State v. EllisState v. Ellis
- Reporters:
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- Before:
- Taft
OPINION
TAFT, Justice.Appellee, Gerard Joseph Ellis, pleaded guilty to the offense of aggravated sexual assault of a child pursuant to a plea agreement with the State. The trial court found the evidence substantiated appellee’s guilt and assessed nine years deferred adjudication and a $500 fine. Appellee filed a motion for new trial, which the trial court granted. The State appeals from that ruling. We address (1) whether a trial court can grant a motion for new trial to an unadjudicated defendant, and (2) whether the trial court could grant appellee’s motion to withdraw his plea of guilty. We affirm.
Facts
On May 21, 1997, the day after receiving deferred adjudication, appellee approached the trial judge at the courthouse, asserted his innocence, and stated that he “wished to withdraw his plea of guilty. The trial judge appointed an attorney to inform appellee of the consequences of withdrawing his plea. That attorney filed a motion for new trial alleging only that the trial court’s judgment was contrary to the law and evidence in the case. On June 16, 1997, new counsel was appointed to represent appellee at the hearing on his motion for new trial.
Motion for New Trial
In a single point of error, the State contends that the trial court had no authority to grant appellee’s motion for new trial after appellee was placed on deferred adjudication community supervision. The State refers us to
State v. Davemport,
in which the court held that a defendant placed on deferred adjudication has no right to pursue a motion for new trial. 866 S.W.2d 767, 769-70 (Tex.App.— San Antonio 1993, no pet.). In that case, following Davenport’s plea of
not guilty
and a subsequent bench trial, the trial court found Davenport guilty of assault.
Id.
at 769. Without proceeding to the punishment stage of the required bifurcated trial, the court assessed punishment at six-months deferred adjudication.
Id.
Davenport filed a motion for new trial alleging newly discovered evidence and challenging the sufficiency of the evidence.
Id.
The trial court signed an order granting Davenport’s motion for new trial, and the State appealed from the court’s order.
Id.
On appeal, the San Antonio court held that, because deferred adjudication is limited to defendants who plead guilty or nolo contendere, and because by its terms such a sentence precludes an adjudication of guilt, the trial court acted without the authority of law by placing Davenport on deferred adjudication.
Id.
at 769-70. The court went on to hold that, even though the trial court had improperly placed him on deferred adjudication, Davenport had no right to pursue a motion for new trial.
Id.
at 770. The court relied on rule 30(a), Texas Rules of Appellate Procedure, which at that time stated “A new trial is the rehearing after a finding or verdict of guilty has been set aside upon motion of an accused.” Former
Although arguably
dicta
in
Davenport,
we agree with the Fourth Court of Appeals that a motion for new trial contemplates an adjudication. Therefore, the trial court erred in granting appellee’s motion for new trial. That action was a nullity. Nevertheless, the trial court’s very next action was to allow appellee to withdraw his plea of guilty. It is clear from the trial court’s comments at the motion for new trial hearing that his only basis for granting the motion was to allow appellee to change his plea and proceed to trial. It is equally clear that appellee intended the motion, which contained no substantive allegations, to be the vehicle through which he could withdraw his plea of guilty. The effect of granting a motion to withdraw a plea of guilty is indistin
A liberal practice prevails in this state concerning the withdrawal of a guilty plea. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979). A defendant may withdraw his guilty plea as a matter of right until judgment has been pronounced or the case has been taken under advisement. Id. However, when the defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. Id. In this ease, appellee’s motion was filed after judgment was entered, and the court’s decision to grant the motion was committed to its discretion. See Washington v. State, 893 S.W.2d 107, 109 (Tex.App. — Dallas 1995, no pet.) (holding that court’s decision to grant or deny motion to withdraw guilty plea made one year after defendant placed on deferred adjudication was a matter for the trial court’s discretion). We find no evidence in the record showing an abuse of discretion by the trial court in granting appellee’s motion.
Conclusion
Accordingly, although we sustain the State’s sole point of error, we deny the State’s requested relief because the trial court properly granted appellee’s motion to withdraw his plea of guilty. We order that the judgment be changed from “Motion for New Trial granted” to “Motion to Withdraw Plea of Guilty granted.”
Notes
. Rule 21.1 of the current rules of appellate procedure provides similarly, in pertinent part:
“New trial
means the rehearing of a criminal action after the trial court has, on the defendant‘s motion, set aside a finding or verdict of guilt.”