Gordon II, Nathan v. State
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Opinion
Affirmed and Memorandum Opinion filed April 29, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-02-01232-CR
NO. 14-02-01233-CR
NO. 14-02-01234-CR
NATHAN GORDON, II, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause Nos. 907,550; 907,002;907,001
M E M O R A N D U M O P I N I O N
Appellant Nathan Gordon, II, pleaded no contest to two aggravated robbery charges and to aggravated assault on a public servant, and the trial court sentenced him to 40 years= confinement on each count to run concurrently in the Texas Department of Criminal Justice, Institutional Division. In one point of error, appellant claims the trial court abused its discretion by failing to conduct a hearing on his motion for new trial. We affirm.
On November 17, 2002, appellant filed a pro se motion for new trial, alleging ineffective assistance of trial counsel, and a pro se notice of appeal. The trial court never ruled on the motion for new trial, and it was therefore overruled by operation of law. In his notice of appeal, appellant requested appointment of appellate counsel, and stated he had not been represented by counsel since sentencing. In his argument on appeal that the trial court erred by failing to conduct a hearing on his motion for new trial, appellant moved to abate the appeal and sought leave to file an out-of-time motion for new trial, contending he had not been represented by counsel during the thirty-day period between the day he was sentenced and the day his motion for new trial was due to be filed with the trial court. Because we found appellant had overcome the presumption that he was represented by counsel during the thirty-day period, we abated the appeal for a hearing to determine whether appellant had counsel during the period of which he complained.
The trial court held the requested hearing on January 23, 2004, and made the following findings of fact:
$ Appellant retained an attorney, Reo Harris, to represent him at trial.
$ Appellant never instructed nor indicated to Harris that he wanted to file a motion for new trial or a notice of appeal.
$ Appellant and Harris had a discussion directly after the sentencing hearing in the holdover cell adjacent to the courtroom. Appellant and Harris discussed the meaning and effect of the judgment that he received. Appellant and Harris discussed the merits of an appeal, and the fairness of the punishment that he had received. Appellant and Harris discussed the advantages and disadvantages of an appeal. Appellant and Harris discussed the issues for 15 to 17 minutes.
$ Although Harris told appellant that he had a right to appeal and to file a motion for new trial, appellant told Harris that he was satisfied with the sentence that he received and did not want to appeal. Appellant did not tell Harris that he would think about an appeal or continue to consider it.
$ Appellant never contacted HarrisCby phone, mail, or through a third partyCto instruct Harris that he wanted to pursue an appeal. Appellant did not send Harris a copy of his pro se filings.
$ Harris did not file a notice of appeal or a motion for new trial. Harris did not withdraw from representation of appellant.
$ If appellant had instructed Harris to file a notice of appeal or a motion for new trial, Harris would have done so, and considered it his duty to do so if instructed.
The trial court also issued conclusions of law. The court concluded that (1) appellant was continually represented by Harris; (2) appellant told Harris he did not want to appeal and never advised Harris that he had changed his mind; and (3) Harris was appellant=s attorney of record during the thirty-day period after sentencing when the motion for new trial and notice of appeal were due.
Having determined appellant was represented by counsel during the thirty-day period after sentencing, we have reinstated the appeal to consider the remainder of appellant=s claims. In his sole point of error, appellant contends the trial court abused its discretion by failing to hold a hearing on his motion for new trial because the motion alleged his trial counsel was ineffectiveCraising matters not determinable from the record. We disagree.
The rules of appellate procedure require that a defendant Apresent@ his motion for new trial to the trial court within specified time limits. Tex. R. App. P. 21.6; Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). The Texas Court of Criminal Appeals has determined that the term Apresent@ means A
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