                         NUMBER 13-13-00567-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                        Appellant,

                                           v.

JOSHUA CACIAS,                                                             Appellee.


                    On appeal from the 28th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Rodriguez
      In this appeal, appellant, the State of Texas, challenges the trial court’s

resentencing of appellee, Joshua Cacias. By two issues, the State contends that: (1)

the trial court abused its discretion when it resentenced Cacias because it had no valid

legal basis upon which it could have granted a new punishment trial; and (2) alternately,
the trial court erred by resentencing Cacias because his motion to reconsider had been

overruled by operation of law when the internal inconsistencies of the October 14, 2013

order left the motion without a written ruling and the trial court without jurisdiction. We

reverse and remand.

                                     I. BACKGROUND

       On July 30, 2013, Cacias entered an open plea of “guilty” to one count of second-

degree manslaughter. See TEX. PENAL CODE ANN. § 19.04 (West, Westlaw through 2013

3d C.S.); see also id. § 12.33(a) (West, Westlaw through 2013 3d C.S.) (“An individual

adjudged guilty of a felony of the second degree shall be punished by imprisonment in

the Texas Department of Criminal Justice [TDCJ] for any term of not more than 20 years

or less than 2 years.”). And Cacias pleaded “no contest” to one count of third-degree

failure to stop and render assistance. See TEX. TRANSP. CODE ANN. §§ 550.021, 550.023

(West, Westlaw through 2013 3d C.S.); see also TEX. PENAL CODE ANN. § 12.34(a) (West,

Westlaw through 2013 3d C.S.) (“An individual adjudged guilty of a felony of the third

degree shall be punished by imprisonment in the [TDCJ] for any term of not more than 10

years or less than 2 years.”). Both counts involved the rollover death of Eric Flores.

       After accepting Cacias’s pleas and hearing testimony of several witnesses, the trial

court found Cacias guilty as charged. That same day, the trial court heard arguments of

counsel and sentenced Cacias to twenty years in the TDCJ for manslaughter and ten

years for failure to stop and render assistance, with the sentences to run concurrently.

The court’s order issued on August 8, 2013.

       On August 21, 2013, Cacias filed a motion to reconsider his sentence, arguing, in

relevant part, the following:   (1) the sentence imposed, which was the maximum
                                            2
sentence authorized by statute for each of the respective offenses, was “too harsh;” (2)

another defendant in this case who pleaded guilty to the same charges except for

intoxication manslaughter was sentenced by another court to thirteen years in prison, and

the sentence was “even more the prosecutor or the victim’s family had wanted.”           He

asked “the court to reconsider the sentence imposed and to reduce it to a term of years

that would punish Cacias, but is not greater than justice requires.” On October 14, 2013,

the trial court granted Cacias’s motion, agreeing to reconsider his sentence and setting a

hearing on the motion although it specified no date or time.

       On October 25, 2013, the trial court held a hearing on the motion. Cacias argued

that the trial court had the authority to grant his motion to reconsider and that case law

established “that the [trial court could] consider that a sentence is excessive or

disproportionate to other sentences assessed by this court or other courts, and can do

another sentencing in the interest of justice.” In response, the State argued that Cacias’s

motion set out no legal basis upon which the trial court could grant a new punishment

hearing. At the conclusion of the parties’ arguments, the trial court resentenced Cacias

to twelve years for manslaughter, but left intact the original ten-year sentence for failure

to stop and render assistance. The trial court ordered the sentences to run concurrently.

On November 21, 2013, the trial court signed a judgment titled “RE-SENTENCING

JUDGMENT   OF   CONVICTION   BY   COURT W AIVER   OF   JURY TRIAL” that reflected the oral

pronouncement of October 25, 2013.        This appeal followed.     See TEX. CODE CRIM.

PROC. ANN. art. 44.01(a)(3) (West, Westlaw through 2013 3d C.S.) (allowing the State to

appeal an order granting a new trial in a criminal case).


                                             3
                                       II. DISCUSSION

       By the first issue, the State contends that the trial court abused its discretion by

granting Cacias’s motion and resentencing him without legal justification.              Cacias

responds that “the record of the hearing on the [m]otion to [re]consider [s]entence reflects

that [he] asserted an ‘interest of justice’ claim,” and that he “moved for a new punishment

trial in the interest of justice because his sentence was disproportionate to those imposed

on similarly situated defendants.”

A. Applicable Law and Standard of Review

       The Texas Court of Criminal Appeals has held that a motion for reconsideration of

sentence is functionally indistinguishable from a motion for new trial on punishment, and

the trial court’s order granting the same may be treated as an order granting a new trial

on punishment. See State v. Davis, 349 S.W.3d 535, 538 (Tex. Crim. App. 2011).

