CASE NO. 13-14-00585-CR

IN THE COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI, TEXAS

THE STATE OF TEXAS

Appellant

VS.

JARED GOMEZ

Appellee

Trial Cause No. 13-CR-3365-E; The State of Texas v. Jared Gomez;

From the 148TH Judicial District Court, Nueces County, Texas

BRIEF OF APPELLEE, JARED GOMEZ

________________________________________________________________________

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

A. Cliff Gordon Ira Z. Miller

State Bar No. 00793838 State Bar No. 24051051

Douglas K. Norman 545 N. Upper Broadway, Suite 114

State Bar No. 15078900 Corpus Christi, Texas 78401

Nueces County District Attorney Office Telephone: (361) 882-7788

901 Leopard, Room 206 Telecopier: (361) 882-7799

Corpus Christi, Texas 78401

Telephone (361) 888-0410

Telecopier (361) 888-0399

ORAL ARGUMENT IS NOT REQUESTED

ACCEPTED

13-14-00585-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/17/2015 3:28:57 PM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/17/2015 3:28:57 PM CECILE FOY GSANGER Clerk
Brief of Appellee, Jared Gomez Page 2

IDENTITY OF PARTIES AND COUNSEL

Appellant: The State of Texas, District Attorney for the 105th Judicial District,

represented by:

Trial Counsel:

Eduardo Flores, Jr.

State Bar Number 24068686

Sara Neel

State Bar Number 24077622

901 Leopard, Room 206

Corpus Christi, Texas 78401

Appellate Counsel:

Douglas K. Norman

State Bar Number 15078900

A. Cliff Gordon

State Bar Number 00793838

901 Leopard, Room 206

Corpus Christi, Texas 78401

Appellee: Jared Gomez, represented by

Trial Counsel:

Keith Gould

State Bar Number 00795885

5959 S. Staples, Suite 228

Corpus Christi, Texas 78412

James E. Lucas

State Bar Number 24011140

4421 Gaines, Unit 4

Corpus Christi, Texas 78412

Dee Ann Torres

State Bar Number 24045297

1122 Elizabeth St.

Corpus Christi, Texas 78404
Brief of Appellee, Jared Gomez Page 3

Appellate Counsel:

Ira Z. Miller

State Bar Number: 24051051

545 N. Upper Broadway, Suite 114

Corpus Christi, Texas 78401
Brief of Appellee, Jared Gomez Page 4

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................... 2

TABLE OF CONTENTS ......................................................................................... 3

INDEX OF AUTHORITIES ................................................................................... 5

STATEMENT OF THE CASE ............................................................................... 7

ISSUES PRESENTED ............................................................................................. 9

STATEMENT OF FACTS ...................................................................................... 10

SUMMARY OF THE ARGUMENT ...................................................................... 13

ARGUMENT ............................................................................................................ 16

ISSUE I: Whether the trial court’s plenary power had expired

when the trial court granted Appellee’s motion for

new trial and motion for reconsideration or reduction in

sentence .................................................................................... 16

ISSUE II: Whether Appellant waived any alleged error of the trial

court by failing to preserve error in the trial court ............19

ISSUE III: Whether the State’s appeal is moot because the trial court

granted Appellee’s motions, a new trial was held, Appellee

was resentenced and a final judgment was entered prior to

Appellant making any attempt to appeal the trial court’s

interlocutory ruling................................................................21

ISSUE IV: Whether Appellant preserved for review any alleged error

of the trial court in granting Appellee’s motion for new

trial in the interest of justice in Appellant’s brief. ..............22

ISSUE V: Whether the trial court abused its discretion in granting

Appellee’s motion for new trial and motion for

Reconsideration in the interest of justice .............................24

PRAYER.................................................................................................................... 27

CERTIFICATE OF COMPLIANCE AND CERTIFICATE OF SERVICE ..... 29
Brief of Appellee, Jared Gomez Page 5

INDEX OF AUTHORITIES

FEDERAL CASES

United States v. Leal, 781 F.2d 1108 (5th Cir. 1986) ......................................................21

STATE CASES

Barrios v. State, 27 S.W.3d 313(Tex. App.—Houston [1st Dist] 2000, pet. ref’d) .........23

Garrett v. State, 220 S.W.3d 926 (Tex. Crim. App. 2007)..............................................22, 23

Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002) .............................................20

Mullins v. State, 37 Tex. 337 (1872-73) ..........................................................................24

Pedraza v. State, 69 S.W.3d 220 (Tex. App.—Corpus Christi 2001, no pet. h.) ............16, 18, 19

Rezac v. State, 782 S.W.2d 869 (Tex. Crim. App. 1990) ................................................23

Rochelle v. State, 791 S.W.2d 121 (Tex. Crim. App. 1990)............................................23

State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005)............................................16, 17

State v. Davis, 349 S.W.3d 535 (Tex. Crim. App. 2011) ................................................16, 17

State v. Garza, 774 S.W.2d 724 (Tex. App.—Corpus Christi 1989, pet. ref’d)..............21

State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993)(en banc)............................24, 27

State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007)............................................23, 24, 25

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998) .............................................20

STATUTES

TEX. R. APP. P. 4.1 ...........................................................................................................17

TEX. R. APP. P. 21.3 .........................................................................................................24

TEX. R. APP. P. 21.4 .........................................................................................................16

TEX. R. APP. P. 21.8 .........................................................................................................16
Brief of Appellee, Jared Gomez Page 6

TEX. R. APP. P. 33.1 .........................................................................................................19

TEX. R. APP. P. 38.1 .........................................................................................................22

TEX. CODE CRIM. PROC. art. 44.01...................................................................................21
Brief of Appellee, Jared Gomez Page 7

CASE NO. 13-14-00585-CR

IN THE COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI, TEXAS

THE STATE OF TEXAS

Appellant

VS.

