      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00735-CR




                                  The State of Texas, Appellant

                                                  v.

                                     Trent Stewart, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
      NO. D-1-DC-07-904082, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                                           OPINION


               The district court granted appellee Trent Stewart a new trial in the interest of justice

after finding that the sentence imposed by the court was disproportionate to sentences imposed by

the court in similar cases. The State contends that the court exceeded its plenary authority and

abused its discretion by announcing its intention to reduce Stewart’s punishment before Stewart had

filed a motion for new trial, abused its discretion by granting a new trial without evidence to support

the order, and erred by granting a new trial for an error that affected only the assessment of

punishment. We sustain the last contention, modify the court’s order to grant a new trial as to

punishment only, and affirm the order as modified.
                                         BACKGROUND

               On November 5, 2007, Stewart appeared in the district court, waived his right to a

jury trial, and pleaded guilty to aggravated robbery as alleged in the indictment. See Tex. Penal Code

Ann. § 29.03 (West 2003). He also pleaded true to the allegation that he had previously been

convicted of robbery in South Carolina. See id. § 12.42(c)(1) (West Supp. 2008). There was no plea

bargain. The court accepted the pleas and adjudged Stewart guilty. The court then ordered the

preparation of a presentence report and recessed the proceeding.

               The trial resumed on November 27 for assessment of punishment. The court heard

testimony from the complainant, who described how Stewart entered his store, held a knife to his

neck, and took the money in the cash register, and from Stewart, who testified that he committed

the robbery to get money to pay a drug debt. South Carolina prison records documenting Stewart’s

previous felony conviction were also introduced in evidence. The court noted for the record that the

South Carolina documents reflected that Stewart had been sentenced to seven years in prison for the

previous robbery, and not fifteen years as stated in the presentence report. At the conclusion of the

hearing, Stewart’s counsel urged the court to assess punishment at or near the minimum of

fifteen years. The prosecutor argued that a thirty-year prison term was more appropriate. The court

assessed punishment at twenty-five years’ imprisonment and imposed sentence.

               On December 4, 2007, the district judge sent an email message to Stewart’s counsel

saying, “I have concluded that [the] sentence is both excessive and disproportionate in relation to

other sentences assessed by me in similar circumstances. Therefore, I plan on granting the

defendant’s motion for new trial as to punishment . . . and assessing a reduced sentence of 20 years.”

The prosecutor also received a copy of this message. On December 5, Stewart’s counsel filed a

                                                  2
motion for new trial as to punishment urging that “[t]he sentence is contrary to the law and

evidence.” On December 14, Stewart’s counsel filed a first amended motion for new trial as to

punishment. In addition to the ground previously alleged, the amended motion asserted that “[t]he

sentence should be withdrawn and a new trial granted as to punishment in the interest of justice and

because the sentence imposed in this case is disproportionate in comparison to other similarly

situated defendants.”

               A hearing on Stewart’s amended motion was held on December 14, 2007. The

hearing began with an extended recital by the trial judge. The judge stated that after reviewing the

presentence report in advance of the November 27 punishment hearing, “I performed my own

calculus on what I thought was the appropriate punishment in this case—I always make that

determination based upon the prior criminal record and what the length of sentence was, if there is

a prior criminal record—and so based upon that, I thought that the sentence of 25 years would be

appropriate in [Stewart’s] case because he had received 15 years before.” The judge then recalled

that when he examined the documentary evidence at the hearing, he noticed that Stewart’s sentence

in the South Carolina case had been seven years rather than fifteen years as stated in the presentence

report. Nevertheless, “I assessed Mr. Stewart’s punishment at 25 years, which was the upper range

of punishment as far as I had calculated while in chambers after reviewing the PSI which included

the 15-year sentence.”

