                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


THE STATE OF TEXAS,                              §
                                                                    No. 08-14-00248-CR
                               Appellant,        §
                                                                      Appeal from the
v.                                               §
                                                                346th Judicial District Court
                                                 §
DANIEL CEDILLOS,                                                  of El Paso County, Texas
                                                 §
                               Appellee.                            (TC# 20130D02144)
                                                 §

                                            OPINION

       A grand jury indicted Daniel Cedillos with aggravated assault by using or exhibiting a

deadly weapon (Count I), and assault family violence by strangulation (Count II). A jury found

Appellee guilty of Count I and not guilty of Count II. The trial court sentenced Cedillos to five

years’ confinement without a fine.

       On June 12, 2014, Appellee filed his motion for new trial, alleging that the “verdict in

this cause is contrary to the law and evidence,” that he received “ineffective communication and

advice from counsel,” and that the trial court had “the discretion to grant a new trial in the

interests [sic] of justice.” The trial court held two hearings on the motion for new trial and took

the matter under advisement. On July 28, 2014, the trial court granted the motion. The State

now appeals.

                                     FACTUAL SUMMARY
        This appeal arises out of a domestic violence dispute that occurred on November 11,

2012, in which Cedillos assaulted and threatened his wife, Angelita, with a gun.

        Roland Monteros was appointed to represent Cedillos at both his guilt-innocence and

punishment trials. On May 9, 2014, prior to voir dire, Cedillos filed his application for probation

of sentence and elected to have the trial court assess his punishment. A jury trial was held in

May of 2014, and after deliberation, the jury found Cedillos guilty of aggravated assault with a

deadly weapon and not guilty of assault family violence by strangulation.

        The trial court heard the punishment phase on May 16, 2014. At the conclusion of the

trial, the trial court asked Monteros about whether or not it was permitted to place Cedillos on

deferred adjudication and advised both the State and Cedillos that it did not think it could.

Monteros then replied: “It’s fairly well settled that a judge--a jury cannot recommend deferred

in a jury trial, but a judge can always recommend deferred as the sentencing authority.” The

State disagreed. The State argued that after a trial, deferred adjudication was no longer possible,

and only probation was available because of the type of offense. Monteros responded: “I don’t

think there’s anything in the code, Judge, that says that you cannot grant deferred--.” The trial

court disagreed and gave counsel additional time to conduct research at the law library. He did

not have anything additional to present to the trial court after his research and the parties

reconvened. Following closing arguments, the trial court sentenced Cedillos to five years’

imprisonment.

        On June 12, 2014, Cedillos filed his motion for new trial, asserting that the verdict was

contrary to the law and evidence, that he received ineffective communication and advice from

counsel, and that the trial court had the discretion to grant a new trial in the interest of justice. At

the first hearing, held on June 27, 2014, Cedillos insisted that his motion was based on

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ineffective assistance of counsel. He referenced both the discussion between Monteros and the

trial court on deferred adjudication at the punishment hearing and his advice to Cedillos to elect

to have the trial court assess his punishment rather than a jury. Apparently, Monteros was

surprised and shocked to learn he had made the wrong election for punishment. Cedillos insisted

he was harmed by receiving a sentence of imprisonment instead of not having the opportunity to

argue for probation.    Because of counsel’s mistaken understanding of the law, he advised

Cedillos to waive his right to have a jury assess his punishment, which, Cedillos argued,

constituted ineffective assistance of counsel.       He also argued that counsel’s advice was

ineffective when he erroneously informed him that the trial court could grant him probation on

an offense with a deadly weapon. Cedillos clarified that he was asking the trial court for reversal

of the entire trial, not just the punishment phase, based on cumulative error. The State’s

response was that no legal grounds existed to justify a new trial at the guilt-innocence phase.