JARED GOMEZ

Appellee

Trial Cause No. 13-CR-3365-E; The State of Texas v. Jared Gomez;

From the 148TH Judicial District Court, Nueces County, Texas

TO THE HONORABLE JUDGES OF THE THIRTEENTH COURT OF APPEALS:

Appellee respectfully requests that this appeal not be presented for oral argument.

STATEMENT OF THE CASE

Jared Gomez was charged by Indictment for the offense of Continuous Violence Against

the Family. See Clerk’s Record, pp. 5-6. Appellee plead guilty pursuant to a plea bargain

agreement and was placed on Deferred Adjudication for a period of three years. See Clerk’s

Record, pp. 63-67. The State filed a First Amended Original Motion to Revoke Probation on

July 23, 2014. See Clerk’s Record, pp. 88-90. Appellee entered a plea of True to the violations

alleged in the State’s Original Motion to Revoke Probation on July 24, 2014. See Clerk’s

Record, pp. 98-103; see also Reporter’s Record, vol. 2, p. 8, line 5. The trial court adjudicated

Appellee’s guilt and sentenced Appellee to ten years in the Texas Department of Criminal Justice

Institutional Division. See Clerk’s Record, pp. 106-107; see also Reporter’s Record p. 38, lines

3-4. Appellee filed a Motion for New Trial and Motion for Reconsideration or Reduction of
Brief of Appellee, Jared Gomez Page 8

Sentence on August 20, 2014. See Clerk’s Record, pp. 112-117. The trial court held a hearing

on Appellee’s Motions on October 7, 2014. See Reporter’s Record, vol. 3, p. 1. After the

hearing the trial court granted both of Appellee’s motions, withdrew the finding of guilt and

placed Appellee on deferred adjudication community supervision. See Supplemental Clerk’s

Record, pp. 6-7 and Reporter’s Record, vol. 3, pp 56.
Brief of Appellee, Jared Gomez Page 9

ISSUES PRESENTED

1. Whether the trial court’s plenary power had expired when the trial court granted

Appellee’s motion for new trial and motion for reconsideration or reduction in

sentence.

2. Whether Appellant waived any alleged error of the trial court by failing to preserve

error in the trial court.

3. Whether the State’s appeal is moot because the trial court granted Appellee’s

motions, a new trial was held, Appellee was resentenced and a final judgment was

entered prior to Appellant making any attempt to appeal the trial court’s interlocutory

ruling.

4. Whether Appellant preserved for review any alleged error of the trial court in

granting Appellee’s motion for new trial in the interest of justice in Appellant’s brief.

5. Whether the trial court abused its discretion in granting Appellee’s motion for new

trial and motion for reconsideration in the interest of justice.
Brief of Appellee, Jared Gomez Page 10

STATEMENT OF FACTS

Jared Gomez was charged by Indictment for the offense of Continuous Violence Against

the Family. See Clerk’s Record, pp. 5-6. The victim of the offense was Kezia Lopez. See id.

Appellee pleaded guilty pursuant to a plea bargain agreement and was placed on Deferred

Adjudication for a period of three years. See Clerk’s Record, pp. 63-67.

The State filed a First Amended Original Motion to Revoke Probation on July 23, 2014.

See Clerk’s Record, pp. 88-90. Appellee entered a plea of True to the violations alleged in the

State’s Original Motion to Revoke Probation on July 24, 2014. See Clerk’s Record, pp. 98-103;

See also Reporter’s Record, vol. 2, p. 8, line 5. At the conclusion of the hearing, the trial court

adjudicated Appellee’s guilt and sentenced Appellee to ten years in the Texas Department of

Criminal Justice Institutional Division. See Clerk’s Record, pp. 106-107; see also Reporter’s

Record p. 38, lines 3-4.

Appellee filed a Motion for New Trial and Motion for Reconsideration or Reduction of

Sentence on August 20, 2014. See Clerk’s Record, pp. 112-117. The Motion for New Trial

requests the trial court to grant a new trial because the verdict is contrary to the law and the

evidence and in the interest of justice. See Clerk’s Record, pp. 112-113. The Trial Court

originally scheduled to hear both motions on August 20, 2014. See Clerk’s Record, p. 114 and p.

117. The trial court held a hearing on Appellee’s Motions on October 7, 2014. See Reporter’s

Record, vol. 3, p. 1. The record is silent as to why the trial court rescheduled the hearing.

However, the record indicates the trial court issued a bench warrant for Appellee on October 1,

2014 to be in court on October 6 and October 7 of 2014. See Supplemental Clerk’s Record, pp.

