State v. Mario Wade ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-99-00063-CR



The State of Texas, Appellant

v.

Mario Wade, Appellee



FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT NO. 97-020, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

On February 5, 1997, a grand jury indicted Mario Wade for the felony offense of aggravated assault. See Tex. Penal Code Ann. § 22.02(a) (West 1994). The indictment alleged that on or about November 9, 1996, Wade intentionally and knowingly caused serious bodily injury to Jeffrey Gonzales by striking him with a deadly weapon, a knife.

On July 9, 1997, Wade pleaded guilty pursuant to a plea agreement for deferred adjudication. Judge Bill Bender rejected the plea agreement, allowed Wade to withdraw his plea, and reset the case on the jury docket. Before trial, Wade requested that in the event of a conviction, the imposition of sentence be suspended and that he be placed on regular community supervision as provided by article 42.12 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3(a) (West Supp. 1999).

On July 27, 1998, the date of the jury trial, Wade pleaded guilty before Judge Don Morgan, and the jury panel was discharged. An amended plea agreement called for the State to recommend no greater punishment than 10 years' confinement in prison, a fine of $1,000, and a deadly weapon finding, and recited that "at sentencing hearing--defendant will present evidence in support of probation and/or deferred adjudication." Wade was permitted to amend his community supervision motion to include deferred adjudication. For reasons not set forth in the record, Judge Morgan did not sign the order appearing at the end of the amended plea agreement. The order states that the court "finds that the plea, waivers, agreements, stipulations, and consent of Defendant were freely and voluntarily made, after full and complete admonishments by the Court, and further, the Court in all things approves the waiver of a jury in this cause and the agreement to stipulate to the evidence."

An instrument containing the written admonishments, plea agreement, waiver of trial by jury, waiver of rights, and stipulation of evidence was signed and sworn to by Wade. It was approved by his attorney and the prosecutor. The instrument (State's exhibit no. 1) was admitted into evidence by the trial court. The court then requested a presentence investigation. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9 (West Supp. 1999).

The sentencing hearing ⁽¹⁾ was held on December 8, 1998 before Judge Charles Ramsay. Three witnesses, including the victim, testified for the State, and two witnesses testified for Wade. At the end of the hearing, Wade requested deferred adjudication. Judge Ramsay rejected Wade's request, found that Wade had committed aggravated assault with a deadly weapon, and sentenced him to ten years' confinement, plus the payment of $9,500 in restitution to the victim.

Wade filed a motion for new trial on January 5, 1999. The motion was not verified or supported by affidavit. In the motion, Wade alleged that: (1) his guilty plea was involuntary because he was misled as to the punishment alternatives available to the court; and (2) his guilty plea was involuntary because the "admonishments, plea agreement, waiver of rights, and stipulation of evidence" regarding his plea were not approved by the court as required by article 26.13(d) of the Texas Code of Criminal Procedure. ⁽²⁾ Judge Ramsay granted Wade's motion and ordered a new trial.

On appeal, the State challenges the trial court's decision to grant Wade a new trial on four grounds. ⁽³⁾ First, the State contends that Wade's motion for new trial was insufficient as a pleading to entitle him to a new trial because it was unverified and unsupported by affidavit. Next, the State argues that there was insufficient evidence to establish that Wade was misled concerning punishment alternatives available to the trial court at sentencing or that Wade's guilty plea was involuntary. Finally, the State contends that there was insufficient evidence to establish that the guilty plea was not received and approved by the trial court in compliance with article 26.13(d) of the Code of Criminal Procedure.

DISCUSSION

The decision to grant a motion for new trial lies within the discretion of the trial court, and appellate courts ordinarily will not reverse that decision unless the trial court has abused its discretion. See Rent v. State, 982 S.W.2d 382, 384 (Tex. Crim. App. 1998); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. See Gonzalez, 855 S.W.2d at 695 n.4 (citing Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)).

In his motion for new trial, Wade first contended that the phrase "at sentencing hearing--defendant will present evidence in support of probation and/or deferred adjudication," written in the plea agreement by the assistant district attorney of Caldwell County, misstated the law and caused Wade to erroneously believe that he was eligible to receive probation. In Texas, the judge-ordered community supervision of article 42.12, section 3(a) of the Code of Criminal Procedure is commonly referred to as "regular community supervision" or "regular probation." See Brown v. State, 943 S.W.2d 35, 39 (Tex. Crim. App. 1997); see also Rodriguez v. State, 939 S.W.2d 211, 221 (Tex. App.--Austin 1997, no pet.); Rocha v. State, 903 S.W.2d 789, 791 (Tex. App.--Dallas 1995, no pet.). The type of community supervision authorized by article 42.12, section 5(a) is referred to as "deferred adjudication" or "deferred adjudication probation." See Brown, 943 S.W.2d at 39; see also Rodriguez, 939 S.W.2d at 221; Rocha, 903 S.W.2d at 791. Because Wade was indicted for aggravated assault with a deadly weapon, he was eligible for "deferred adjudication probation" but not "regular probation." See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3g(a)(2), 5(a).

At the hearing on Wade's motion for new trial, the trial court heard argument from both Wade's counsel and the Caldwell County district attorney. The trial court reasoned that because the plea agreement was phrased in terms of Wade presenting evidence in support of "probation and/or deferred adjudication," Wade could have been led to believe that he was eligible for regular probation, when in fact he was eligible only for deferred adjudication probation. The court observed, "couldn't the defendant think that the judge would say, 'Okay. I'm not going to give you deferred adjudication, but I'll give you probation,' because that's exactly what it says." On this basis, the trial court granted Wade a new trial without hearing evidence.