       The standard of review when a trial court grants a motion for a new trial is
       abuse of discretion. The test for abuse of discretion is not whether, in the
       opinion of the appellate court, the facts present an appropriate case for the
       trial court's action, but rather, “whether the trial court acted without reference
       to any guiding rules or principles.” The mere fact that a trial court may
       decide a matter differently from an appellate court does not demonstrate an
       abuse of discretion. . . . A trial court abuses its discretion if it grants a new
       trial for a non-legal or a legally invalid reason. The trial court cannot grant
       a new trial based on mere sympathy, an inarticulate hunch, “or simply
       because he personally believes that the defendant is innocent or received
       a raw deal.”

State v. Thomas, 428 S.W.3d 99, 103–04 (Tex. Crim. App. 2014) (citations omitted).

       Texas Rule of Appellate Procedure 21.3 provides that,

             The defendant must be granted a new trial, or a new trial on
       punishment, for any of the following reasons:

       (a) except in a misdemeanor case in which the maximum possible
       punishment is a fine, when the defendant has been unlawfully tried in
                                               4
       absentia or has been denied counsel;

       (b) when the court has misdirected the jury about the law or has committed
       some other material error likely to injure the defendant's rights;

       (c) when the verdict has been decided by lot or in any manner other than a
       fair expression of the jurors' opinion;

       (d) when a juror has been bribed to convict or has been guilty of any other
       corrupt conduct;

       (e) when a material defense witness has been kept from court by force,
       threats, or fraud, or when evidence tending to establish the defendant's
       innocence has been intentionally destroyed or withheld, thus preventing its
       production at trial;

       (f) when, after retiring to deliberate, the jury has received other evidence;
       when a juror has talked with anyone about the case; or when a juror became
       so intoxicated that his or her vote was probably influenced as a result;

       (g) when the jury has engaged in such misconduct that the defendant did
       not receive a fair and impartial trial; or

       (h) when the verdict is contrary to the law and the evidence.

TEX. R. APP. P. 21.3.

       “Though the trial court may grant a motion for new trial on a basis not listed in Rule

21.3, the court cannot grant a new trial ‘unless the defendant shows that he is entitled to

one under the law.’” Thomas, 428 S.W.3d at 104 (citing State v. Herndon, 215 S.W.3d

901, 907 (Tex. Crim. App. 2007)). In other words, “[a] judge may grant or deny a motion

for a new trial [on punishment] ‘in the interest of justice . . . .’” State v. Zalman, 400

S.W.3d 590, 593 (Tex. Crim. App. 2013) (quoting Herndon, 215 S.W.3d at 907).

However,

       [t]he trial court's discretion to grant a motion for new trial ‘in the interest of
       justice’ is not “unbounded or unfettered.” Instead, “justice” means “in
       accordance with the law.” Without a showing that substantial rights were
       affected, a defendant should not be granted a new trial or else “the phrase
                                               5
       ‘interest of justice’ would have no substantive legal content, but [would]
       constitute a mere platitude covering a multitude of unreviewable rulings.”

Thomas, 428 S.W.3d 104–05 (quoting Herndon, 215 S.W.3d at 907).                   And while

explaining that it did not need to “set out bright-line rules concerning appellate review of

a trial court's discretion in this area,” the Thomas Court concluded that,

       a trial court would not generally abuse its discretion in granting a motion for
       new trial if the defendant: (1) articulated a valid legal claim in his motion
       for new trial; (2) produced evidence or pointed to evidence in the trial record
       that substantiated his legal claim; and (3) showed prejudice to his
       substantial rights under the standards in Rule 44.2 of the Texas Rules of
       Appellate Procedure.

Id. at 105 (citing Herndon, 215 S.W.3d at 909); Zalman, 400 S.W.3d at 591.

B. Discussion

       In his motion, Cacias complained of the harshness and the injustice of his

sentence, asserting that his sentence was “even more than the prosecutor or the victim’s

family had wanted.” Cacias set out that “[he had been] informed of the twelve year

T.D.C. plea offer made by the State, and the potential risks of proceeding open to the

[c]ourt or a jury,” and “decided to plead open to the [c]ourt.” Cacias did, in fact, enter an

open guilty plea to the manslaughter count, without a plea bargain, and he does not now

assert, as a legal basis for his claim, that counsel’s assistance was ineffective in that

regard. See Thomas, 428 S.W.3d at 106 (explaining that “if exculpatory evidence is

known to defense counsel before the trial, but not introduced at trial, a new trial could be

granted on the [legal] basis of ineffective assistance of counsel”).         Cacias’s motion

referred to evidence adduced at the punishment hearing—evidence of prior bad acts and

a prior conviction and evidence of his home life. He did not complain of the absence of

witnesses at trial. See id. (setting out that “[t]here are certain grounds on which the
                                             6
absence of witnesses at trial can form the [legal] basis for granting a new trial”). He

noted that the trial court heard that he was remorseful and that he had sought and

obtained forgiveness from the victim’s family.      Cacias also informed the trial court,

through his motion, that another defendant in another courtroom pleaded guilty to similar

charges and had received a thirteen-year sentence.

