Donovan v. State
Donovan v. State
Dissenting Opinion
filed a dissenting opinion in which JOHNSON, J., joined.
The Court holds that because Rule of Appellate Procedure 21 says a motion for new trial may not be filed later than 30 days after the date of sentence,
Rather than force the parties and the courts to go through the agonizing decisions and needless procedures involved in obtaining a sentence in order to come within the deadline-rule, I would say this: There is nothing in the law that permits, forbids, or provides deadlines for, new trials in criminal cases in which there is no sentence. The people, through the legislative and executive branches of government, have given this Court authority to establish procedures for granting new trials in criminal cases.
I respectfully dissent.
. See TexR.App. P. 21.4(a).
. See id., R. 21.8.
.See Tex Gov’t Code § 22.108.
Opinion of the Court
OPINION
delivered the opinion of the Court in which
In accordance with a plea agreement, appellant was placed on deferred adjudication. He subsequently filed a motion for new trial, claiming that his plea was involuntary because he was unaware of (and his attorney failed to inform him of) the numerous conditions of probation that could be assessed. Denying the motion for new trial without a hearing, the trial court held that it did not have the authority to hear or grant a motion for new trial. Relying upon Rule 21 of the Texas Rules of Appellate Procedure
1. Standards of construction
We begin with the applicable rules of construction. In Boykin, we said that a statute is to be interpreted solely in accordance with the plain meaning of its language, unless the language is ambiguous or the plain meaning leads to absurd results.
2. No motion for new trial before adjudication
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.” Several sources make clear that a “verdict of guilt” 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. Rule 21.1 traces its lineage to former Article 40.01, which was repealed upon imple
The judgment should reflect:
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7. The verdict or verdicts of the jury or the finding or findings of the court;
8. In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury or the finding of the court, and that the defendant be punished in accordance with the jury’s verdict or the court’s finding as to the proper punishment.
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.
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.
Appellant contends that Manuel
3. Other avenues of relief
The existence of other avenues of relief lends support to our conclusion that a motion for new trial is not an available remedy and also mitigates against the potential harshness of that conclusion. The Code of Criminal Procedure affords two avenues of relief. First, a defendant can move for adjudication within thirty days:
However, upon written motion of the defendant requesting final adjudication filed within 30 days after entering such plea and the deferment of adjudication, the judge shall proceed to final adjudication as in all other cases.15
Under the language of the provision, the defendant’s status on his own motion to adjudicate is somewhat different from the status of a person facing revocation of his deferred adjudication for violating a condition of probation. In the latter instance, proceedings resume after adjudication:
On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including the assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.16
By contrast, the provision that allows adjudication upon the defendant’s motion provides that, upon such motion, the judge shall proceed to final adjudication “as in all other cases” — indicating that, once the defendant requests final adjudication, the proceedings resume at the point immediately before the trial judge deferred adjudication and as if adjudication had not been deferred. Under those circumstances, the defendant is in the same position he would be in if he had pled guilty and the judge had taken the case under advisement. In that situation, if the defendant asks to withdraw his plea, the trial judge is empowered to permit or deny such withdrawal, within his sound discretion.
If the trial judge refuses to permit withdrawal of the plea and refuses to hear evidence on the matter, proceedings will continue normally, through judgment and sentence. All appellate timetables
If a defendant fails to move for final adjudication within thirty days, he has another available avenue for relief: an application for writ of habeas corpus under Article 11.08 or 11.09.
4. Conclusion
The trial court correctly concluded that it had no authority to consider a motion for new trial before adjudication. The judgment of the Court of Appeals is affirmed.
. All future references to Rules are to the Rules of Appellate Procedure.
. All future references to Articles refer to the Code of Criminal Procedure.
. Donovan v. State, 17 S.W.3d 407 (Tex.App.Houston [1st Dist.] 2000).
.Id. at 409.
. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991).
. See Henderson v. State, 962 S.W.2d 544, 551-552 (Tex.Crim.App. 1997).
. Id. at 552.
. Article 42.12 § 5(a)(first sentence).
. See, e.g., Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992).
. Watson v. State, 924 S.W.2d 711, 715 (Tex.Crim.App. 1996)("Of course, an accused who has been placed on deferred adjudication probation has been neither convicted nor found guilty.”)
. Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App. 1999).
. Id. at 661.
. Jordan v. State, 36 S.W.3d 871, 876-877 (Tex.Crim.App. 2001).
. Article 42.12, § 5(a)(last sentence)(emphasis added).
. Article 42.12, § 5(b).
. DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App. 1981). The Court of Appeals indicated that a trial judge could grant a request to withdraw the plea even if the defendant has not yet moved for final adjudication. Donovan, 17 S.W.3d at 410. We express no opinion on whether a trial court may employ such a procedure.
. Rule 27.1(b).
. But, if there is a plea agreement, the defendant's notice of appeal must comply with Rule 25.2(b)(3). See Cooper v. State, 45 S.W.3d 77 (Tex.Crim.App. 2001). Neither the Court of Appeals nor the parties have addressed the effect of Rule 25.2(b)(3) on the present appeal; so, we have no occasion to address the issue.
. See Jordan v. State, 54 S.W.3d 783, 786-87 (Tex.Crim.App. 2001).
Dissenting Opinion
filed a dissenting opinion, in which JOHNSON and HOLCOMB, J.J., joined.
“The fear I have and why I write is that this Court’s past and present decisions on deferred adjudication leave the Bench and Bar in some quarters of this State in a state of perplexity, confusion and anxiety.” McDougal v. State, 610 S.W.2d 509, 510 (Tex.Crim.App. 1981) (Teague, J., concurring). These words are as true today as they were when written more than twenty years ago.
We granted review in this case to determine whether a trial court is authorized to rule on a motion for new trial filed by a defendant who has been placed on deferred adjudication community supervision. The majority concludes that the trial court may not. I disagree.
With certain limitations, we have the authority to determine what may be reviewed in a motion for new trial and in a writ application. Our case law dictates what claims may be heard in habeas proceedings, and the Rules of Appellate Procedure dictate from what proceedings a motion for new trial may be ruled upon. What remains for us to decide is which avenue of relief is most appropriate to raise the voluntariness of the plea after an order imposing deferred adjudication supervision.
The majority’s main argument for holding that a motion for new trial is unavailable to defendants whose adjudication has been deferred is that a motion for new
Little material difference exists between a trial court’s finding the defendant guilty and the same court finding the evidence substantiates the defendant’s guilt, which is the finding in deferred adjudication proceedings. Both findings lead to the same conclusion: The evidence is sufficient to support conviction. The difference is that the deferred adjudication defendant has not been convicted. This difference, without more, is not significant enough to deny a trial court the authority to rule on a motion for new trial in this context.
The predecessor to Rule 21.1 was former Code of Criminal Procedure article 40.01. That article defined a “new trial” as “the rehearing of a criminal action, after verdict, before the judge or another jury.” Acts of 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, repealed by Acts of 1985, 69th Leg., R.S., ch. 685, § 4, 1985 Tex. Gen. Laws 2472. Apparently, the legislature did not envision a motion for new trial proceeding after a bench trial because it did not provide for a new trial after a finding of guilt.
The only material difference between a finding or verdict of guilt is the means by which the conclusion was reached: bench or jury trial. The difference does not change the policy behind allowing a motion for new trial and giving the trial judge the authority to undo the proceedings. We recognized this when we permitted motions for new trial to be heard after a finding (bench trial) or verdict (jury trial) of guilt. See Tex.R.App. P. 21.1. The differences between the imposition of deferred adjudication and regular community supervision are also not significant enough to warrant different treatment regarding motion for new trial practice.
When a potential error has occurred and is brought to the attention of the trial court in a motion for new trial, I see no advantage to the defendant, the State, or society to forbid the trial court to rule on the merits of the claim. The motion for new trial gives the trial judge an opportunity, while he still has jurisdiction, to fix potential errors before the case is appealed a higher court. The trial judge, who is already familiar with the case, is in a better position to review the merits of the claim.
The fact that there are other remedies available to the deferred adjudication defendant does not weigh in favor of the majority’s position. Defendants who receive regular community supervision also have other remedies. They too can file an application for writ of habeas corpus, and we do not use that reason to deny the trial court the authority to rule on the merits of the motion for new trial. It simply makes more sense to give the trial court an opportunity to rule on the merits in temporal proximity to the events under review.
The majority says that we treat deferred adjudication defendants differently in some situations, but fails to explain why they should be treated differently in this instance. Consider the legislature’s purpose in creating deferred adjudication: to give trial judges the discretion to avoid a conviction when it serves the best interest of society and the defendant. Tex.Code
I disagree with the majority’s conclusion that a motion for new trial is not authorized after deferred adjudication proceedings. Therefore, I respectfully dissent.
. The majority notes that Rule 21.1 comes from former Code of Criminal Procedure article 40.01, which defined a new trial as "the rehearing of a criminal action, after verdict, before the judge or another jury.”
Reference
- Full Case Name
- David M. DONOVAN, Appellant, v. the STATE of Texas
- Cited By
- 119 cases
- Status
- Published