#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 APPEAL

CORPUS CHRISTI, TEXAS

3/25/2015 8:51:24 AM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 3/25/2015 8:51:24 AM DORIAN E. RAMIREZ Clerk
ii

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
iii

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
iv

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
v

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.
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 trial” 

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 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.
2

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 
3

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 
4

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 
5

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