NUMBER 13-16-00144-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE STATE OF TEXAS, Appellant,
v.
TIPHANIE RAQUEL TIPPIN, Appellee.
On appeal from the 377th District Court of
Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Longoria
The State appeals the trial court’s orders setting aside the jury’s conviction and
sentence of appellee Tiphanie Raquel Tippin (“Tippin”) and deferring adjudication and
imposing a term of community supervision. Tippin has also appealed and challenges the
court’s denial of her pretrial motion to suppress in one issue. We reverse and remand on
the State’s appeal and dismiss Tippin’s appeal.
I. BACKGROUND
The State charged Tippin by indictment with possession of marijuana in an amount
of less than five pounds but more than four ounces, a state jail felony. See TEX. HEALTH
& SAFETY CODE ANN. § 481.121(b)(3) (West, Westlaw through 2015 R.S.). The case was
called for trial on March 7, 2016. Before the start of voir dire, Tippin pled guilty before the
court. Tippin asked the court to place her on deferred adjudication community
supervision, but the State told the court that it was not waiving its right to a jury trial. See
TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (West, Westlaw through 2015 R.S.).
A jury was empaneled and sworn, and then adjourned for lunch. During the lunch
recess, the trial court asked Tippin to reconfirm that she intended to plead guilty and waive
her right to a jury. Tippin responded in the affirmative. After the jury returned, the jury
received Tippin’s guilty plea and the punishment trial commenced. The charge of the
court specifically instructed the jury to find Tippin guilty and then assess her punishment.
In compliance with the trial court’s instructions, the jury found Tippin guilty and assessed
a suspended sentence of imprisonment for one year and a suspended fine of $5,000.
After discharging the jury, the trial court asked Tippin if she was still requesting the
court to place her on deferred adjudication community supervision. Tippin answered in
the affirmative. The court announced that it accepted her plea of guilty, deferred
adjudication of guilt, and placed Tippin on community supervision for a period of five
years. The trial court further ordered her to pay a $5,000 fine and perform 200 hours of
community service as conditions of the community supervision. The court next
announced that it was setting aside the jury’s verdict. After setting aside the verdict, the
court asked Tippin to stand and repeated that it was placing her on deferred adjudication
community supervision with the same conditions as in its previous announcement.
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On March 8, 2016, the court issued a written judgment reflecting its new sentence.
In a space in the judgment set aside for “special findings or orders,” the trial court
handwrote “[t]he court set asides the jury verdict in this case.” This appeal followed.
II. JURISDICTION OVER THE STATE’S APPEAL
Our first concern is whether we possess jurisdiction over the State’s appeal.1 The
standard for determining appellate jurisdiction “is not whether the appeal is precluded by
law, but whether the appeal is authorized by law.” State v. Robinson, No. PD-0974-15,
___ S.W.3d ___, ___, 2016 WL 3563727, at *3 (Tex. Crim. App. June 29, 2016). Article
44.01 of the Texas Code of Criminal Procedure governs the right of the State to appeal
in a criminal case. See TEX. CODE CRIM. PROC. ANN. art. 44.01 (West, Westlaw through
2015 R.S.). Article 44.01(a) allows the State to appeal an order which:
(1) dismisses an indictment, information, or complaint or any portion of an
indictment, information, or complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy;
(5) grants a motion to suppress evidence, a confession, or an admission if
jeopardy has not attached in the case and if the prosecuting attorney
certifies to the trial court that the appeal is not taken for the purpose of delay
and that the evidence, confession, or admission is of substantial importance
in the case; or
(6) is issued under Chapter 64.
Id. art. 44.01(a). The State may also appeal a sentence on the ground that it is illegal.
Id. art. 44.01(b).
1 At this Court’s instruction, both parties addressed our jurisdiction in their briefing.
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The State argues that we possess jurisdiction because the order setting aside the
jury verdict is appealable as either a modification of the jury’s verdict or as the functional
equivalent of an order granting a new trial. See id. art. 44.01(a)(2), (3). The State further
argues that we possess jurisdiction because the court’s decision to place Tippin on
deferred adjudication community supervision constituted an illegal sentence. See id. art.
