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Click here for the full text of this decision FACTS:A jury convicted Billy Moore of the misdemeanor offense of driving while intoxicated. On March 22, 2005, the trial court ordered Moore to serve a 100-day sentence in the county jail. On March 23, 2005, Moore’s defense attorney filed a timely motion for new trial and a motion to withdraw as counsel, the latter of which was granted. Moore’s newly appointed appellate attorney filed an amended motion for new trial and a motion for leave to file that amended motion on May 13, 2005, more than 30 days after the trial court imposed the sentence. The amended motion raised two grounds that did not appeared in the initial motion for new trial, including a Brady claim that the state failed to disclose evidence that would have impeached the credibility of the state’s chief witness at trial. The amended motion failed to incorporate any supporting affidavits or other documentation. On May 20, 2005, Moore filed a second amended motion for new trial, alleging the same grounds but including affidavits and documentary support, along with another motion for leave to file. The trial court granted the motion for leave to file the second amended motion for new trial on the same day it was filed, and it set a hearing on the second amended motion for new trial to be conducted on June 3, 2005, 73 days after imposing the 100-day sentence. After a brief hearing on June 3, 2005, the trial court granted Moore’s second motion for new trial on the Brady ground alone. On June 14, 2005, the state filed a motion requesting the trial court to reconsider its order granting Moore’s second motion for new trial, asserting for the first time that the trial court lacked authority to grant such a motion, because it had not been timely filed in accordance with Texas Rule of Appellate Practice 21.4(b). The trial court conducted another brief hearing on the state’s motion, but, convinced by Moore’s argument that it lacked authority to act on the state’s motion because it was filed beyond the 75-day period for ruling on a motion for new trial, the trial court denied the state’s motion for reconsideration. The state appealed. In an unpublished opinion, the 3rd Court of Appeals overruled the trial court’s order granting the new trial and remanded the cause to the trial court. Without reaching the merits of the motion, the 3rd Court held that Rule 21.4(b) prohibits any amendment of a motion for new trial that is attempted beyond the 30-day period, even with leave of court. Moore sought discretionary review by the CCA. HOLDING:The CCA reversed the judgment of the 3rd Court and remanded the matter to that court to consider the state’s arguments that the trial court erred on the merits in granting Moore’s amended motion for new trial. Rule 21.4(b) allows a defendant, without leave of trial court, to file one or more amended motions for new trial within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial. The CCA held that Rule 21.4(b) prohibits a defendant from filing an amended motion for new trial after the 30-day period prescribed in the rule, even with leave of court. The CCA also held, however, that this prohibition did not deprive the trial court of jurisdiction; nor did it deprive the trial court of the authority to rule on a tardy amendment to a timely motion for new trial, at least absent an objection from the state, at any time within the 75 days for ruling on a motion for new trial. Rule 21.4(b), the CCA stated, permits the state to insist within those 75 days that the trial court rule only upon the timely motion for new trial as originally filed or timely amended, but not as untimely amended. Should a trial court refuse to limit its ruling to the original motion and grant relief on the basis of an untimely amendment over the state’s objection, the CCA stated that an appellate court must “consider only the validity of the original and any timely amended motion for new trial, and . . . reverse any ruling granting a new trial based upon matters raised for the first time in an untimely amendment.” Moreover, the CCA stated, “the record should be sufficient to demonstrate that the state was afforded a meaningful opportunity to object to the untimely amendment, or to any order purporting to grant it, within the seventy-five-day period.” Absent such an objection by the state, the CCA stated that “ordinary principles of procedural default will apply, and the State will not be heard to complain for the first time outside of the seventy-five-day period of the untimely amendment.” OPINION:Price, J., delivered the opinion of the Court in which Meyers, Womack, Johnson, Keasler, Holcomb and Cochran, J.J., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion in which Hervey. J., joined. “The Court advances the curious proposition that a trial court lacks authority to consider an untimely amended motion for new trial if the State objects. The appellate rule does not say that the trial court’s authority is contingent on the presence or absence of an objection. The rule simply provides that a motion for new trial may be amended within the thirty-day period. That means that the trial court has no authority to consider an untimely amendment, regardless of whether or not an objection to the amendment was made. The absence of an objection does not invest a court with authority; it simply means that the State forfeits any complaint about the matter.”

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