On June 25, 2014, the Texas Court of Criminal Appeals ruled in Lundgren v. State, 34 S.W. 3d (Tex. Crim. App. 2014) that a motion for new trial “retroactively stayed the commencement of community supervision” until the motion was overruled by operation of law. The ruling saved Mr. Lundgren from 300 days in the Wise County jail resulting from a motion to revoke probation and a felony DWI in Tarrant County. It was a masterful use of the motion by criminal defense attorney, Barry Green.

Mr. Lundgren had plead to DWI and received community supervision in Wise County (DWI-1). A week later, Lundgren was arrested for DWI in Tarrant County (DWI-2). Barry quickly (and timely) filed a motion for new trial in DWI-1, before the State filed their motion to revoke. Lundgren’s DWI-1 probation was, nevertheless, revoked and the Second Court of Appeals affirmed. SeeLundgren v. State, 417 S.W.3d 11 (Tex. App. – Fort Worth 2013). However, the CAA ruled the commencement of Lundgren’s DWI-1 probation was stayed before his arrest for DWI-2. In other words, the timely motion for new trial retroactively stopped the probation from ever beginning. A clever use of the motion for new trial, indeed.


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


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