Opinion
NUMBER 13-16-00361-CR
08-02-2018
FRANK GONZALEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
In 2007, appellant Frank Gonzalez pleaded guilty to five counts of aggravated sexual assault of a child, each a first-degree felony, alleged to have been committed between July and August of 1992. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2017 1st C.S.). The trial court deferred adjudication and placed appellant on community supervision for ten years. The State filed a motion to revoke in 2016. The trial court granted the motion, adjudicated appellant guilty, and sentenced him to twelve years' imprisonment. Appellant contends that the trial court erred by denying his motion for new trial. We affirm.
I. BACKGROUND
The State's motion to revoke alleged that appellant violated various conditions of his community supervision, including: failing to pay a fine, court costs, and fees; entering the premises of a private school; making deceptive statements at a polygraph examination; having contact with minor children under the age of 17 without permission from the court; and accessing the internet without permission from the court. At the revocation hearing, the State abandoned the failure to pay allegations and appellant, represented by appointed counsel, pleaded "true" to all but two of the remaining allegations.
After the trial court revoked his community supervision and adjudicated him guilty, appellant retained new counsel to file a "Motion for Reconsideration or Reduction of Sentence" requesting that community supervision be continued. This motion was accompanied by several letters attesting to appellant's character, including one by his sex offender counselor and several by his family members. Appellant's new trial counsel also filed a "Motion For New Trial and Motion in Arrest of Judgment" arguing that the verdict is contrary to the law and the evidence and that the sentence "is too severe." Attached to this motion was an affidavit by new trial counsel stating: "Defendant alleges ineffective assistance of counsel. Counsel did not fully communicate all possible defenses regarding the Motion to Revoke. Court appointed counsel did not adequately explain waiver of rights or court's written admonishments."
After a very brief hearing during which no testimony was taken, the motions were denied by operation of law. See TEX. R. APP. P. 21.8(c). This appeal followed.
The trial court did not explicitly deny the motions at the hearing, stating instead only as follows: "[Defense counsel], I'm going to give you an opportunity for another hearing before the Court of Criminal Appeals. File your appeal." In any event, the record contains no written ruling on the motions; therefore, they are deemed denied by operation of law. See TEX. R. APP. P. 21.8(c) ("A motion [for new trial] not timely ruled on by written order will be deemed denied [75 days after the court imposes or suspends sentence in open court]."); see also In re Dixon, 346 S.W.3d 906, 910 (Tex. App.—Tyler 2011, orig. proceeding) ("A motion for reconsideration is equivalent to a motion for new trial.").
The State has not filed a brief to assist us in the resolution of this appeal.
II. DISCUSSION
Appellant argues by one issue on appeal that the trial court erred by denying his motion for new trial because it did not conduct a separate hearing on punishment at the revocation hearing.
On appeal, appellant does not explicitly challenge the denial of his "Motion for Reconsideration or Reduction of Sentence."
A. Applicable Law and Standard of Review
We review a trial court's denial of a motion for new trial for abuse of discretion. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). Under this standard, we must uphold the ruling if it is within the zone of reasonable disagreement, and we will reverse only if no reasonable view of the record could support the ruling. Id.
"An essential element of [a motion for new trial] is that the matter of error relied upon for a new trial must be specifically set forth therein." State v. Zalman, 400 S.W.3d 590, 593-94 (Tex. Crim. App. 2013) (quoting State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993); Harvey v. State, 201 S.W.2d 42, 45 (Tex. Crim. App. 1947)). The accused is required to allege sufficient grounds to apprise the trial court and the State as to why he believes he is entitled to a new trial. Id. at 594 (explaining that the motion must contain enough detail to give the other party notice of what is being complained of so that it can properly prepare for the hearing); see TEX. R. APP. P. 33.1(a). The trial court has no authority to grant a motion for new trial based on a ground not raised in the motion. State v. Provost, 205 S.W.3d 561, 570 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding that an allegation of insufficient evidence to support the verdict did not support new trial on grounds of ineffective counsel); see Gonzalez, 855 S.W.2d at 694-95.
B. Analysis
"When a trial court finds that an accused has committed a violation as alleged by the State and adjudicates a previously deferred finding of guilt, the court must then conduct a second phase to determine punishment." Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (reversing and remanding for resentencing because "appellant was improperly sentenced without being given an opportunity to present evidence prior to sentencing"); see TEX. CODE CRIM. PROC. ANN. art. 42A.110 (West, Westlaw through 2017 1st C.S.) ("After an adjudication of guilt, all proceedings, including 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."). But the right to a separate punishment hearing is a statutory right which can be waived. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001) (citing Issa, 826 S.W.2d at 161). Accordingly, any complaint on appeal regarding the lack of a punishment hearing following revocation of deferred-adjudication community supervision is waived if trial counsel does not object at the time sentence is pronounced or in a motion for new trial. See id.; see also TEX. R. APP. P. 33.1(a); Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007) ("If appellant wanted an opportunity to present evidence and argument on the question of punishment, it was incumbent upon him to ask for that opportunity and to be ready to present such evidence and argument as soon as the trial court announced its finding that he had violated the conditions of his probation. Part of being prepared for a revocation hearing is being prepared to present evidence and argument on the question of the proper disposition in the event that the trial court finds that the conditions of probation have been violated.").
In this case, appellant's initial trial counsel did not object at the revocation hearing to a lack of a punishment phase, and appellant's second trial counsel did not raise the issue in his written motion for new trial. Appellant concedes that the issue was not raised at the revocation hearing but argues that the motion for new trial "preserved error by context." In particular, he notes that the post-judgment motions "alleg[ed] general defects in the revocation of [his] probation" and that, at the new trial hearing, his second trial counsel remarked that "there were some things that, perhaps, were not brought up properly before the Court." Appellant further contends that "[t]he trial court's comments also show it understood the problem with the previous hearing."
Appellant does not argue on appeal that his second trial counsel provided ineffective assistance by failing to argue that his first trial counsel provided ineffective assistance by failing to request the opportunity to present punishment evidence.
We find appellant's arguments unavailing. Grounds for new trial must be raised in a written motion in order to be preserved for appeal, see Provost, 205 S.W.3d at 565-66, and the trial court has no authority to grant a new trial on its own motion. Ex parte Ybarra, 629 S.W.2d 943, 945 (Tex. Crim. App. 1982); Zaragosa v. State, 588 S.W.2d 322, 326-27 (Tex. Crim. App. 1979). We find nothing in either post-judgment motion—even considering the attachments as though they were fully set forth therein—so much as intimating that appellant objected to the lack of a separate punishment phase at the revocation hearing. Instead, appellant complained that the sentence was too severe and contrary to the evidence, and that his first trial counsel was ineffective because he did not "fully communicate all possible defenses" or "adequately explain waiver of rights" or the court's admonishments. Under these circumstances, neither the trial court nor the State were apprised of appellant's apparent belief that he was entitled to a new, separate punishment hearing. See Zalman, 400 S.W.3d at 593-94. Accordingly, the issue has not been preserved for our review. See TEX. R. APP. P. 33.1(a); Vidaurri, 49 S.W.3d at 886. We overrule it.
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of August, 2018.