               The judge went on to recount how, on December 4, he “realized that Mr. Stewart’s

punishment of 25 years had been assessed by me on a faulty premise, i.e., that [he] had had a

sentence of 15 years when it turned out that [he] had had a sentence of seven years, and had I known

that before, I would have never assessed [his] punishment at 25 years. I would have assessed it at

                                                  3
20 years.” The judge then described how he had emailed Stewart’s counsel and informed him that

“I wanted to grant a motion for new trial as to punishment only and assess the punishment that I

should have assessed at 20 years, and I think to not do so would be a manifest injustice to

Mr. Stewart.” The judge concluded by saying, “I’m here now to correct the manifest injustice that

I think that I perpetrated against Mr. Stewart [when punishment was assessed] and so it’s purely my

error, my fault, but it’s my fault and I’ve done this man wrong and I’m going to correct it.”

                Counsel for the State argued that Stewart’s amended motion did not state a legal

ground for new trial. The prosecutor added that “there are no facts supporting it, there is nothing in

the record supporting it, and there is no affidavit supporting it. I think that they have the burden of

proof here, and a hearing would be required to provide proof and evidence for the grounds stated in

their motion for new trial or a first amended motion for new trial.” The prosecutor insisted that there

was no legal error or manifest injustice for the court to correct, and that the court had no basis for

reducing the punishment previously assessed and no authority to do so.

                Stewart’s counsel responded that “the grounds that are stated in my motion are

supported by the evidence in this case. As the Court noted earlier here today, it’s a disproportionate

sentence compared to other defendants in the same situation. It’s not the sentence that you would

have imposed had you been considering the evidence that was presented at the punishment hearing.”

                The court then announced its ruling: “The Court of Criminal Appeals recently

amended the rules to permit motions for new trial on the issue of punishment so that errors I think

like this can be corrected. It’s my error . . . and I aim to correct it.” The court urged the State to

appeal, saying, “I want [the district attorney] to sign a certificate of appeal that he says when a judge

makes a mistake and it results in a manifest injustice on a too long of a sentence against a person,

                                                   4
I want him to sign the certificate of appeal that says we want to take that up . . . .” The court

continued, “And just to make sure that there is no procedural bar for the State appealing this case,

I’m going to grant . . . a motion for new trial in its entirety; not just to punishment. I’m going to

allow [Stewart] to withdraw [his] plea and we’re going to start all over, and if the State wants to

appeal it, go right ahead. That’s my ruling.”

               This appeal followed. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3) (West

Supp. 2008).


                                            DISCUSSION

Preliminary issues

               In its first point of error, the State asserts that the trial court exceeded the scope of its

plenary power by announcing its intention to reduce Stewart’s sentence one week after Stewart had

begun to serve it. The State argues that the trial court had plenary power to modify its sentence, but

only on the same day as the assessment of the initial sentence and before the court adjourned for the

day. See State v. Aguilera, 165 S.W.3d 695, 698 (Tex. Crim. App. 2005). The State urges that

Stewart began to serve his sentence upon adjournment on November 27, and the trial court could not

thereafter alter the sentence. See Ex parte Cruzata, 220 S.W.3d 518, 521 (Tex. Crim. App. 2007).

Stewart responds that the trial court was authorized to correct its sentencing error so long as it had

jurisdiction, noting that a trial court may reconsider its order on a motion for new trial at any time

during the seventy-five-day time period provided by rule for the trial court to act on the motion. See

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




                                                    5
                Whether the trial court had the plenary authority to change its sentence in the absence

of a motion for new trial and, if so, when that authority had to be exercised, are questions that we

do not address in this opinion. The district court’s December 4 email message did not alter the

sentence it imposed on Stewart. The message merely expressed the court’s intention to grant a new

trial as to punishment if a motion were filed. The message was not an appealable order, and even

if it were, the State did not file its notice of appeal within twenty days after the date of the message.

See Tex. Code Crim. Proc. Ann. art. 44.01(d) (West Supp. 2008). Point of error one is overruled.

