State v. Gonzalez
| Decision Date | 17 October 1991 |
| Docket Number | Nos. 05-91-00286-C,05-91-00287-CR,s. 05-91-00286-C |
| Citation | 820 S.W.2d 9 |
| Parties | The STATE of Texas, Appellant, v. Rolando GONZALEZ, Appellee. , and 05-91-00288-CR. |
| Court | Texas Court of Appeals |
Tom O'Connell, J. Matthew Geoller, McKinney, for appellant.
Kenneth G. Wincorn, Dallas, for appellee.
Before ROWE, KINKEADE and MALONEY, JJ.
Urging two points of error, the State appeals the trial court's order granting a motion for new trial. We overrule the State's first point of error, finding that the trial court did not abuse its discretion in granting the motion. We overrule the State's second point of error, finding waiver. We affirm the trial court's order.
Appellee Rolando Gonzalez pleaded guilty without the benefit of a plea bargain to three felony cases of delivery of marijuana. At the conclusion of the sentencing hearing, the trial court assessed punishment at three years' confinement in two of the cases and five years' probation in the third case. One week later, Gonzalez filed a motion for new trial in each of the cases. In his motion, Gonzalez requested, "in the interest of justice," that he be allowed to present witnesses who were unavailable at the time of the earlier proceeding.
At a hearing on the motion, Gonzalez called only one witness--his uncle, who is the chairman for the Commission for Drug and Substance Abuse for the City of Dallas. The witness testified that he was unavailable at the time of the earlier proceeding, and he requested that a new trial be granted so that his testimony could be considered. Although the witness said nothing about the content of his testimony, Gonzalez's lawyer represented that this witness's testimony could have a substantial impact on the court's consideration upon retrial. The State did not cross-examine the witness or controvert his testimony. The State only asked that the court deny the motion. At the conclusion of the hearing, the trial court granted the motion for new trial. It is from this order that the State appeals. TEX.CODE CRIM.PROC.ANN. art. 44.01 (Vernon Supp.1991).
In its first point of error, the State contends that the trial court abused its discretion in granting Gonzalez's motion for new trial because Gonzalez did not establish that he fell within one of the "statutory" grounds requiring the court to grant a motion for new trial. Specifically, rule 30(b) of the Texas Rules of Appellate Procedure provides that "[a] new trial shall be granted an accused for the following [nine] reasons...." TEX.R.APP.P. 30(b). The State asserts that the movant must allege and prove that he falls within one of these nine grounds before the trial court can grant a motion for new trial. Arguing that Gonzalez neither alleged nor proved that he fell within one of these grounds, the State asserts that the trial court abused its discretion in granting the motion for new trial. We disagree.
The State's strict construction of the language of rule 30(b) is not justified. It is well established that the granting or denying of a motion for new trial lies within the sound discretion of the trial court. Appleman v. State, 531 S.W.2d 806, 810 (Tex.Crim.App.1975); Fielding v. State, 719 S.W.2d 361, 364 (Tex.App.--Dallas 1986, pet. ref'd). This principle, as applied to criminal cases, has been scrutinized exclusively in cases in which the trial court denied a motion for new trial because the State only recently attained the statutory right to appeal the granting of a motion for new trial. Examining case law in which the trial court denied a motion for new trial, however, illustrates the relationship between the language of rule 30(b) and the court's discretion in granting a motion.
For example, rule 30(b)(6) states that "[a] new trial shall be granted an accused ... where new evidence favorable to the accused has been discovered since trial." TEX.R.APP.P. 30(b)(6). To establish a prima facie case for the granting of a motion on this ground, the defendant must prove two elements: (1) that there is competent and material evidence, the existence of which was unknown to defendant at the time of his trial; and (2) that defendant's failure to discover the evidence prior to trial or to utilize the evidence at the time of trial was not a result of any want of diligence on his part. Jones v. State, 711 S.W.2d 35, 36 (Tex.Crim.App.1986). Even if the defendant establishes a prima facie case, however, the trial court may, in its discretion, deny the motion. For example, the trial court may deny the motion if it appears that, under the circumstances of the particular case, the credibility or weight of the new evidence is not such as would probably bring about a different result upon a new trial. Id. at 37.
As Jones illustrates, a trial court does not lose its discretion to deny a motion for new trial even if a defendant complies prima facie with rule 30(b). We hold, as a corollary, that a trial court does not lose its discretion to grant a motion for new trial even if a defendant fails to comply prima facie with rule 30(b). The rule's list of circumstances under which the trial court must grant a motion for new trial is not an exclusive one.
More specifically, we conclude that a trial court...
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