       On appeal, Cacias repeats his trial court arguments and argues that he “moved for

a new punishment trial in the interest of justice because his sentence was

disproportionate to those imposed on similarly situated defendants.” He also argues that

he “showed, as required by Herndon, that there was a serious flaw or error in the

assessment of punishment that adversely affected his substantial right to a fair trial by

causing a disproportionate punishment of 20 years TDC to be assessed.” Yet Cacias

provides no authority showing how his punishment was disproportionate, such that it

provided a legal basis for the trial court to resentence him in the interest of justice. See,

e.g., U.S. CONST. amend. VIII (providing “[e]xcessive bail shall not be required, nor

excessive fines, nor cruel and unusual punishment inflicted”); Solem v. Helm, 463 U .S.

277, 292 (1983) (“In sum, a court's proportionality analysis under the Eighth Amendment

should be guided by objective criteria, including (i) the gravity of the offense and the

harshness of the penalty; (ii) the sentences imposed on other criminals in the same

jurisdiction; and (iii) the sentences imposed for commission of the same crime in other

jurisdictions.”); Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) (holding that

punishments falling within prescribed statutory limitations are not cruel and unusual within

the meaning of the Texas Constitution). Instead, he argues only in general terms that

because his sentence was disproportionate the trial court should have reconsidered his
                                             7
punishment in the interest of justice.

       Without more, we simply cannot conclude that Cacias articulated a valid legal claim

in his motion for resentencing that would support the trial court’s order granting, in the

interest of justice, a new trial on punishment.      See id. at 105.     In addition, Cacias

produced no evidence and pointed to none in the trial record that substantiated any valid

legal claim. See id.; see also State v. Stewart, 282 S.W.3d 729, 735 (Tex. App.—Austin

2009, no pet.) (“[A] motion for new trial is merely a pleading, and the defendant must

establish the truth of the allegations contained in the motion.”). Cacias has not shown

that he is entitled to a new trial on punishment, under the law. See Thomas, 428 S.W.3d

at 104–05. And the trial court does not have discretion to grant a new trial on punishment

“unless the defendant shows that he is entitled to one under the law.” See id. (quoting

Herndon, 215 S.W.3d at 907).

       Instead, the trial court’s judgment resentencing Cacias appears to be based on

“raw deal” reasoning, which is a non-legal reason that the court of criminal appeals has

rejected.   See id. at 104.        Following counsels’ arguments at the hearing on

resentencing, the trial court provided the following basis for its decision:

       [I]t was unbeknownst to this [c]ourt that the State had recommended 12
       years in plea negotiations. It was not told to the [c]ourt at the time of
       sentencing. And in the interest of justice, this [c]ourt is going to accept that
       and sentence the defendant to 12 years at the Texas Department of
       Criminal Justice [on his manslaughter conviction, with the failure-to-stop-
       and-render-aid sentence to stand].

       In this case, the trial court’s failure to consider the State’s offer of a twelve-year

sentence when it first sentenced him to twenty years in prison for manslaughter is not, by

itself, a valid legal claim. See id. The trial court did not articulate that it reconsidered

                                              8
Cacias’s sentence because it was disproportionate to other sentences assessed. And

to the extent the trial court’s explanation for resentencing could be construed as

acknowledging “new evidence,” such that it would be considered a valid legal basis for

Cacias’s claim, our review of the record reveals no evidence of plea negotiations; Cacias

did not establish the truth of the allegations contained in his motion. See Thomas, 428

S.W.3d at 105; Stewart, 282 S.W.3d at 735.

       In the absence of a valid legal claim of any sort upon which to base a new trial on

punishment, the trial court acted without reference to any guiding rules or principles and,

thus, abused its discretion in granting Cacias’s motion to reconsider his sentence and in

entering a judgment resentencing him to twelve years in prison for his manslaughter

conviction.   See Thomas, 428 S.W.3d at 103.         We sustain the State’s first issue.

Because our disposition of this issue is dispositive of this appeal, we need not address

the State’s second issue. See TEX. R. APP. P. 47.1.

                                    III. CONCLUSION

       We reverse the resentencing judgment of conviction and remand the case to the

trial court with instructions to vacate its order granting Cacias’s motion to reconsider

sentencing and its judgment resentencing Cacias and to reinstate the original judgment

and sentence.

                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of August, 2014.

                                            9
