ACCEPTED 13-14-00556-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 3/25/2015 8:51:24 AM DORIAN RAMIREZ CLERK
#13-14-00556-CR FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 3/25/2015 8:51:24 AM
Thirteenth Court of Appeals, Corpus ChristiDORIAN E. RAMIREZ & Edinburg Clerk
THE STATE OF TEXAS, Appellant
v.
SHIELA CASSIANO, Appellee
ON STATE’S APPEAL FROM THE 319TH DISTRICT COURT OF NUECES COUNTY, CAUSE #13-CR-3493-G
STATE’S BRIEF A. Cliff Gordon Tex. Bar #00793838 Asst. Dist. Atty., 105th Dist. Nueces County Courthouse 901 Leopard St., Rm. 206 Corpus Christi, TX 78401 361.888.0410 phone 361.888.0399 fax cliff.gordon@nuecesco.com
IDENTITY OF PARTIES AND COUNSEL
Appellant: The State of Texas, District Attorney for the 105th Judicial District, represented by
Appellate counsel:
A. Cliff Gordon, Asst. Dist. Atty. 901 Leopard St., Rm. 206 Corpus Christi, TX 78401
Trial and appellate counsel:
Mark Skurka, District Attorney David Armbruster, Asst. Dist. Atty. 901 Leopard St., Rm. 206 Corpus Christi, TX 78401
Appellee: Shiela Cassiano, represented by
Appellate Counsel:
Chris Waller 400 Mann St., Ste. 700 Corpus Christi, TX 78401
Trial Counsel:
E. Nicholas Milam P.O. Box 18485 Corpus Christi, TX 78480
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................ ii INDEX OF AUTHORITIES .................................................................................. iv STATEMENT OF THE CASE ............................................................................... v ISSUE PRESENTED .............................................................................................. vi The trial court accepted Cassiano’s plea of no contest and placed her on deferred probation. By definition, Cassiano’s guilt had not been adjudicated. Did the trial court err by granting Cassiano a ‘new trial’ while she was on deferred probation? ........... vi STATEMENT OF FACTS .......................................................................................1 SUMMARY OF THE ARGUMENT ......................................................................2 ARGUMENT ............................................................................................................2 The trial court lacked authority to grant a new trial while Cassiano was on deferred probation .......................................................2 A. Legal Standards ....................................................................................2 B. Discussion ..............................................................................................4 PRAYER ....................................................................................................................4 CERTIFICATE OF SERVICE .................................................................................5
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INDEX OF AUTHORITIES
Cases Donovan v. State, 68 S.W.3d 633 (Tex. Crim. App. 2002) ........................ 2, 3, 4 State v. Ellis, 976 S.W.2d 789 (Tex. App.—Houston [1st Dist.] 1998, no pet.) .............................................................................................................3, 4 State v. Garza, 13-09-00125-CR, 2010 WL 746713 (Tex. App.—Corpus Christi Mar. 4, 2010, no pet.) ...................................................................2, 3 Statutes Tex. Code Crim. Proc. art. 11.08 ............................................................................4 Tex. Code Crim. Proc. art. 11.09 ............................................................................4 Tex. Code Crim. Proc. art. 42.12 ........................................................................3, 4 Rules Tex. R. App. P. 21 ................................................................................................3, 4
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STATEMENT OF THE CASE
Nature of the Case A Grand Jury indicted Cassiano on charges of Burglary of a Habitation to Commit a Felony and Aggravated Assault. CR 7-8.
Course of Proceedings During jury deliberations, Cassiano changed her plea to no contest, and on July 28, 2014, the trial court placed her on deferred probation for two years. CR 64-94, 97; RR 5:65-68. Also on July 28, Cassiano moved for a new trial. CR 95.
Trial Court’s Disposition On August 19, 2014, the trial court granted the motion for new trial. CR 99.
v
ISSUE PRESENTED
The trial court accepted Cassiano’s plea of no contest and placed her on deferred probation. By definition, Cassiano’s guilt had not been adjudicated. Did the trial court err by granting Cassiano a “new trial” while she was on deferred probation?
vi
STATEMENT OF FACTS
A Grand Jury indicted Appellee, Shiela Cassiano, on charges of Burglary of a Habitation to Commit a Felony and Aggravated Assault. CR 7-8. On July 22, 2014, jury selection began. RR 2:8. On July 24, the parties rested and argued, and the court submitted the case to the jury. RR 5:15, 29, 45, 62-63. During jury deliberations, Cassiano changed her plea to no contest. CR 5:65-68.