4-5.
Brief of Appellee, Jared Gomez Page 11

The trial court held a hearing on Appellee’s motions on October 7, 2014. See Clerk’s

Record, p. 1. Appellee called Ms. Gomez, a witness who did not testify at the hearing on the

motion to revoke probation. See Clerk’s Record, p. 6. Ms. Cantu provided new material

testimony to the trial court to Appellee’s employment status, children, living situation and the

effect of being incarcerated has had on Appellee.. See Clerk’s Record, pp. 6-18. Appellee then

called Ms. Lopez who materially altered her testimony from which she provided in the motion

for revocation hearing. See Clerk’s Record, p. 20, lines 12-18. At the conclusion of the hearing

the Court allowed both parties to make final argument. See Reporter’s Record, vol. 3, pp. 50-53.

The attorney for the State never argued Appellee was not entitled to a new trial or a

reconsideration of the sentence because the hearing was on the seventy fifth day after the

imposition of the sentence. See Reporter’s Record vol. 3, pp. 51-52; see also Reporter’s Record

vol. 3, p. 53, lines 7-12. Further, the State never argued Appellee had failed to set out a legal

basis to which the trial court could grant a motion for new trial. See Reporter’s Record, vol. 3,

pp. 51-52; see also Reporter’s Record, vol. 3, p. 53, lines 7-12. Instead the State argued

Appellee was not a good candidate for community supervision because he shows what the State

believes is classic signs of being a repeat offender and he is a risk to the community based on

other cases of domestic violence, involving other defendants in Nueces County. See Reporter’s

Record vol. 3, pp. 51-52.

At the conclusion of the hearing the trial court granted both of Appellee’s motions. See

Supplemental Clerk’s Record, pp. 6-7; see also Reporter’s Record, vol. 3, p. 56, lines 8-20. The

trial court then withdrew the finding of guilt and placed Appellee on deferred adjudication. See

Supplemental Clerk’s Record, pp. 6-7 and Reporter’s Record, vol. 3, p. 56. The trial court
Brief of Appellee, Jared Gomez Page 12

extended Appellee’s period of deferred adjudication from three years to four years. See

Reporter’s Record, vol. 3, pp. 56, lines 17-19.

After the trial court granted Appellee’s motion for new trial and motion for

reconsideration and reduction of sentence and prior to the trial court implementing the sentence

the State did not: (1) give notice of appeal; (2) request a stay in the proceedings pending the

appeal; (3) seek a writ of mandamus; or (4) object to the trial court proceeding to sentence

Appellee by placing Appellee back on deferred adjudication. See Reporter’s Record, vol. 3, p.

56, lines 8-13. Further, Appellant failed to: (1) give a notice of appeal; (2) request a stay in the

proceedings pending an appeal; (3) seek a writ of mandamus; or (4) object to the trial court

proceeding to sentence Appellee for the remainder of the hearing. See Reporter’s Record, vol. 3,

pp. 56-61. Instead, Appellant requested the trial court to add additional conditions to Appellee’s

community supervision. See id. The State did not file a notice of appeal or request a stay until

after the hearing was complete and the trial court had entered a final judgment.
Brief of Appellee, Jared Gomez Page 13

SUMARY OF THE ARGUMENT

A trial court retains plenary power to alter or modify its sentence if the defendant files a

motion for new trial within thirty days of sentencing. If the defendant files a motion for new trial

the trial court’s authority to grant a new trial as to guilt or punishment is extended to seventy five

days after the imposition of the sentence. In the case at bar, Appellee was sentenced on July 24,

2014. Appellee filed a motion for new trial and motion for reconsideration or reduction of

sentence on August 20, 2014. As such, the trial court’s plenary power to grant the motion for

new trial and motion for reconsideration or reduction of sentence was extended to seventy five

days after the imposition of the sentence. Therefore, the trial court had the plenary power to

grant Appellee’s motion for new trial and motion for reconsideration or reduction of sentence on

the seventy fifth day after the implementation of the sentence when it granted Appellee’s

motions.

Prior to presenting a complaint to the appellate court the record must indicate the

complaining party raised the issue in the trial court by a timely request, objection or motion

which states (1) the grounds to the trial court with sufficient specificity to make the trial court

aware of the complaint and (2) complies with the Texas Rules of Evidence and Texas Rules of

Procedure. Appellant did not argue at the trial court Appellee had failed to present evidence to

the trial court which would provide a legal bases to the trial court to grant the motion for new

trial and motion for reconsideration or reduction of sentence. Therefore, Appellant failed to raise

the grounds in the trial court and has waived it for appellate purposes.

Appellant’s appeal to this court is moot because the trial court entered a final judgment

prior to Appellant making any attempt to appeal the trial court’s interlocutory ruling granting

Appellee’s motion for new trial and motion for reconsideration or reduction of sentence. While
Brief of Appellee, Jared Gomez Page 14

the State may appeal a trial court’s ruling granting a motion for new trial, the issue becomes

moot once the trial court makes a final determination of a cause. The State still has the

responsibility to appeal or seek appropriate relief before the new trial is held. In the case at bar

the State failed to seek a stay in the proceedings or file a notice of appeal prior to the trial court

entering a final judgment on the case.

