Opinion
No. 04-17-00643-CR
06-20-2018
Bradford C. BINDOCK, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR7996
Honorable Andrew Wyatt Carruthers, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
Bradford C. Bindock appeals the trial court's nunc pro tunc order rescinding its order granting a motion for new trial. In his first two issues, Bindock asserts the trial court lacked authority to enter the nunc pro tunc order, challenging the credibility of the trial judge with regard to whether the order corrected a judicial or a clerical error. Bindock also asserts his due process rights were violated because the order was entered in the absence of a hearing. In his third issue, Bindock appears to assert that if this court reverses the trial court's nunc pro tunc order, a second trial would be barred by double jeopardy. We affirm the trial court's order.
BACKGROUND
Bindock was convicted by a jury of evading arrest/detention with a vehicle and sentenced, on May 22, 2012, to one year in state jail. Bindock's sentence was suspended, and he was placed on two years' community supervision. On June 15, 2012, Bindock filed a motion for new trial, and the trial court signed an order granting the motion on June 19, 2012.
On October 30, 2012, the trial court held a hearing regarding its order granting the motion for new trial. At the hearing, the trial court stated, "Somebody put [the order] in front of me and I signed it without knowing what it was." The prosecutor noted the motion for new trial could not have been granted without a hearing and questioned the trial court's plenary jurisdiction to then consider the motion. The trial court recessed the hearing, stating he would give the attorneys a call after "do[ing] some reading."
On November 20, 2012, and March 5, 2013, the State filed motions requesting the trial court to enter a nunc pro tunc order correcting the erroneous grant of the new trial. On March 21, 2013, a second hearing was held regarding the trial court's order granting the new trial.
At the beginning of the hearing, the prosecutor announced the State's intention to reset the hearing to get a record of the previous hearing because the prosecutor and defense counsel disagreed "about what the record shows." The trial court stated he believed he was signing an order setting a hearing on the motion for new trial, not an order granting the motion for new trial. After defense counsel stated he believed additional discussion was necessary, the trial court agreed to reset the hearing; however, the appellate record does not contain a reporter's record of any additional hearing.
On April 11, 2013, the trial court signed a nunc pro tunc order rescinding its order granting the motion for new trial and finding the motion for new trial was overruled by operation of law. Bindock appeals.
Bindock was granted an out-of-time appeal.
DISCUSSION
In arguing the trial court lacked authority to enter a nunc pro tunc order rescinding its order granting the motion for new trial, Bindock ignores the decisions by the Texas Court of Criminal Appeals in Awadelkariem v. State, 974 S.W.2d 721 (Tex. Crim. App. 1998), and Kirk v. State, 454 S.W.3d 511 (2015). In Awadelkariem, the court held "an order granting or denying a motion for new trial may be freely rescinded so long as such action occurs within the 75 days provided by the rules." 974 S.W.2d at 728 (emphasis added). In reaching its holding, the court overruled or explained prior precedent, including some of the cases cited in Bindock's brief. In Kirk, the court "abandon[ed] the time limit previously imposed in Awadelkariem" but reaffirmed "a trial court has the power to rescind an order granting a new trial." 454 S.W.3d at 515. Accordingly, after the Kirk decision, "[e]ven if [an] order granting [a] new trial was not the result of a clerical mistake, a trial court may rescind [the] order granting [the] new trial at any time." Stevens v. State, No. 08-14-00041-CR, 2016 WL 3563946, at *2 (Tex. App.—El Paso June 20, 2016, pet. ref'd) (not designated for publication). Therefore, regardless of the reason for the trial court's decision to enter the nunc pro tunc order in the instant case or the credibility of the stated reason, the trial court had the authority to enter the nunc pro tunc order rescinding its order granting the new trial. See Kirk, 454 S.W.3d at 515.
Bindock also argues the trial court's order violated his due process rights because the trial court did not reset the hearing on the issue before entering the nunc pro tunc order. "[T]he law does not compel us to require courts to perform useless tasks." Homan v. Hughes, 708 S.W.2d 449, 454 (Tex. Crim. App. 1986). Even assuming the trial court erred in failing to reset the hearing despite having already held two hearings on the issue, this would have been the only error the trial court made because, as we have held, the trial court had the authority to freely rescind its order granting the new trial at any time. See Kirk, 454 S.W.3d at 515. "Thus, a hearing on the merits of the trial court's action, even if ordered by an appellate court, would serve no purpose." Homan, 708 S.W.2d at 454. As a result, requiring the trial court to reset the hearing would be a "useless task" because the outcome would not change. Id. at 454-55; see also Bilbro v. State, No. 05-17-00120-CR, 2018 WL 525682, at *1 (Tex. App.—Dallas Jan. 24, 2018, pet. ref'd) (not designated for publication) (rejecting argument that trial court erred in rescinding its order granting a new trial without conducting a hearing because holding such a hearing would be a "useless task").
CONCLUSION
The trial court's order is affirmed.
Because we affirm the trial court's order, we need not address Bindock's double jeopardy issue.
Karen Angelini, Justice DO NOT PUBLISH