            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1197-13


                             TORY LEVON KIRK, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE ELEVENTH COURT OF APPEALS
                            DALLAS COUNTY

       A LCALA, J., filed a concurring opinion.

                                CONCURRING OPINION

       I join the majority opinion. I write separately to explain why I believe the Court’s

holding today signals the expansion of the State’s avenues for challenging the propriety of

an order granting a new trial. Until today, the State’s primary avenue for challenging a new-

trial order in a criminal matter has been through an interlocutory appeal. See T EX. C ODE

C RIM. P ROC. art. 44.01(a)(3). The majority opinion’s holding makes clear that the State may

also obtain relief from an order granting a new trial through a second avenue—by filing a
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motion directly in the trial court in an effort to persuade the trial judge that his ruling was

erroneous. And, as explained further below, the State’s decision to pursue one avenue over

the other may carry with it significant implications for the trial court’s authority to rescind

or modify its new-trial order going forward in the case.

        With respect to the first avenue, the Texas Code of Criminal Procedure provides that

the State is authorized to appeal the trial court’s order granting a new trial in a criminal

matter within twenty days. See T EX. C ODE C RIM . P ROC. art. 44.01(a)(3), (d).1 This is in

contrast to an order granting a new trial in a civil matter, which generally cannot be appealed.

See In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 208 (Tex. 2009) (observing

that decisions of the Texas Supreme Court “preclude, for the most part, appellate review of

orders granting new trials” in civil cases). Pursuant to the provisions in Article 44.01(a),

after the trial court grants a motion for new trial in a criminal case, the State may file an

appeal within twenty days.            T EX. C ODE C RIM. P ROC. art. 44.01(d).             As a practical

consequence, the filing of such an appeal would necessarily limit the trial court’s authority

to take any subsequent action on its order granting a new trial because (1) the trial court

would lose jurisdiction during pendency of the appeal, and (2) after resolution of the merits

of the appeal, the trial court would be bound by the appellate court’s ruling.



1
        In relevant part, Texas Code of Criminal Procedure Article 44.01 provides, “(a) The state is
entitled to appeal an order of a court in a criminal case if the order: . . . (3) grants a new trial[.]” TEX .
CODE CRIM . PROC. art. 44.01(a)(3). That section further provides that “[t]he prosecuting attorney
may not make an appeal [of a new-trial order] later than the 20th day after the date on which the
order, ruling, or sentence to be appealed is entered by the court.” Id. art. 44.01(d).
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       Article 44.01 provides that the State “is entitled to a stay in the proceedings [in the

trial court] pending the disposition” of an appeal of a new-trial order. See T EX. C ODE C RIM.

P ROC. art. 44.01(e). In light of that provision, once the State seeks to exercise its right to

appeal an order granting a new trial, the trial court would be deprived of jurisdiction over the

case during the pendency of such an appeal, and the court would be unable to modify or alter

its ruling on the new-trial motion during that period. See id.; see also T EX. R. A PP. P. 25.2(g)

(providing that, once record has been filed in appellate court, “all further proceedings in the

trial court . . . will be suspended until the trial court receives the appellate-court mandate”).

       Furthermore, it appears that after an appellate court rules on the merits of an appeal

by the State, the trial court would be bound to follow the appellate court’s ruling as to

whether the granting of a new trial was proper because such a ruling would constitute the law

of the case. See, e.g., State v. Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014)

(observing that, under law of the case doctrine, appellate court’s resolution of questions of

law in a previous appeal are binding in subsequent appeals concerning the same issue; “when

the facts and legal issues are virtually identical, they should be controlled by an appellate

court’s previous resolution”).2 For example, if a court of appeals were to uphold the trial

court’s order granting a new trial, then, on remand, the trial court would lack authority to


