The State of Texas, Appellant, v. Jared Gomez, Appellee.

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Court of Appeals of Texas, Corpus Christi-Edinburg.

The State of Texas, Appellant, v. Jared Gomez, Appellee.

NUMBER 13–14–00585–CR

Decided: February 25, 2016

Before Justices Rodriguez, Garza, and Longoria

MEMORANDUM OPINION

The State appeals from orders in a revocation proceeding that granted appellee Jared Gomez's motions for new trial, withdrew the trial court's finding of guilt, and reinstated Gomez's three-year deferred adjudication community supervision.  We issued our original memorandum opinion in this cause on January 21, 2016.  Gomez filed an amended motion for rehearing on February 9, 2016.  See Tex.R.App. P. 49.1.  After due consideration, we withdraw our previous opinion and judgment and substitute the following memorandum opinion and accompanying judgment.1  By two issues, the State contends that (1) the trial court did not “have the power to reconsider those actions at that time”;  and (2) the trial court abused its discretion when it granted Gomez's motion for new trial on either a sufficiency ground or an in-the-interest-of-justice ground.  We reverse and remand.

I. Background

On November 25, 2013, pursuant to a plea bargain, Gomez pleaded guilty to continuous violence against the family, a third-degree felony.  See Tex. Penal Code Ann. § 25.11 (West, Westlaw through 2015 R.S.).  In accordance with the terms of the plea agreement, the trial court deferred the adjudication of guilt and placed Gomez on community supervision for three years.

In March and May 2014, the State filed motions to revoke.  On June 12, 2014, the trial court heard the motions, sanctioned Gomez, ordered Gomez not to have contact with Kezia Lopez, the complainant, and continued Gomez on deferred adjudication community supervision.

In July 2014, the State again filed motions to revoke, alleging that Gomez violated his probation by contacting Lopez and committing an additional crime.  On July 24, 2014, the trial court heard the State's motions.  After Gomez pleaded “true” to the alleged probation violations, the trial court found the allegations to be true.  By its order signed July 24, the trial court revoked Gomez's probation, adjudicated him guilty, and sentenced him to ten years in the Institutional Division of the Texas Department of Criminal Justice.

On August 20, 2014, Gomez filed a motion for new trial asserting that “[t]he verdict in this cause is contrary to the law and the evidence” and “[t]he trial court has the discretion to grant a new trial in the interest[ ] of justice.”  In support of his motion for new trial, Gomez stated that he “will not contact the victim in this case.”  Finally, Gomez prayed that the trial court “set aside the judgment of conviction entered in this cause and order a new trial on the merits.”  Gomez also filed a motion for reconsideration or reduction of his sentence on August 20, 2014.  In that motion, Gomez set out that he was “adjudicated guilty of the offense of [f]amily [v]iolence [a]ssault and sentenced on July 24, 2014.”  Gomez alleged “[t]hat the sentence creates a hardship and burden upon ․ Gomez's family,” “[t]hat [he] “will abide by any terms or conditions of community supervision that the Court may impose, including ․ treatment in a facility [and] extending [his] probation,” and “[t]hat society will be adequately protected and ․ Gomez punished if community supervision were to be granted with such conditions or if ․ Gomez's community supervision is reinstated with such conditions.”  Gomez prayed that the trial court “grant ․ Gomez community supervision with conditions attached, or reduce and reform [his] sentence.”

On October 7, 2014, the trial court held an evidentiary hearing on Gomez's post-verdict motions.  Gomez's mother, Michelle Gomez, testified on Gomez's behalf.  She described Gomez's living situation, his employment, his children, and the effect of his incarceration.  Gomez also called Lopez as a witness.  At the July 24, 2014 hearing on the State's first motions to revoke probation, Lopez had testified that she feared Gomez and that he did not care who he hurts.  However, during the October 7 hearing, Lopez testified Gomez had not hurt her physically and that he was only rude to her on the phone.  Lopez further testified that she wished to have contact with Gomez and that he should be on probation because he has “learned his lesson.”  She explained her belief that if Gomez was on probation and working, “[h]e [could] help support [their] son.” 2  Gomez also testified at the October 7 hearing that he had learned his lesson and was of no use to his children or Lopez in prison.  He would “do whatever it takes to get closer to [his] family”—go to counseling, babysit, and try to find a job.  Gomez testified that he “did wrong” and apologized.  Kelsey Henry, the coordinator for victim services, testified for the State.  She described her earlier contacts with Lopez and explained that she was not aware of any couple's counseling programs for domestic violence cases.

