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
iii
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
iv
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.
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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
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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
3
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
4
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
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