2
        See also Satterwhite v. State, 858 S.W.2d 412, 430 (Tex. Crim. App. 1993) (applying law
of the case doctrine in context of ruling on motion to suppress when none of facts surrounding search
as analyzed during first appeal had changed); Ex parte Granger, 850 S.W.2d 513, 516 (Tex. Crim.
App. 1993); Ex parte Schuessler, 846 S.W.2d 850, 852 n.7 (Tex. Crim. App. 1993) (“The ‘law of
the case’ doctrine provides that once a question of law in a particular case has been finally resolved,
that question will not be reconsidered in subsequent proceedings of the same case.”).
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disregard the appellate court’s ruling as to the validity of that order because that ruling would

constitute the law of the case and would be binding on the parties, barring some substantial

change in the relevant law or facts. See Janecka v. State, 937 S.W.2d 456, 466 (Tex. Crim.

App. 1996) (explaining that law of the case doctrine applies unless there are “changes of

pertinent law or facts”). In any event, once the State chooses to pursue the avenue of

appellate review, that action will have the effect of limiting the trial court’s authority to

rescind or modify its new-trial order going forward, either as a result of the loss of

jurisdiction during the pendency of the appeal or as a result of being bound by the appellate

court’s subsequent ruling on the merits of the appeal.

       As the Court’s majority opinion makes clear, in addition to the option of pursuing an

interlocutory appeal, the State may opt to seek relief directly in the trial court by requesting

that the court reconsider its order granting a new trial. And, as the majority opinion holds

today, in the absence of any appeal of a new-trial order by the State, the trial court retains

plenary power over the case as it would over any other pending matter, and it may rescind

its order at any point during the pendency of the case. Unlike the option of an interlocutory

appeal, this avenue is subject to no precise time limit, nor is it subject to the limitations that

necessarily flow from the appellate court’s exercise of jurisdiction over a case. But this

avenue may be subject to other legal limitations ordinarily applicable to criminal cases. For

example, after the trial court grants a motion for new trial, the case would proceed in an

ordinary fashion and a jury may be selected and sworn. While hearing evidence on retrial,
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it is possible that some event could occur that would motivate the trial judge to reconsider

his earlier decision to grant a new trial, thereby causing him to rescind the new-trial order and

reinstate the original judgment. On appeal, an appellant might then argue that the original

judgment could not be reinstated after the point at which jeopardy had attached in the second

trial. See Ex parte Garza, 337 S.W.3d 903, 914 (Tex. Crim. App. 2011) (discussing that

jeopardy attaches prior to point in time when trial court erroneously declares a mistrial after

jury has been sworn). In light of these considerations, I conclude that it remains an open

question whether, at the point that jeopardy has attached in the retrial, a trial court could

rescind its new-trial order and reinstate the original judgment. Because that question is not

presented by the facts of this case, the majority opinion correctly reserves judgment as to that

matter for another day.

       Although I join this Court’s majority opinion’s holding that a trial court generally has

continuing authority to rescind its order granting a new trial, I observe that a trial court must

always proceed cautiously when either granting or denying a motion for new trial because

there are limitations to the grounds upon which a trial court may properly grant a new trial.

Recently, in State v. Thomas, this Court reaffirmed the principle that “[t]here must be some

legal basis underpinning the grant of a new trial,” and a trial court may not grant a new trial

for a “non-legal or a legally invalid reason.” See State v. Thomas, 428 S.W.3d 99, 104, 105,

107 (Tex. Crim. App. 2014) (holding that “motion for a new trial, whether for guilt or

punishment, requires a valid legal claim”; a court cannot grant a new trial “unless the
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defendant shows that he is entitled to one under the law”) (citations omitted); see also T EX.

R. A PP. P. 21.3 (identifying list of grounds upon which trial court “must” grant a new trial).

In deciding whether to rescind its new-trial order, I believe that the trial court should

determine whether its granting of a new trial was in accordance with the principle that there

must be some valid legal basis underpinning that action and, if it was not, then the trial court

must rescind its order.

       With these comments, I join the majority opinion.

Filed: January 28, 2015

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