Jack v. State

64 S.W.3d 694, 2002 Tex. App. LEXIS 168, 2002 WL 24411

• Court: Court of Appeals of Texas
• Decided: January 10, 2002
• Docket: 01-00-00953-CR
• Status: Published

Opinions

ORDER

PER CURIAM.

On March 13, 2001, this Court abated the appeal and remanded the cause “for a hearing to determine whether appellant had counsel, and whether he received effective assistance of counsel, during the 30 day period for filing a motion for new trial.” Jack v. State, 42 S.W.3d 291, 294 (Tex.App.-Houston [1st Dist.] 2001, order). Pending the outcome of that hearing, we delayed ruling on appellant’s request for a remand to enable him to file an out-of-time motion for new trial. See id.

On April 20, 2001, the trial judge held that hearing, finding as follows:

I.

FINDINGS OF FACT

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2. Attorney Jeff Hale was appointed to represent the defendant.

3. Attorney Jeff Hale represented the defendant at his jury trial.

4. On July 6, 2000, the defendant was convicted....

5. On July 6, 2000, a pro se Notice of Appeal was filed. The Notice of Appeal was completed by Mi’. Hale and signed by the defendant at Mr. Hale’s instruction.

6. Mr. Hale did not discuss the merits and/or grounds for a Motion for New Trial with the defendant.

7. Mr. Hale told the defendant that he no longer represented the defendant and that appellate counsel would be appointed.

8. The court staff advised Mr. Hale that he no longer represented the defendant and that appellate counsel would be appointed.

9. Mr. Hale did not speak with or in any way counsel the defendant after July 6, 2000.

10. Mr. Hale believed his duties were completed with the end of the jury trial on July 6, 2000.

11. The defendant was not aware of the 30-day time limit for filing a motion for new trial.

12. The defendant relied on Mr. Hale’s assurance that the court would appoint appellate counsel.

13. The defendant was not aware of his appellate rights and did not attempt to represent himself.

14. On September 13, 2000, appellate counsel, Mary Acosta, was appointed.

II.

CONCLUSIONS OF LAW

1. Defendant was abandoned by trial counsel Jeff Hale during the 30-day period for filing a motion for new trial.

2. Defendant was not effectively represented by Mr. Hale during the 30-day period for filing a motion for new trial.

3. Defendant in effect had no counsel during the 30-day period for filing a motion for new trial.

4. Defendant has rebutted the presumption that a motion for new trial was considered and rejected.

5. Defendant has rebutted the presumption that he was adequately counseled regarding his appellate rights.

6. Mr. Hale believed he was relieved of his duties of representing Mr. Jack as of July 6, 2000.

“When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected.” Smith v. State, 17 S.W.3d 660, 662 (Tex.Crim.App.2000) (quoting Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App.1998)). The above findings defeat that presumption.

The 30-day period for filing a new trial motion is a critical stage of a criminal proceeding in which defendants are entitled to assistance of counsel. Brink v. State, Nos. 14-00-01439-CR, 14-00-01440-CR, slip op. at 11, 2001 WL 1575673 (Tex.App.-Houston [14th Dist.] Dec. 6, 2001, no pet. h.) (designated for publication); Prudhomme v. State, 28 S.W.3d 114, 118-19 (Tex.App.-Texarkana 2000, order), disposition on merits, 47 S.W.3d 683 (Tex.App.-Texarkana 2001, pet. ref'd); Hanson v. State, 11 S.W.3d 285, 288 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Massingill v. State, 8 S.W.3d 733, 736-38 (Tex.App.-Austin 1999, order), disposition on merits, 2000 WL 564168, Nos. 03-99-00301-CR, 03-99-00302-CR (Tex.App.-Austin, May 11, 2000, pet.ref'd) (not designated for publication); Burnett v. State, 959 S.W.2d 652, 656 (Tex.App.Houston [1st Dist.] 1997, pet. ref'd); Callis v. State, 756 S.W.2d 826, 827 (Tex.App.Houston [1st Dist.] 1988, no pet.), overruled on other grounds, Oldham v. State, 977 S.W.2d 354 (Tex.Crim.App.1998); cf. Trevino v. State, 565 S.W.2d 938, 940 (Tex.Crim.App.1978) (“Without doubt the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review.”). When counsel abandons a defendant during that 30 day period, the defendant is denied his constitutional rights.

Both the United States Supreme Court and the Texas Court of Criminal Appeals have acknowledged that with some Sixth Amendment violations, “such as the actual or constructive denial of counsel altogether at a critical stage of the criminal proceeding, ... prejudice is presumed.” Batiste v. State, 888 S.W.2d 9, 14 (Tex.Crim.App.1994) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see also United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657 (1984); Prudhomme, 28 S.W.3d at 120.

However, even if prejudice is not presumed, the error here was not harmless. Appellate counsel’s request for an out-of-time new trial motion alleged that, if she had been timely appointed, she would have filed a motion for new trial alleging ineffective assistance of trial counsel because trial counsel did not subpoena material witnesses. Such a motion would have entitled appellant to an evidentiary hearing. See, e.g., Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993); see also Jack, 42 S.W.3d at 292.

The proper remedy is to abate the appeal and remand the cause to recommence the time period for filing a new trial motion. See Prudhomme, 28 S.W.3d at 121; Massingill, 8 S.W.3d at 738. We do so, without disturbing the trial-court judgment and without relying on Tex.R.App. P. 2. On remand, the appellate timetables are to begin anew, starting from the date this order issues. Prudhomme, 28 S.W.3d at 121; Tex.R.App. P. 43.6. If the trial judge grants the new trial motion, the appellate record shall be supplemented with that order, and appellant’s appeal will be dismissed. If the trial judge overrules the new trial motion, the record shall be supplemented with that order and the record of any hearing held on such motion, and the parties will be permitted to brief any issues related to the overruled motion. See Prudhomme, 28 S.W.3d at 121; Massingill, 8 S.W.3d at 738-39.

It is so ORDERED.

Justice COHEN, concurring.

Justice TAFT, dissenting.

Justice NUCHIA, joined by Justices TAFT and RADACK, dissenting from the denial of en banc consideration.