                For the same reasons, we overrule the State’s second point of error, by which it

contends that the district court erred by announcing that it intended to grant a motion for new trial

as to punishment before such a motion had been filed. The State argues that this violated the rule

prohibiting a trial court from granting a new trial on its own motion. See State v. Moore, 225 S.W.3d

556, 567 (Tex. Crim. App. 2007). Again, however, the district court’s December 4 email message

was not an order granting a new trial. And, once again, even if the State had a right to appeal the

court’s December 4 message, it did not do so. The court granted Stewart a new trial on December

14, following a hearing on Stewart’s amended motion for new trial as to punishment. It is that order

that is properly before us on the State’s appeal, and it is to that order that we now turn.


Was a ground for new trial shown?

                In point of error three, the State contends that the trial court abused its discretion in

granting a new trial because Stewart presented no evidence to support his claim that the sentence was

disproportionate. The State correctly notes that a motion for new trial is merely a pleading, and the




                                                   6
defendant must establish the truth of the allegations contained in the motion. King v. State, 502

S.W.2d 795, 799-800 (Tex. Crim. App. 1973).

                The rules of appellate procedure list the grounds for which a new trial must be

granted, but a trial court may also, in its discretion, grant a new trial on another ground in the

interest of justice. State v. Gonzalez, 855 S.W.2d 692, 693-94 (Tex. Crim. App. 1993). This

discretion is not, however, “unbounded or unfettered.” State v. Herndon, 215 S.W.3d 901, 907

(Tex. Crim. App. 2007).


                A trial judge does not have authority to grant a new trial unless the first
        proceeding was not in accordance with the law. He cannot grant a new trial on mere
        sympathy, an inarticulate hunch, or simply because he personally believes that the
        defendant is innocent or “received a raw deal.” . . . Although not all of the grounds
        for which a trial court may grant a motion for new trial need be listed in statute or
        rule, the trial court does not have discretion to grant a new trial unless the defendant
        shows that he is entitled to one under the law. To grant a new trial for a non-legal or
        legally invalid reason is an abuse of discretion.


Id. A defendant need not establish reversible error as a matter of law before the trial court may

exercise its discretion in granting a motion for new trial, but a trial court does not have the discretion

to grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that

the flaw adversely affected his substantial right to a fair trial. Id. at 909. The trial court must balance

the defendant’s “interest of justice” claim against the public’s interest in finality and the harmless

error standards set out in the appellate rules. Id. at 908. As a general rule, a trial court will not abuse

its discretion by granting a motion for new trial if the defendant articulated a valid legal claim in his

motion, produced evidence or pointed to evidence in the record that substantiated that claim, and

showed prejudice to his substantial rights. Id. at 909.


                                                    7
                Stewart’s amended motion for new trial as to punishment alleged that the sentence

imposed in this cause was disproportionate in comparison to other similarly situated defendants. The

State does not deny that this was a valid legal claim on which to base a motion for new trial in the

interest of justice, but the State urges that Stewart did not meet his burden of proving this claim.

                In its brief, the State assumes that Stewart’s motion asserted an Eighth Amendment

disproportionality claim. U.S. Const. amend. VIII. The Eighth Amendment forbids extreme

sentences that are grossly disproportionate to the crime. Solem v. Helm, 463 U.S. 277, 288 (1983).

If the reviewing court determines that the sentence is grossly disproportionate to the offense, the

court then compares the sentence to those imposed on other defendants in the same jurisdiction and

for the same offense in other jurisdictions. Harmelin v. Michigan, 501 U.S. 957, 1004-06 (1991)

(Kennedy, J., plurality op.). The State asserts that there is no evidence suggesting that Stewart’s

twenty-five-year sentence for aggravated robbery was grossly disproportionate to the offense, and

even if there were, that there is no evidence regarding the punishments assessed in Travis County

or elsewhere that would permit the required comparative analysis.

