
NO. 07-02-0180-CR

IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL A


MAY 21, 2002


______________________________



JONATHAN CAMPBELL, APPELLANT


V.


THE STATE OF TEXAS, APPELLEE



_________________________________


FROM THE 228TH DISTRICT COURT OF HARRIS COUNTY;


NO. 850402; HONORABLE LARRY FULLER, JUDGE


_______________________________


Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
ON MOTION TO SUSPEND

	Appellant Jonathan Campbell was convicted of the offense of abuse of official
capacity on January 14, 2002.  He filed a notice of appeal on February 7, 2002, and
motions for new trial and in arrest of judgment on February 13, 2002, which were overruled
by operation of law.   Appellant has now filed with this court a motion asking that, pursuant
to Rule of Appellate Procedure 2, we suspend the time requirements of Rules of Appellate
Procedure 21.8 and 22.4 for the court to rule on the motion for new trial and motion in
arrest of judgment.
	Rule 21.8 provides that a motion for new trial must be ruled on within 75 days of
imposing or suspending sentence in open court, and a motion not timely ruled on by
written order will be deemed denied when the 75-day period has expired.  Tex. R. App. P.
21.8(a) and (c).  Similarly, Rule 22.4 provides that the court must rule on a motion in arrest
of judgment within the same 75-day period.  Tex. R. App. P. 22.4(a).  A motion not ruled
on within that period will be deemed denied.  Id. (b). 
	Rule 2 of the Rules of Appellate Procedure allows this court, on a party's motion or
on our own initiative, and in order to expedite a decision or for other good cause, to
suspend a rule's operation in a particular case and order a different procedure.  However,
we may not suspend any provision of the Code of Criminal Procedure in a criminal case
or alter the time to perfect an appeal in a civil case.  Tex. R. App. P. 2.
	Appellant asserts that there is good cause in this instance for us to suspend the
time requirements of Rules 21.8 and 22.4.  This is so, he argues, because the case was
tried to Judge Larry J. Fuller, sitting by assignment in place of Judge Ted Poe, but the
post-trial motions were presented to Judge Poe, who had to review the trial transcript
before conducting a hearing on the motions since he had not presided over the trial, and
he did not receive the transcript until April 29, 2002, well after the 75-day deadline had
passed. (1)  Judge Poe planned to conduct the hearing on May 1, but at that time both parties
and the court agreed that the court no longer had jurisdiction of the matter.  Since the
delay in holding a hearing was due to the court's sense of fairness in attempting to review
the transcript prior to the hearing and the it was not available until April 29, appellant
claims there was no tardiness, mistake, or accident involved.  
	In seeking to convince us to order suspension of the rules, appellant cites McMillan
v. State, 769 S.W.2d 675 (Tex.App.--Dallas 1989, pet. ref'd) and Alafa v. State, No. 07-00-0113-CR (Tex.App.--Amarillo, Aug. 21, 2000, no pet.) (not designated for publication),
2000 WL 1179792.  However, both of those cases were situations in which the trial court
had refused to hold a hearing on a motion for new trial even though a timely, verified
motion for new trial raising matters extrinsic to the record had been filed.  It is an abuse
of discretion for the trial court to fail to conduct a hearing under such circumstances. 
McIntire v. State, 698 S.W.2d 652, 660 (Tex.Crim.App. 1985).  To correct that abuse, the
court in McMillan suspended the rules insofar as they imposed time limits from the date of
sentencing and ordered them to be computed from the date of the court's judgment. 
McMillan, 769 S.W.2d at 677.  This court in Alafa ordered an abatement of the appeal so
that a hearing on the motion for new trial could be heard.  Alafa, 2000 WL 1179792, at 3. 
Those are not the circumstances before this court because there has been no showing of
an abuse of discretion.   
	A court of appeals may not use Rule 2 to suspend or enlarge appellate limits that
regulate the process of moving a case from trial to finality of conviction.  Oldham v. State,
977 S.W.2d 354, 359 (Tex.Crim.App. 1998), cert. denied, 525 U.S. 1181, 119 S.Ct. 1121,
143 L.Ed.2d 116 (1999).  Thus, use of the rule should be limited to instances where
suspension of a rule will facilitate the process of moving the case through the appellate
court.  Id.
	When the time in which to rule on a motion for new trial has expired and the motion
has been overruled by operation of law, the trial court lacks authority to grant a motion for
new trial.  State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex.Crim.App. 1987).  The
rule is intended to provide finality of judgments when a motion for new trial is filed.  Id.  In
Cobb, the trial court had failed to sign a written order granting a motion for new trial until
after the motion had been overruled by operation of law, even though he had orally
granted the motion within the 75-day period.  The court refused to suspend Rule of
Appellate Procedure 31(e)(3) (now Rule 21.8) because it was sought to remedy the trial
court's tardiness, which was not good cause.  Id. 
	Appellant attempts to distinguish the facts in Cobb from those before us because
the delay was due to no fault of the trial court.  Nevertheless, in State v. Garza, 931
S.W.2d 560, 563 (Tex.Crim.App. 1996), where a fact situation somewhat similar to Cobb
arose, the court held that "Rule 2(b) does not authorize the retroactive suspension of rules
governing events that have already occurred at the trial level before the record has been
conveyed to the appellate court."  Id. (2)  Thus, what must be shown by good cause is that
suspending a rule "will actually facilitate processing the case through the appellate court
by 'expediting a decision' or otherwise."  Id.   
	The rules we are asked to suspend allow 75 days in which to rule on a motion for
new trial or motion in arrest of judgment.  In these circumstances, there might have been
some way of expediting the preparation of the transcript in order to have it available to the
trial court so it could make a ruling within the prescribed time period.  Nevertheless,
suspension of the rules in this instance will not expedite the progress of this case through
the appellate process.  Thus, because appellant's motions were overruled by operation of
law at the trial court level before the record was conveyed to this court, we may not invoke
Rule 2 to excuse the absence of a timely written order ruling on the motions.  See Jauregui
Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Services, 960 S.W.2d 334, 337
(Tex.App.--Corpus Christi 1997, pet. denied). 
	Accordingly, appellant's motion is overruled.
							Per Curiam
Publish.
 
 
 

1. Judge Poe actually commenced a hearing on the motions on the last day permitted
under the rules, but recessed the hearing to allow himself time to review the trial transcript. 

2. The previous Rule 2(b) is substantially the same as Rule 2.