On July 28, 2014, Cassiano formally pled no contest by Judicial Stipulation and Certification of Discovery. CR 64-94. That same day, the trial court placed Cassiano on deferred probation for two years. CR 97. Also on July 28, Cassiano filed a motion for new trial on the grounds of (1) insufficiency of the evidence to support “conviction . . . at trial” and (2) if evidence supports the charges, her conduct was justified. CR 95.
On August 19, 2014—without a hearing—the trial court granted Cassiano’s motion for new trial. CR 99.
SUMMARY OF THE ARGUMENT
Cassiano received deferred probation on the same day that she moved for a new trial. The Court of Criminal Appeals has held that a defendant on deferred probation has not been found guilty and, thus, cannot receive a new trial. Donovan v. State, 68 S.W.3d 633, 635-37 (Tex. Crim. App. 2002), cited with approval in State v. Garza, 13-09-00125-CR, 2010 WL 746713, at *1-2 (Tex. App.—Corpus Christi Mar. 4, 2010, no pet.) (not designated for publication). Therefore, the trial court erred by granting Cassiano a new trial, and its order granting a new trial is a nullity.
ARGUMENT
The trial court lacked authority to grant a new trial while Cassiano was on deferred probation.
A. Legal Standards. The Court of Criminal Appeals’ decision in Donovan v. State controls here—
Rule 21.1 defines “new trial” as “the rehearing of a criminal action after the trial court has, on the defendant’s motion, set aside a finding or verdict of guilt.” *** Under the deferred adjudication scheme, a judge does not make a “finding of guilt”; instead the judge makes a finding that the evidence “substantiates the defendant's guilt” and then defers
the adjudication. . . . A defendant on deferred adjudication has not been found guilty. That is one of the signal benefits of deferred adjudication as opposed to, for instance, regular community supervision. When adjudication is deferred, there is no “finding or verdict of guilt.” 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.
Other portions of Rule 21 support this conclusion. Rule 21.4(a) permits the defendant to “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.” Rule 21.8 provides that the trial court “must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court.” Under the deferred adjudication scheme, there is no conviction, and therefore, no sentence to impose or suspend. Because Rule 21 provides for the trial court to rule on a motion for new trial within 75 days after imposing or suspending sentence, the rule indicates that a motion for new trial is not available at the time adjudication is deferred.
68 S.W.3d 633, 635-36 (Tex. Crim. App. 2002) (construing TEX. R. APP. P. 21 and TEX. CODE CRIM. PROC. art. 42.12 § 5(a); footnotes omitted), cited with approval in State v. Garza, 13-09-00125-CR, 2010 WL 746713, at *1-2 (Tex. App.—Corpus Christi Mar. 4, 2010, no pet.) (not designated for publication). An order purporting to grant a new trial prior to adjudication is a nullity. State v. Ellis, 976 S.W.2d 789, 791 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (“[A] motion for new trial contemplates an *4 adjudication. Therefore, the trial court erred in granting appellee’s motion for new trial. That action was a nullity.”).
Instead of seeking a new trial, a defendant wishing to challenge her deferred probation may either (1) within 30 days of receiving probation, move for adjudication; or (2) file a writ of habeas corpus. Donovan, at 637-38 (construing TEX. CODE CRIM. PROC. arts. 11.08, 11.09, 42.12 § 5). B. Discussion. Here, Cassiano pleaded no contest in exchange for deferred probation and filed a motion for new trial on the same day. Because adjudication was deferred by the trial court, Cassiano was never convicted of the charged offenses. Art. 42.12 § 5(a); Donovan, 68 S.W.3d at 636. Absent a finding or verdict of guilt, there was nothing for the trial court to set aside, and Rule 21 is inapplicable. Donovan, at 636; TEX. R. APP. P. 21. Consequently, the trial court lacked authority to grant a new trial, and its order purporting to do so is a nullity. Ellis, 976 S.W.2d at 791.
PRAYER
For these reasons, the State requests that the Court vacate the trial court’s order that purported to grant Cassiano a new trial and reinstate the *5 trial court’s order that placed Cassiano on deferred probation. The State prays for all other proper relief.
Respectfully Submitted,
/s/ A. Cliff Gordon A. Cliff Gordon Tex. Bar #00793838 Asst. Dist. Atty., 105th Dist. Nueces County Courthouse 901 Leopard St., Rm. 206 Corpus Christi, TX 78401 361.888.0410 phone 361.888.0399 fax cliff.gordon@nuecesco.com
CERTIFICATE OF SERVICE
On March 25, 2015, a true copy of the foregoing was served via eServe on the following:
Mr. Chris Waller 400 Mann St., Ste. 700 Corpus Christi, TX 78401 Appellate Counsel for Appellee
/s/ A. Cliff Gordon_______________ A. Cliff Gordon