Opinion
No. 05-03-01426-CR
Opinion Filed November 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F03-71067-RJ. Remand.
Before Justices WRIGHT, RICHTER, and MAZZANT.
MEMORANDUM OPINION
In this case, a jury convicted Jerald Lamour Printers of aggravated sexual assault of a child and assessed punishment at 10 years' confinement. In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction, and that we must remand for a new trial pursuant to an order granting appellant's motion for new trial. The State requests that we abate the appeal and remand to the trial court so it can clarify its ruling regarding the order granting a new trial. Because an order granting a motion for new trial restores a case to the position before the trial, we begin with appellant's third issue. See Tex.R.App.P. 21.9. The same day appellant was sentenced, appellant filed a motion for new trial and a notice of appeal. The trial judge signed the order at the bottom of the motion for new trial granting a new trial. However, in contrast to that, one week later the trial judge certified appellant's right to appeal. The trial judge also appointed appellate counsel. Appellate counsel proceeded as if no new trial had been granted by requesting preparation of the record and filing a brief raising substantive issues. It was not until the brief was filed that appellant raised the issue of a new trial. Thus, the record contains some indication that the order granting appellant's motion for new trial resulted from clerical error. However, unlike the usual case, there has been no determination at the trial court level that the order granting the motion for new trial was erroneously entered. Further, if the order was erroneously entered, the circumstances making the error clerical and not judicial have not been shown. Thus, we remand this case to the trial court for it to conduct a hearing, not later than 30 days from the date of this opinion, to determine whether its entry of the written order purporting to grant the motion for new trial was a clerical error. See Smith v. State, 801 S.W.2d 629, 633 (Tex.App.-Dallas 1991, no pet.); Rodriguez v. State, 42 S.W.3d 181, 186 (Tex.App.-Corpus Christi 192001, no pet.). If it is determined that the order was the result of a clerical error, the trial court should correct the erroneous order so that the record speaks the truth. Smith, 801 S.W.2d at 633. The record of the hearing together with appropriate findings of fact related to the trial court's action, as well as any modifications to the record in this case should then be promptly forwarded to this Court. We remand to the trial court for it to conduct a hearing consistent with this opinion. We abate this case for 45 days or until this Court receives the record from the trial court hearing, whichever is earlier.
We recognize that the determination of whether an error is clerical or judicial is a question of law, and the trial court's findings and conclusions are not binding on this Court. Smith, 801 S.W.2d at 633.