IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1310-00

 

DAVID M. DONOVAN, Appellant


v.



THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY


KELLER, P.J., delivered the opinion of the Court in which MEYERS, KEASLER, HERVEY, and COCHRAN, JJ., joined. PRICE, J. filed a dissenting opinion in which JOHNSON and HOLCOMB, JJ. joined. WOMACK, J. filed a dissenting opinion in which JOHNSON, J. joined.

O P I N I O N



In accordance with a plea agreement, appellant was placed on deferred adjudication. He subsequently filed a motion for new trial, claiming that his plea was involuntary because he was unaware of (and his attorney failed to inform him of) the numerous conditions of probation that could be assessed. Denying the motion for new trial without a hearing, the trial court held that it did not have the authority to hear or grant a motion for new trial. Relying upon Rule 21 of the Texas Rules of Appellate Procedure (1) and Article 42.12 of the Texas Code of Criminal Procedure, (2) the Court of Appeals affirmed, holding that the trial court properly declined to consider a motion for new trial absent an adjudication. (3) The Court of Appeals held that, if appellant wished to challenge the voluntariness of his plea in a motion for new trial setting, he had to first move for adjudication within thirty days in accordance with Article 42.12, 5(a). (4) We shall affirm.

1. Standards of construction

We begin with the applicable rules of construction. In Boykin, we said that a statute is to be interpreted solely in accordance with the plain meaning of its language, unless the language is ambiguous or the plain meaning leads to absurd results. (5) But Boykin's strictures do not apply to the interpretation of court rules; appellate courts may consider extratextual sources even absent ambiguity or absurd results. (6) Nevertheless, even for court-made rules, the plain language is a good place to begin. (7)

2. No motion for new trial before adjudication

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." Several sources make clear that a "verdict of guilt" is a jury's assessment of guilt in a jury trial while a "finding of guilt" is a judge's assessment of guilt in a bench trial. Rule 21.1 traces its lineage to former Article 40.01, which was repealed upon implementation of the Rules of Appellate Procedure. Former Article 40.01 defined a "new trial" as "the rehearing of a criminal action, after verdict, before the judge or another jury." Similarly, Article 42.01 designates a jury's assessment of guilt as a "verdict" and a judge's assessment of guilt as a "finding":

The judgment should reflect:



* * *



7. The verdict or verdicts of the jury or the finding or findings of the court;



8. In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury or the finding of the court, and that the defendant be punished in accordance with the jury's verdict or the court's finding as to the proper punishment.



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 the adjudication. (8) Appellant argues that a finding that the evidence substantiates guilt is a finding of guilt. But this construction of Art. 42.12 5 is inconsistent with our holdings on the meaning of deferred adjudication. A deferred adjudication is often referred to as a deferral of a finding of guilt. (9) Trial courts routinely say, upon adjudication, that they "find (the defendant) guilty." (10) A defendant on deferred adjudication has not been found guilty. (11) 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.

Appellant contends that Manuel (12) requires treating deferred adjudication and regular probation the same in the motion for new trial setting. It is true that we stated in Manuel that Article 44.01(j) was enacted "to permit defendants to appeal from deferred adjudication community supervision to the same extent (i.e. with the same rights and restrictions) as defendants are permitted to appeal from 'regular' community supervision." (13) But, appellant's argument draws a false analogy and is, thus, logically flawed. Appeals and motions for new trial are not the same. The fact that deferred adjudication defendants are given the same right to appeal does not mean that they are treated the same as regular probation defendants in other respects. Significantly, the two different dispositions often have different finality consequences. (14) Having the same right to appeal does not necessarily entail having the same right to a trial court's consideration of a motion new trial.

