      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-18-00196-CR



                                  The State of Texas, Appellant

                                                  v.

                                      David Delacruz, Appellee


           FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY,
    NO. C-1-CR-12-209490, THE HONORABLE JOHN LIPSCOMBE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               David Delacruz was convicted by a jury of driving while intoxicated, see Tex. Penal

Code § 49.04(a), and the trial court assessed his punishment at confinement for 90 days in the county

jail, see id. § 12.22. Subsequently, the trial court granted Delacruz’s post-trial motion to set aside

the verdict and granted Delacruz a new trial. The State appeals, contending that the trial court

abused its discretion in granting a new trial. For the reasons set out below, we reverse the trial

court’s order granting a new trial.


                                         BACKGROUND

               On July 6, 2012, Delacruz was charged by information with the offense of driving

while intoxicated, a Class B misdemeanor. See id. § 49.04(a). The information further alleged that,

at the time of the offense, Delacruz had an alcohol concentration of greater than 0.15, which elevated

the offense to a Class A misdemeanor. See id. § 49.04(d). A jury was selected and empaneled to
hear the case on Tuesday, February 27, 2018.1 During trial, the State called, among other witnesses,

a technical supervisor from the breath-alcohol testing program at the Texas Department of Public

Safety. During his testimony on Thursday, March 1, 2018, the third day of trial, the State offered

the test slip of the breath test conducted on Delacruz. The following exchange ensued:


       PROSECUTOR:              Your Honor, at this time the State would ask to admit State’s
                                Exhibit 11.

       THE COURT:               Any objection?

       COUNSEL:                 In addition to previously stated objections, I would also object
                                that there’s a failure to lay a predicate, that I believe the
                                statute would require the presence of the technical supervisor
                                as well as the 6th Amendment confrontation to the actual
                                technical supervisor, so --2

       1
          The record reflects that during the pendency of this prosecution, Delacruz failed to appear
for court. He was arrested on the outstanding capias warrant on November 20, 2017.
       2
           As far as we can discern, the “previously stated objections” are as follows:

       •        Objections raised during the patrol officer’s testimony about the traffic stop. Defense
                counsel asserted a “conditional” “4th amendment objection” to “anything that goes
                from the point after he’s stopped, that that was in violation of his 4th Amendment
                rights.”

       •        Objections to the dash-cam video recording of the traffic stop. Defense counsel first
                asserted “all constitutional objections, 4th, 5th” subject to the court’s review of the
                video recording of the traffic stop during trial. Then, counsel stated that “in addition
                to [his] constitutional objection under the 4th and 5th amendment, [he] would also
                make an objection under 702, 703, 704, and 802.” He indicated that he was objecting
                to the evidence of the field sobriety tests administered to Delacruz on the recording.
                He maintained that “[n]o evidence should come before the jury about these field
                sobriety tests” but expressed that he was fine having the court review that video
                evidence during the trial rather than previewing it separately, indicating that the court
                could “just give [him] a ruling one way or the other” after viewing the video with the
                jury and that he would “be fine with a limiting instruction” after the fact and would
                not ask for a mistrial. Counsel concluded his objection to the video recording by

                                                   2
THE COURT:           We’ve gone over those before.

COUNSEL:             Right. So the same objections --

THE COURT:           I’ll allow your running objection on that.

COUNSEL:             Thank you. Appreciate it.

THE COURT:           That’s overruled.

PROSECUTOR:          And may the State publish to the jury?

THE COURT:           Yes, you may.




     expressing that he “wanted it conditionally admitted pursuant to my running
     objections . . . under 702.”

     The video recording was played for the jury, and the prosecutor asked the patrol
     officer a few follow-up questions. Defense counsel did not, after the court’s review
     of the video as it was played for the jury, seek any ruling from the court, and the trial
     court did not make any rulings. Nor did counsel ask for any limiting instruction from
     the court. Instead, counsel simply proceeded with his cross examination of the patrol
     officer.

•    Objections to the transcript of the video recording (which translated the conversation
     on the recording from Spanish to English) in which defense counsel asserted the
     “same running objection.”

•    Objections raised when the State offered photographs of the intoxilyzer instrument.
     Defense counsel asserted “the same constitutional objection to all evidence
     obtained.”

•    Objections to State’s Exhibit #7, a redacted version of the test slip of Delacruz’s
     breath test, in which defense counsel raised the “same objections” and objected “to
     the predicate as well.”

