FAROOQUI v. STATE (2026)

Petition for discretionary review refused.

DISSENTING OPINION

Appellee filed a motion for new trial. The motion was not ruled upon within 75 days after the trial court's judgment—resulting in it being denied by operation of law. The court of appeals later abated the appeal for the trial court to hold a hearing on the motion and make findings. After holding a hearing, the trial court purported to grant the motion, ordering a new trial. Because the trial court's jurisdiction to grant a new trial had expired after 75 days, the trial court had no power to grant Appellee's motion. The trial court's power over the case was limited to holding a hearing, making findings, and forwarding the record to the appellate court. The State points this out in its first ground for review. Because the Court declines to grant review on this ground, I must dissent.

I. BACKGROUND

On June 14, 2022, the trial court rendered judgment in Appellee's case. Appellee timely filed a motion for new trial.¹ No ruling occurred on the motion for new trial within 75 days after judgment.² A hearing was first held on the motion for new trial on October 7, 2022—85 days after the judgment. Afterwards, Appellee timely filed a notice of appeal.³

The court of appeals later abated the appeal for a hearing on the motion for new trial.⁴ The appellate court concluded that Appellee had raised matters supported by affidavit but not determinable from the record.⁵ The court of appeals's order said nothing about whether the trial court could grant a new trial.  ⁶ Rather, the court merely ordered that the case be assigned to a trial judge “for the purpose of conducting a hearing on [Appellee's] motion for new trial” and of “mak[ing] findings of fact and conclusions of law” to be included in “a supplemental clerk's record.”⁷ The court further ordered that the appeal “be reinstated when the supplemental clerk's record is filed or 120 days from the date of this order, whichever is earlier.”⁸

However, on February 8, 2023, the trial court purported to grant a new trial.⁹ The State appealed, and the court of appeals affirmed, concluding that the trial court was within its discretion to grant a new trial on the basis of a Confrontation Clause violation.¹⁰

II. ANALYSIS

The Rules of Appellate Procedure require that a motion for new trial be ruled upon within 75 days after judgment or else it is denied by operation of law:

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.

* * *

(c) Failure to Rule. A motion not timely ruled on by written order will be deemed denied when the period prescribed in (a) expires.11

We have repeatedly held that this 75-day time period is jurisdictional: the trial court loses jurisdiction to rule on the motion for new trial once the 75-day period elapses.¹²

The court of appeals did not purport to restore that jurisdiction—it abated and remanded only for the purpose of holding a hearing and issuing findings. Once that was done, the case was supposed to return to the appellate court. But even if the court of appeals had purported to restore jurisdiction to grant a new trial, it could not do so. With the expiration of 75 days, the trial court's jurisdiction to grant a new trial had expired.¹³

Even if the trial court made a mistake in failing to hold a hearing, an abatement and remand to correct such a mistake would only permit a new hearing and findings from that hearing. Texas Rule of Appellate Procedure 44.4, which allows an error to be remedied without reversal, applies only to remedy an error that “prevents the proper presentation of a case to the court of appeals.”¹⁴ Any abatement and remand under Rule 44.4, then, requires the case to come back to the court of appeals. We have held that Rule 44.4 can be used to conduct a retrospective hearing on a Batson issue or on the admissibility of evidence.¹⁵ We have never suggested that a trial court's finding of merit on a Batson or admissibility issue in such a retrospective hearing would somehow enable the trial court to grant a mistrial or a new trial. That is because the trial court's power to grant such relief would have expired by the time the appellate court exercised its power to order a retrospective hearing. The retrospective hearing creates a record that the appellate court can review in evaluating the defendant's claim of error but does not confer upon the trial court the power to grant relief.

Likewise, the trial court's power to grant a new trial pursuant to a post-trial motion ended once the 75-day period expired. Any retrospective hearing on a motion for new trial pursuant to Rule 44.4 occurs only to create a record that the appellate court can review in evaluating whether the trial court erred in denying the motion for new trial. And that is true even if the trial court's denial was merely one by operation of law. A court of appeals might be able to take into account in the defendant's appeal any findings the trial court makes in the defendant's favor at a retrospective hearing, but it is the appellate court, not the trial court, that must decide whether relief can issue from findings made in a retrospective hearing.

