THE STATE OF TEXAS, Appellant v. DARRELL DWAYNE CANNON, Appellee

REVERSED AND REMANDED WITH INSTRUCTIONS;
Opinion Issued March 17, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00530-CR
............................
THE STATE OF TEXAS, Appellant
V.
DARRELL DWAYNE CANNON, Appellee
.............................................................
On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 003-85775-03
.............................................................
OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Moseley
        Darrell Dwayne Cannon pleaded not guilty to the misdemeanor offense of driving while intoxicated, waived a jury trial, and was found guilty.   See Footnote 1  The trial court sentenced him to thirty days' confinement in the county jail, then suspended the sentence and placed him on community supervision for six months; the court also assessed a $500 fine. Thereafter, Cannon filed a motion for new trial, which the trial court granted. The State appeals.   See Footnote 2  For the reasons set forth below, we reverse the trial court's order granting new trial, reinstate the judgment of conviction, remand this case to the trial court, and order it to proceed as if it had not granted a new trial.
PROCEDURAL BACKGROUND   See Footnote 3 
        The trial court pronounced sentence on March 4, 2009. On March 26, Cannon filed a motion for new trial on grounds that “the verdict is contrary to the law and the evidence.” At the April 9 hearing on the motion, the State interrupted Cannon's counsel's introductory statement, saying
 
The [S]tate will object to the Court's consideration of any issues not specifically raised in the motion for new trial. It doesn't give us notice to prepare for it. He is not entitled to have an amendment, including an oral amendment, outside the 30-day period, so we would object to anything outside the specific allegations in the motion for new trial.
 
The trial court pointed out that the motion is “pretty general.” After further colloquy between the trial court and the State, the State said that Cannon was entitled to proceed on the specific ground in his motion and repeated that, to obtain a hearing on a motion alleging grounds outside the record, Cannon should have attached an affidavit of someone with personal knowledge explaining the rationale to support it. Otherwise, the State “had no idea what the issue was, no opportunity to prepare for it or prepare to rebut it.” The State also argued that “trying to bring in anything additional to just the generic ground that doesn't give any facts is an out-of-time amendment and should not be allowed.” The trial court overruled the objection.
        Cannon's counsel argued he failed to provide effective assistance and also stated that, in light of the postponements, Cannon was entitled to a new trial in the interest of justice. After further argument, the trial court overruled the State's objection. Finally, Cannon's counsel summed up his argument by stating he rendered ineffective assistance of counsel. The State objected to any consideration under that ground because it was not in the motion for new trial. On April 9, 2009, the trial court orally granted the motion for new trial and signed an order to that effect dated April 9, 2009. The court also signed another order, dated April 20, 2009, stating that on April 9 it granted Cannon a new trial “in the interests of justice.” On May 1, 2009, the trial court denied the State's motion to reconsider. This appeal followed.
        In its first argument, the State contends the trial court erred by granting Cannon's motion for new trial on the basis of ineffective assistance of counsel because Cannon did not raise this issue in his motion and the State objected.
APPLICABLE LAW AND STANDARD OF REVIEW
        A motion for new trial may be filed no later than thirty days after the date the trial court imposed or suspended sentence in open court. Tex. R. App. P. 21.4(a). A defendant may, without leave of court, file amended motions for new trial within thirty days after the date the trial court imposed or suspended sentence in open court but before the court overrules any preceding motion for new trial. Tex. R. App. P. 21.4(b). As long as a trial court retains authority to rule on a timely filed original motion for new trial, the trial court may allow amendments to that motion and rule on that amendment if the State does not object. State v. Moore, 225 S.W.3d 556, 569 (Tex. Crim. App. 2007); see Tex. R. App. P. 21.8(a) (providing that trial court must rule on a motion for new trial within seventy-five days after imposing or suspending sentence in open court).
        The defendant must be granted a new trial, or a new trial on punishment, for any of the grounds listed in rule of appellate procedure 21.3. See Tex. R. App. P. 21.3(a)-(h). A defendant can also raise ineffective assistance of counsel by way of a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). The trial court also has discretion to grant a motion for new trial “in the interest of justice.” See State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993).         We review a trial court's ruling on a motion for new trial under the abuse of discretion standard. See id. at 696. Abuse of discretion occurs when the trial court's decision is arbitrary or unreasonable, that is, when it acts without reference to any guiding rules and principles. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
DISCUSSION
        Here, Cannon's timely filed motion for new trial raised only one ground: the verdict is contrary to the law and the evidence. The record does not show that Cannon filed an amended motion for new trial. The additional grounds-in the interest of justice and ineffective assistance of counsel-were first raised at the hearing, which was held more than thirty days after the trial court suspended Cannon's sentence in open court. We construe raising these grounds as an attempt to amend the motion for new trial “out of time,” to which the State objected. The trial court's order granting new trial specifically states it was doing so “in the interests of justice.”
        The procedural issue raised by the State is controlled by the court of criminal appeals's holding in Moore. See Moore, 225 S.W.3d at 569. In response, Cannon first directs our attention to a different procedural issue, where a trial court improperly grants a new trial on its own motion. For example, in Zaragosa v. State, 588 S.W.2d 322, 323, 324 (Tex. Crim. App. [Panel Op.] 1979), the defendant filed a motion for new trial but withdrew it at the commencement of the hearing on it. The trial court nevertheless granted a new trial, which the reviewing court characterized as improperly “granting a new trial motion of its own accord.” Zaragosa and other like cases cited by Cannon are not on point.
        Next, Cannon relies on cases in which the trial court granted a motion for new trial on grounds not expressly requested, including in the interest of justice. See State v. Kelley, 20 S.W.3d 147 (Tex. App.-Texarkana 2000, no pet.); State v. Read, 965 S.W.2d 74 (Tex. App. -Austin 1998, no pet.); State v. Gill, 967 S.W.2d 540 (Tex. App.-Austin 1998, pet. ref'd). Because these cases do not involve the State's objection, they are also not on point.
        The record shows Cannon attempted to amend his motion for new trial beyond the thirty-day deadline by raising two additional grounds at the hearing, the State objected to consideration of any untimely raised grounds, but the trial court granted new trial on one of them. In doing so, the trial court abused its discretion. See Moore, 225 S.W.3d at 569; Gonzalez, 855 S.W.2d at 696.
        Cannon also argues that a motion for new trial requesting a new trial based on the “interests of justice” is broad enough to encompass an argument of ineffective assistance of counsel. Regardless of the answer, Cannon's assertion does not avail him here, as his motion asserted neither of these grounds and the State's timely objection precluded the trial court from granting a new trial on either of them. We also need not address the remainder of the State's arguments. See Tex. R. App. P. 47.1.
        We reverse the trial court's order granting new trial, reinstate the judgment of conviction, remand this case to the trial court, and order it to proceed as if it had not granted a new trial. See Zaragosa, 588 S.W.2d at 327.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090530F.U05
 
 
Footnote 1 Cannon was previously convicted of this offense, and this Court affirmed. The court of criminal appeals reversed his conviction on his complaint of ineffective assistance of counsel and remanded the case to the trial court. This appeal follows the trial on remand.
Footnote 2 See Tex. Code Crim. Proc. art. 44.01(a)(3) (Vernon Supp. 2009) (“The state is entitled to appeal an order of a court in a criminal case if the order: . . . grants a new trial[.]”).
Footnote 3 We relate only that part of the background pertinent to the disposition of this appeal.