Kevin Wade Cooper v. State ( 2021 )

NO. 12-20-00075-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KEVIN WADE COOPER, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Kevin Wade Cooper appeals his conviction for aggravated assault with a deadly weapon.
In two issues, Appellant challenges the validity of the trial court’s judgment and the
constitutionality of his court costs. We vacate the judgment, reinstate the trial court’s prior order
placing Appellant on deferred adjudication community supervision, and remand the case to the
trial court.
BACKGROUND
Appellant was indicted for the offense of aggravated assault with a deadly weapon,
namely a motor vehicle. On December 2, 2019, the trial court admonished Appellant and he
entered a plea of “guilty” to the offense and “true” to the deadly weapon allegation pursuant to a
negotiated plea agreement. Per the agreement, the trial court deferred a finding of guilt, ordered
the preparation of a presentence investigation report (PSI), and set a date for sentencing.
At the sentencing hearing on January 13, 2020, Appellant stated that he last used
amphetamine or methamphetamine “back in 2018.” However, the trial court’s records showed
that Appellant “tested positive for meth use on [December 10, 2019].” Appellant denied the
accuracy of that report and stated once again under oath that he had not used methamphetamine
since 2018. Based on Appellant’s denial and the PSI, the trial court accepted the plea agreement
and signed an order placing him on deferred adjudication community supervision for three years.
The following day, Appellant reported to the probation department and submitted to
urinalysis testing, which revealed the presence of methamphetamine. When confronted with the
test results, Appellant advised that he last consumed methamphetamine on January 10, 2020,
which was after he pleaded guilty and three days before his sentencing hearing where he
indicated he last consumed the drug in 2018. The probation department immediately filed a
violation report in the trial court describing this information. Consequently, that same day the
trial court signed a sua sponte “Order Granting New Trial,” which stated that Appellant’s guilty
plea was withdrawn and a new trial ordered where Appellant “was possibly under the influence
of methamphetamines on the date he was sentenced” and he “committed Aggravated Perjury by
denying any recent drug use during the discussion and PSI review at his sentencing on January
13, 2020.”
On January 27, the parties appeared in court, and after detailing Appellant’s
misrepresentation on the record concerning his drug use, the trial court set aside the order placing
him on deferred adjudication community supervision. At this hearing, Appellant was
admonished and made an open plea of “guilty” to the underlying offense and “true” to the deadly
weapon allegation, and the trial court set the matter for sentencing. On February 18, after
reaffirming his open plea of guilty, the trial court accepted the plea and sentenced Appellant to
eight years of imprisonment and assessed restitution in the amount of $2,449.64. This appeal
followed.
VOID JUDGMENT
In Appellant’s first issue, he argues that the trial court’s judgment sentencing him to eight
years of imprisonment is void because the trial court lacked authority to sua sponte grant a new
trial.
Standard of Review and Applicable Law
The standard of review when a trial court grants a new trial is abuse of discretion. State
v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014). The test for abuse of discretion is not
whether, in the opinion of the appellate court, the facts present an appropriate case for the trial
court’s action, but rather, “whether the trial court acted without reference to any guiding rules or
2
principles.” Id. The procedural provisions governing motions for new trial in a criminal case
require strict compliance. Oldham v. State, 977 S.W.2d 354, 361 (Tex. Crim. App. 1998).
“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.” TEX. R. APP. P. 21.1(a). A motion
for new trial in a criminal case may be granted only on the timely motion of the defendant, and
the trial court has no authority to grant a new trial on its own motion. Zaragosa v. State, 588
S.W.2d 322, 326-27 (Tex. Crim. App. [Panel Op.] 1979).