There is simply no way for the court of appeals to restore a trial court's jurisdiction to grant a new trial once that jurisdiction is lost, other than to reverse the trial court's judgment as to guilt, which would effectively grant a new trial anyway, without any action by the trial court.¹⁶ But to do that, the court of appeals would need to find an error in the guilt stage of trial in a defendant's appeal.¹⁷ At this juncture, we have only the State's appeal before us. The court of appeals should have found that the trial court had no jurisdiction to grant a new trial and reinstated Appellee's appeal. Then it could have decided the Confrontation claim in the context of that reinstated appeal.

I respectfully dissent.

FOOTNOTES

1.   August 11, 2022—day 28. See Tex. R. App. P. 21.4(a) (“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.”).

2.   See id. 21.8(a).

3.   October 10, 2022—day 88. See id. 26.2(a)(2) (“The notice of appeal must be filed ․ within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.”).

4.   December 21, 2022. See Farooqui v. State, No. 05-22-01165-CR (Tex. App.—Dallas December 21, 2022) (slip order) (not designated for publication). In the style of the case, the court of appeals has substituted a “g” for the “q” in Appellee's last name. My review of the clerk's record, the court reporter's record, and the parties’ briefs indicates that the correct spelling of his name is with the “q,” and so I style the case accordingly.

5.   Id.

6.   Id.

7.   Id.

8.   Id.

9.   In an order dated May 8, 2023, the court of appeals reinstated and then abated Appellee's appeal pending the outcome of the State's appeal. Farooqui v. State, No. 05-22-01165-CR (Tex. App.—Dallas May 8, 2023) (slip order) (not designated for publication) (case style corrected, see supra at n.4).

10.   State v. Faroogui, 05-23-00162-CR, 2024 WL 4035925 (Tex. App.—Dallas Sep. 4, 2024) (not designated for publication) (case style corrected, see supra at n.4).

11.   Tex. R. App. P. 21.8(a), (c).

12.   Flores v. State, 679 S.W.3d 695, 697 (Tex. Crim. App. 2023) (“[O]nce a motion for new trial is overruled by operation of law, the trial court loses jurisdiction to rule upon it.”) (quoting State v. Garza, 931 S.W.2d 560, 562 (Tex. Crim. App. 1996) (brackets in Flores)); Montelongo v. State, 623 S.W.3d 819, 823 (Tex. Crim. App. 2021) (same) (quoting State v. Moore, 225 S.W.3d 556, 566-67 (Tex. Crim. App. 2007), quoting Garza).

13.   See supra at n.12.

14.   Tex. R. App. P. 44.4(a) (“A court of appeals must not affirm or reverse a judgment or dismiss an appeal if: (1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and (2) the trial court can correct its action or failure to act.”) (emphasis added).

15.   See Villafranco v. State, 654 S.W.3d 753, 757 (Tex. Crim. App. 2021) (“The proper remedy is for the court of appeals to abate the appeal and remand the case to the trial court to conduct a retrospective adversarial hearing in which the defendant has an opportunity to show that the victim's prior sexual history is admissible.”); Fakeye v. State, 227 S.W.3d 714 (Tex. Crim. App. 2007) (“[A]batement was proper when a trial court refused to permit a defendant to make an offer of proof or a bill of exception, when a trial court failed to conduct a proper Batson hearing, and when a trial court failed to reduce to writing its findings of fact and conclusions of law on the disputed fact issues surrounding the taking of a confession.”) (citations omitted, brackets added).

16.   See Tex. Code Crim. Proc. art. 44.29(a) (Reversal “on the basis of an error in the guilt or innocence stage of the trial” has the effect of making the case “stand as if it would have stood in case the new trial had been granted by the court below.”). Of course, if a new trial granted by the court of appeals concluded adversely to the defendant, the defendant would then be in a position to file a motion for new trial, which the trial court could act on, if it did so within 75 days after the new judgment.

17.   See id.