•    Objections to State’s Exhibit #8, a test record containing data generated by the
     intoxilyzer instrument indicating that the instrument was operating correctly, in
     which defense counsel objected to the exhibit on confrontation grounds.

                                         3
After the exhibit was displayed to the jury, the trial continued with testimony from the technical

supervisor. The proceedings were recessed for the day after the trial court excluded testimony from

a State’s witness (a clerk from the county clerk’s office) who was going to testify about Delacruz’s

failure to appear in order for the State to explain the six-year delay in the prosecution.3

                The following morning, on Friday, March 2, 2018, the court released the jury (to

return on Monday) in order to take up a witness-availability issue. The prosecutor informed the court

that she had learned Thursday afternoon, at approximately 5:00 p.m., that the intoxilyzer operator

(IO) who conducted the breath test on Delacruz was unavailable to testify because “he was not

physically in the area.” The prosecutor revealed that she had not personally communicated with the

witness before trial but had instead utilized the standard procedure of relying on representations by

the APD court liaison concerning the availability of APD witnesses. In discussing the earlier

admission of Delacruz’s breath test results, the following exchange occurred:


        THE COURT:              The -- the exhibit in question has only been conditionally
                                entered. It’s not finally entered as we all know. Do you agree
                                with that?

        PROSECUTOR:             I would ask to see the record just to make sure because I don’t
                                know that I remember that correctly.

        THE COURT:              No, it’s not finally entered as an exhibit.

        PROSECUTOR:             Okay.




       3
          The trial court concluded that “the addition of this evidence would be overly prejudicial”
to the defense because of the evidence of the breath test and the video recording, which the trial court
indicated “does not look all that great for the defendant.”

                                                   4
       THE COURT:              That was made clear all along.4

                               I’m not happy. I am going to take the Defense’s motion for
                               speedy trial and I’m going to hold my ruling in abeyance till
                               Monday.

       PROSECUTOR:             Yes, sir.


The trial judge then adjourned the proceedings until Monday.

               On Monday, March 5, 2018, the court conducted a hearing outside the presence of

the jury. The trial judge explained the purpose for the hearing as follows:


       It’s my understanding that the State was going to put on evidence out of order last
       week and so we heard from the technical supervisor. The Defense had a timely
       objection to run that conditionally so that the IO could testify after -- or out of turn
       afterward, after the supervisor testified. That did not happen as of Friday, so we’re
       going to find out today why that happened[.]5


The State then called the APD court liaison and the intoxilyzer operator.

               The court liaison testified that as per the standard procedure with this intoxilyzer

operator, she accepted the subpoena for the IO on his behalf and notified him of the subpoena by




       4
         We note that the excerpt from the record recited above of the admission of State’s Exhibit
#11, the test slip of Delacruz’s breath test results, does not indicate that the exhibit was
conditionally admitted.
       5
           Again, we observe that, while that may have been the trial judge’s understanding, perhaps
based on conversations off the record, the record of the admission of the breath test results does not
reflect that the exhibit was conditionally admitted subject to later witness testimony. Nor does the
record show that Delacruz requested that the exhibit be conditionally admitted subject to the IO’s
later testimony.

                                                  5
email.6 The week before trial, the liaison communicated to the prosecutors that the IO was available

to testify as a witness. At the hearing, the liaison explained that she had difficulty contacting the IO

about testifying in this case. She was unable to reach him by phone, so she reached out to her chain

of command.7 These efforts were ongoing during the trial as the prosecutors were asking the liaison

to confirm a time for the IO to come testify. Ultimately, the intoxilyzer operator’s supervisor

notified the liaison that the IO was not available to testify because he was out of the country. She

then communicated that information to the prosecutors.

                The intoxilyzer operator confirmed the procedure that the liaison described. He said

that he receives an email about a “possible” court setting and he “sometimes” lists them on his

calendar. He explained that he receives approximately 100 email notifications about subpoenas

every month (“give or take”) but his appearance during this trial was only the fifth time in the past

seven years that he has testified. For that reason, he clarified, he does not calendar all the

notifications that he receives; there are simply too many. The IO testified that he was unaware that

the APD court liaison had accepted a subpoena on his behalf for this trial. He also revealed that,