Separately, a “verdict of guilt” under Rule 21 is a jury’s assessment of guilt in a jury trial,
while a “finding of guilt” is a judge’s assessment of guilt in a bench trial. Donovan v. State, 68
S.W.3d 633, 635 (Tex. Crim. App. 2002). When adjudication is deferred, there is no “finding or
verdict of guilt.” Id. at 636. “Because there is no finding or verdict of guilt, there is nothing that
can be set aside so as to create an occasion for implementation of Rule 21.” Id.Therefore, a trial court’s sua sponte grant of a new trial in adjudicating guilt and revoking
deferred adjudication community supervision is improper. See Donovan, 68 S.W.3d at 635-36;
Zaragosa, 588 S.W.2d at 326-27. A trial court’s grant of its own motion for new trial is a void
act or nullity. Perkins v. Court of Appeals for Third Supreme Judicial District of Texas, at
Austin, 738 S.W.2d 276, 280-81 (Tex. Crim. App. 1987). Consequently, any resulting
conviction after the trial court sua sponte grants a new trial is also a nullity. See Zaragosa, 588
S.W.2d at 327. This means that the case shall be returned to the trial court to proceed as if it had
not granted the new trial on its own motion. See id.Discussion
Appellant argues that the trial court’s lack of authority to sua sponte order a new trial
renders his subsequent conviction and sentence nullities. Consequently, he argues that we
should set aside the trial court’s judgment adjudicating him guilty of the underlying offense and
sentencing him to eight years of imprisonment, reinstate the original order of deferred
adjudication, and order the trial court to proceed as if it had not granted the new trial. The State
does not dispute that the trial court lacked authority to grant a new trial on its own motion, but it
argues that we should overrule Appellant’s issue. 1
1
In addition to the lack of a “finding of guilt” authorizing a new trial on its own motion, we note that
because the trial court granted the new trial on the day after it accepted Appellant’s plea and placed him on deferred
adjudication, this is not a case where the trial court’s action can properly be characterized as a sentence
modification. See State v. Aguilera, 165 S.W.3d 695, 698 (Tex. Crim. App. 2005) (holding trial court retains
3
The State argues that Appellant is estopped from arguing that the judgment is void
because he did not object or otherwise complain that the trial court’s grant of a new trial was an
unauthorized void judgment. A void judgment is a nullity and can be attacked at any time. Nix
v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) abrogated on other grounds by Wright v.
State, 506 S.W.3d 478, 482 (Tex. Crim. App. 2016). In this case, because the trial court lacked
authority to grant a new trial on its own motion, its purported grant of a new trial was a void act,
and the subsequent judgment of conviction is a nullity. See Perkins, 738 S.W.2d at 280-81; see
also Zaragosa, 588 S.W.2d at 326-27. Because the judgment of conviction is void, Appellant
did not forfeit his complaint by failing to raise it in a direct appeal from the judgment. See Nix,
65 S.W.3d at 667-68.
Nonetheless, the State argues that Appellant accepted benefits from the judgment of
conviction and is consequently estopped from now asserting his issue. Estoppel by judgment is a
form of estoppel whereby a person who accepts the benefits of a judgment, decree, or judicial
order is estopped from denying its validity or propriety and cannot reject its burdensome
consequences. Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007); Deen v. State,
509 S.W.3d 345, 349 (Tex. Crim. App. 2017). Here, citing Rhodes and Deen, the State argues
that Appellant is estopped from complaining about the trial court’s grant of a new trial because
he accepted the benefits of the subsequent judgment of conviction sentencing him to eight years
of imprisonment. However, this case is distinguishable because, unlike the defendants in Rhodes
and Deen, Appellant did not receive any benefit from the judgment of conviction.
In both Rhodes and Deen, the State used prior convictions to enhance the appellants’
sentences, and the appellants argued on appeal that the prior convictions could not be used
because they were void. Rhodes, 240 S.W.3d at 884; Deen, 509 S.W.2d at 346. In Rhodes, the
appellant argued that his prior conviction was void because the sentence ran concurrently with
other sentences although a statute required that it be cumulated with the sentences. Rhodes, 240
S.W.3d at 884. In Deen, the appellant argued that his prior conviction was void because the
sentence of confinement was less than the statutory minimum. Deen, 509 S.W.2d at 346. In
plenary power to modify sentence if modification is made on same day as initial sentence and before court adjourns
for the day). Moreover, the trial court’s action cannot be converted to and justified as a motion to withdraw
Appellant’s guilty plea after being placed on deferred adjudication, because he never sought to withdraw his plea
and proceed to trial. See, e.g., State v. Ellis, 976 S.W.2d 789, 791-92 (Tex. App.—Houston [1st Dist.] 1998, no
pet.) (holding that although trial court lacked authority to grant new trial on day after it placed defendant on deferred
adjudication, it was authorized to grant functional equivalent of new trial because defendant’s motion was
essentially a motion to withdraw his guilty plea).