During closing arguments, defense counsel argued that Gomez was “extremely remorseful” and that he was “willing to comply with and follow with anything that [the trial court] may order.”  Gomez asked for an opportunity to continue on probation, to finish his classes, and to fulfill his obligations to the trial court.  The State argued that “probation was not working for [Gomez] and informed the trial court that it “oppose[d] that [Gomez will] be put back on probation of any kind.”

At the conclusion of the hearing, the trial court announced that it was “going to withdraw the finding of guilt and place [Gomez] back on deferred adjudication probation․”  By written orders signed and dated October 7, 2014—the 75th day after sentencing—the trial court granted both motions.  Handwritten on each order was following:  “Defendant is reinstated on probation on the same orig[inal] sentence of 3 y[ea]rs deferred.” 3  This appeal followed.

II. Plenary Power to Grant Motion to Reconsider or Reduce Sentence

By its first issue, the State argues that the trial court did not have plenary power to grant Gomez's motion to reconsider or reduce his sentence on the seventy-fifth day after the imposition of Gomez's sentence.  We disagree.

The trial court's order granting Gomez's motion to reconsider or reduce his sentence had the precise effect of granting a new trial.  See State v. Evans, 843 S.W.2d 576, 577 (Tex.Crim.App.1992) (en banc) (holding that the functional effect of a motion rather than its title controls);  Pedraza v. State, 69 S.W.3d 220, 222 (Tex.App.—Corpus Christi 2001, no pet.)  (“In a criminal case, any post-verdict motion seeking to return the case to the posture in which it had been before trial is functionally indistinguishable from a motion for new trial.”).  In response to Gomez's motion requesting reconsideration or reduction of his sentence and his motion titled “Motion for New Trial,” the trial court ordered reinstatement of Gomez's deferred community supervision, which, in effect, returned the case to the posture it had been in before the revocation hearing and before the trial court adjudicated Gomez's guilt.  See Tex.R.App. P. 21.9 (providing that an order granting a new trial restores a case to its former position);  Jordan v. State, 36 S.W.3d 871, 876 (Tex.Crim.App.2001) (“Even after revocation of his deferred adjudication probation, however, such a defendant can file a motion for new trial, and if a new trial is granted, the conviction itself would be undone.”);  see also Tex.R.App. P. 21.1(a) (setting out that a “[n]ew trial means the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt”).

In this case, the trial court withdrew Garza's adjudication of guilt—it undid the conviction—and reinstated Garza's deferred adjudication.  We cannot conclude that the trial court reconsidered or reduced the ten-year sentence that it had imposed after the imposition of guilt—for example, by reducing it to a five-year sentence.  See Tex.Crim. Proc.Code Ann. art. 42.02 (West, Westlaw through 2015 R.S.) (“The sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.”).  Instead, the order granted a new trial, returning the case to the position it was in before the trial court adjudicated guilt and imposed the sentence, irrespective of the label or terms used in the motion or order.4  While designated as a motion to reconsider or reduce his sentence, Gomez's motion should more aptly have been called a motion for new trial.  And we analyze both orders under the rules applicable to motions for new trial.

A timely filed motion for new trial extends the plenary power of the trial court for seventy-five days after the imposition of the sentence, during which time the trial court must rule on the motion.  Tex.R.App. P. 21.8;  Pedraza, 69 S.W.3d at 224.  In calculating this time limitation, 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.  Tex.R.App. P. 4.1.  But the last day of the period is included.  Id.

Gomez's timely filed motion extended the plenary power of the trial court to seventy-five days after the commencement of the sentence.  See Tex.R.App. P. 21.8;  Pedraza, 69 S.W.3d at 224.  The trial court held a hearing on Gomez's motion and signed an order granting the motion on October 7, 2014, which was the seventy-fifth day after the date the trial court imposed the sentence.  See Tex.R.App. P. 21.8;  Pedraza, 69 S.W.3d at 224.  So we conclude that the trial court's plenary power to consider Gomez's motion had not expired, as the State argues.  We overrule the State's first issue.

III. Bases for Granting Gomez's Motions for a New Trial

By its second issue, the State asserts that the trial court abused its discretion by granting Gomez a new trial.5  The State first argues that Gomez waived his only cognizable legal claim to a new trial, which is that the verdict is contrary to the law and the evidence.  See Tex.R.App. P. 21.3(h).6  The State also asserts that if the trial court granted a new trial in the interest of justice it abused its discretion in doing so because there was no legal basis underpinning that determination.  See State v. Herndon, 215 S.W.3d 901, 909 (Tex.Crim.App.2007) (explaining that while the trial court generally does not abuse its discretion in granting a new trial in the interest of justice, the defendant must articulate a “valid legal claim” underlying his in-the-interest-of-justice basis).

