Rule 21.

1997 Rules of Appellate Procedure

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RULE 21. NEW TRIALS IN CRIMINAL CASES

21.1 Definition. New trial means the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt.

21.2 When Motion for New Trial Required. A motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record.

21.3 Grounds. The defendant must be granted a new trial for any of the following reasons:

(a) except in a misdemeanor case in which the maximum possible punishment is a fine, when the defendant has been unlawfully tried in absentia or has been denied counsel;

(b) when the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights;

(c) when the verdict has been decided by lot or in any manner other than a fair expression of the jurors' opinion;

(d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct;

(e) when a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish the defendant's innocence has been intentionally destroyed or withheld, thus preventing its production at trial;

(f) when, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result;

(g) when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or

(h) when the verdict is contrary to the law and the evidence.

21.4 Time to File and Amend Motion.

(a) To file . The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.

(b) To amend . 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, a defendant may, without leave of court, file one or more amended motions for new trial.

21.5 State May Controvert; Effect. The State may oppose in writing any reason the defendant sets forth in the motion for new trial. The State's having opposed a motion for new trial does not affect a defendant's responsibilities under 21.6.

21.6 Time to Present. The defendant must present the motion for new trial to the trial court within 10 days of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court imposes or suspends sentence in open court.

21.7 Types of Evidence Allowed at Hearing. The court may receive evidence by affidavit or otherwise.

21.8 Court's Ruling.

(a) Time to rule . The court must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court.

(b) Ruling . In ruling on a motion for new trial, the court must not summarize, discuss, or comment on evidence. The granting of a motion for new trial must be accomplished by written order. A docket entry does not constitute a written order.

(c) Failure to rule . A motion not timely ruled on by written order will be deemed denied when the period prescribed in (a) expires.

21.9 Effect of Granting. Granting a motion for new trial restores the case to its position before the former trial, including, at any party's option, arraignment or pretrial proceedings initiated by that party. The prior conviction must not be regarded as a presumption of guilt, nor may it be alluded to in the presence of the jury that hears the case on retrial.

Notes and Comments
Comment to 1997 change: Former Rules 30, 31, and 32 are merged. Paragraph (b)(6) of former Rule 30 is deleted because the rule-making authority of the Court of Criminal Appeals was withdrawn. See Code of Criminal Procedure article 40.001. Other nonsubstantive changes are made.

Last modified: November 08, 2001