44.01(b). Tippin argues in response that we lack jurisdiction because the substance of
the State’s appeal is a challenge to the process by which the trial court arrived at the
sentence, which is not appealable. She argues further that the sentence of deferred
adjudication itself was not illegal.
We agree with the State that we possess jurisdiction over this appeal. The court’s
order setting aside the jury’s verdict was the functional equivalent of an order granting a
motion for new trial. The court did not phrase its order in that way, but when “a trial court’s
order is functionally indistinguishable from the granting of a motion for new trial, a
reviewing court can look past the label given to it and treat it as an order granting the
motion for new trial.” State v. Davis, 349 S.W.3d 535, 538 (Tex. Crim. App. 2011); see
State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992) (en banc). Texas Rule of
Appellate Procedure 21.9 provides that granting a motion for new trial “restores the case
to its position before the former trial.” TEX. R. APP. P. 21.9(b). The trial court’s order in
this case had the same effect: it expressly “set aside[ ] the jury verdict” and so returned
the case to the position it was in before the jury was empaneled and sworn. See id. The
order was functionally indistinguishable from an order granting a motion for new trial. See
id.; see also State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996) (treating an
order granting a motion for judgment notwithstanding the verdict “as the functional
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equivalent of an order granting a motion for new trial for insufficient evidence” for
purposes of the State’s right to appeal)
Tippin argues that the State’s assertion that the court’s order was the equivalent
of a motion for new trial is a “facial allegation” that we must look beyond to determine the
substance of the State’s appeal. For support, she cites language from State v. Baize
where the Texas Court of Criminal Appeals held that when determining jurisdiction under
article 44.01 the courts of appeals “may look behind the State's facial allegation of what
it is appealing to determine whether it is in fact ‘appealing a sentence and not something
else.’” 981 S.W.2d 204, 206 (Tex. Crim. App. 1998) (per curiam) (quoting State v. Ross,
953 S.W.2d 748, 750 (Tex. Crim. App. 1997)). She argues that the State is actually
appealing the process behind imposing deferred adjudication community supervision,
and the sentence was not itself illegal.
We disagree that Baize and Ross are applicable to this case. Baize and Ross
addressed cases where the State relied on article 44.01(b), which allows the State to
appeal an illegal sentence, as the basis for the court of appeals’ jurisdiction. See id. at
205 (“The State appealed pursuant to article 44.01(b).”); Ross, 953 S.W.2d at 750
(addressing the jurisdictional question of whether the State was “properly appealing a
sentence”). In such circumstances it is appropriate for the court of appeals to look beyond
the State’s allegation that it is appealing an illegal sentence to determine whether it is
“appealing a sentence or something else.” Ross, 953 S.W.2d at 750. Article 44.01(a)(3)
specifically provides that an order granting a motion for new trial is a separate basis for
jurisdiction. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(3). And, as we explained in
the prior paragraph, the trial court’s order was the functional equivalent of an order
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granting a motion for new trial. For this reason, we conclude that Baize and Ross are
inapplicable to the State’s appeal in this case.
In sum, we hold that the appeal is authorized by law because the trial court’s order
setting aside the verdict was the functional equivalent of an order granting a motion for
new trial.2 See id.; see also Savage, 933 S.W.2d at 499.
III. MERITS OF THE STATE’S APPEAL
The State argues in two issues, which we address together, that the trial court
committed reversible error by (1) setting aside the jury’s verdict and (2) imposing a term
of deferred adjudication community supervision. Tippin did not address in her briefing
whether the order setting aside the verdict was legally correct but argues that it was legal
for the trial court to place her on deferred adjudication community supervision.