The State contended that counsel’s advice to have the judge, rather than the jury, assess

punishment might have been a strategy because a judge in this instance may have been more

lenient than a jury. The trial court took the matter under advisement and stated:

       I will tell you that I’m very concerned about the issue of ineffective assistance of
       counsel. I’m also will [sic] very concerned about what occurred throughout the
       trial. And I’m hearing it not only from other individuals that may have walked in
       and heard the case, but my own staff.

              If I make a decision on this, I’m not going to make a decision that there
       was another judge. I’m only going to make a decision on the punishment phase
       issue. And that’s as it goes to and it’s related to in the interest of justice.

       At the second hearing held on July 2, 2014, the State opened by noting that if the case

were tried again only on punishment, the punishment would range from 2 to 20 years in prison,

up to 10 years’ probation, and a fine of $10,000. The State explained that Cedillos would not be

capped at the five-year sentence he originally received and then offered Cedillos a sentence of

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two years’ imprisonment. He declined the offer.

         At this hearing, Cedillos filed a memorandum of law outlining his arguments and insisted

that he was unable to locate counsel because he had apparently left the jurisdiction and similarly,

he could not obtain an affidavit from him.1 The State then objected to any untimely amendments

to the motion for new trial. According to the State, Cedillos was arguing matters not included in

his original motion. The trial court overruled the State’s objection.

         Cedillos continued to complain about counsel’s decision to elect the trial court to assess

his punishment; his failure to present records for his defense; and his inadequate discussion of

his case with him. The State again objected to the untimely amendment as Cedillos attempted to

reference conversations he had with other individuals about his trial. The State elaborated that

Cedillos was now making arguments not based on the evidence, but the trial court recalled

discussing such matters in chambers and in court and overruled the objection.

         When Cedillos tried to discuss confidential matters that occurred with counsel in an

attempt to prove his ineffective assistance, the State objected on the ground that he should have

brought counsel to court to testify. The State argued that the trial court could not make a

determination that Monteros was ineffective based on a silent record without an affidavit or

having heard testimony from him. The State also noted that the trial court could grant a new trial

as to punishment only.

         Cedillos countered that a new trial as to punishment only would place him in the same

position of having the trial court assess his punishment, unless the parties agreed otherwise.

Specifically, he argued:

         Rule 21.9 of Texas Rules of Appellate Procedure, Subsection (c), Judge:
         ‘Granting a new trial on punishment restores the case to a position after the

1
    This memorandum of law is not included in the record before us.
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       defendant was found guilty. And unless there is an agreement among all the
       parties, the punishment in a new trial shall be assessed in accordance with the
       defendant’s original election.’

              And that’s the problem in this case, Judge. That’s why we are asking for a
       complete new trial, because that is essentially where the error lies, in the fact that
       he did not want a judge punishment for the simple reason that he can’t get
       probation.

               Whether the jury would have given him probation or not is immaterial.
       He should have had the chance to at least ask for it, and that was taken away from
       him. So that’s what we have to keep in mind when we decide how much of a trial
       we are going to do, Judge. We have that rule to consider, and that would be the
       extent.

The trial court took the matter under advisement and on July 28, 2014, entered its order granting

the motion for new trial as to the guilt-innocence phase. Now, the State contends in two issues

with multiple sub-parts that the trial court abused its discretion.

                                  MOTION FOR NEW TRIAL

       Before we can review the merits of Cedillos’ ineffective assistance claims, we first must

determine whether he properly preserved this issue for our review.           TEX.R.APP.P. 33.1(a).

Although both the State and Cedillos treat jurisdiction as a minor sub-point in their respective

briefs, the “issue of jurisdiction is fundamental and cannot be ignored.” State v. Roberts, 940

S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other grounds by State v. Medrano, 67

S.W.3d 892 (Tex.Crim.App. 2002). We review questions of jurisdiction de novo, and may

consider jurisdictional issues at any point, including sua sponte. Id. “Jurisdiction cannot be

‘inherent;’ it is conferred by constitution or by statute.” State v. Patrick, 86 S.W.3d 592, 596

(Tex.Crim.App. 2002).

