      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00216-CR



                                  The State of Texas, Appellant

                                                 v.

                                   Kathryn Lankford, Appellee




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
      NO. A-00-0867-S, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING




               The State of Texas appeals from the trial court’s order granting Kathryn Lankford a

new trial. We will reverse and remand.

               Lankford was charged with aggravated sexual assault of a child. See Tex. Penal Code

Ann. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2001). It was alleged that Lankford “intentionally and

knowingly caused the penetration of the female sexual organ of A.M., a child who was then and there

younger than 14 years of age and not the spouse of the Defendant, by means of encouraging and

aiding S.K. to have sexual intercourse with the said A.M.” Lankford entered a guilty plea pursuant

to a plea-bargain agreement; she was granted deferred adjudication for a term of five years and placed

on community supervision.

               While still represented by trial counsel, Lankford sent a letter to the trial judge

requesting the court’s permission to appeal. The trial court set and conducted a hearing on the

defendant’s motion requesting permission to appeal. At the hearing, the trial court admonished
Lankford concerning her right and the limitations of an appeal. In addition, the trial court told

Lankford that if she requested a new trial, it would be granted. Lankford orally requested a new trial.

Over the State’s objection, the court granted Lankford a new trial. The State gave notice of appeal.

                The State presents four points of error: (1) the trial court had lost jurisdiction of the

case and therefore could not grant a new trial; (2) the trial court abused its discretion by sua sponte

granting a new trial after soliciting an oral motion for new trial from the defendant; (3) the trial judge

abused his discretion by failing to adhere to the procedural and notice requirements of Rules 21.5 and

21.7 of the Texas Rules of Appellate Procedure; and (4) the trial judge abused his discretion by

granting a new trial based on an oral, unsworn motion, unsupported by affidavit. Lankford, in her

appellate brief, opposes each of the State’s points of error.

                Both parties and the trial court have overlooked this Court’s decision that motions for

new trial cannot be granted to defendants who have received deferred adjudication. See Hammack

v. State, 963 S.W.2d 199 (Tex. App.—Austin 1998, no pet.); accord State v. Davenport, 866 S.W.2d

767 (Tex. App.—San Antonio 1993, no pet.).


        [W]hen in the judge’s opinion the best interest of society and the defendant will be
        served, the judge may, after receiving a plea of guilty, . . . hearing the evidence, and
        finding that it substantiates the defendant’s guilt, defer further proceedings without
        entering an adjudication of guilt, and place the defendant on community supervision.


Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (West Supp. 2001) (emphasis added). “New trial

means 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 (emphasis added). In Davenport, the court noted:




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“We, however, find no provision in article 42.12 or elsewhere that gives a defendant placed on

deferred adjudication . . . the right to pursue a motion for new trial.” Davenport, 866 S.W.2d at 770.

                 Lankford was not entitled to move for a new trial following the district court’s

decision to defer adjudication, and her motion for new trial was a nullity. See Hammack, 963 S.W.2d

at 200-01; Davenport, 866 S.W.2d at 770. Because a recipient of deferred adjudication is not entitled

to pursue a motion for new trial, the trial court abused its discretion in granting Lankford’s motion

for new trial.

                 The trial court’s order granting Lankford a new trial is reversed and the cause is

remanded to the district court for proceedings consistent with this opinion.




                                               Carl E. F. Dally, Justice

Before Justices B. A. Smith, Puryear and Dally*

Reversed and Remanded

Filed: August 30, 2001

Do Not Publish




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*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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