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21.1. Definitions
(a) 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.
(b) New trial on punishment means a new
hearing of the punishment stage of a criminal
action after the trial court has, on the
defendant's motion, set aside an assessment
of punishment without setting 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, or a
new trial on punishment, 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 may make oral or written findings
of fact. 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. Granting a New Trial
(a) A court must grant a new trial when it has
found a meritorious ground for new trial, but
a court must grant only a new trial on
punishment when it has found a ground that
affected only the assessment of punishment.
(b) Granting a 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.
(c) Granting a new trial on punishment restores
the case to its position after the defendant was
found guilty. Unless the defendant, State, and
trial court all agree to a change, punishment
in a new trial shall be assessed in accordance
with the defendant's original election under
article 37.07, § 2(b) of the Code of Criminal
Procedure.
(d) A finding or verdict of guilt in the former trial
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 of
guilt. A finding of fact or an assessment of
punishment in the former trial may not be
alluded to in the presence of the jury that
hears the case on retrial of punishment.