4
both cases, the court of criminal appeals held that the appellants were estopped from attacking
the validity of the prior convictions because they accepted the benefits of the illegally lenient
sentences. Rhodes, 240 S.W.3d at 892; Deen, 509 S.W.2d at 351.
In this case, the State argues that Appellant received a benefit from the judgment of
conviction as well, namely a more lenient sentence than he likely would have received from a
jury. However, this is not the relevant comparison. Appellant entered into a plea agreement
with the State for deferred adjudication community supervision, and the trial court approved it.
The trial court subsequently illegally granted a new trial on its own motion, set aside the deferred
adjudication order, found Appellant guilty, and sentenced him to a term of imprisonment.
Unlike the illegally lenient sentencing in Rhodes and Deen, the court’s illegal action here in no
way benefitted Appellant. Thus, it cannot be said that Appellant accepted a benefit from the
judgment of conviction, and he is not estopped from attacking its validity on appeal under a
theory of estoppel by judgment. See Rhodes, 240 S.W.3d at 891; Deen, 509 S.W.2d at 3.
Next, the State argues that the trial court was within its discretion to set aside the deferred
adjudication order because Appellant intentionally lied to the court about a matter it relied on in
deciding to accept the plea agreement. The State cites no case upholding a trial court’s setting
aside of an already approved plea agreement under such circumstances, and we find none.
However, we find some support for the theory that a court may properly act this way in some
instances. In Perkins, a defendant in a murder case made a plea bargain agreement with the state
that provided his punishment would not exceed twenty-five years in prison. Perkins, 738
S.W.2d at 278. At the plea hearing, the defendant told the trial court that he was guilty of
murder under the law of parties but did not shoot or stab anyone. Id. Thereafter, the trial court
approved the plea agreement. Id. at 279. However, prior to the defendant’s sentencing, the
prosecutor informed the trial court that she spoke with a surviving victim of the attack who stated
the defendant directly participated in the stabbing. Id. at 279-80. Based on this new
information, the trial court told the defendant it would not assess the agreed punishment of
imprisonment for twenty-five years or less. Id. at 280. The defendant filed an application for
writ of mandamus in the court of appeals. Id. The court of appeals issued the writ directing the
trial judge to enforce the plea agreement. Id. The judge filed an application for writ of
mandamus in the court of criminal appeals. Id. That court denied the judge’s writ application,
5
holding that the judge had a “mandatory, and non-discretionary duty . . . to specifically enforce
the plea bargain agreement that was made by the parties and approved by him.” Id. at 285.
However, the court of criminal appeals “pause[d] to point out” the following:
[T]here is no evidence in the record before us of any fraud in the inducement on the part of [the
defendant] or his attorney that might estop [the defendant] from seeking specific performance of
the agreement he made with the prosecuting attorney. Had the record so reflected, then, of course,
that might cause us to view the matter in a different light. However, as the court of appeals
pointed out in its mandamus opinion that relates to this cause, “ . . . the prosecutor made no effort
to demonstrate for the record the truth of [the witness’s hearsay statement that she had obtained
after the defendant had entered his plea of guilty], and [the trial judge] acknowledged . . . that he
did not know whether the statement was true.”
Id. at 284. This language suggests that a defendant who fraudulently induces a trial court to
accept a plea bargain agreement may later be estopped from seeking specific performance of the
agreement.