Appellant failed to preserve error of the trial court’s ruling granting Appellee’s motions

in the interest of justice. The initial brief of the Appellant must state all issues and points

presented for appeal. The only limitations on the issues presented to the court of appeals in the

initial brief are set by the court’s discretion and any restrictive statute. It is the policy of

appellate rules that all matters to be addressed must be raised in the original brief.

Appellee filed a motion for new trial seeking a new trial because the verdict was contrary

to the law and the evidence and in the interest of justice. At the hearing on Appellee’s motion

for new trial Appellee presented evidence requesting a new trial in the interest of justice and thus

abandoned its argument Appellee was requesting a new trial because the verdict was contrary to

the law and the evidence. Appellant does not raise the issue of whether the trial court abused its

discretion in granting Appellee a new trial in the interest of justice. Instead, Appellant states the

trial court cannot grant a motion for new trial in the interest of justice and focused on the

sufficiency of the evidence in analyzing whether a new trial could be granted because the verdict

is contrary to the law and the evidence. Therefore, Appellant failed to preserve any argument the

trial court abused its discretion in granting Appellee’s motion for new trial in the interest of

justice.

Appellant mistakenly argues the trial court abused its discretion in granting Appellee’s

motion for new trial and reconsideration or reduction of sentence. A trial court may always grant
Brief of Appellee, Jared Gomez Page 15

a motion for new trial in the interest of justice. A trial court’s order granting a motion for new

trial in the interest of justice is reviewed by an abuse of discretion standard. The trial court

abuses its discretion when it acts without reference to any guiding rules or principles. While the

Court of Criminal Appeals has not set out a bright line rule concerning appellate review of a trial

courts decision it has stated the trial court does not abuse its discretion when it grants a new trial

the defendant (1) has articulated a valid legal claim in the motion for new trial; (2) produced

evidence which substantiates that claim; and (3) shows prejudice his or her substantial rights

under the standards of the Texas Rules of Appellate Procedure.

Appellee’s motion for new trial requested a new trial in the interest of justice. Therefore,

Appellee’s motion for new trial articulated a valid legal claim. Appellee presented evidence at

the motion for new trial which was not presented at the initial motion to revoke probation

hearing. Appellee called Ms. Gomez to testify about the living conditions, employment and

children of Appellee. Ms. Gomez did not testify at the initial motion to revoke probation. As

such, the testimony was material to determining the appropriate punishment for Appellee. At the

motion for new trial hearing Appellee called a witness who materially altered the testimony she

gave at the motion to revoke probation hearing. Ms. Lopez testified at the motion to revoke

probation hearing Appellee hurts her. However, at the motion for new trial hearing Ms. Lopez

testified Appellee does not physically hurt her and that he was only rude to her on the phone. As

such , her testimony at the motion for new trial hearing was a material change to her testimony

presented in the original motion to revoke probation hearing. Therefore, the testimony of Ms.

Gomez and Ms. Lopez establishes Appellee showed prejudice to his substantial rights under the

standards of Texas Rule of Appellate Procedure 44.2. As such, the trial court did not abuse its
Brief of Appellee, Jared Gomez Page 16

discretion in granting Appellee’s motion for new trial and motion for reconsideration and

reduction in sentence.

ARGUMENT

ISSUE I: Whether the trial court’s plenary power had expired when the trial

court granted Appellee’s Motion for New Trial and Motion for

Reconsideration or Reduction in Sentence.

Appellant mistakenly argues the trial court did not have plenary power to grant

Appellee’s motion for new trial and motion for reconsideration or reduction in sentence on the

seventy fifth day after the imposition of Appellee’s sentence. The trial court ruled on Appellee’s

motions on the seventy fifth day after the imposition of Appellee’s sentence. As such, the trial

court had plenary power to grant the Motion for New Trial and the Motion for Reconsideration

or Reduction in Sentence.

The trial court retains plenary power to alter or modify its sentence if the defendant files a

motion for new trial within thirty days of sentencing. See State v. Davis, 349 S.W.3d 535, 537

(Tex. Cim. App. 2011); see also State v. Aguilera, 165 S.W.3d 695, 697-698 (Tex. Crim. App.

2005)(trial court retains plenary power if motion for new trial is filed within thirty days). A

defendant may not file a motion for new trial later than thirty days after the trial court imposes or

suspends the defendant’s sentence in open court. See Tex. R. App. P. 21.4.

The filing of a motion for new trial extends the plenary power of the trial court for

seventy five days after the imposition of the sentence. See Pedraza v. State, 69 S.W.3d 220, 224

(Tex. App.—Corpus Christi 2001, no pet. h.). The trial court must rule on the motion for new

trial within seventy five days after the imposition of sentence. See TEX. R. APP. P. 21.8. A

motion for new trial is deemed to be denied if the trial court does not timely enter a written order

granting the new trial. See id. In calculating the time limitation set out in the Texas Rules of
Brief of Appellee, Jared Gomez Page 17

Appellate Procedure the day of the act or event after which a designated period begins to run is

not included in the calculation of the period prescribed or allowed by the rules. See Tex. R. App.

