2002); Sistrunk, 142 S.W.3d at 503. To the extent
that a trial judge has plenary power over a criminal proceeding, that power is limited by
the Rules of Appellate Procedure and by statute. See Awadelkariem v. State, 974 S.W.2d
721, 728 (Tex. Crim. App. 1998), overruled, on other grounds, by Kirk v. State, 454
S.W.3d 511, 515 (Tex. Crim. App. 2015); see also Sistrunk, 142 S.W.3d at 503.

        Generally, a trial court has plenary jurisdiction over a criminal case for the first
thirty days after sentencing because it has the authority to receive a motion for new trial
(or motion in arrest of judgment) within that time period and to resolve the merits of that
motion within seventy-five days after sentencing. See TEX. R. APP. P. 21, 22; McClinton
v. State, 121 S.W.3d 768, 778 n.1 (Tex. Crim. App. 2003) (Cochran, J., concurring);
Sistrunk, 142 S.W.3d at 503. A motion for new trial must be filed “no later than 30 days
after [] the date when the trial court imposes or suspends sentence in open court.” TEX.
R. APP. P. 21.4(a). The trial court must “rule on a motion for new trial within 75 days
after imposing or suspending sentence in open court,” or it is deemed denied. Id. 21.8(a),
(c). After this period has run, the trial court has no jurisdiction over the motion for new
trial and can neither grant nor deny it. Garza v. State, 931 S.W.2d 560, 562 (Tex. Crim.
App. 1996); Laidley v. State, 966 S.W.2d 105, 107–08 (Tex. App.—Houston [1st Dist.]
1998, pet. ref’d).

       Here, according to the clerk’s record, appellant’s appointed counsel, Kurt B.
Wentz, timely filed a motion for new trial on February 27, 2015. TEX. R. APP. P.
21.4(a). In that motion, appellant argued that he had received ineffective assistance of
counsel at trial for, among other reasons, failure to call available witnesses, not including

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Ms. Ramirez. On April 29, 2015, the trial court signed an order by handwriting “Denied”
on appellant’s proposed order requesting a hearing date for his motion for new trial.
However, there was no written order by the trial court timely ruling on the merits of
appellant’s motion for new trial in the clerk’s record. Thus, appellant’s first motion for
new trial was “deemed denied” by operation of law on April 13, 2015, the seventy-fifth
day after imposition of the January 28, 2015 sentence . I d . 21.8(a), (c).

        Appellant’s Motion to Stay fails to mention the fact that he already had one
motion for new trial, raising similar ineffectiveness of trial counsel claims, filed by his
appointed counsel. As noted above, after the expiration of seventy-five days from the
date of the imposition of the January 28, 2015 sentence, the trial court lost plenary
jurisdiction to rule on appellant’s first motion for new trial, which was deemed denied.
See Garza, 931 S.W.2d at 562. And, as noted above, any proposed second motion for
new trial would be untimely because it would be filed more than thirty days after
sentencing. TEX. R. APP. P. 21.4(a). Without jurisdiction, the trial court has no power to
act. See Patrick, 86 S.W.3d at 594. Although appellant claims that “the trial court would
have jurisdiction to grant a new trial should this court relinquish jurisdiction,” he failed to
cite to any authority that would grant the trial court jurisdiction and this Court is not
aware of any such authority. See, e.g., Ex parte Donaldson, 86 S.W.3d at 234 (plenary
power does not create jurisdiction where none exists under the law).

      Accordingly, appellant’s Motion to Stay is denied. Appellant’s brief remains
 due by October 2, 2015, with no further extensions.

       It is so ORDERED.


Judge’s signature: /s/ Laura Carter Higley_
                    X

Date: September 25, 2015




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