A. Basis for Granting New Trial “Verdict Is Contrary to the Law and Evidence”

The State begins by arguing that this legal claim—that the verdict is contrary to the law and evidence—is, in fact, a challenge to the sufficiency of the evidence, which Gomez should have brought in an appeal from the order that first imposed his deferred adjudication community supervision.  See Perez v. State, 424 S.W.3d 81, 85–86 (Tex. Crim.App.2014) (”[A] defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed.”). Although we generally agree, we need not address the State's waiver argument because Gomez acknowledges in his appellate brief that,

[t]he 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 [Gomez] argue the verdict was contrary to the law and the evidence.

Based on this representation, Gomez concedes that he withdrew this legal basis as support for his motions.7  See Tex. R. App. P. 21.3(h).  Because Gomez did so, the trial court abused its discretion if it granted Gomez's motions for new trial because the verdict is contrary to the law and the evidence.

B. Basis for Granting New Trial In the Interest of Justice

The State also argues by its second issue that Gomez's in-the-interest-of-justice allegation, standing alone, is not an independent legal claim or basis for granting a new trial.  In response, Gomez claims that his motions for new trial articulated a valid legal claim simply by requesting a new trial in the interest of justice.  We agree with the State that Gomez has not shown a “valid legal claim” to a new trial.

1. Standard of Review and Applicable Law

The standard of review when a trial court grants a motion for a new trial is abuse of discretion.  The test for abuse of discretion is not whether, in the opinion of the appellate court, the facts present an appropriate case for the trial court's action, but rather, “whether the trial court acted without reference to any guiding rules or principles․”  A trial court abuses its discretion if it grants a new trial for a non-legal or a legally invalid reason.

State v. Thomas,428 S.W.3d 99, 103–04 (Tex.Crim.App.2014) (citations omitted).

In a criminal case, Texas Rule of Appellate Procedure 21.3 provides the legal bases for which a defendant must be granted a new trial.  Tex.R.App. P. 21.3.  “Though the trial court may grant a motion for new trial on a basis not listed in Rule 21.3, the court cannot grant a new trial ‘unless the defendant shows that he is entitled to one under the law.’ ” Thomas, 428 S.W.3d at 104 (quoting Herndon, 215 S.W.3d at 907);  see State v. Hight, 907 S.W.2d 845, 847 (Tex.Crim.App.1995) (en banc).  In other words,

[a] judge may grant or deny a motion for new trial “in the interest of justice,” but justice means in accordance with the law.  A judge may not grant a new trial on mere sympathy, an inarticulate hunch, or simply because he believes the defendant received a raw deal or is innocent.

State v. Zalman,400 S.W.3d 590, 593 (Tex.Crim.App.2013) (quoting Herndon, 215 S.W.3d at 907).

The trial court's discretion to grant a motion for new trial “in the interest of justice” is not “unbounded or unfettered.”  Instead, “justice” means “in accordance with the law.”  Without a showing that substantial rights were affected, a defendant should not be granted a new trial or else “the phrase ‘interest of justice’ would have no substantive legal content, but [would] constitute a mere platitude covering a multitude of unreviewable rulings.”

Thomas,428 S.W.3d at 104–05 (quoting Herndon, 215 S.W.3d at 907).  And while explaining that it did not need to “set out bright-line rules concerning appellate review of a trial court's discretion in this area,” the Thomas Court concluded that

a trial court would not generally abuse its discretion in granting a motion for new trial if the defendant:  (1) articulated a valid legal claim in his motion for new trial;  (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim;  and (3) showed prejudice to his substantial rights under the standards in Rule 44.2 of the Texas Rules of Appellate Procedure.

Id.at 105 (citing Herndon, 215 S.W.3d at 909);  see Zalman, 400 S.W.3d at 591.

2. Discussion

In his motions for new trial and now on appeal, Gomez appears to be contending that the trial court had the discretion to grant his motion for new trial in the interest of justice because (1) the sentence created a hardship and burden on Gomez's family, (2) Gomez was willing to abide by any terms or conditions of community supervision the trial court may impose, and (3) society would be adequately protected and Gomez punished if community supervision were to be granted with such conditions.  The State claims that these allegations fail to provide any legal basis for the granting of a new trial in the interest of justice.

