## #13-14 -00556- CR

Thirteenth Court of Appeals, Corpus Christi & Edinburg



### 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 ACCEPTED 13-14-00556-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 3/25/2015 8:51:24 AM DORIAN RAMIREZ

CLERKii 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 78480iii 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 Ca ssiano a ‘new trial’ while she was on deferred probation?

........... vi
STATEMENT OF FACTS

................................ ................................ ....................... 1
SUMMARY OF THE ARGUMENT

................................ ................................ ...... 2
ARGUMENT

................................ ................................ ................................ ............ 2
The trial court lac ked 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

................................ ................................ ................. 5iv 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

T ex. 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, 4v STATEMENT OF THE CASE

Nature of the Case A Grand J ury 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 o n 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.vi 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 tria l” while she was on deferred probation?1 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 deliberat ions, 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

eviden ce 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 99.2 SUMMARY OF THE ARGUMENT

Cassiano received defe rred probation on the same day that she

moved for a new trial. T he 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.

Cr im. 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 tr ial 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 defers3

the adj udication. . . . 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 o r 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 im posing 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 T EX

. R. A PP

. P. 21

and T EX

. C ODE C RIM

. P ROC

. 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.

— Hous ton [1st

Dist.] 1998, no pet.) (“[A] motion for new trial contemplates an4

adjudication. Therefore, the trial c ourt 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 T EX

. C ODE C RIM

. P ROC

. art s

. 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 gui lt, there was nothing for the trial

court to set aside, and Rule 21 is inapplicable. Donovan , at 636; T EX

. R. A PP

.

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

cou rt’s order that purported to grant Cassiano a new trial and reinstate the5

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

C ERTIFICATE 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