We agree with the State that the trial court erred in both respects. As we stated
above, we treat the order setting aside the verdict as an order granting a motion for new
trial. Texas Rule of Appellate Procedure 21 defines a 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.” TEX. R. APP. P. 21.1(a). Only the defendant may bring a motion for new
trial. See id. (stating that a motion for new trial is “on the defendant’s motion”); Ex parte
Alaniz, 931 S.W.2d 26, 29 (Tex. App.—Corpus Christi 1996, no writ). “Such a motion is
a prerequisite for the trial court to grant a new trial; the court may not do so on its own
motion.” State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013). Any order
granting a new trial on the court’s own motion is “a void act.” In re Davis, 990 S.W.2d
455, 458 (Tex. App.—Waco 1999, orig. proceeding) (citing Perkins v. Court of Appeals
2 In light of our holding, we do not reach the questions of whether the State may appeal the trial
court’s order as a modification of a judgment or as an illegal sentence. See TEX. R. APP. P. 47.1.
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for Third Supreme Judicial Dist. of Tex., at Austin, 738 S.W.2d 276, 280 (Tex. Crim. App.
1987)). It is undisputed that no motion for new trial or other motion requesting equivalent
relief was ever on file with the trial court. The only motion before the court at the time
was the defendant’s oral request for the court to place her on community supervision.
The trial court’s decision to effectively grant a new trial by setting aside the jury’s verdict
was therefore void and without effect. See id.; see also State v. Morales, No. 05-12-
01297-CR, 2013 WL 5676210, at *2 (Tex. App.—Dallas Oct. 17, 2013, no pet.) (mem.
op., not designated for publication) (“The granting of a new trial on the trial court's own
motion is a ‘void act’”). The court’s subsequent placement of Tippin on a term of
community supervision was also “a nullity” because it followed the grant of a new trial on
the court’s own motion. See Zaragosa v. State, 588 S.W.2d 322, 327 (Tex. Crim. App.
1979) (holding that a second trial and conviction after a sua sponte grant of a new trial
was “a nullity”); accord Harris v. State, 958 S.W.2d 292, 293 (Tex. App.—Fort Worth 1997,
pet. ref'd). We sustain the State’s two issues.
IV. TIPPIN’S CROSS APPEAL
Tippin filed her own notice of appeal of the trial court’s judgment. In her appellee’s
brief she asserts a cross-point challenging the trial court’s denial of her pretrial motion to
suppress. We decline to address Tippin’s issue because we do not have jurisdiction over
her appeal in light of our disposition of the State’s issues. The Texas Court of Criminal
Appeals has explained that it is the oral “pronouncement of sentence that is the
appealable event, and the written sentence or order simply memorializes it and should
comport therewith.” Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (citing
Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998)). If there has been no oral
pronouncement of sentence, the court of appeals lacks jurisdiction over a defendant’s
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appeal of her conviction. See Thompson v. State, 108 S.W.3d 287, 293 (Tex. Crim. App.
2003) (holding that the court of appeals correctly concluded it lacked jurisdiction of an
appeal of a conviction on a count for which the jury’s sentence was not orally pronounced
by the trial judge). Now that we have set aside the judge’s sentence of deferred
adjudication, there has not been an oral pronouncement of the operative sentence in this
case. We therefore dismiss Tippin’s appeal for lack of jurisdiction. See id.
V. CONCLUSION
We reverse the trial court’s orders setting aside the jury’s verdict and placing Tippin
on deferred adjudication community supervision and reinstate the jury’s verdict. We
remand this case to the trial court for further proceedings not inconsistent with this
opinion. See Zaragosa, 588 S.W.2d at 327 (holding that when a trial court improperly
grants a new trial on its own motion “the cause shall be returned to the trial court to
proceed as if it had not granted the new trial on its own motion”). Further, we dismiss
Tippin’s appeal for lack of jurisdiction.3
NORA L. LONGORIA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of November, 2016.
3We note that this dismissal is without prejudice to Tippin appealing again once the trial court has
pronounced or suspended sentence in her presence in open court. See Ex parte Madding, 70 S.W.3d 131,
135 (Tex. Crim. App. 2002).
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