       6
           The record reflects that the intoxilyzer operator retired from APD in 2007 and that he
worked as an IO part time for APD on a contract basis (only on Saturday nights). As such, he did
not have access to the police computer system in which subpoenas for APD witnesses are entered.
According to the APD court liaison, employees who have access to the system “decline” if they are
unavailable and then provide the reason for unavailability to the liaison. The liaison testified that
this IO’s situation was “unique” because he did not have access to the computer system. Under the
routine procedure established for him, she would notify him of the subpoena by email, and he would
notify her if he was not available.
       7
          The record reflects that only on Wednesday, February 28, 2018, the second day of trial, did
the liaison first inform the State that she had not spoken directly to the intoxilyzer operator.
Previously, she communicated to the prosecutor that she had left a voicemail for the IO to appear in
court to testify at 1:00 p.m. on Wednesday, February 28th.

                                                   6
although he had notified his superiors about his vacation (and, thus, his unavailability for court

proceedings), he did not contact the APD court liaison.

                At the conclusion of the hearing, the trial judge noted the “problem with the

process.”8 The judge asserted that the breath test “was received conditionally over proper objection”

based on “the fact that the proper predicate had not been laid in [sic] because the IO did not testify”

and based upon the Sixth Amendment Confrontation Clause. The trial judge then excluded the

intoxilyzer operator as a witness and informed the parties that he would instruct the jury to disregard

the evidence relating to the breath test. At that point, Delacruz moved for a mistrial based on the

State’s “misstatement of the facts” concerning the IO’s availability. The trial court denied

the motion.

                The court then resumed the trial, instructing the jury to disregard the testimony

relating to the breath test and the associated exhibits. After the instruction, Delacruz again moved

for a mistrial in front of the jury, which was again denied. The court then released the jury for lunch

and Delacruz re-urged his motion for mistrial. He argued that the State had made a “conscious

decision” to tell the court that the intoxilyzer operator would be testifying when the prosecutor knew

he was not available to testify. He complained that the State was “absolutely profiting off of this

misconduct.”     The trial judge rejected Delacruz’s contention, concluding that “[t]here’s no




       8
           Specifically, the court lamented,

       How you can have a system where you notify an officer of a court date or a witness
       of a court date and then for some reason that witness thinks it’s okay not to respond
       back and tell the liaison person that they can’t be there, that’s just -- to me, it’s
       untenable and it’s -- it’s unprofessional a lot of other uns and that needs to be fixed.

                                                  7
misconduct.” He explained that he “[didn’t] think that there was any bad behavior on the State’s

side” but rather “some bad behavior on the witness’s side.” The judge stated that he “[didn’t] find

an intentional misrepresentation” and ruled that there was “no illegality” on the part of

the prosecution.

                After the lunch break, Delacruz moved for a directed verdict, which the trial court

denied. The trial continued with the testimony of Delacruz’s wife. The defense presented no further

witnesses, and both sides closed. Following jury argument, the case was submitted to the jury. The

court submitted only the offense of Class B misdemeanor driving while intoxicated; it did not charge

the jury on the elevating circumstance of having an alcohol concentration of greater than 0.15. The

jury found Delacruz guilty. After the jury returned its verdict, Delacruz withdrew his election to

have the jury assess punishment, and the parties agreed to have the trial court assess punishment.

The jury was excused. The trial court then found Delacruz guilty of driving while intoxicated and

sentenced him to serve 90 days in the county jail.

                Four days after the trial, on Friday, March 9, 2018, the trial court convened a post-trial

hearing during which Delacruz indicated his intent to request that the trial court set aside the verdict

of guilty. He told the court that this planned request to set aside the verdict was “distinct from a

motion for new trial” and asked the court


        to arrest any further proceedings on this case until it has had an opportunity to take
        evidence and conduct a full inquiry as to whether or not this Court very well may
        reconsider [counsel’s] motion for mistrial, [counsel’s] motion for a directed verdict,
        and further motions that would be allowable by law.




                                                    8
The trial judge indicated that he had already signed the judgment of conviction and expressed that

he did not have a written motion to act on. He agreed to reconvene in the afternoon if such a motion

was filed. The judge explained that “the two opportunities” for Delacruz at that point were “to either

file a motion for new trial or to file notice for appeal.” That afternoon, Delacruz filed a motion

entitled Motion to Set Aside Verdict of Guilty, Declare Mistrial with Prejudice Against the State and

Motion for Any Other Discovery Necessary to Prevail on the Merits of This Motion.