                We agree that no Eighth Amendment violation is shown by this record. However,

Stewart’s amended motion for new trial as to punishment did not expressly allege an Eighth

Amendment violation, and the State refers us to no authority holding that a trial court ruling on a

motion for new trial may not find a sentence to be disproportionate for a reason other than those

articulated in Solem and Harmelin. Herndon does not hold that a trial court’s discretionary authority

to grant a new trial in the interest of justice is limited to constitutional errors. To the contrary,

Herndon states that a trial court may grant a new trial in the interest of justice if the defendant’s trial

was seriously flawed so as to adversely affect his substantial right to a fair trial, even if the defendant

                                                    8
fails to establish reversible error as a matter of law. 215 S.W.3d at 909. Stewart moved for a new

punishment trial in the interest of justice because his sentence was disproportionate to those imposed

on similarly situated defendants. To prove his entitlement to a new trial on this ground, Stewart did

not have to prove that his sentence violated the Eighth Amendment. Rather, paraphrasing Herndon,

he had to show that there was a serious flaw or error in the assessment of punishment that adversely

affected his substantial right to a fair trial by causing a disproportionate punishment to be assessed.

See id.

                 The State further argues that the trial judge’s statements at the new trial hearing do

not constitute evidence in support of its ruling. The State cites evidence rule 605, which provides

that “[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be

made in order to preserve the point.”1 Whether rule 605 applies to a hearing on a motion for new

trial has not been decided. See George v. State, 20 S.W.3d 130, 140 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d) (collecting cases). The court of criminal appeals has described the rule as

prohibiting a trial judge from becoming a witness in the very same proceeding over which he is

presiding. Hensarling v. State, 829 S.W.2d 168, 170-71 (Tex. Crim. App. 1992). We believe that

there is a significant distinction between a trial judge testifying as a fact witness during a trial and

a trial judge recalling, at a motion for new trial hearing, his own internal thought processes. Under

the circumstances in this case, we do not construe the trial judge’s remarks at the new trial hearing

to be testimony prohibited by rule 605.




   1
       In the present case, the State did not object.

                                                    9
                In George, the defendant filed a motion for new trial urging that his guilty plea had

been coerced by the trial court’s intimidation, threats, and hostile remarks. 20 S.W.3d at 134. A

hearing was held on the motion, at the conclusion of which the trial judge made a statement to

“clarify the record” as to what had happened during trial. Id. at 141-43. The court of appeals held

that it is not improper for a trial judge, when deciding a motion for new trial, to rely in part on his

or her personal recollections of the evidence and proceedings during the trial. Id. at 139. The court

noted, however, that the trial judge’s statement at the hearing “recited facts which were very much

in dispute” and “carefully rebutted each allegation of impropriety made by [the defendant’s] trial

counsel,” and it concluded that the statement fell “outside a proper ‘clarification’ of the record.” Id.

at 140. Without deciding whether the trial judge’s remarks at the hearing had constituted improper

testimony under rule 605, the court of appeals held that the judge had erred by articulating her

recollections for the record. Id. at 141. The court based its conclusion on appellate rule 21.8(b),

which at that time prohibited a trial court from summarizing, discussing, or commenting on the

evidence when ruling on a motion for new trial. Id.; see Tex. R. App. P. 21.8(b), 60 Tex. B.J. 878,

894 (1997, amended 2007).

                In the cause now before us, the trial judge’s remarks did not seek to rebut any

evidence adduced at the hearing by the State. In fact, the accuracy of the judge’s account of how he

had arrived at his initial punishment decision was undisputed. The disputed issue at the hearing was

not what had happened at Stewart’s punishment hearing, but whether the trial court was legally

authorized to grant Stewart a new trial, in whole or in part, because of what had happened.

Moreover, since George was decided, the rules of appellate procedure have been amended to permit

a trial court to make findings of fact when ruling on a motion for new trial. Tex. R. App. P. 21.8(b).

                                                  10
                The State refers us to the opinion in State v. Krueger, 179 S.W.3d 663 (Tex.

App.—Beaumont 2005, no pet.). In that case, the trial court granted a motion for new trial in the

interest of justice based on jury misconduct during deliberations. Id. at 665. No juror or any other

witness was called to testify at the new trial hearing, and the motion was granted solely on the basis

of the trial judge’s recollection of an informal conversation he and the lawyers had with members

of the jury following the conclusion of the trial. Id. In the course of its opinion, the court of appeals

stated that the jurors’ statements during the “informal chat” were not a proper subject for judicial