Nonetheless, we similarly conclude that the State fails to show fraudulent inducement in
this case. See id. As in Perkins, the State made no effort in the trial court to demonstrate for the
record the elements of fraudulent inducement. See id. Those elements include the following: (1)
a material misrepresentation, (2) made with knowledge of its falsity or asserted without
knowledge of its truth, (3) made with the intention that it should be acted on by the other party,
(4) which the other party relied on, and (5) which caused injury. Anderson v. Durant, 550
S.W.3d 605, 614 (Tex. 2018). Here, we cannot conclude that the record before us establishes
that the trial court relied on the misrepresentation or that it caused injury.
At the initial sentencing hearing on January 13, Appellant told the trial court that he had
not used methamphetamine since 2018. However, the trial court knew that Appellant had two
pending possession of a controlled substance cases in a neighboring county and that Appellant
tested positive for methamphetamine use on December 10, 2019, which was after his guilty plea
and prior to the sentencing hearing. The following discussion occurred at the hearing, showing
that the trial court suspected that Appellant might not have been truthful regarding his drug use,
yet placed him on deferred adjudication community supervision:
THE COURT: So part of the reason I talk about this is because I think a certain group of
people think they’re smarter than the system. And I can assure you that I haven’t come across
somebody that’s smarter than the system more than once or twice. And, usually, they end up back
here, and those days are just not very good for them.
6
So, again, based upon what I have before me -- I don’t have any laboratory proof that
would suggest this is inconsistent. But we’ve got someone, with two other drug charges in the
other county, that you’ve told us that you dispute. I don’t know what those facts are. But at least
sequencing, it sure seems like maybe that [you’re] telling me, under oath, that you haven’t used
drugs since 2018 may not be true. I don’t know.
But what we usually do is we catch them, regardless of what this is, whether it’s true or
not. So you’re looking at a second-degree felony charge. And whenever you come back on a
revocation, for whatever reason, my file will have all these notes. And I’ll have your sworn
testimony that you haven’t used drugs in two years or more.
If they catch you dirty -- if they catch you violating your probation in any way, and you
come back on a revocation and they prove it, then you’re looking at the upper end, I think. I
mean, I always look and see what people have to prove to me.
But one of the things the Courts really don’t like is when people lie to us. So, again, I
wouldn’t want you thinking that -- if all this is true, you have no exposure.
However, if you’re shading what you’ve told me, then you probably do have some
exposure. Because people that like drugs usually get caught with drugs down the road, and those
days are just usually not very good for them.
So are you sure you want me to approve this probation for you? Because you’ve got a lot
of downside if they catch you using drugs in the next three years.
THE DEFENDANT: They won’t catch me using drugs. I’m not using drugs.
....
THE COURT: All right. Mr. Cooper, if I approve this for you, do you promise to be
successful?
THE DEFENDANT: Yes, sir.
THE COURT: Court will follow the agreement.
In other words, the trial court was apparently suspicious and aware of facts indicating that
Appellant may not have been truthful when representing that he had not used drugs since 2018,
yet decided to give him the opportunity to complete deferred adjudication community
supervision. Accordingly, the State has not proven that the trial court detrimentally relied on
Appellant’s representations when it placed him on deferred adjudication community supervision.
See id.After the trial court granted the motion for new trial, it held a hearing on Appellant’s
desire to make an open plea of “guilty.” At that hearing the trial court detailed its reasoning for
granting the new trial, which is principally because Appellant lied to him concerning his drug
use. Specifically, the trial court stated as follows:
[THE COURT:] But you did go to probation. And when you got over there, you tested
dirty. And you admitted to them -- even though you’d told me here, under oath [the day] before,
that you hadn’t used drugs for at least two years, as your presentence shows.
So that brought about my entering an order setting aside your sentencing and granting a
new trial.
7
....
And I’ve -- well, I haven’t done it yet, but I guess my order suggested that I thought it
needed to be done -- and I’ll just find that order. Because I’m going to urge the prosecutors to
take your case to a Smith County grand jury for charges of aggravated perjury. Because I believe
you committed perjury here in the court that day whenever you, apparently, lied to me, under oath,
that you hadn’t been using any drugs.
Yes, I did put it in my order that I believed you committed aggravated perjury. And we
talked about that on that day you were here. It just amazes me that people stand here in open court
and lie to me, under oath, and subject themselves to even greater risk.
