                                                                               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.




                                       1
                    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
                                       2
     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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