notice and implied that the trial judge’s recollection of what had been said during that conversation

was not evidence, but the court expressly declined to hold that the judge’s statements at the hearing

had been improper testimony under rule 605. Id. at 667-68. Rather, the court reversed the order

granting the motion for new trial on the ground that the jurors’ statements were not competent

evidence under rule 606(b). Id. at 665-66; see Tex. R. App. P. 606(b) (juror may not testify as to any

matter or statement occurring during deliberations). Insofar as Krueger can be read to disapprove

of the trial judge granting a new trial on the basis of his personal recollection of the out-of-court

conversation, the present case is distinguishable. The judge below did not grant the motion for new

trial on the basis of his personal knowledge of statements or events outside the courtroom.2

                Under the unusual circumstances shown by this record, we find no error in the trial

judge’s explaining his decision to grant a new trial by recalling for the record how he had relied on


  2
     State v. Varkonyi, an unpublished opinion cited by the State, is also distinguishable. No. 08-06-
00262-CR, 2008 Tex. App. LEXIS 2197 (Tex. App.—El Paso Mar. 27, 2008), pet. dism’d,
improvidently granted, No. PD-0587-08, 2009 Tex. Crim. App. LEXIS 194 (Tex. Crim. App. Mar.
18, 2009). There, the court of appeals held that a trial court abused its discretion by granting a new
trial in the interest of justice on grounds not alleged in the motion or raised at the hearing, and based
solely on the trial judge’s personal recollection of events both during and after the trial.

                                                   11
a misstatement in the presentence report when making his initial punishment decision. See

Tex. R. App. P. 21.8(b). We further hold that under these circumstances, Stewart was under no

obligation to offer any further evidence at the hearing in order to demonstrate the trial court’s error.

Indeed, it is difficult to imagine how Stewart could have offered any evidence of the trial judge’s

mental processes.

                Herndon states that as a general rule, a trial court will not abuse its discretion by

granting a motion for new trial in the interest of justice if the defendant articulated a valid legal claim

in his motion, produced evidence or pointed to evidence in the record that substantiated that claim,

and showed prejudice to his substantial rights. 215 S.W.3d at 909. Stewart’s allegation that his

punishment was disproportionate in comparison to other similarly situated defendants was a valid

legal claim, and the State does not argue to the contrary. For the reasons we have stated, Stewart was

entitled to rely on the trial judge’s recollection of how he had erred in calculating Stewart’s

punishment to establish that claim. Finally, Stewart’s substantial rights were prejudiced because the

sentence imposed by the court was shown to be five years longer than it would have been in the

absence of the error. We hold that the district court did not abuse its discretion by concluding that

Stewart was entitled to a new trial—or at least a new trial on punishment—in the interest of justice.

                In reaching this conclusion, we have not ignored Herndon’s admonition that a trial

judge does not have unbounded authority to grant a new trial in the interest of justice. Id. at 907.

We do not hold that a trial judge has the discretion to grant a defendant a new trial merely because

the judge has had second thoughts about the punishment he assessed, or merely because the judge

believes that the jury’s punishment decision was harsher than his would have been. The record

before us shows that the trial judge did not grant Stewart a new trial out of mere sympathy or in the

                                                    12
mere belief that Stewart “received a raw deal.” See id. Instead, the record demonstrates that the trial

judge granted Stewart a new trial only after concluding that he, the judge, had made a specific,

identifiable, and quantifiable error in calculating Stewart’s punishment.

                  We are satisfied that the trial judge’s determination that his mistake was a serious

flaw that adversely affected Stewart’s right to a fair trial was within the scope of the court’s

discretion as described in Herndon. Point of error three is overruled.


Scope of relief

                  In its final point of error, the State urges that the trial court erred by granting Stewart

an entirely new trial on a ground that affected only the assessment of punishment. The appellate

rules provide that “a court must grant only a new trial on punishment when it has found a ground that

affected only the assessment of punishment.” Tex. R. App. P. 21.9(a). A new trial on punishment

means a new hearing of the punishment stage after the trial court has, on the defendant’s motion, set

aside an assessment of punishment without setting aside a finding of guilt. Tex. R. App. P. 21.1(b).

