# State v. Herndon

> Court of Criminal Appeals of Texas · February 28, 2007 · 215 S.W.3d 901

URL: https://www.frixlaw.com/law-library/cases/9659338

## Case

- **Full name:** The STATE of Texas v. Ronald HERNDON, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 28, 2007
- **Citations:** 215 S.W.3d 901; 2007 Tex. Crim. App. LEXIS 228; 2007 WL 601625
- **Precedential status:** Published
- **Opinion:** Dissent by Womack
- **Judges:** Cochran, Price, Johnson, Keasler, Holcomb, Womack, Keller, Meyers, Heryey
- **Cited by:** 411 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9659338

## How later opinions describe it (automated extraction)

- stating that though “[w]e need not today set out bright-line rules concerning appellate review of a trial court's discretion in this area. . . we do conclude that a trial court would not generally abuse its discretion in granting a motion for new trial if the defendant: (1) ar…
- holding that it “is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a …
- stating that the trial court does not abuse its discretion by granting a new trial if the defendant: (1) articulated a valid legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim; and (3) sh…
- stating that “[a]lthough a timely trial objection is not a mandatory prerequisite to the consideration of a legal claim in a motion for new trial, a trial judge may, in the exercise of his discretion, deny a motion for new trial on this basis. . . .”
- holding that if trial court denies motion for new trial, “the defendant, as the losing party, must have preserved that same error [during trial] before he may claim it as a basis for reversing the trial judge once he moves into the appellate court”

## Opinion text

WOMACK, J.,
filed a dissenting opinion, in which KELLER, P.J., and MEYERS, J., joined.
The Court’s opinion holds that the requirement for preservation of error that is a prerequisite for appeal is not a prerequi *912 site for a motion for new trial. Therefore, although there is no preservation issue for the court of appeals to consider on remand, it should consider “the merits of the trial judge’s ruling,” three aspects of which are mentioned. (Ante, at 911).
But that’s not what this case is about. Those “merits” of the prosecutor’s argument are not why the new trial was granted. As the Court’s opinion clearly says (ante, at 905, quoting the trial court’s ruling), it granted the new trial only “on the ground that a bench conference was not recorded during the trial.”
The only question before us is whether that was a correct reason to grant a new trial. It wasn’t, as we held in another case after this trial was over. The trial court had no discretion to be wrong about the law, although his error was understandable since the courts of appeals were in conflict at the time and the court tried to follow the (incorrect) line of decisions of the “home” court of appeals. 1 After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal. 2
I respectfully dissent.
. See Tanguma v. State, 47 S.W.3d 663 (Tex. App.-Corpus Christi 2000, pet. ref'd) (holding that a court reporter’s failure to record a bench conference during trial was error if the parties had not agreed that such a conference not be recorded, and that a party was not required to object to the failure). After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.
. See Valle v. State, 109 S.W.3d 500, 508-09 (Tex. Cr.App.2003).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9659338. Public record. Not legal advice.