In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00187-CR

______________________________

JAMES FRANKLIN BONNER, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 402nd Judicial District Court

 Wood County, Texas

Trial Court No. 19,739-2007

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss
A judge may not place a defendant on community supervision if he or she is found guilty 1

of using or exhibiting a deadly weapon during the commission of the felony. TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 3g(a)(2) (Vernon Supp. 2008). A jury, however, may assess community

supervision if the jury assesses punishment, unless the defendant is sentenced to a term of

imprisonment that exceeds ten years. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(d)(1) (Vernon

Supp. 2008). To be eligible for jury-assessed community supervision, a defendant must file a written

sworn motion before trial with the court that he or she has not previously been convicted of a felony

in any state. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(e) (Vernon Supp. 2008). Trial counsel is

ineffective if he or she fails to verify a motion for community supervision. Ex parte Welch, 981

S.W.2d 183, 185 (Tex. Crim. App. 1998); May v. State, 660 S.W.2d 888, 890 (Tex. App.—Austin

1983), aff'd, 722 S.W.2d 699, 700 (Tex. Crim. App. 1984); Trevino v. State, 752 S.W.2d 735, 736

(Tex. App.—Eastland), pet. dism'd, 759 S.W.2d 142 (Tex. Crim. App. 1988). These failures of

counsel dashed any hope for Bonner to get community supervision.

2

MEMORANDUM OPINION

After a jury found James Franklin Bonner, Jr., guilty of aggravated assault with a deadly

weapon, Bonner, based on unfortunate advice from appointed counsel, agreed to have the trial court,

not the jury, assess his punishment. Bonner's counsel also failed to file a sworn motion for

community supervision with the court before trial. These actions made it impossible for Bonner to

receive community supervision. He was sentenced to ten years' confinement. 1

A different attorney filed a motion for new trial on both guilt/innocence and punishment

based on the argument that trial counsel's actions amounted to ineffective assistance of counsel.

After a hearing in which trial counsel admitted his mistake, the trial court granted the motion for new

trial on punishment only. On retrial, the jury assessed Bonner's sentence at twelve years'

imprisonment without community supervision. 

On appeal from that result, Bonner contends that the trial court should have granted a new

trial on both guilt/innocence and punishment. We disagree.
3

In both issues presented, Bonner argues that he received ineffective assistance of trial counsel

during the guilt/innocence phase. He cites no action or inaction of counsel during guilt/innocence;

we can identify as arguably ineffective only counsel's actions referenced above, which affected only

the punishment phase. While the presented issues are inadequately briefed, more importantly, the

record reveals they are without merit. TEX. R. APP. P. 38.1(i).

The State does not claim that the trial court erred in ruling that trial counsel was ineffective

with respect to the punishment phase of the trial. Instead, the State argues that any ineffectiveness

was cured by the new trial on punishment. In support, the State relies on Rule 21.9 of the Texas

Rules of Appellate Procedure which states that a "court must grant only a new trial on punishment

when it has found a ground that affected only the assessment of punishment." TEX. R. APP. P.

21.9(a). "Granting a new trial on punishment restores the case to its position after the defendant was

found guilty." TEX. R. APP. P. 21.9(c). 
Rule 21 of the Texas Rules of Appellate Procedure was amended, effective January 1, 2007. 2

Among the amendments to that rule was the requirement that, when an error affected only

punishment, trial courts are to grant new trials on punishment only. See TEX. R. APP. P. 21.1(b),

21.9(a). Before 2007, new trials on only punishment could be granted by an appellate court, but a

trial court could not "grant a new trial as to the punishment phase of a trial only." State v. Hight, 907

S.W.2d 845, 846 (Tex. Crim. App. 1995); see State v. Stewart, No. 03-07-00735-CR, 2009 WL

1024721, at *9 (Tex. App.—Austin Apr. 15, 2009, no pet. h.); see also Catherine Greene Burnett,

Justice Kerry P. Fitzgerald, Changes to the Texas Rules of Appellate Procedure, 70 TEX. BAR

JOURNAL 772 (October 2007). We must disagree with a recent opinion from one of our sister courts

of appeals that has recited the previous rules prohibiting trial courts from ordering new trials on

punishment only. See Morning v. State, No. 10-08-00171-CR, 2009 WL 333578, at *1 (Tex.

App.—Waco Feb. 11, 2009, pet. filed.) (mem. op.) (citing Sorto v. State, 173 S.W.3d 469, 490 (Tex.

Crim. App. 2005)).

4

Attacking the trial court's authority to grant a new trial on punishment, Bonner cites cases

that pre-date the amendments to Rules 21.1 and 21.9. See May, 660 S.W.2d 888; Trevino, 752 2

S.W.2d 735.

Because the cited ineffective assistance occurred only at the initial punishment phase, the trial

court properly granted new trial on the issue of punishment only. See Stewart, 2009 WL 1024721,

at *10. There is no claim that ineffective assistance of counsel occurred in the latter punishment

trial. We overrule Bonner's points of error and affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 5, 2009

Date Decided: June 8, 2009

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