So before we proceed, so you’ll know everything, I’m urging the State of Texas to get a
copy of the transcript from that sentencing hearing and take [Appellant’s] case to grand jury for
consideration by them of the return of an aggravated perjury indictment for his lying to the Court,
apparently, that day.
....
THE COURT: All right. Well, I do insist. I think that our system only works if people
that show up in our courts tell the truth. And if we knowingly let them not tell the truth, I think
that is a bad, bad precedent for our system to set up. So every case -- it’s nothing particular to
[Appellant] -- every case, where I’ve seen aggravated perjury that I believe has happened, usually,
it’s pretty clear because, usually, it’s related to the drug issues. Usually, they’re caught dirty.
Usually, that’s completely in opposition to what they’ve told me, under oath, in the courtroom.
And -- well, I do it every time. I don’t know what the State always does with it. Because
sometimes the people go on to prison on the charge that they’ve plead guilty to. This one, of
course, didn’t get handled that way.
All right. The reason I cover that . . . is to make sure [Appellant] knows that, at least
from my perspective, I think he needs to be charged with another offense. I don’t control that.
The Smith County grand jury does. But, frankly, as I’ve just indicated, I can’t imagine the
prosecutors not taking it to grand jury, when a district judge tells them they should.
And I can’t imagine a grand jury looking at the transcript of that hearing and the
defendant’s sworn testimony, along with the admissions he made to the pretrial -- or not pretrial,
but probation office -- and the test results, of doing anything other than returning an indictment for
aggravated perjury. But that’s just me. I don’t control that process. I can make the
recommendation that I’m doing. 2
Furthermore, at the second sentencing hearing, Appellant’s counsel reminded the trial
court that it could consider placing him on deferred adjudication a second time. In response, the
trial court confirmed that Appellant’s earlier lie would prevent it from granting a second term of
deferred adjudication supervision:
2
The court in Perkins noted, “Of course, it is not our function to decide whether [the appellant] committed
aggravated perjury when he testified before [the trial court]. That is a matter for a [grand jury of the relevant
county] to investigate should it desire to look into the matter.” Perkins v. Court of Appeals for Third Supreme
Judicial District of Texas, at Austin, 738 S.W.2d 276, 284 (Tex. Crim. App. 1987). This statement provides further
indication affirming the default rule that the trial court may not grant a new trial on its own motion after learning
that a defendant lied and was subsequently placed on deferred adjudication community supervision. This is because
the remedy is to assert a separate criminal proceeding for perjury.
8
THE COURT: Court can always consider deferred. Frankly, I always consider
everything I can do. But the likelihood of me giving you a deferred, whenever you’ve lied to me
here, is pretty small. I’m going to have to hear something else that I don’t have from those prior
hearings, at this point, to begin to change my thoughts on that. Because someone that bald-faced,
as my dad used to say, lies to me, even when the Court’s trying to make sure that you will get
caught on that particular issue if you’ve lied, is just beyond my comprehension.
That doesn’t sound like a good probationer to me. So, again, I haven’t made a final
decision on what I’m going to do. Because I always consider things.
Therefore, the record does not show that the misrepresentation caused injury—that it
caused the trial court to accept the plea bargain agreement when it otherwise would not have.
See id. The trial court’s statements at the second plea and sentencing hearings tend to show that
the trial court’s decision to set aside the plea agreement was related less to the fact that Appellant
consumed methamphetamine than the fact that he failed to disclose that information. See id.Because the record does not show that the trial court would not have accepted the plea agreement
had it known about Appellant’s recent drug use, we cannot say that Appellant’s
misrepresentation of that fact, if any, caused injury. Because the State fails to show all the
elements of fraudulent inducement, we conclude that Appellant is not estopped from seeking
specific performance of the plea agreement under a theory of fraudulent inducement. See id.;
Perkins, 738 S.W.2d at 284.
Finally, without supporting authority, the State contends that the sua sponte grant of a
new trial was proper because the trial court could essentially retroactively determine that
Appellant might have been under the influence of drugs at the time of his guilty plea, thereby
invalidating his plea. We acknowledge that no plea of guilty shall be accepted by the court
“unless it appears that the defendant is mentally competent and the plea is free and voluntary.”
See TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West Supp. 2020). There is a presumption of
regularity with respect to guilty pleas. See Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim.
App. 1986). The State cites no authority permitting the trial court to grant a new trial on its own
motion after it finds the plea was freely and voluntarily made, accepts the plea, and places the
defendant on deferred adjudication community supervision in accordance with the parties’
negotiated plea agreement. Rather, our law is well established that unless issue is made of an
accused’s competency at the time of the plea, the court need not make inquiry into his
competency, particularly where the court has had opportunity to observe the accused in open
court, hear him speak, and observe his demeanor. See Kuyava v. State, 538 S.W.2d 627 (Tex.
Crim. App. 1976).
9
Here, there is no evidence in the record showing that Appellant used narcotics or
appeared to be under the influence of any drugs when he pleaded guilty on December 2, 2019.
Moreover, at Appellant’s subsequent sentencing hearing on January 13, 2020, there was no
indication in the record that he appeared to be under the influence of any drugs at that time even
though he later admitted to using methamphetamine three days prior to the hearing. In fact, the
trial court, after interacting with Appellant in open court, hearing him speak, and observing his
demeanor, found that he knowingly, freely, and voluntarily made his guilty plea. The State has
failed to show that the trial court could properly sua sponte grant a new trial in response to its
subsequent suspicion that Appellant may have been under the influence of drugs at his
sentencing hearing. Furthermore, there has been no evidence adduced showing that Appellant
was actually under the influence of methamphetamine at the time of his sentencing hearing. See
Laue v. State, 491 S.W.2d 403, 404 (Tex. Crim. App. 1973) (holding record showing that
defendant was duly admonished before his guilty plea was accepted and that counsel stated
defendant was of sound mind and capable of assisting counsel in preparation of case did not bear
out contention that guilty plea was involuntary because he was undergoing narcotics addiction
treatment at the time); Wright v. State, No. 08-03-00170-CR, 2004 WL 362775, at *2 (Tex.
App.—El Paso Feb. 26, 2004, no pet.) (mem. op., not designated for publication) (applying
Kuyava to contention that defendant’s plea was involuntary because he was either under
influence or had withdrawal symptoms from narcotics at time of plea, and even though court had
no duty to inquire into competency, it did so and concluded that evidence supported finding that
plea was freely and voluntarily made).
In summary, the trial court’s judgment finding Appellant guilty and sentencing him to
eight years of imprisonment is void based on the trial court’s lack of authority to grant a new trial
on its own motion, especially since it was granted from an order placing him on deferred
adjudication community supervision, and the State fails to show that Appellant is estopped from
seeking specific performance of the plea bargain agreement under theories of estoppel by
judgment and fraudulent inducement. See Carroll v. State, No. 12-20-00051-CR, 2020 WL
7042602, at *2–5 (Tex. App.—Tyler Nov. 30, 2020, no pet.) (mem. op., not designated for
publication) (applying these rules in similar case). Finally, the State failed to show that the trial
court is permitted to grant a new trial on its own motion to invalidate Appellant’s guilty plea and
failed to bring forth sufficient evidence to invalidate the plea under this record. Accordingly, we
10
sustain Appellant’s first issue. Because we conclude that the judgment is void, and estoppel does
not apply, we need not address Appellant’s issue regarding court costs. See TEX. R. APP. P. 47.1.
DISPOSITION
Having sustained Appellant’s first issue, we vacate the trial court’s judgment of
conviction, reinstate the order placing him on deferred adjudication community supervision, and
remand the case to the trial court to proceed as if it had not granted a new trial.
BRIAN HOYLE
Justice
Opinion delivered January 29, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
11
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 29, 2021
NO. 12-20-00075-CR
KEVIN WADE COOPER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0194-19)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court
that the judgment be vacated and the order of deferred adjudication be reinstated and the cause
remanded with instructions to proceed as if it had not granted a new trial; and that this decision
be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.