State v. Gonzalez

• Decision Date: 14 April 1993
• Docket Number: Nos. 1354-91,s. 1354-91
• Citation: 855 S.W.2d 692
• Parties: The STATE of Texas v. Rolando GONZALEZ, Appellee. to 1356-91.
• Court: Texas Court of Criminal Appeals

Page 692

855 S.W.2d 692

The STATE of Texas v. Rolando GONZALEZ, Appellee.

Nos. 1354-91 to 1356-91.

Court of Criminal Appeals of Texas En Banc.

April 14, 1993.

Rehearing Denied June 16, 1993.

Kenneth G. Wincorn, Dallas, for appellee.

Tom O'Connell, Dist. Atty., and J. Matthew Goeller, Asst. Dist. Atty., McKinney Robert Huttash, State's Atty., and Carl E.F. Dally, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellee, without the benefit of a plea bargain agreement, pled guilty to and was convicted of three separate felony offenses of delivery of marihuana pursuant to Tex.Health and Safety Code Ann. § 481.120. The trial judge assessed punishment at three years confinement for two of the offenses and five years probation for the third. Tex.Penal Code Ann. § 12.34 and Tex.Code Crim.Proc.Ann. art. 42.12, § 3. Appellee filed a "Motion for New Trial and Request for Re-sentencing" in each case. The trial judge granted each motion. The State appealed and the Court of Appeals affirmed. State v. Gonzalez, 820 S.W.2d 9 (Tex.App.--Dallas, 1991). We granted the Collin County District Attorney's and the State Prosecuting Attorney's petitions for discretionary review. We will affirm the judgment of the Court of Appeals.

I.

The facts, correctly set forth by the Court of Appeals, are as follows:

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, Gonzales 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....

State v. Gonzalez, 820 S.W.2d at 10-11.

On direct appeal, the State contended the trial judge erred in granting appellee's motions for new trial which did not allege one of the grounds enumerated in Tex.R.App.P. 30(b). ¹ The Court of Appeals rejected the State's argument holding:

... [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 may, in its discretion, grant a motion for new trial in the interest of justice.

State v. Gonzalez, 820 S.W.2d at 11-12.

II.

The Collin County District Attorney's sole ground for review and the State Prosecuting Attorney's fourth ground for review contend the trial judge erred in granting the motions for new trial which were based on a ground not specifically enumerated in Rule 30(b). ² In Reyes v. State, 849 S.W.2d 812 (Tex.Cr.App.1993), we addressed a similar contention and held "Rule 30(a) does not limit the grounds under which a motion for new trial may be granted but rather provides the trial judge the general authority to grant such a motion." Id. at 813-14. Furthermore, "[t]he grounds listed in Rule 30(b) are illustrative, not exhaustive; the trial judge has the discretion to consider additional grounds for granting a new trial." Id. at 815 (citing Evans v. State, 843 S.W.2d 576 (Tex.Cr.App.1992)). We then held a defendant could raise ineffective assistance of counsel by way of a motion for new trial even though that ground was not listed in Rule 30(b). Id., at 815.

Likewise, in the instant case, the Court of Appeals held Rule 30(b) did not provide an exclusive list for the granting of a motion for new trial. Gonzalez, 820 S.W.2d at 11. The Court of Appeals, citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985) and Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988), concluded that a trial judge may, in his discretion, grant a motion for new trial in the interest of justice. Gonzalez, 820 S.W.2d at 12. The reasoning of the Court of Appeals is sound. For more than one hundred and twenty years, our trial judges have had the discretion to grant new trials in the interest of justice. In Mullins v. State, 37 Tex. 337, 339-340 (1872-73), the Supreme Court, which at that time had criminal jurisdiction, held:

... The discretion of the District Court, in granting new trials, is almost the only protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Court should never hesitate to use that discretion whenever the ends of justice have not been attained by those verdicts.

Accordingly, we hold the trial judge did not err in granting appellee's motions for new trial which were based upon a ground not specifically enumerated in Rule 30(b). The County District Attorney's sole ground for review and the State Prosecuting Attorney's fourth ground for review are overruled.

III.

The State Prosecuting Attorney's first ground of review contends the Court of Appeals erred in holding the trial judge did not abuse his discretion in granting appellee's motions for new trial when appellee failed to allege a factual basis in his motion and failed to offer proof demonstrating the trial judge erred in accepting appellee's guilty pleas. ³

Although Tex.R.App.P. 31(a) does not specify what must be alleged in a motion for new trial, Rule 31(b) provides the State "may take issue" with "any reason set forth by the accused in his motion." In Reyes, we held either the motion for new trial or its supporting affidavit "must reflect that reasonable grounds exist for holding [a new trial] could be granted." Reyes, 849 S.W.2d at 816. Therefore, we hold the accused is required to allege sufficient grounds to apprise the trial judge and the State as to why he believes himself entitled to a new trial. Compare, Texas Dept. of Corrections v. Jackson, 661 S.W.2d 154, 156 (Tex.App.--Houston [1st Dist.] 1983), citing Stone v. Lawyer's Title Insurance Corp., 554 S.W.2d 183 (Tex.1977) ("Pleadings should give fair and adequate notice of the facts upon which the pleader relies in order that the adverse party may properly prepare his defense thereto.").

With this holding in mind, we now turn to appellee's motion for new trial wherein he requested a new trial in the interest of justice "to present witnesses that were not presented at the time of sentencing to testify on behalf of Defendant." The State did not take issue with any reason set forth in the motions. See, Rule 31(b). Indeed, appellee contends the State has waived this ground of review for failing to object in the trial court. App.'s brief pg. 8. We need not address the waiver issue because we find appellee's motions were sufficient to notify the trial judge and the State as to why appellee sought a new trial.

At the hearing on his motions, appellee presented one witness. The witness, who was the chairman of the Commission for Drug and Substance Abuse for the City of Dallas and on the board of directors of Dallas Helps, an organization organized to eradicate drug and substance abuse in the Dallas area, testified he was not available to testify at the sentencing hearing. The witness asked the trial judge to grant a new trial so his testimony could be considered. The State, although offered the opportunity, elected not to cross-examine the witness or otherwise controvert the witness's testimony. At the conclusion of the hearing, appellee's attorney argued the testimony "could have a substantial impact on the Court's considerations regarding punishment;" however, the State merely requested that the motion be denied. The trial judge ruled: "Well, being uncontroverted by the State that this witness was unavailable, then the motion for new trial is granted." (Emphasis added.) The Court of Appeals held: "[b]y relying on the record before it, the trial judge did not abuse its discretion in concluding that a new trial should be granted in the interest of justice." Gonzalez, 820 S.W.2d at 12.

We agree with the Court of Appeals. When the State acquired the right to appeal under Tex.Code Crim.Proc.Ann. art. 44.01(a)(3), the State acquired the corresponding duty to provide the appellate court a record subject to meaningful appellate review. Trevino v. State, 565 S.W.2d 938, 941 (Tex.Cr.App.1978) ("[T]he hearing on [a motion for new trial] is for the purpose of deciding whether the cause shall be retried ... and to prepare a record for presenting issues on appeal in the event the motion is denied."). When a motion for new trial raises matters not determinable from the record, the trial judge abuses his discretion in failing to hold a hearing pursuant to Rule 31(d). Reyes, 849 S.W.2d at 816. The hearing requirement provides either party an opportunity to develop a record for appellate review, should either party elect to appeal the decision on the motion for new trial.

As previously noted, the State elected not to cross-examine or otherwise controvert the testimony of the witness who testified in support of the motion for...