                The court conducted a hearing on the motion that same afternoon, immediately after

it was filed. Two witnesses testified at the hearing: the court reporter who recorded Delacruz’s DWI

trial and the lead trial prosecutor. The court reporter testified about a conversation that she had with

the trial prosecutor at the beginning of trial concerning the number of witnesses the State would

have. The prosecutor testified about her understanding of the intoxilyzer operator’s availability for

trial, the efforts made to contact him during trial, and her discovery that the IO was out of the country

and unavailable. At the conclusion of the hearing, the trial judge again rejected Delacruz’s

contention that the prosecutor had intentionally misled the court about the IO’s availability but

granted Delacruz’s request for a mistrial. Subsequently, after the State’s second request for a written

order memorializing the court’s ruling, the trial court entered an order, entitled Order Partially

Granting the Defense Motion to Set Aside the Verdict and Grant[ing] a Mistrial, that granted

Delacruz a new trial. The State now appeals the trial court’s order granting a new trial. See Tex.

Code Crim. Proc. art. 44.01(a)(3) (providing that State may appeal order granting new trial).




                                                   9
                                            DISCUSSION

                At the post-trial hearing, the trial court stated that it was “declaring a mistrial in this

case without prejudice.” However, “[a] mistrial is a device used to halt trial proceedings when error

is so prejudicial that expenditure of further time and expense would be wasteful and futile.” Young

v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (quoting Ladd v. State, 3 S.W.3d 547, 567

(Tex. Crim. App. 1999)); accord Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); see

Mistrial, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “mistrial” as “[a] trial that the

judge brings to an end without a determination on the merits because of a procedural error or serious

misconduct occurring during the proceedings”). Here, the trial had concluded four days before the

trial court’s ruling. In fact, the record reflects that Delacruz’s motion was filed after the trial court

had signed the judgment of conviction memorializing the jury’s guilty verdict and the trial court’s

jail sentence. Because the trial had concluded with a determination of the merits, there were no “trial

proceedings” to halt; no mistrial was possible at that time.

                However, while the written order subsequently entered by the trial court stated that

“the Court grants a mistrial, but without the prejudice that the defense has requested,” the order

indicated that “[t]he legal effect of the Court’s order is that of granting a new trial in a criminal

cause.” “If 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, e.g., State

v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996) (treating order granting motion for

judgment non obstante verdicto as functional equivalent of order granting motion for new trial for



                                                   10
insufficient evidence because it accomplished same outcome); State v. Evans, 843 S.W.2d 576, 577

(Tex. Crim. App. 1992) (determining that order granting motion to withdraw or reconsider plea

should have been called order granting new trial because it returned case to posture before plea was

accepted); cf. Davis, 349 S.W.3d at 538 (concluding that order granting motion for reconsideration

or reduction of sentence, which reduced and reformed defendant’s sentence, was functionally

indistinguishable from granting of new trial on punishment). The court’s order granting a “mistrial”

with the “legal effect” of “granting a new trial” was the functional equivalent of an order granting

a motion for new trial.9 Accordingly, we review the trial court’s order here as an order granting a

motion for new trial.

                A motion for new trial 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);

State v. Aguilera, 165 S.W.3d 695, 699 (Tex. Crim. App. 2005). For that reason, we construe

Delacruz’s post-trial motion to set aside the verdict as a motion for new trial. The Court of Criminal

Appeals has repeatedly held that “[a]n essential element of [a motion for new trial] is that the matter

of error relied upon for a new trial must be specifically set forth therein.” Zalman, 400 S.W.3d at

593–94 (quoting Harvey v. State, 201 S.W.2d 42, 45 (Tex. Crim. App. 1947)); State v. Gonzalez,

855 S.W.2d 692, 694 (Tex. Crim. App. 1993). The defendant is required to allege in the motion

sufficient grounds to apprise the trial court and the State of why he believes he is entitled to a new


        9
          Similarly, the trial court’s oral ruling granting a mistrial “without prejudice” was the
functional equivalent of an oral ruling granting a new trial. Cf. State v. Davis, 349 S.W.3d 535, 538
(Tex. Crim. App. 2011) (“If 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.”).

                                                    11
trial. Zalman, 400 S.W.3d at 594; see Gonzalez, 855 S.W.2d at 694–95 (“accused is required to

allege sufficient grounds [in new-trial motion] to apprise the trial judge and the State as to why he

believes himself entitled to a new trial”).