                  Stewart does not dispute that under rule 21.9(a), he was entitled only to a new trial

as to punishment. In fact, that is what he asked for in his amended motion for new trial as to

punishment. Nevertheless, Stewart argues that the State did not preserve this issue for review by

objecting below to the scope of the trial court’s order. He also contends that the State is estopped

from complaining of the error because the error benefitted the State. Finally, Stewart urges that the

trial court’s order was substantively correct because the 2007 amendment to the appellate rules

authorizing new trials on punishment exceeded the court of criminal appeals’ rulemaking authority.




                                                     13
               Stewart’s contention that the State waived the alleged error is without merit. At the

hearing below, counsel for the State clearly and vigorously argued that Stewart was not entitled

to any relief, and the record reflects that the trial court was well aware of the State’s position.

See Tex. R. App. P. 33.1(a)(1)(A). If, in order to raise this issue on appeal, the State was required

to object to the court’s decision to grant a new trial as opposed to a new trial on punishment,

it did so.

               Stewart’s estoppel argument is based on the premise that if the trial court had granted

him a new trial only as to punishment, the State would have been unable to appeal the order. He

argues that the statute permitting the State to appeal an order granting a new trial does not extend

to an order granting a new trial on punishment. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3).

Thus, Stewart reasons that the alleged error benefitted the State, and the State should be estopped

from complaining of it. We hold that even if Stewart’s reading of article 44.01(a)(3) is correct, a

question we do not decide, the State is not estopped from asserting this point of error.

               A party may be estopped from asserting a claim on appeal that is inconsistent with

that party’s prior conduct. Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003). Stewart

refers us to five opinions applying the estoppel rule. In State v. Yount, a defendant who was on trial

for manslaughter requested and received an instruction on the lesser offense of driving while

intoxicated, then complained that his conviction for the lesser offense was barred by limitations.

853 S.W.2d 6, 7 (Tex. Crim. App. 1993). The court of criminal appeals held that because he had

requested the lesser included offense instruction, Yount was estopped from attacking his conviction

for that offense on limitations grounds. Id. at 9. In Prytash v. State, a capital murder defendant who

successfully objected to the submission of one of the required punishment issues was held to

                                                 14
be estopped from complaining on appeal that the omitted instruction should have been given.

3 S.W.3d 522, 532 (Tex. Crim. App. 1999). In Ex parte Shoe, a defendant who had bargained for

a sentence that did not include a mandatory fine was held to be estopped from complaining that the

sentence was unlawful. 137 S.W.3d 100, 102-03 (Tex. App.—Fort Worth 2004), pet. dism’d,

improvidently granted, 235 S.W.3d 782 (Tex. Crim. App. 2007). In Schultz v. State, a defendant

who had been convicted of subsequent family violence assault was held to be estopped from

challenging the sufficiency of the evidence as to the previous conviction because, after the jury

returned its guilty verdict, he had agreed to a felony sentence in exchange for certain concessions by

the State. 255 S.W.3d 153, 155 (Tex. App.—San Antonio 2008, no pet.). Finally, in Arroyo, the

State tendered the complaining witness’s rap sheet to the defense and then, when the defendant

sought to introduce evidence of the complainant’s convictions as reflected in the rap sheet, objected

that the defendant had failed to show that the complainant was the person convicted. 117 S.W.3d

at 797. The court of criminal appeals held that the State was estopped from making this objection

because, by tendering the rap sheet to the defense without qualification, it had implicitly represented

that the information in the rap sheet was correct. Id. at 798.