P. 4.1. However, the last day of the period is included. See id. A motion for reconsideration or

reduction of sentence is functionally indistinguishable from granting a new trial as to punishment

and is treated as a motion for new trial. See Davis, 349 S.W.3d at 538. Therefore, the same rules

of appellate procedure which apply to a motion for new trial apply to a motion for

reconsideration or reduction of sentence.

Appellant’s reliance on State v. Aguilera is misplaced. In State v. Aguilera the Court of

Criminal Appeals never held or stated the trial court only retains plenary power to modify its

sentence if the modification is made on the same day as the assessment of the initial sentence and

prior to the adjournment of the court for the day. In State v. Aguilera the trial court initially

sentenced the defendant to twenty five years in the institutional division of the Texas Department

of Criminal Justice. See State v. Aguilera, 165 S.W.3d 695, 696 (Tex. Crim. App. 2005). After

the trial court heard the victim impact statement an in chambers discussion was held with the

attorneys and the trial court resentenced the defendant to fifteen years incarceration over the

State’s objection. See id. There is no mention in the opinion the defendant filed a motion for

new trial. See id. The Court of Criminal Appeals, in affirming the trial court’s ruling stated at a

minimum, the trial court retains its plenary power to modify a sentence if a motion for new trial

or arrest of judgment is filed within thirty days of sentencing. See id. at 698. The Court of

Criminal Appeals then held the trial court also retains its plenary power to modify its sentence if

the modification is made on the same day as the assessment of the original sentence and prior to

the court adjourning for the day. See id. As such, Appellant’s reliance on State v. Aguilera is

misplaced.
Brief of Appellee, Jared Gomez Page 18

Appellant mistakenly argues there is no authority which extends a courts plenary power

to reconsider its sentence beyond thirty days. In Pedraza v. State, pursuant to a plea bargain

agreement, the trial court deferred the adjudication of guilt and placed the defendant on

community supervision for five years pursuant to a plea bargain agreement. See Pedraza v.

State, 69 S.W.3d 220, 222 (Tex. App.—Corpus Christi 2001, no pet. h.). Defendant violated the

terms of his community supervision and the State filed a motion to revoke the defendant’s

supervision and to adjudicate the defendant’s guilt. See id. At the conclusion of the hearing the

trial court adjudicated the defendant and sentenced the defendant to fifteen years imprisonment.

See id. The defendant then filed a “Motion to Reconsider” twenty days after the imposition of

the sentence and a motion for new trial twenty seven days after the imposition of the sentence.

See id. The trial court held a hearing on defendant’s motions forty seven days after the

imposition of the sentence. See id. The trial court signed an order granting the motion for new

trial sixty two days after the imposition of the sentence and reinstated the defendant on deferred

adjudication community supervision. See id. The defendant later violated the terms and

conditions of the community supervision and the state filed a motion to revoke community

supervision and adjudication of guilt. See id. At the conclusion of the hearing the trial court

adjudicated the defendant’s guilt and sentenced him to twenty years imprisonment. See id. at

223. The defendant then appealed the trial courts sentence claiming the trial court was without

jurisdiction to grant the motion for new trial. See id.

The thirteenth court of appeals held the motion for new trial was timely filed. See

Pedraza, 69 S.W.3d at 224. The Thirteenth Court of Appeals then found the trial court’s

authority was extended to seventy-five days after the imposition of sentence. See id. The

Thirteenth Court of Appeals found the trial courts action of granting the motion for new trial and
Brief of Appellee, Jared Gomez Page 19

resentencing the defendant to be a timely and permissible exercise of the trial court’s discretion.

See id. Therefore, the trial court retains plenary power to grant a new trial and resentence a

defendant for seventy five days after the imposition of the initial sentence.

In the case at bar, Appellee was sentenced on the State’s Motion to Revoke Probation on

July 24, 2014. See Reporter’s Record, vol. 2, p.1. Appellee filed a Motion for New Trial and

Motion for Reconsideration or Reduction of Sentence on August 20, 2014. See Clerk’s Record,

pp. 112-117. Therefore, Appellee’s motions were timely filed. As such, the plenary power of

the trial court was extended to seventy five days after the commencement of the sentence. The

trial court held a hearing a Appellee’s motions and signed an order granting the motions on

October 7, 2014. See Reporter’s Record, vol. 3, p. 1 and Supplemental Clerk’s Record, pp. 6-7.

October 7, 2014 was the seventy fifth day after the date the sentence was imposed. Therefore,

the trial court had plenary power to grant Appellee’s Motion for New Trial and Motion for

Reconsideration or Reduction of Sentence and Appellant’s first point of appeal should be denied.

ISSUE II: Whether Appellant waived any alleged error of the trial court by

failing to preserve error in the trial court.

Appellant failed to bring the trial court’s attention the complaints it is making in its

appeal. As a general rule, prior to presenting a complaint for appellate review the record must

show the complaining party raised the issue in the trial court by a timely request, objection, or

motion that: (1) states the grounds to the trial court with sufficient specificity to make the trial

court aware of the complaint and (2) complies with the Texas Rules of Evidence or the Texas

Rule of Procedure. See TEX. R. APP. P. 33.1. Appellant argues for the first time on appeal
Brief of Appellee, Jared Gomez Page 20

Appellee failed to present any evidence which would allow the trial court to grant Appellee’s

motions for new trial and reconsideration and reduction of sentence.

