JOSEPH EDWARD WILLIAMSON,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00544-CR
JOSEPH EDWARD WILLIAMSON,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES WHITHAM AND BURNETT
CONCURRING AND DISSENTING OPINION BY CHIEF JUSTICE ENOCH
MARCH 22, 1989
        I reluctantly concur in part. The majority follows this court's decision in Owens v. State, No. 05-88-00032-CR (Tex. App. - Dallas, December 20, 1988, pet. pending)(not yet reported) which is correct under the holding of McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985) to the extent that this case must be returned to the trial court for a hearing on appellant's motion for new trial. I wish to express my concern that McIntire deviates from what I consider the proper approach to a complaint on appeal that the trial court failed to hold a hearing on a motion for new trial.
        Under usual circumstances when a party complains about the failure of the trial court to hear evidence, such complaint is not preserved in the absence of an offer of proof setting forth what the evidence would have been. TEX. R. CRIM. EVID. 103(a)(2), Easterling v. State, 710 S.W.2d 569, 575 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 848, 107 S. Ct. 170, 93 L. Ed. 2d 108 (1986); Passmore v. State, 617 S.W.2d 682, 685 (Tex. Crim. App. 1981); Tolar v. State, 546 S.W.2d 290, 295 (Tex. Crim. App. 1977). McIntire makes no mention of this rule, although, I think its application would bring about a better reasoned result. If appellant had brought forth his evidence by an offer of proof, we would simply proceed to determine if, considering this evidence, it was an abuse of discretion to overrule the motion for new trial. If it was an abuse of discretion, then the case should be reversed. See McIntire, at 662 (Onion, P. J., dissenting). Having failed to bring forth a proper record in this case, I would hold that appellant's point of error complaining of the failure to grant a hearing as being a abuse of discretion is waived, and I would proceed to address his remaining points of error. I recognize, though, that McIntire is controlling.
        Be that as it may, I also dissent in part. I disagree that the judgment adjudicating guilt, the sentence, and the notice of appeal should be set aside. We are additionally governed by Texas Rule of Appellate Procedure 81(a) which states:
            No Reversal If Error Remediable. If the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the court of appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the court of appeals shall proceed as if such erroneous action or failure to act had not occurred.
(Emphasis added).
        Consequently, I am compelled to agree that this case should be returned to the trial court for hearing on the motion for new trial. However, I do not agree that the judgment adjudicating guilt, the sentence, and the notice of appeal should be set aside. Rather, this appeal should be abated with instructions that the trial court hold a hearing on appellant's motion for new trial, that the trial court then enter findings of facts and conclusions of law, and that these findings and conclusions be forwarded to this court with a recommendation on whether a new trial should be granted. FN:1
                                                                                   CRAIG TRIVELY ENOCH
                                                          CHIEF JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00544.CDF
 
FN:1 I note that Tex. R. Civ. P. 31(e)(2) states "[t]he judge shall not sum up, discuss or comment on evidence in the case." However, the issue dealt with by the majority involves presentation of evidence not on the merits of the case, but on extrinsic matters. It is findings and conclusions about those extrinsic matters which I would require.
 
File Date[01-02-89]
File Name[880544]