                In the cases cited by Stewart, the key to the estoppel ruling was not that the estopped

party had received some prior benefit. Although the defendants in Yount, Shoe, and Schultz may

have benefitted from the trial errors they asserted on appeal, the defendant in Prytash did not benefit

from the omission of the punishment instruction. The State in Arroyo received no benefit from

having tendered the rap sheet to the defense. The basis for the ruling in each of these cases was that

the estopped party was asserting a claim or taking a position that was inconsistent with the party’s

earlier conduct in the same cause. In the cause before us, the State did not ask the trial court to grant

                                                   15
Stewart an entire new trial or take any other action that caused the court to do so. The State did

nothing below that is inconsistent with its contention on appeal that the trial court should not have

granted Stewart an entire new trial based on a punishment error. The State is not estopped from

asserting this contention on appeal.3

               Finally, Stewart contends that it would have been improper for the trial court to grant

a new trial on punishment because the 2007 amendments to appellate rule 21 permitting such orders

were invalid. In granting rulemaking authority to the court of criminal appeals, the legislature

provided that “its rules may not abridge, enlarge, or modify the substantive rights of a litigant.”

Tex. Gov’t Code Ann. § 22.108(a) (West 2004); see Griffin v. State, 145 S.W.3d 645, 647

(Tex. Crim. App. 2004) (stating that court’s rulemaking authority is limited). Stewart points out that

in 2005, the legislature amended the code of criminal procedure to permit a trial court to declare a

mistrial as to the punishment phase when the jury cannot agree as to punishment. Tex. Code Crim.

Proc. Ann. art. 37.07, § 3(c) (West Supp. 2008). He asserts that the court of criminal appeals was

not authorized to amend rule 21 to permit new trials on punishment on any basis broader than that

permitted by article 37.07, section 3(c).

               We do not read article 37.07, section 3(c) as imposing any limitation on the court of

criminal appeals’ rulemaking authority. That statute governs a trial procedure that is outside the

scope of the rules governing posttrial and appellate procedure. The legislature’s decision to amend

article 37.07, section 3(c) to permit the declaration of a punishment stage mistrial in certain



   3
      It could be argued that Stewart, by having moved for a new trial as to punishment, is now
estopped from asserting that the trial court was not authorized to grant the motion. The State does
not make this argument, however.

                                                 16
situations did not, directly or indirectly, limit the court of criminal appeals’ authority to amend the

rules governing motions for new trial.

                Stewart further argues that the 2007 amendments to rule 21 violate section 44.29(b)

of the code of criminal procedure, which provides that if an appellate court awards a new trial to a

defendant solely on the basis of an error made at the punishment stage of trial, the new trial is limited

to the punishment stage. Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2008). This statute

applies only to appellate courts, and it does not give trial courts the authority to order a new trial only

as to punishment. State v. Hight, 907 S.W.2d 845, 846 (Tex. Crim. App. 1995); State v. Bates,

889 S.W.2d 306, 310 (Tex. Crim. App. 1994).

                Once again, we do not read article 44.29(b) as placing a limit on the court of criminal

appeals’ rulemaking authority. Although the statue does not authorize trial courts to grant new trials

only as to punishment, it does not expressly or impliedly prohibit them from doing so. It is simply

silent on the subject; the statute speaks only to the authority of the appellate courts. Bates and Hight

held that under the appellate rules as they then read, trial courts were not permitted to grant new trials

only as to punishment, and that article 44.29(b) did not change this. Those opinions did not hold that

the rules could not be amended.

                “[A] defendant has no vested right to an entirely new trial when errors relating only

to the assessment of his punishment are committed.” Grimes v. State, 807 S.W.2d 582, 587 (Tex.

Crim. App. 1991). By amending rule 21.9(a) to require a trial court to grant a new trial as to

punishment when there is an error that affects only the assessment of punishment, the court of

criminal appeals did not modify or abridge a substantive right. The amendment merely altered the

remedy when a motion for new trial complaining of a punishment error is granted.

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               The trial court erred by granting Stewart an entirely new trial on a ground that affected

only the assessment of punishment. Tex. R. App. P. 21.9(a). The proper remedy is to modify the

order to grant a new trial on punishment only. Point of error four is sustained to this extent.


                                          CONCLUSION

               The district court’s order granting Stewart a new trial is modified to grant a new trial

as to punishment only. As modified, the order is affirmed.




                                               _________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Modified and, as Modified, Affirmed

Filed: April 15, 2009

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