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Click here for the full text of this decision FACTS:At a jury trial on a misdemeanor DWI charge, the state offered evidence of Ronald Herndon’s guilt through the testimony of two police officers. The defense did not offer any evidence. During its closing argument, the state noted the following: “This Defendant decided what evidence you’re going to consider today, but what’s on there is pretty incriminating. It shows this Defendant was intoxicated. Also, keep in mind the Defendant admitted to the officer to drinking that night. He admitted that he had been drinking alcohol. And this Defendant didn’t present any evidence of who he was drinking with, he didn’t � he didn’t bring any other witness forward to testify how many drinks he had that night or, you know, what he was doing that night, how long ago. . . .” At that time, Herndon’s attorney objected on the grounds that the prosecutor commented on Herndon’s failure to testify. The trial judge called the two attorneys to the bench, where the prosecutor said he meant not to comment on Herndon’s failure to testify but to point out in his closing that Herndon didn’t present a certain witness to his whereabouts that evening. The defense attorney sought an instruction to disregard, which the trial court granted. The jury found Herndon guilty. Herndon later filed a motion for mistrial, complaining both of the prosecutor’s closing argument and of the court reporter’s failure to record the bench conference. The state filed a written response, arguing that: its closing argument did not violate Herndon’s right against self-incrimination; the mistrial motion was untimely; Herndon failed to preserve error by continuing to object until there was an adverse ruling; the trial court’s instruction to disregard cured any potential error; and Herndon failed to demonstrate reversible error. The trial court denied the motion for mistrial and sentenced Herndon to 90 days in jail probated for 12 months and a $500 fine. Herndon then filed a motion for new trial, making the same claims that he made in his motion for mistrial. The state filed a second written response, which also noted that the court reporter had, in fact, made an audio recording of the bench conference. During the hearing on the motion for new trial, the court reporter confirmed that she had not typed the bench conference. The trial court later granted Herndon’s motion for new trial on the ground that the court reporter did not record the bench conference during the trial. The state appealed, arguing, inter alia, that Herndon had not preserved error. The 13th Court agreed. Thus, the 13th Court held that because Herndon failed to object at the time the court reporter failed to typed the bench conference, Hernson did not preserve error, and the trial court therefore abused its discretion in granting the motion for new trial. HOLDING:Vacated and remanded. A trial judge has discretion to grant or deny a motion for new trial in the interest of justice, the Court of Criminal Appeals stated, but “justice” means in accordance with the law. A trial judge, the CCA stated, 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.” For a trial court to grant a new trial for an illegal or invalid reason is an abuse of discretion, the CCA stated. Moreover, the CCA stated, trial courts should not grant a new trial if the defendant’s substantial rights were not affected. Ordinarily, the CCA stated, a trial court should not overturn a criminal conviction on the basis of a prosecutor’s closing argument, standing alone, especially when the trial court gives the jury a curative instruction. Furthermore, the CCA noted that when the court reporter fails to fully make a verbatim record of all proceedings in federal court, it is generally held to be harmless error. The CCA declined to set out bright-line rules concerning appellate review of a trial court’s discretion to grant new trials, but it concluded that a trial court does not generally abuse its discretion in granting a motion for new trial if the defendant: 1. articulated a valid legal claim in his motion for new trial; 2. produced evidence or pointed to evidence in the trial record that substantiated his legal claim; and 3. showed prejudice to his substantial rights under the standards in Texas Rule of Appellate Procedure 44.2. The defendant, the CCA stated, 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 trial courts, the CCA stated, cannot grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that the flaws adversely affected his substantial rights to a fair trial. The CCA also noted that no requirement in Texas law exists that a party must preserve error to prevail on a motion to the trial court for a new trial. In sum, the CCA found that a trial judge may grant a motion for new trial on the basis of unpreserved trial error if that error is sufficiently serious that it has affected the defendant’s substantial rights. In Herndon’s case, the CCA held that the 13th Court erred in concluding that the trial judge abused his discretion in granting the motion for new trial on the basis that Herndon failed to timely object to the court reporter’s failure to record the bench conference. The CCA then addressed other arguments made by the state both in the trial court and on appeal, concerning: 1. the propriety of the prosecutor’s argument; 2. the fact that the trial court sustained the defense objection and instructed the jury to disregard the prosecutor’s argument; and 3. the failure of Herndon to demonstrate harm either from the court reporter’s failure to record stenographically the bench conference. Thus, the CCA vacated the judgment of the 13th Court and remanded the case to that court to address the state’s remaining issues. OPINION:Cochran, J., delivered the opinion of the court, in which Price, Johnson, Keasler and Holcomb, J.J., joined. CONCURRENCE:Hervey, J., concurred in the judgment. DISSENT:Womack, J., filed a dissenting opinion, in which Keller, P.J., and Meyers, J., joined. “As the [CCA majority's] opinion clearly says . . . it granted the new trial only on the ground that a bench conference was not recorded during the trial . . . The only question before us is whether that was a correct reason to grant a new trial.” The court reporter’s failure to record a bench conference, the dissent stated, wasn’t a sufficient reason to grant a new trial. The dissent continued: “The trial court had no discretion to be wrong about the law, although his error was understandable since the courts of appeals were in conflict at the time and the court tried to follow the (incorrect) line of decisions of the”home’ court of appeals. After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.”

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