The Texas Court of Criminal Appeals has stated two general policies as to why a specific

objection is required in the trial court. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim.

App. 2002). First, a specific objection informs the trial court the reason for the objection and to

provide the judge with an opportunity to rule on the objection. See id. Second, the complaint

allows opposing counsel an opportunity to remove the objection or supply additional testimony.

See id. As such, an appellate court may uphold the trial court’s ruling on any legal theory or

bases applicable to the case, but the trial court may not be reversed on any legal theory or basis

which might be applicable that was not raised in the trial court. See id. The rule is one of

appellate jurisprudence which holds issues not argued in the trial court are deemed to be waived.

See State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998). The rule applies equally to

the State and the defendant. See id.; see also Martinez, 91 S.W.3d at 336.

In the case at bar, at the hearing on the motion for new trial and motion to reconsider or

reduction of sentence, Appellant focused its argument on its belief, Appellee showed signs of

being a repeat offender for domestic violence and in its opinion Appellee is a risk to Ms. Lopez.

See Reporter’s Record, vol. 3, pp. 51-52. Appellant also argued it opposed Appellee being

placed back on community supervision based on cases in Nueces County, which do not involve

or relate to Appellee. See Reporter’s Record, vol. 3, p. 52 lines 7-10. The State never mentioned

or eluded to the fact Appellee’s motion or the evidence presented to the trial court did not set out

a legal basis for which the trial court could grant a new punishment hearing. As such, Appellant

failed to raise the grounds in the trial court and has waived them for appellate purposes.
Brief of Appellee, Jared Gomez Page 21

ISSUE III: Whether the State’s appeal is moot because the trial court granted

Appellee’s motions, a new trial was held, Appellee was resentenced

and a final judgment was entered prior to Appellant making any

attempt to appeal the trial court’s interlocutory ruling.

Appellant’s appeal is moot because the trial court entered a final judgment prior to

Appellant making any attempt to appeal the trial court’s interlocutory ruling of granting the

motion for new trial and motion for reconsideration or reduction of sentence. The State is

entitled to appeal an order of the court which grants a motion for new trial. See TEX. CODE

CRIM. PROC. art. 44.01(a)(3). The granting of a motion for new trial is not a final decision. See

United States v. Leal, 781 F.2d 1108 (5th Cir.1986). As such, the state is entitled to a stay in the

proceedings pending the disposition of the interlocutory appeal from an order granting a new

trial. See TEX. CODE CRIM. PROC. Art. 44.01(e). However, an appeal from an interlocutory order

will become moot when a final determination of a cause has been made. See State v. Garza, 774

S.W.2d 724, 727 (Tex. App.—Corpus Christi 1989, pet. ref’d.). Even when the new trial is held

quickly the State still has the responsibility to appeal or seek appropriate relief before the new

trial is held. See id. In the present case, Appellant failed to seek any relief or a stay in the

proceedings prior to the trial court entering its final judgment.

The trial court granted Appellee’s motions orally and in writing after hearing the

evidence presented before it and the arguments of counsel. See Reporter’s Record, vol. 3, p. 56,

lines 8-13; see also Supplemental Clerk’s Record, pp. 6-7. After the trial court granted the

Appellee’s motions there was a conversation off the record. See id. After the conversation the

trial court placed Appellee on deferred adjudication community supervision for a period of three

years. See id. Appellant did not seek to appeal the decision of the trial court at the hearing. See

id. Further, Appellant did not seek a stay in the proceedings prior to the trial court entering a
Brief of Appellee, Jared Gomez Page 22

final judgment. See id. Appellant never objected to the manner in which the trial court

conducted the hearing and proceeded to enter a final judgment. See id. Therefore, Appellant

failed waived any error as to how the trial court proceeded on the motion for new trial and

motion for reconsideration and reduction in sentence.

The trial court hearing continued after the trial court granted Appellee’s motions. See

Reporter’s Record, vol. 3, pp.61. After the trial court granted Appellee’s motions and placed

Appellee back on deferred adjudication the hearing continued as to the terms and conditions of

the community supervision. See Reporter’s Record, vol. 3, pp. 56-61. Appellant continued to

participate in the hearing requesting the trial court to (1) not allow contact between Appellee and

Ms. Lopez; (2) have Appellee wear a GPS monitor; (3) Appellee remain on the domestic

violence case load; and (4) asked the court if it wishes to have Appellee start community

supervision programs and classes again. See id. At no time during the discussion between the

court, attorneys, Appellee and the probation officer did Appellant file a notice of appeal, seek a

stay in order to file a notice of appeal or object to the manner in which the hearing was held. See

id. Therefore, Appellant’s appeal on the trial court’s ruling granting Appellee’s motions is moot.

ISSUE IV: Whether Appellant preserved for review any alleged error of the trial court

in granting Appellee’s motion for new trial in the interest of justice in

Appellant’s brief.