       The Court of Criminal Appeals has repeatedly held that:

       An 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. The wisdom of that
       rule lies in the fact that reasonable notice should be given not only to the trial

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       court but the State, as well, as to the misconduct relied upon and to prevent a
       purely fishing expedition on the part of the accused. [Citations omitted].

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 purpose of this requirement is to allow the court sufficient

notice to prepare for the hearing and make informed rulings as well as to allow the State to have

enough information to prepare a rebuttal.       See also Trout v. State, 702 S.W.2d 618 620

(Tex.Crim.App. 1985)(holding that the ground must be mentioned in the motion; it is not

sufficient to merely supply supporting affidavits).

       Rule 21 of the Texas Rules of Appellate Procedure governs motions for new trial. State

v. Zalman, 400 S.W.3d 590, 593 (Tex.Crim.App. 2013). The defendant’s motion must be filed

“no later than 30 days after, the date when the trial court imposes or suspends sentence in open

court.” TEX.R.APP.P. 21.4(a). The motion is a prerequisite for the trial court to grant a new trial;

the court may not do so on its own motion.            State v. Aguilera, 165 S.W.3d 695, 699

(Tex.Crim.App. 2005). The accused is required to allege sufficient grounds to apprise the trial

court and the State as to why he believes he is entitled to a new trial. Zalman, 400 S.W.3d at 594

(explaining that the motion must contain enough detail to give the other party notice of what is

being complained of so that it can properly prepare for the hearing); Gonzalez, 855 S.W.2d at

694-95.

       A defendant may amend his motion without leave any time within the thirty-day limit so

long as the trial court has not already ruled on the motion. TEX.R.APP.P. 21.4(b). The Court of

Criminal Appeals has interpreted this statute as barring amendments outside of the thirty-day

time limit, even with leave of court, so long as the State properly objects. State v. Moore, 225

S.W.3d 556, 570 (Tex.Crim.App. 2007). A trial court may not order a new trial on a ground for

relief not alleged in the motion for new trial, even if such unalleged ground is supported by the

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evidence.    State v. Provost, 205 S.W.3d 561, 565-66 (Tex.App.--Houston [14th Dist.]

2006)(allegation of insufficient evidence will not support new trial on ground of ineffective

counsel). Evidence presented to the trial court in support of an untimely amendment should not

be considered part of the record on appeal. Licon v. State, 99 S.W.3d 918, 926 (Tex.App.--El

Paso 2003, no pet.). Should the trial court refuse to limit its ruling to the original motion and

grant relief on the basis of the amendment over the State’s objection, the appellate court should

consider only the validity of the original and any timely amended motion for new trial, and

should reverse any ruling granting a new trial based upon matters raised for the first time in an

untimely amendment. Moore, 225 S.W.3d at 570.

       In Cueva v. State, 339 S.W.3d 839 (Tex.App.--Corpus Christi 2011, pet. ref’d), the

defendant filed a motion for new trial claiming ineffective assistance of counsel in his criminal

trial. He specified three deficiencies in his motion, but there were “significant differences”

between those claims and the ones he later argued at the new-trial hearing. Id. at 858. The State

properly objected to the late-added arguments.        Shamim v. State, 443 S.W.3d 316, 326

(Tex.App.--Houston [1st Dis.] 2014, pet. ref’d). The appellate court relied on Rule 21 and held

that the trial court was not permitted to consider the untimely arguments or evidence presented at

the new-trial hearing in support of those arguments.        Cueva, 339 S.W.3d at 858-59.        A

concurring opinion issued when the Court of Criminal Appeals denied rehearing on the petition

for discretionary review expressly approved of the appellate court’s analysis:

       The court of appeals correctly concluded that the new ineffective-assistance
       allegations and evidence related to those allegations could not have been properly
       considered by the trial court in rending its ruling on the motion and that the new
       evidence should not be examined in its analysis of the issues on appeal. I
       conclude the court of appeals correctly interpreted the law . . . because the new
       matters were not raised within 30 days of the date sentence was imposed and were
       not a permissible amendment to the motion for new trial in light of the State’s
       objection. [Citations omitted].

