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


Price, J., filed a dissenting opinion, in which Johnson and Holcomb, J.J., joined.



"The fear I have and why I write is that this Court's past and present decisions on deferred adjudication leave the Bench and Bar in some quarters of this State in a state of perplexity, confusion and anxiety." McDougal v. State, 610 S.W.2d 509, 510 (Tex. Crim. App. 1981) (Teague, J., concurring). These words are as true today as they were when written more than twenty years ago.

We granted review in this case to determine whether a trial court is authorized to rule on a motion for new trial filed by a defendant who has been placed on deferred adjudication community supervision. The majority concludes that the trial court may not. I disagree.

With certain limitations, we have the authority to determine what may be reviewed in a motion for new trial and in a writ application. Our case law dictates what claims may be heard in habeas proceedings, and the Rules of Appellate Procedure dictate from what proceedings a motion for new trial may be ruled upon. What remains for us to decide is which avenue of relief is most appropriate to raise the voluntariness of the plea after an order imposing deferred adjudication supervision.

The majority's main argument for holding that a motion for new trial is unavailable to defendants whose adjudication has been deferred is that a motion for new trial requires a finding or verdict of guilt, neither of which is had in the context of deferred adjudication. The majority cites Rule 21.1, which defines the motion for 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." Tex. R. App. P. 21.1. (1)

Little material difference exists between a trial court's finding the defendant guilty and the same court finding the evidence substantiates the defendant's guilt, which is the finding in deferred adjudication proceedings. Both findings lead to the same conclusion: The evidence is sufficient to support conviction. The difference is that the deferred adjudication defendant has not been convicted. This difference, without more, is not significant enough to deny a trial court the authority to rule on a motion for new trial in this context.

The predecessor to Rule 21.1 was former Code of Criminal Procedure article 40.01. That article defined a "new trial" as "the rehearing of a criminal action, after verdict, before the judge or another jury." Acts of 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, repealed by Acts of 1985, 69th Leg., R.S., ch. 685, 4, 1985 Tex. Gen. Laws 2472. Apparently, the legislature did not envision a motion for new trial proceeding after a bench trial because it did not provide for a new trial after a finding of guilt.

The only material difference between a finding or verdict of guilt is the means by which the conclusion was reached: bench or jury trial. The difference does not change the policy behind allowing a motion for new trial and giving the trial judge the authority to undo the proceedings. We recognized this when we permitted motions for new trial to be heard after a finding (bench trial) or verdict (jury trial) of guilt. See Tex. R. App. P. 21.1. The differences between the imposition of deferred adjudication and regular community supervision are also not significant enough to warrant different treatment regarding motion for new trial practice.

When a potential error has occurred and is brought to the attention of the trial court in a motion for new trial, I see no advantage to the defendant, the State, or society to forbid the trial court to rule on the merits of the claim. The motion for new trial gives the trial judge an opportunity, while he still has jurisdiction, to fix potential errors before the case is appealed a higher court. The trial judge, who is already familiar with the case, is in a better position to review the merits of the claim.

The fact that there are other remedies available to the deferred adjudication defendant does not weigh in favor of the majority's position. Defendants who receive regular community supervision also have other remedies. They too can file an application for writ of habeas corpus, and we do not use that reason to deny the trial court the authority to rule on the merits of the motion for new trial. It simply makes more sense to give the trial court an opportunity to rule on the merits in temporal proximity to the events under review.

The majority says that we treat deferred adjudication defendants differently in some situations, but fails to explain why they should be treated differently in this instance. Consider the legislature's purpose in creating deferred adjudication: to give trial judges the discretion to avoid a conviction when it serves the best interest of society and the defendant. Tex. Code Crim. Proc. art. 42.12 5(a). The legislature gives trial judges the authority to defer adjudication, but the majority denies trial judges the authority to grant a new trial if mistakes were made in the proceedings.

I disagree with the majority's conclusion that a motion for new trial is not authorized after deferred adjudication proceedings. Therefore, I respectfully dissent.

Delivered: January 30, 2002.

Publish.

1. The majority notes that Rule 21.1 comes from former Code of Criminal Procedure article 40.01, which defined a new trial as "the rehearing of a criminal action, after verdict, before the judge or another jury."