Appellant failed to preserve any alleged error of the trial court in granting Appellee’s

motion for new trial in the interest of justice in its brief. A brief must state all issues and points

presented for review. See TEX. R. APP. P. 38.1(g). Texas Rule of Appellate Procedure 38.1(g)

allows the appellant to present to the appellate court all issues he or she desires with little

limitations. See Garrett v. State, 220 S.W.3d 926, 928 (Tex. Crim. App. 2007). The only
Brief of Appellee, Jared Gomez Page 23

limitations on the issues presented to the appellate court in the initial brief are set only by that

court’s discretion and any valid restrictive statute. See id. citing Rezac v. State, 782 S.W.2d 869,

870 (Tex. Crim. App. 1990). As such, the appellant is the master of his, her or its destiny as to

what issues the appellate court will address. See Garett, 220 S.W.3d at 929. The policy of the

appellate rules is that all matters to be addressed by the court must be raised in the original brief.

See id. citing Rochelle v. State, 791 S.W.2d 121, 125 (Tex. Crim. App. 1990). If the issue is not

brought up in the original brief the issues is waived. See Barrios v. State, 27 S.W.3d 313, 322

(Tex. App.—Houston [1st Dist] 2000, pet. ref’d). Appellant failed to brief the issue as to weather

the trial court abused its discretion in granting Appellee’s Motion for New Trial in the interest of

justice and waived the issue to be considered on appeal.

Appellee’s Motion for New Trial requested the trial court to grant a new trial in the

interest of justice. See Clerk’s Record, p. 112. This is undisputed by Appellant. See State’s

Brief p. 7. However, Appellee’s brief failed to address the issue as to whether the trial court

abused its discretion in granting the motion for new trial in the interest of justice. Instead of

addressing the issue Appellant incorrectly states the granting of a new trial in the interest of

justice is not an independent legal claim. See State’s Brief p. 8. Appellant sites State v. Herndon

for that proposition. However, Herndon v. State, specifically states for more than one hundred

and twenty years the trial judges have the discretion to grant new trials in the interest of justice.

See State v, Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App.2007). The trial judge’s granting of

a new trial in the interest of justice is reviewed only for an abuse of discretion. See id. The

evidence presented to the trial court at the motion for new trial focused on the trial court granting

the new trial in the interest of justice. At no time in the hearing did counsel for Appellee argue

the verdict was contrary to the law and the evidence. Therefore, Appellant failed to preserve any
Brief of Appellee, Jared Gomez Page 24

argument the trial court abused its authority in granting Appellee’s motion for new trial in the

interest of justice.

ISSUE V: Whether the trial court abused its discretion in granting Appellee’s

motion for new trial and motion for reconsideration in the interest of

justice.

Appellant mistakenly argues the trial court abused its discretion in granting Appellee’s

Motion for New Trial and Motion for Reconsideration or Reduction of Sentence. Further,

Appellant mistakenly argues the Appellee’s sole cognizable ground for the granting of the new

trial was the sufficiency of the evidence.

Texas Rule of Appellate Procedure 21.3 sets out the grounds when the trial court must

grant a motion for new trial. See TEX. R. APP. P. 21.3. However, the list in Rule 21.3 is

illustrative and not exclusive. See State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App.

2007). The trial court may always grant a new trial in the interest of justice. See id. at 906; see

also State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993)(en banc)(holding trial court did

not abuse discretion in granting new trial in the interest of justice to present witnesses which

were not presented at the time of sentencing to testify on behalf of defendant).

Trial courts have had the power to grant a new trial in the interest of justice for over one

hundred and twenty years. See Gonzalez, 855 S.W.2d at 694. The District Court’s discretion in

granting a new trial is almost the only protection a citizen has against “illegal or oppressive

verdicts of prejudiced, careless, or ignorant juries.” See id. citing Mullins v. State, 37 Tex. 337,

339-340 (1872-73). The trial court should not hesitate to use its discretion when the ends of

justice have not been attained by those verdicts. See id.

The trial court’s granting of a motion for new trial is reviewed for an abuse of discretion.

See Herndon, 215 S.W.3d at 906. However, the trial court’s discretion to grant a motion for
Brief of Appellee, Jared Gomez Page 25

new trial is not unbounded or unfettered. See id. The trial court cannot grant a new trial on

sympathy, an inarticulate hunch, or because the trial court believes the defendant is innocent or

received a bad deal. See id. The trial court abuses its discretion when it acts without reference to

any guiding rules or principles, and the mere fact the trial court decides a matter within its

discretionary authority different then the appellate court does not demonstrate an abuse of

discretion. See id. at 907-908.

The Texas Court of Criminal Appeals has not set out a bright line rule concerning

appellate review of the trial court’s granting of a new trial. See Herndon,215 S.W.3d at 909.

However, the trial court does not abuse its discretion in granting a new trial if the defendant (1)

articulated a valid legal claim in the motion for new trial; (2) produced evidence or pointed to

evidence in the trial record which substantiates the claim; and (3) shows prejudice to his

substantial rights under the standards of Texas Rule of Appellate Procedure 44.2. See id.

However, the trial court may grant a new trial even if the defendant did not establish reversible

error as a matter of law. See id. A trial court may grant a new trial when the error would not

require reversal if the trial court concludes the proceeding resulted in a “miscarriage of justice.”

