Marquis K Jones v. State

Opinion

Order entered September 29, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01282-CR

MARQUIS K. JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F15-54782-T

ORDER

Following a hearing, appellant’s community supervision was revoked, and

he was adjudicated guilty of possession with intent to manufacture and/or deliver

heroin in an amount of more than four grams but less than 200 grams. The

judgment, entered on September 13, 2019, reflects that appellant was sentenced to

twenty years in prison.

Appellant filed a pro se notice of appeal that we determined was timely. We

abated the appeal for the trial court to determine if appellant was entitled to court- appointed counsel, and if so, to appoint such counsel. Counsel was appointed on

December 9, 2019.

In his sole issue, appellant contends that he was denied his right to counsel

under the Sixth Amendment during the critical 30-day period for filing a motion

for new trial and requests an abatement so he can file an out-of-time motion for

new trial.

I. ANALYSIS

The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the right to have counsel present at all “critical” stages of his

criminal proceedings. Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citing

United States v. Wade, 388 U.S. 218, 227–228 (1967), and Powell v. Alabama, 287

U.S. 45, 57 (1932)); see U.S. Const. amend. VI (“In all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.”). One such critical stage is the 30-day period for filing a motion for new

trial. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007); see TEX. R.

APP. P. 21.4(a) (defendant has 30 days after trial court “imposes or suspends

sentence in open court” to file motion for new trial). If a defendant is deprived of

counsel during this stage of his prosecution, then the defendant’s constitutional

rights are violated. Cooks, 240 S.W.3d at 911. Giving appellant the benefit of any doubt, we conclude appellant has

rebutted the presumption of continued representation and shown that he was

deprived of counsel for the entire period for filing a motion for new trial. See

Carnell v. State, 535 S.W.3d 569, 572. (Tex. App.—Houston [1st Dist. 2017, no

pet.). Because appellant was deprived of counsel for the entire period, we presume

that he was harmed. 1 See id. We therefore hold that appellant is entitled to an

abatement of this appeal to file a motion for new trial. See id. at 373–74 & n.5.

II. CONCLUSION

Having sustained appellant’s issue, we do not render judgment or order the

clerk to issue a mandate at this time, but rather by this order, remand the case to the

trial court for the limited purpose of allowing (1) appellant the opportunity to file

and present a motion for new trial, (2) the trial court the opportunity to rule on such

a motion, and (3) the trial court clerk and court reporter to supplement the appellate

record. See TEX. R. APP. P. 43.6, 44.4; Carnell, 535 S.W.3d at 573–74 & n.5.

Specifically, we remand the case to the trial court at the point where appellant’s

sentence was imposed; the 30-day timetable for any motion for new trial shall

begin running anew on the date this order is received by the trial court. See TEX.

R. APP. P. 21.4(a), Carnell, 535 S.W.3d at 573–74 & n.5.

1 Because we presume harm, we need not address appellant’s alternative argument that there are facially plausible issues to be raised in a motion for new trial. See TEX. R. APP. P. 47.1. If appellant files a motion for new trial and the trial court overrules or grants

any motion for new trial or if the motion is deemed denied as a matter of law, then,

within THIRTY DAYS of the date the motion is denied (by written order or by

operation of law), (1) the district clerk is ORDERED to file a supplemental clerk’s

record containing appellant’s motion for new trial and any written order, and (2)

the court reporter is ORDERED to file a supplemental reporter’s record of the

hearing, if any, on the motion for new trial. See TEX. R. APP. P. 21.8, 33.1, 34.5(c),

34.6(d); Carnell, 535 S.W.3d at 574 n.5. If appellant fails to file a motion for new

trial within THIRTY DAYS of the date the trial court receives this order, the trial

court shall notify this Court of that fact.

We further ORDER the trial court to send written verification to Court

confirming the date of receipt of this order. Cf. TEX. R. APP. P. 51.2(a)(1).

We DIRECT the Clerk to send copies of this order to the Honorable Lela D.

Mays, Presiding Judge, 283rd Judicial District Court; to Vearneas Faggett, official

court reporter, 283rd Judicial District Court; to Felicia Pitre, Dallas County District

Clerk; Catherine Bernhard; and the Dallas County District Attorney’s Office,

Appellate Division.

We ABATE this appeal for the trial court to comply with the Court’s order.

The appeal will be reinstated after the supplemental clerk’s record and supplemental reporter’s record, if any, are filed or when the Court deems it

necessary or appropriate to do so.

/s/ BILL WHITEHILL JUSTICE