3. Other avenues of relief

The existence of other avenues of relief lends support to our conclusion that a motion for new trial is not an available remedy and also mitigates against the potential harshness of that conclusion. The Code of Criminal Procedure affords two avenues of relief. First, a defendant can move for adjudication within thirty days:

However, upon written motion of the defendant requesting final adjudication filed within 30 days after entering such plea and the deferment of adjudication, the judge shall proceed to final adjudication as in all other cases. (15)



Under the language of the provision, the defendant's status on his own motion to adjudicate is somewhat different from the status of a person facing revocation of his deferred adjudication for violating a condition of probation. In the latter instance, proceedings resume after adjudication:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including the assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred. (16)



By contrast, the provision that allows adjudication upon the defendant's motion provides that, upon such motion, the judge shall proceed to final adjudication "as in all other cases" - indicating that, once the defendant requests final adjudication, the proceedings resume at the point immediately before the trial judge deferred adjudication and as if adjudication had not been deferred. Under those circumstances, the defendant is in the same position he would be in if he had pled guilty and the judge had taken the case under advisement. In that situation, if the defendant asks to withdraw his plea, the trial judge is empowered to permit or deny such withdrawal, within his sound discretion. (17) The trial judge also has discretion to authorize a hearing on the subject, at which time he can hear the defendant's evidence concerning any reasons for permitting withdrawal, including allegations that the plea was involuntary.

If the trial judge refuses to permit withdrawal of the plea and refuses to hear evidence on the matter, proceedings will continue normally, through judgment and sentence. All appellate timetables start from the time the trial judge imposes or suspends sentence in open court pursuant to a final adjudication. Any previously filed notice of appeal is rendered ineffective as being premature. (18) A motion for new trial may be filed, in accordance with the rules as in any other case in which a defendant is convicted and sentenced. The defendant will then have the opportunity to raise in that motion any alleged errors in the proceedings, including questions about the voluntariness of the plea, and procure a hearing, assuming the defendant has met the prerequisites for obtaining such a hearing. If relief is not granted by the trial court, the appeal from final adjudication will be the first and only appeal of the defendant's conviction, and Manuel's prohibitions against attacking the original plea will not apply. (19)

If a defendant fails to move for final adjudication within thirty days, he has another available avenue for relief: an application for writ of habeas corpus under Article 11.08 or 11.09. (20) A claim that the plea was involuntary is cognizable in such a proceeding. (21)

4. Conclusion

The trial court correctly concluded that it had no authority to consider a motion for new trial before adjudication. The judgment of the Court of Appeals is affirmed.

KELLER, Presiding Judge





DATE DELIVERED: January 30, 2002

PUBLISH





1. All future references to Rules are to the Rules of Appellate Procedure.

2. All future references to Articles refer to the Code of Criminal Procedure.

3. Donovan v. State, 17 S.W.3d 407 (Tex. App.-Houston [1st Dist.] 2000).

4. Id. at 409.

5. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.1991).

6. See Henderson v. State, 962 S.W.2d 544, 551-552 (Tex. Crim. App. 1997).

7. Id. at 552.

8. Article 42.12 5(a)(first sentence).

9. See, e.g., Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App.1992).

10. See Id. at 160.

11. Watson v. State, 924 S.W.2d 711, 715 (Tex. Crim. App. 1996)("Of course, an accused who has been placed on deferred adjudication probation has been neither convicted nor found guilty.")

12. Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999).

13. Id. at 661.

14. Jordan v. State, 36 S.W.3d 871, 876-877 (Tex. Crim. App. 2001).

15. Article 42.12, 5(a)(last sentence)(emphasis added).

16. Article 42.12, 5(b).

17. DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981). The Court of Appeals indicated that a trial judge could grant a request to withdraw the plea even if the defendant has not yet moved for final adjudication. Donovan, 17 S.W.3d at 410. We express no opinion on whether a trial court may employ such a procedure.

18. Rule 27.1(b).

19. But, if there is a plea agreement, the defendant's notice of appeal must comply with Rule 25.2(b)(3). See Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001). Neither the Court of Appeals nor the parties have addressed the effect of Rule 25.2(b)(3) on the present appeal; so, we have no occasion to address the issue.

20. See Jordan v. State, 2001 W.L. 717508, *2 (Tex. Crim. App. 2001).

21. Id. at *1.