Appellee requested the trial court to grant a new trial because it was contrary to the law

and the evidence and in the interest of justice. See Clerk’s Record p. 112. In the Motion for

Reconsideration or Reduction of Sentence Appellee requested the trial court to reduce Appellee’s

sentence because the sentence creates a hardship and burden on Appellee’s family, that Appellee

will comply with all terms and conditions of community supervision and that society will

adequately be protected if Appellee’s community supervision is reinstated. See Clerk’s Record,

p. 116. Appellant never objected or took issue with the reasons set forth in Appellee’s motions.

As such, Appellant waived this ground of review for failing to object in the trial court. In the
Brief of Appellee, Jared Gomez Page 26

event, this court, finds Appellant did not waive the issue by failing to object, the Motion for New

Trial articulated a valid legal claim by requesting a new trial in the interest of justice and thus

satisfying the first prong of the three prong test in Herndon.

At the hearing on the motion for new trial Appellee presented evidence that a new trial

should be granted in the interest of justice. Appellee did not present evidence in the trial court at

the motion for new trial that the verdict is contrary to the law and the evidence. As such,

Appellee sought the trial court to grant the motion for new trial in the interest of justice.

At the motion for new trial Appellee called Michelle Gomez to testify about Appellee’s

living situation, his employment, the number of children Appellee has and the effect being

incarcerated has had on Appellee. See Reporter’s Record, vol. 3, pp. 6-18. As such, Ms. Gomez

presented new evidence to the trial court which was not presented at the initial hearing on

Appellee’s Motion to Revoke Probation. It should also be noted, Ms. Gomez did not testify at

Appellee’s prior Motion to Revoke Hearing. See Reporter’s Record, vol. 2, p.3 (only witnesses

called to testify were Amy Rodriguez, Kezia Lopez and Jared Gomez). The testimony provided

by Ms. Gomez was not controverted by Appellant at the trial court level. See Reporter’s Record

vol. 3, 6-18 (Appellant cross examined the witness on the terms of community supervision and

underlying charges.)

Appellee called Kezia Lopez to testify after Ms. Gomez. See Reporter’s Record vol. 3, p.

18, line 19. At the hearing on the motion to revoke probation held on July 24, 2014 Ms. Lopez

testified she feared Appellee. See Reporter’s Record, vol. 2, p. 24, lines 22-23. Ms. Lopez went

on to testify Appellee does not care who he hurts and implied he had hurt her. See Reporter’s

Record, vol. 2, p. 25, lines 1-2. However, at the hearing on Appellee’s motion for new trial, Ms.

Lopez testified Appellee did not hurt her physically and that he was only rude to her on the
Brief of Appellee, Jared Gomez Page 27

phone. See Reporter’s Record, vol. 3, p. 20, lines 16-17. Ms. Lopez further testified she wished

to have contact with Appellee and that he should be on probation. See Reporter’s Record, vol. 3,

p. 21, lines 16-22. Therefore, Ms. Lopez materially changed her testimony in the hearing for the

motion for new trial. As such, Appellee produced evidence substantiating his claim for a new

trial in the interest of justice satisfying the second prong of the three prong test set out in

Herndon.

The third prong of the Herndon test requires Appellee to show prejudice to his substantial

rights under the standards of Texas Rule of Appellate Procedure 44.2. The trial court does not

abuse its discretion in granting a new trial in the interest of justice to present a witness who was

not presented at the time of sentencing to testify on behalf of the defendant. See State v.

Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993)(en banc). As stated above, Ms. Gomez did

not testify at the Motion to Revoke hearing held on July 24, 2014. The testimony provided by

Ms. Gomez was material in that it addressed Appellant’s living situations, his employment and

his family situation. All three issues are very import in determining the proper punishment of an

individual. Further, the material correction of Ms. Lopez testimony shows Appellee substantial

rights where prejudiced. Therefore, the trial court did not abuse its discretion in granting the

motion for new trial and placing Appellee back on deferred adjudication.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellee respectfully prays that this

Honorable Court affirms the trial court’s ruling granting a Appellee’s Motion for New Trial and

Appellee’s Motion for Reconsideration or Reduction of sentence and for such other relief the

Court finds appropriate.
Brief of Appellee, Jared Gomez Page 28

Respectfully Submitted,

/s/ Ira Z. Miller

________________________

Ira Z. Miller

State Bar No.: 24051051

545 N. Upper Broadway, Suite 114

Corpus Christi, Texas 78401

Telephone: (361) 882-7788

Facsimile: (361) 882-7799
Brief of Appellee, Jared Gomez Page 29

CERTIFICATE OF COMPLIANCE

This is to certify the Appellee’s Brief has 5,993 words, based on the word count of the

computer program used to prepare this document. Pursuant to TEX. R. APP. P. 9.4(i)(1) the

caption, identity of parties and counsel, statement regarding oral argument, table of contents,

index of authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proof of service, certification, and

certificate of service are excluded from the word count.

/s/ Ira Z. Miller

______________________________

Ira Miller

CERTIFICATE OF SERVICE

This is to certify that on July 17, 2015, a true and correct copy of the above and foregoing

document was served on the District Attorney's Office, Nueces County, 901 Leopard, Room 206,

Corpus Christi, Texas 78401 by hand delivery.

/s/ Ira Z. Miller

_____________________________

Ira Miller