                In this case, the legal claim articulated in Delacruz’s post-trial motion was

prosecutorial misconduct. Delacruz asserted that the prosecutor intentionally lied to the court about

the availability of the intoxilyzer operator. The record from the hearing reflects that, while the trial

judge agreed that there was “sloppy preparation in this case,” the judge did not agree that there was

any “malfeasance” by the prosecutor.10 Moreover, the trial judge explicitly disputed—based on the

evidence Delacruz presented to the court—the claim of prosecutorial misconduct:


        COUNSEL:                And I’m saying, Judge, we’ve got to stop just taking them at
                                face value and look at all the facts, and the facts are she made
                                a conscious choice to mislead you.

        THE COURT:              I don’t agree with that.

        COUNSEL:                I know you don’t want to believe that.

        THE COURT:              [Counsel], I don’t agree with that.

        COUNSEL:                But it’s --

        THE COURT:              It’s not true and the evidence doesn’t reflect that. There is a
                                difference between being sloppy and a difference between
                                being conniving, and I don’t see there’s any conniving here.




        10
            The trial judge stated twice that he did not find malfeasance on the part of the State. He
first said that “the question is whether or not that rises to malfeasance; I don’t see that at this time.”
He later stated, “You know, I don’t see here where there’s any malfeasance.”

                                                   12
(Emphasis added.) The trial judge explained that he “[thought] that [the prosecutor] had a good-faith

basis [to believe that the intoxilyzer operator was available to testify] because he accepted his

subpoena.” At the conclusion of the hearing, the trial judge stated that he believed that he had taken

the appropriate action during trial:


       The remedy I thought at that time was to suppress the evidence and I still think that,
       but it sound[s] like you want to have a mistrial and so I’m going to declare a mistrial
       in this case without prejudice. It is so ordered.


Thus, notwithstanding his rejection of Delacruz’s legal claim, the trial judge granted a new trial.11

               A trial court’s decision to grant a motion for new trial is reviewed only for an abuse

of discretion. State v. Arizmendi, 519 S.W.3d 143, 148 (Tex. Crim. App. 2017); Zalman,

400 S.W.3d at 593; State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007). That

discretion, however, is not unbounded or unfettered. Arizmendi, 519 S.W.3d at 148; Zalman,

400 S.W.3d at 593. A judge may not grant a new trial on mere sympathy, an inarticulate hunch, or

simply because he believes the defendant received a raw deal or is innocent. Zalman, 400 S.W.3d

at 593; Herndon, 215 S.W.3d at 907; see Arizmendi, 519 S.W.3d at 148.

               Further, while a judge may grant a motion for new trial “in the interest of justice,”

“‘justice’ means in accordance with the law.” State v. Thomas, 428 S.W.3d 99, 105 (Tex. Crim.

App. 2014); Zalman, 400 S.W.3d at 593; Herndon, 215 S.W.3d at 907. “In the interest of justice”

is not an independent basis for granting a criminal defendant a new trial. Thomas, 428 S.W.3d




       11
           As we noted previously, the trial court’s oral ruling was the functional equivalent of an
oral ruling granting a new trial. Cf. Davis, 349 S.W.3d at 538.

                                                 13
at 105; Riordan v. State, No. 03-16-00297-CR, 2017 WL 3378889, at *9 (Tex.

App.—Austin Aug. 4, 2017, no pet.) (mem. op., not designated for publication); Easter v. State,

No. 01-14-00450-CR, 2016 WL 6648812, at *13 (Tex. App.—Houston [1st Dist.] Nov. 10, 2016,

no pet.) (mem. op., not designated for publication); Quintero v. State, 467 S.W.3d 671, 679–80 (Tex.

App.—Houston [14th Dist.] 2015, pet. ref’d); see Arizmendi, 519 S.W.3d at 161 (Newell, J.,

concurring) (observing that “‘interest of justice’ is not a legal claim unto itself”). “There must be

some legal basis underpinning the grant of a new trial, even if it is granted in the interest of justice.”

Thomas, 428 S.W.3d at 105.

