dissenting.
The question to be resolved here is whether a trial court judge can deny a defendant, who has received deferred adjudication, the right, under Rule 21 of the Texas Rules of Appellate Procedure, to pursue a motion for new trial without first asking the trial court to adjudicate guilt.
Pursuant to a partial plea agreement, appellant entered a plea to the offense of aggravated sexual assault and received deferred adjudication community supervision for five years. The conditions of community supervision, instead of being part of the agreement, were left to the discretion of the trial court. After the trial judge accepted the plea and heard the evidence, she made the finding the evidence substantiated guilt and announced the conditions of community supervision. Appellant felt they were too onerous and unreasonable. He filed a motion for new trial, pursuant to rule 21 of the Rules of Appellate Procedure, claiming his plea was involuntary because it was based on bad advice from his attorney. Tex.R.App. P. 21.2. Accompanying his motion were affidavits claiming ineffective assistance of counsel, maintaining that had he been made aware of the conditions of community supervision, he would never have entered his plea. See Tex.R.App. P. 21.7. Appellant, as a prerequisite to appeal, requested the hearing on the motion for new trial in order to develop evidence of the ineffective assistance that otherwise would not be determinable from the record. See Tex.R.App. P. 21.2. On the date of the hearing, the trial court refused to let appellant proceed.
The majority opinion takes the position that a defendant is not entitled to pursue a motion for new trial until the judgment reflects that a verdict of guilty has been entered. It does, however, acknowledge that an appeal on issues relating to the original plea proceeding that resulted in deferred adjudication community supervision is appropriate without a judgment of guilt being entered on the record. In fact, it is mandatory that such appeals be taken within 30 days of the imposition of the deferred adjudication community supervision. Tex.R.App. P. 26.2(a)(1) (where no motion for new trial is filed, defendant must appeal within 30 days after sentence is imposed or suspended); Tex.Code Crim. P. Ann. art. 42.12 § 23(b) (Vernon Supp. 2000) (defendant’s right to appeal conviction and punishment accrues when defendant is placed on community supervision); see Manuel v. State, 994 S.W.2d 658, 661— 62 (Tex.Crim.App.1999).
The majority opinion’s answer to the dilemma that a defendant can appeal to a higher court from a deferred adjudication holding, but cannot pursue a new trial under the same circumstances, is that appellant should have moved for a final adjudication as provided in article 42.12, section 5(a) of the Code of Criminal Procedure.1 After adjudication of guilt, according to the majority, appellant could then pursue his motion for new trial and develop his evidence on his allegation that he was denied effective assistance of counsel.
Based on the majority’s reasoning, let us examine appellant’s options. He can directly appeal his claim of ineffective assistance, but he will automatically lose because the issue would not have been developed enough to be determinable from the record. See Tex.R.App. P. 21.2. Secondly, appellant can move for final adjudication, and because this is an article 42.12, § 3g offense, the trial judge must sentence him to the penitentiary as a first degree felon, *413and then he is ineligible to make bond pending appeal. Tex.Code CRiM. P. Ann. art. 42.12, § 3g(a)(l)(E) (Vernon Supp. 2000) (prohibiting the trial judge from assessing a community supervision sentence); Tex.Code CRiM. P. Ann. art. 44.04(b) (Vernon Supp.2000) (defendant may not be released on bail pending the appeal where the defendant has been convicted of an offense listed under Section 3g(a)(l), article 42.12).2 Therefore, is it better for a defendant to automatically lose his appeal, or automatically lose his freedom with the possibility of losing his appeal? I cannot answer that question, but there is no justice in either of these options.
I think the majority opinion, requiring appellant to first move for an adjudication of guilt before pursuing a motion for new trial, misconstrues the law governing such motions. Rule 21.1 of the Texas Rules of Appellate Procedure controls the situation. Tex.R. App. 21.1. It 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.” (Emphasis added.) The rule contemplates that some findings by a trial court, other than a verdict of guilt, will dispose of a criminal action and still impose sanctions on a defendant.
In the present case, the trial court made its finding of guilt as required by the statute regulating motions for new trial. Prior to deferring proceedings and placing appellant on community supervision, the trial judge accepted appellant’s plea, heard evidence, and made the requisite finding that the evidence substantiated appellant’s guilt. See Tex.Code CRiM. P. Ann. art. 42.12 § 5(a) (requiring such finding before community supervision is imposed.) It is from this finding that appellant predicates his motion for new trial.
The majority claims this interpretation of rule 21.1 modifies and enlarges the substantive rights of a defendant beyond the requirements of a former rule which - allowed the pursuit of a motion for new trial only after an adjudication of guilt. I disagree. The rules should be read and interpreted to harmonize with existing statutes, not used to treat a litigant unfairly.
When the legislature enacted article 42.12, sec. 23(b) of the Code of Criminal Procedure, it started the time running on the defendant’s right to appeal from the date community supervision is imposed. Tex.Code CRiM. P. Ann. art. 42.12 § 23(b) (Vernon Supp.2000). To harmonize with this statute, rule 26.2 was promulgated to require the filing of a notice of appeal within 30 days after the day sentence is imposed or suspended in open court. Tex. R.App. P. 26.2(a)(1).
Likewise, Texas Code of Criminal Procedure Annotated, article 42.12 § 5 requires the trial court judge, before assessing deferred adjudication community supervision after a plea of guilty or nolo contendere, to hear the evidence and make a “finding” that the evidence substantiates the defendant’s guilt. I believe that Texas Rule of Appellate Procedure 21.1, should be interpreted to harmonize with this statute. It allows for a new trial after the trial court sets aside a finding or verdict of guilt. The finding of guilt should be interpreted as the finding required in article 42.12 § 5 of the Code of Criminal Procedure. Otherwise, rules 21.1 and 21.2 cannot be harmonized with any existing statute, and rule 21.2 becomes meaningless.
Contrary to the majority’s opinion, it is not harmonizing to require a defendant to ask the trial court to send him to the penitentiary where he must sit without bail before he can pursue a required motion for new trial after being assessed deferred adjudication community supervision.
The trial court erred in denying appellant his hearing on his motion for new trial. I, therefore, respectfully dissent from the majority’s holding.
. Tex.Code Crim. P. Ann. art. 42.12 § 5(a) (Vernon Supp.2000).
. Act of May 19, 1999, 74th Leg., R.S., ch. 546, § 1, 1999 Tex. Gen. Laws 3042-43, 3044.