The State argues that to prevail on a motion for new trial, a defendant must support the allegations of the motion with evidence. See Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985), overruled on other grounds, 780 S.W.2d 802 (Tex. Crim. App. 1989). The State contends that by granting Wade's motion without hearing evidence, the trial court improperly eliminated Wade's burden of proof and thus abused its discretion. While it is true that a defendant in a criminal case must establish the truth of the allegations contained in his motion for new trial, see id., we do not agree with the State's contention that Wade's failure to adduce evidence at the hearing precluded the trial court from granting a new trial.

At the hearing on the motion for new trial, Wade's counsel alleged that Wade's guilty plea was the product of misleading language in the amended plea agreement, which was admitted into evidence by Judge Morgan on July 27, 1998. Judge Ramsay reviewed a copy of the agreement before granting Wade a new trial. The copy was displayed by counsel during the hearing. The agreement was a part of the court's records of which the trial court could take judicial notice.

When the matters relied on to support a motion for new trial are determinable from the record, it is not necessary for a defendant to support the motion for new trial with additional evidence. ⁽⁴⁾ See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); see also State v. Daniels, 761 S.W.2d 42, 44 (Tex. App.--Austin 1988, pet. ref'd) (citing Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983)). Likewise, a motion for new trial based on matters determinable from the existing record is not required to be verified or supported by affidavits. See Conner v. State, 877 S.W.2d 325, 327 n.3 (Tex. Crim. App. 1994) (citing Bearden, 648 S.W.2d at 690 (recognizing that a motion for new trial based on matters outside the record is insufficient as a pleading without verification or an affidavit in support thereof)); Sterling, 791 S.W.2d at 276 (citing Daniels, 761 S.W.2d at 44). Moreover, the State did not object at the hearing on the motion for new trial on the basis that the motion was not verified or supported by affidavits. See Tex. R. App. P. 33.1.

In this case, the trial court found that the matters raised by Wade in his motion for new trial were determinable from the record; thus, the court did not abuse its discretion by granting a new trial without first hearing evidence. See Darrington v. State, 623 S.W.2d 414, 416 (Tex. Crim. App. 1981). Moreover, nothing in the record before this Court establishes that Judge Ramsay acted arbitrarily or unreasonably in concluding that the language of the amended plea agreement was misleading and could have led to an involuntary guilty plea.

CONCLUSION

Whether to grant a new trial is a matter within the trial court's discretion. See Gonzalez, 855 S.W.2d at 696. Having determined that the trial court acted within its discretion in granting Wade a new trial based on the first issue raised in his motion, we need not consider the State's arguments concerning Wade's second issue. The trial court order granting Wade a new trial is affirmed.

Jan P. Patterson, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: December 2, 1999

Do Not Publish

1. Once a guilty plea has been entered, the trial is not bifurcated, rather, the unitary trial procedure is to be used regardless of whether the guilty plea is entered before the trial judge or jury. See Frame v. State, 615 S.W.2d 766, 767 n.1 (Tex. Crim. App. 1981). Although erroneous, bifurcating a guilty plea trial does not, in the absence of an objection, cause reversible error. See Nunez v. State, 565 S.W.2d 536, 539 (Tex. Crim. App. 1978) (Onion, J., concurring).

2. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (West 1989) ("The court may make the admonitions required by this article either orally or in writing. If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea. If the defendant is unable or refuses to sign the statement, the court shall make the admonitions orally.").

3. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3) (West Supp. 1999) ("The state is entitled to appeal an order of a court in a criminal case if the order . . . grants a new trial.").

4. Matters raised by a motion for new trial that are not determinable from the record include allegations of jury misconduct, newly discovered evidence, and ineffectiveness of counsel. See Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985); Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983); Sterling v. State, 791 S.W.2d 274, 276 (Tex. App.--Corpus Christi 1990, pet. ref'd).

ice.

When the matters relied on to support a motion for new trial are determinable from the record, it is not necessary for a defendant to support the motion for new trial with additional evidence. ⁽⁴⁾ See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); see also State v. Daniels, 761 S.W.2d 42, 44 (Tex. App.--Austin 1988, pet. ref'd) (citing Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983)). Likewise, a motion for new trial based on matters determinable from the existing record is not required to be verified or supported by affidavits. See Conner v. State, 877 S.W.2d 325, 327 n.3 (Tex. Crim. App. 1994) (citing Bearden, 648 S.W.2d at 690 (recognizing that a motion for new trial based on matters outside the record is insufficient as a pleading without verification or an affidavit in support thereof)); Sterling, 791 S.W.2d at 276 (citing Daniels, 761 S.W.2d at 44). Moreover, the State did not object at the hearing on the motion for new trial on the basis that the motion was not verified or supported by affidavits. See Tex. R. App. P. 33.1.

In this case, the trial court found that the matters raised by Wade in his motion for new trial were determinable from the record; thus, the court did not abuse its discretion by granting a new trial without first hearing evidence. See Darrington v. State, 623 S.W.2d 414, 416 (Tex. Crim. App. 1981). Moreover, nothing in the record before this Court establishes that Judge Ramsay acted arbitrarily or unreasonably in concluding that the language of the amended plea agreement was misleading and could have led to an involuntary guilty plea.

CONCLUSION

Whether to grant a new trial is a matt