The law is as much about procedure as it is about substance. Even the most seasoned criminal defense attorney can default on a critical issue by not following the strict rules of trial procedure. This issue was underscored in a February 8, 2017 decision (Obella v. State) by the Texas Court of Criminal Appeals (TCCA).


Angel Obella was charged with aggravated sexual assault. He pled guilty to the charge. He was given a 30-year prison term by a district court judge in Brazos County.


Motion for New Trial Must be Presented to Trial Court


Apparently suffering from buyer’s remorse, Obella filed a motion for new trial charging that his guilty plea had been the product of ineffective assistance. The TCCA noted that Obella attached “affidavits” to support his claim. Obella also requested that a hearing be conducted on the motion.


Rule 21.6 of the Texas Rules of Appellate Procedure requires that a motion for new trial be “presented” to the trial court within ten days of filing it. The TCCA in 2005 decision, Rozell v. State, held that a defendant must give the trial court “actual notice” that he “timely filed” the motion and requested a hearing. The TCCA noted that the procedural prerequisite of Rule 21.6 is the same as Rule 33.1(a) which requires that there be a “timely objection” made to any error that a defendant wants preserved for appellate review and the objection must be made with sufficient specificity unless the basis for the objection is apparent.


The State opposed Obella’s motion with an affidavit from his trial counsel.


The trial court did not conduct a hearing on the motion as requested by Obella. The motion was summarily denied.


Obella appealed to the Seventh District Court of Appeals, arguing that the trial court abused its discretion by not conducting a hearing on his motion for new trial. Last July the court of appeals agreed, finding that Obella’s motion has raised “factual allegations” sufficient to warrant a hearing.


State Raises New Issue on Motion for Rehearing at Court of Appeals


The State filed a motion for rehearing in the court of appeals. Prosecutors argued that Obella had failed to preserve his new trial claim because he did not “timely ‘present’” the motion.


This is where procedure again comes into the play. The appeals court denied the State’s rehearing motion. The court instructed the State that the “purpose of a motion for rehearing is to provide the court an opportunity to correct errors on issues already presented.”


State Procedurally Defaulted


On Appeal, the State had not raised the failure to “timely present” issue to the appeals court. As far back as 1990, the TCCA has “declined to consider an argument raised before the court of appeals for the first time in a motion for rehearing.”


In other words, as the court of appeals pointed out, the State had procedurally defaulted the failure to “timely present” issue.


That did not discourage the State. Prosecutors sought, and secured, a petition for discretionary review with the TCAA. The state’s highest court of criminal appeals defined the issue for review this way:


“The State has now filed a petition for discretionary review claiming, in part, that the issue of presentment involves an issue of error preservation, that issues involving preservation of error are systemic and should be addressed by the reviewing court on its own motion, and that the court of appeals erred in not deciding the issue of presentment after it was brought to the court’s attention in the State’s motion for rehearing. We agree.”


We disagree.


The TCCA’s decision amounts to preferential treatment for the State. First, prosecutors had every opportunity to raise the issue of presentment on appeal. It failed to do so. Second, if a defendant is found to have procedurally defaulted on an issue, as the court of appeals found the State had done with the presentment issue, the only way around the default for the defendant is (a) he or she must show cause for the default and (b) that they were prejudiced by the default cause.


Texas Court of Criminal Appeals Gives Free Pass to State


In effect, the TCAA gave the State a free pass around the cause/prejudice requirement by finding the court of appeals had a duty to address the presentment issue once it had been put before the court in the State’s motion for rehearing. The State screwed up by not raising the issue in its brief on appeal, and the TCAA should not have given it a second bite of the procedural default apple by saying it was properly raised in its motion for a rehearing.