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Cueva v. State, 354 S.W.3d 820, 822 (Tex.Crim.App. 2011)(Alcala, J., concurring in denial of

motion for rehearing of Court’s refusal of petition for discretional review, joined by Price and

Cochran, JJ.), citing TEX.R.APP.P. 21.4(b).

       Similarly, in Zalman, the defendant presented an argument at the new-trial hearing that

was not alleged in his timely-filed motion. 400 S.W.3d at 592. The 30-day period for an

amendment expired, but the defendant still filed a “memorandum of law” arguing a new basis for

the trial court to grant a new trial. Id. The State objected to the untimely argument, but the trial

court still granted a new trial on that basis. Id. The Court of Criminal Appeals reversed, holding

that Rule 21 requires that the grant of new trial be consistent with the argument contained in the

timely-filed motion and related evidence. Id. at 594-95 (explaining that, to hold otherwise,

“would defeat the notice requirements of the motion.”). Accordingly, the trial court was not

allowed to consider the arguments contained in the late-filed “memorandum of law” or asserted

at the new-trial hearing on the motion. Id.

       In Shamim v. State, the court of appeals considered the defendant’s three allegations of

ineffective assistance of counsel.    First, Shamim alleged he received ineffective assistance

because his counsel failed to conduct an adequate factual investigation in preparation for his

trial. 443 S.W.3d at 321. In his second issue, he asserted that his counsel was ineffective

because he failed to keep him reasonably informed of the status of his case or adequately prepare

him for trial. Id. at 323. For his third and final issue, Shamim argued that his trial counsel

provided him ineffective assistance by failing to recognize that a real conflict of interest existed

in representing both Shamim and his father. Id. at 325. The appellate court acknowledged that

Shamim raised this argument at his new-trial hearing for the first time and noted that he failed to

include it in the original, written motion for new trial. Id. The State in this instance had no prior

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notice of this contention and objected to the conflict-of-interest claim at the new-trial hearing on

the grounds that it constituted an untimely amendment. Shamin, 443 S.W.3d at 326. The

Shamim court concluded that this conflict-of-interest argument could not support the grant of a

new trial. Id. at 326-27. It reasoned that for the trial court to properly consider a new argument

in support of granting a new trial, either the argument must be included in a timely-filed motion

or amendment or the State must acquiesce to the untimely addition. Id. at 328; TEX.R.APP.P.

21.4; Zalman, 400 S.W.3d at 594-95; Cueva, 339 S.W.3d at 858-59; see also Cueva, 354 S.W.3d

at 822 (Alcala, J., concurring). The court ultimately held that because Shamim failed to include

his conflict-of-interest claim in his original motion and because the State objected when he raised

it at the new-trial hearing, Rule 21 prohibited him from obtaining a new trial based on a late-

added argument to which the State timely objected. Shamim, 443 S.W.3d at 328.

       We agree with this line of reasoning and find it dispositive here. Therefore, we need not

address the merits of the parties’ ineffective assistance of counsel arguments contained within

the State’s two issues. Here, Cedillos’ original motion for new trial contained the conclusive

allegation that he received “ineffective communication and advice from counsel,” and nothing

more. At the new-trial hearing, he delved into several instances of counsel’s conduct, including:

how he improperly advised Cedillos to waive his right to have a jury assess his punishment as

well as his possibility of receiving probation in this case; his failure to present records for his

defense; and his inadequate discussion of his case with him. The State properly objected on the

basis that all of these arguments constituted untimely amendments. The trial court overruled the

State’s objections. After reviewing the original motion for new trial, we must conclude his

claims alleged at the new-trial hearing could not support the granting of a new trial. Because the

new-trial arguments constituted untimely amendments, the trial court was without jurisdiction to



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grant a new trial on those grounds. Accordingly, we sustain the State’s jurisdictional objection,

vacate the trial court’s grant of a new trial, and reinstate the conviction.




May 6, 2016                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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