First, the State asserts that Gomez's claim that the original ten-year prison sentence created a hardship on his family merely equates to a complaint that he received a “raw deal,” which is an insufficient basis under Herndon.  See 215 S.W.3d at 907.  We agree and conclude that the trial court abused its discretion if it granted Gomez a new trial on mere sympathy or because it believed, after hearing evidence at the motion-fornew-trial hearing, that the ten-year sentence it imposed earlier was a raw deal.  These are non-legal reasons that the court of criminal appeals has rejected.  See Zalman, 400 S.W.3d at 593;  Herndon, 215 S.W.3d at 907.

As to the remaining allegations—that Gomez will comply with any conditions of his probation and that society will be adequately protected and Gomez punished by probation—the State's position is that these allegations merely reflect Gomez's predictions as to what will happen or be accomplished after the trial court grants his motions for new trial.  We agree with the State that these are Gomez's hopeful predictions and desired results or conclusions.  But these allegations are not valid legal reasons for granting a new trial in the interest of justice.

On appeal, Gomez directs us to testimony provided by his mother, Michelle, at the October 7, 2014 motion-for-new-trial hearing.  She testified about his living situation, his employment, his children, and the effect his incarceration had on him.  Gomez describes this testimony as new evidence that was not presented at the June or July revocation hearing;  Michelle did not testify at the prior hearings.  He also notes that at the October 7 hearing, “Lopez materially changed her testimony” from that given at the July revocation hearing.  Gomez urges that “[a]s such, [he] produced evidence substantiating his claim for a new trial in the interest of justice.”

However, Gomez does not complain of the absence of Michelle as a witness at the revocation hearings.  See Thomas, 428 S.W.3d at 106 (setting out that “[t]here are certain grounds on which the absence of witnesses at trial can form the [legal] basis for granting a new trial”).  He does not describe Michelle's testimony as exculpatory or newly discovered;  he does not claim that counsel was aware of her testimony and intentionally withheld the testimony by deciding not to call her at the revocation hearings such that he would have an ineffective assistance of counsel claim as a ground for the motion.  See id. (explaining that “if exculpatory evidence is known to defense counsel before the trial, but not introduced at trial, a new trial could be granted on the [legal] basis of ineffective assistance of counsel”);  see also Tex.R.App. P. 21 .3(a).  And, even assuming that the evidence was exculpatory, Gomez does not assert that it was known by the State and not disclosed to the defense.  See Thomas, 428 S.W.3d at 106;  see also Tex.R.App. P. 21 .3(e).  And, even though Lopez testified differently at the motion-for-new-trial hearing, she did testify at the revocation hearing, and Gomez had an opportunity to cross-examine her at that time to develop her testimony.  So we are not persuaded that these arguments provide a legal basis for the granting of a motion for new trial in the interest of justice.

We agree with the State that Gomez's argument that he articulated a valid legal claim by requesting a new trial in the interest of justice is not enough.  Without more, we cannot conclude that Gomez articulated a valid legal claim underlying his in-the-interestof-justice basis for his motion for new trial that would support the trial court's granting his motions.  See Herndon, 215 S.W.3d at 909;  see also Thomas, 428 S.W.3d at 105;  Zalman, 400 S.W.3d at 591.  In addition, Gomez produced no evidence and pointed to none in the trial record that substantiated any valid legal claim.  See Thomas, 428 S.W.3d at 105;  see also State v. Stewart, 282 S.W.3d 729, 735 (Tex.App.—Austin 2009, no pet.)  (“[A] motion for new trial is merely a pleading, and the defendant must establish the truth of the allegations contained in the motion.”).  Thus, we conclude that the trial court abused its discretion in granting Gomez's motions for new trial in the interest of justice.  See Thomas, 428 S.W.3d at 103–04.

C. Summary

In sum, we have concluded that (1) in the interest of justice was the only basis presented to the trial court by Gomez's motions for new trial and (2) Gomez did not demonstrate a valid legal reason for granting his motion for new trial in the interest of justice.  In the absence of a valid legal claim upon which to base a new trial in the interest of justice, we sustain the State's second issue.

II. Conclusion

We reverse the orders granting Gomez's motions and reinstating his three-year deferred adjudication community supervision and remand with instructions to reinstate the judgment of conviction and the sentence.

FOOTNOTES

1.   Because we have addressed Gomez's preservation and mootness challenges in this substituted memorandum opinion, we deny his amended motion for rehearing as moot.