                Here, the only legal basis asserted in Delacruz’s motion was prosecutorial

misconduct. The record demonstrates that the trial court explicitly rejected that claim. Nevertheless,

notwithstanding the fact that the court rejected the sole legal basis Delacruz asserted as grounds for

a new trial, the court granted a new trial.12


        12
           Delacruz states in his reply brief that “There is no requirement that the court’s granting
of Appellee’s motion for mistrial be granted for the reasons argued in his motion for mistrial.”
However, the order here is “functionally indistinguishable” from an order granting a motion for new
trial. Thus, its precipitating motion was the functional equivalent of a motion for new trial, given
that such a motion is a prerequisite to granting a new trial. Accordingly, we review the order and
motion under the law governing motions for new trial. Delacruz’s statement that the trial court can
grant a new trial for reasons not raised in the motion is contrary to that law.

         “The trial court has no authority to grant a motion for new trial based on a ground not raised
in the motion.” Gonzalez v. State, No. 13-16-00361-CR, 2018 WL 3655566, at *2 (Tex.
App.—Corpus Christi Aug. 2, 2018, no pet.) (mem. op., not designated for publication); see, e.g.,
State v. Provost, 205 S.W.3d 561, 566 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding
that trial court lacked authority to order new trial for ineffective assistance of counsel because
appellee did not raise ineffective assistance of counsel in motion for new trial). In fact, the trial court
is barred from considering any claims not raised in timely new-trial or timely amended new-trial
motion over the State’s objection. See, e.g., State v. Arizmendi, 519 S.W.3d 143, 150–51 (Tex.
Crim. App. 2017) (holding that trial court was barred from considering ineffective-assistance claim

                                                    14
                  “A trial court abuses its discretion if no reasonable view of the record could support

the trial court’s ruling.” Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on

other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018) (citing Webb v. State,

232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.

App. 2004)); accord State v. Gutierrez, 541 S.W.3d 91, 98 (Tex. Crim. App. 2017). Here, the trial

court’s finding that “the evidence doesn’t reflect [that the prosecutor made a conscious choice to

mislead the court]”—a finding of historical fact to which we give deference in our review, see

Gutierrez, 541 S.W.3d at 98; Riley, 378 S.W.3d at 458—does not support the legal conclusion that

Delacruz was entitled to a new trial on the basis of prosecutorial misconduct or the trial court’s

decision to grant a new trial. Consequently, we conclude that the trial court abused its discretion in

granting a new trial. See Arizmendi, 519 S.W.3d at 148 (“Granting a new trial for a ‘non-legal or

legally invalid reason is an abuse of discretion.’” (quoting Herndon, 215 S.W.3d at 907)); Thomas,

428 S.W.3d at 104 (“[T]he court cannot grant a new trial ‘unless the defendant shows that he is

entitled to one under the law.’” (quoting Herndon, 215 S.W.3d at 907)). We sustain the State’s sole

point of error.



that was not raised in motion for new trial); State v. Zalman, 400 S.W.3d 590, 594–95 (Tex. Crim.
App. 2013) (holding that trial court abused its discretion in granting new trial because “memoranda
of law” was untimely and did not support legal claim presented in motion and thus trial court was
not allowed to consider arguments contained in late-filed “memorandum of law”); Trout v. State,
702 S.W.2d 618, 619–20 (Tex. Crim. App. 1985) (holding unalleged act of jury misconduct was not
properly presented by motion for new trial and should not have been entertained by trial court over
State’s objection at hearing on motion for new trial); Joseph v. State, No. 03-05-00433-CR,
2007 WL 283030, at *1–2 (Tex. App.—Austin Jan. 31, 2007, pet. ref’d) (mem. op., not designated
for publication) (concluding that claim of ineffective assistance of counsel should not have been
entertained by trial court at new-trial hearing over State’s objection because claim was not presented
by motion for new trial but only raised in untimely filed “evidentiary addendum”).

                                                   15
                                          CONCLUSION

                The trial court’s order was the functional equivalent of an order granting a new trial.

Further, given that a motion for new trial is a prerequisite for granting a new trial, Delacruz’s motion

to set aside the verdict was the functional equivalent of a motion for new trial. The only legal claim

Delacruz raised in his post-trial motion, and the only legal claim addressed at the post-trial hearing

on the motion, was a claim of prosecutorial misconduct. The trial court explicitly rejected that claim.

Thus, having rejected the only legal basis for a new trial that was raised in the post-trial motion, the

trial court abused its discretion by granting a new trial. Accordingly, we reverse the trial court’s

order granting a new trial and remand this cause for further proceedings consistent with this opinion.



                                                __________________________________________
                                                Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Bourland

Reversed and Remanded

Filed: October 5, 2018

Do Not Publish




                                                  16
