Clyde Parks v. State

NO. 12-02-00198-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS CLYDE PARKS, § APPEAL FROM THE 145TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § NACOGDOCHES COUNTY, TEXAS OPINION Clyde Parks ("Appellant") was convicted by a jury of the offense of aggravated robbery. Upon remand from this court for a new trial on punishment only, Appellant was sentenced to fourteen years of imprisonment. In two issues, Appellant contends that the trial court erred in denying his Motion to Expand New Trial and that the evidence was legally and factually insufficient to support a conviction. We affirm. Background On November 21, 1997, Appellant was indicted on one count of aggravated robbery that occurred on or about November 5, 1997. (1) On August 18, 1998, Appellant was convicted in absentia by a jury of first degree aggravated robbery as charged in the indictment. He was sentenced to fifty years of imprisonment and assessed a fine of $10,000.00. (2) Appellant appealed, and this court sustained his first issue contending that the trial court erred in failing to permit him to voir dire the jury on the issue of probation. However, the Court of Criminal Appeals vacated our decision and remanded the case to us for a harm analysis. After conducting a harm analysis, we reversed and remanded the case to the trial court for a new trial on punishment only. Upon remand, Appellant filed a motion to expand his new trial from punishment only to include guilt or innocence. The trial court denied Appellant's motion. On June 10, 2002, a new trial on punishment was held, and a jury sentenced Appellant to fourteen years of imprisonment. This appeal followed. Motion to Expand New Trial Appellant argues that the trial court erred in denying his Motion to Expand New Trial and that he is entitled to a new trial on guilt or innocence. As grounds, Appellant alleges that error occurred in his previous trial during voir dire and, thus, during the guilt or innocence phase of the trial. The State contends that the trial court had no jurisdiction to hear issues relating to the guilt or innocence phase of the trial. Appellant's motion is not included in the record. Nonetheless, the State acknowledges that such motion exists. Therefore, we will address whether the trial court erred in denying Appellant's Motion to Expand New Trial. Applicable Law Jurisdiction is the power of a court to hear and determine a case. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000). A timely filed notice of appeal invokes appellate jurisdiction over a case. Id.; Lopez v. State, 18 S.W.3d 637, 639 (Tex. Crim. App. 2000). When the trial record is filed with an appellate court, the trial court loses power to adjudicate the case. Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995). Further, once an appellate court acquires jurisdiction, a trial court cannot regain jurisdiction unless the appellate court returns the case to that trial court. Lopez, 18 S.W.3d at 639. Article 44.29(b) of the Texas Code of Criminal Procedure allows an appellate court to award a new trial to a defendant as to punishment only. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2003); Lopez, 18 S.W.3d at 639; Rent v. State, 982 S.W.2d 382, 385 (Tex. Crim. App. 1998); see also Tex. R. App. P. 43.2. Upon a new trial as to punishment only, the conviction on guilt or innocence is affirmed and the conviction on punishment is reversed. Lopez, 18 S.W.3d at 639. On remand, the trial court's jurisdiction is, therefore, restricted to issues relating to the punishment phase of the trial. Id.; Patterson v. State, 101 S.W.3d 150, 152 (Tex. App.-Fort Worth 2003, no pet.). Thus, when a new trial is granted as to punishment only, the trial court has no power to consider or grant a motion for new trial on guilt or innocence. Lopez, 18 S.W.3d at 639; Davila v. State, 961 S.W.2d 610, 614 (Tex. App.-San Antonio 1997, no pet.); Easton v. State, 920 S.W.2d 747, 749 (Tex. App.-Houston [1st Dist.] 1996, no writ). Analysis We remanded this case to the trial court for a new trial on punishment only. Appellant filed a Motion to Expand New Trial to include a guilt or innocence stage and that motion was denied by the trial court. Because of our mandate on remand, the trial court's jurisdiction was limited to issues concerning the punishment stage of the trial. See Lopez, 18 S.W.3d at 639; Patterson, 101 S.W.3d at 152. Thus, the trial court had no jurisdiction to consider or grant Appellant's motion to expand the new trial to include a guilt or innocence phase. See Lopez, 18 S.W.3d at 639; Davila, 961 S.W.2d at 614; Easton, 920 S.W.2d at 749. Therefore, the trial court did not err when it denied Appellant's motion. Accordingly, Appellant's first issue is overruled. Evidentiary Sufficiency In his second issue, Appellant contends that the evidence is legally and factually insufficient to support a conviction. Appellant also argues that there is insufficient corroboration of the accomplice testimony. When appealing from a retrial of only the punishment phase, an appellant may not allege any error that transpired during the guilt-innocence phase of the trial. Easton, 920 S.W.2d at 749; Rische v. State, 834 S.W.2d 942, 948 (Tex. App.-Houston [1st Dist.] 1992, writ ref'd). An appeal of the punishment phase is entirely limited to issues pertaining to the retrial of appellant's punishment. See Sanders v. State, 832 S.W.2d 719, 723-24 (Tex. App.-Austin 1992, no writ). An issue on appeal of the punishment retrial regarding matters from the guilt or innocence phase of the trial presents nothing for an appellate court to review. Patterson, 101 S.W.3d at 152; Sanders, 832 S.W.2d at 723-24. Appellant's complaints regarding the legal and factually insufficiency of his conviction relate to issues that occurred during the guilt or innocence stage of the trial. Therefore, Appellant presents nothing for our review. Accordingly, Appellant's second issue is overruled. Conclusion Based upon our review of the record, we conclude that the trial court did not err in denying Appellant's Motion to Expand New Trial. Further, we conclude that Appellant's second issue presents nothing for our review. Therefore, the judgment of the trial court is affirmed. JAMES T. WORTHEN Chief Justice Opinion delivered May 30, 2003. Panel consisted of Worthen, C.J. and Griffith, J. (DO NOT PUBLISH) 1. A person commits a first degree felony if he commits robbery and causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 29.03 (a), (b) (Vernon 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (a) (Vernon 2003). 2. The punishment range for a first degree felony is a term of life or not more than ninety-nine years or less than five years of imprisonment and, in addition, a fine not exceeding $10,000. Tex. Pen. Code Ann. § 12.32 (Vernon 2003).