2.   Lopez testified that she is the mother of Gomez's children.  One child was approximately eighteen months old at the time of the October 7 hearing.  Lopez explained that they were expecting their second child four months after the hearing.

3.   At the hearing, the trial court stated that it was going to “place [Gomez] back on probation under the original sentence and extend his probation for one year,” “order marriage counseling at defendant's expense” after Gomez completed his anger management class, “allow contact [with Lopez],” and order no tobacco products or tattoos.  Except for the trial court's written order granting the motions, we find no other reference in the appellate record to changes in the length or conditions of Gomez's reinstated deferred adjudication probation.

4.   Gomez urges that “the State's appeal is moot because the trial court granted [his] motions[, which resulted in interlocutory rulings], a new trial was held, he was resentenced[,] and a final judgment was entered prior to [the State] making any attempt to appeal the trial court's interlocutory ruling[s].”  In other words, Gomez argues that the trial court entered a final judgment prior to the State's attempt to appeal from the interlocutory rulings granting his motions for new trial, and, therefore, this appeal is moot.  This argument is misplaced because, as we determined above, when the trial court granted Gomez's motions for a new trial it simply returned the case to the position it was in before the trial court adjudicated guilt and imposed the sentence;  it reinstated Gomez on deferred adjudication.  The trial court did not hold a new trial, and Gomez was neither convicted nor acquitted in this case.  See Tex.Code Crim. Proc. Ann. art. 42.01, § 1 (West, Westlaw through 2015 R.S.) (“A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant.”);  Donovan v. State, 68 S.W.3d 633, 636 (Tex.Crim.App.2002) (en banc) (“When adjudication is deferred, there is no finding or verdict of guilt.”) (internal quotations omitted);  see also State v. Garza, No. 13–09–00125–CR, 2010 WL 746713, at *1 (Tex.App.—Corpus Christi Mar. 4, 2010, no pet.) (mem. op., not designated for publication) (same).  We cannot conclude that the State did not timely appeal the trial court's orders granting Gomez's motions for new trial, as Gomez suggests.  Thus, Gomez's mootness argument fails.

5.   Gomez also contends that the State failed to preserve any error in the trial court because it did not bring to the court's attention the complaints it now urges on appeal.  Gomez argues that the State did not make a proper request, objection, or motion as required by Texas Rule of Appellate Procedure 33.1.  See Tex.R.App. P. 33.1.  But Gomez sought a new trial, and Gomez bore the burden of establishing his right to a new trial.  See State v. Zalman, 400 S.W.3d 590, 593 (Tex.Crim.App.2013) ( “[T]here is generally no abuse of discretion if the defendant:  (1) articulated a valid legal claim in his motion for new trial;  (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim;  and (3) showed prejudice to his substantial rights under the harmless error standards of the Texas Rules of Appellate Procedure.”).  By granting a new trial, the trial court agreed that Gomez had met that burden.  On appeal, the State raises no new issues;  rather it is challenging the trial court's determination that Gomez met his burden of establishing his right to a new trial.  Cf. State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.1998) (en banc) (per curiam) (“The party bringing a motion to suppress bears the burden of establishing all of the elements of her Fourth Amendment claim․  By raising the issue of standing for the first time on appeal, the State was not actually raising a new issue, but rather challenging the trial court's holding that appellee met her burden of establishing that the government violated her reasonable expectation of privacy.”).  So we are not persuaded by Gomez's preservation argument.

6.   In a criminal case, Texas Rule of Appellate Procedure 21.3 provides that,The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons:(a) except in a misdemeanor case in which the maximum possible punishment is a fine, when the defendant has been unlawfully tried in absentia or has been denied counsel;(b) when the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights;(c) when the verdict has been decided by lot or in any manner other than a fair expression of the jurors' opinion;(d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct;(e) when a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish the defendant's innocence has been intentionally destroyed or withheld, thus preventing its production at trial;(f) when, after retiring to deliberate, the jury has received other evidence;  when a juror has talked with anyone about the case;  or when a juror became so intoxicated that his or her vote was probably influenced as a result;(g) when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial;  or(h) when the verdict is contrary to the law and the evidence.Tex.R.App. P. 21.3.

7.   We also note that Gomez presented no arguments for other new-trial grounds.  See Tex.R.App. P. 21.3(a)-(g).  Gomez responded only to the State's challenge that the trial court abused its discretion in granting Gomez's motions for new trial in the interest of justice.

Memorandum Opinion by Justice Rodriguez