Opinion
NO. 14-17-00026-CR NO. 14-17-00027-CR
03-23-2017
EPOLITO LOZANO JUNIOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court Brazoria County, Texas
Trial Court Cause Nos. 75194 and 75195
ORDER
Appellant has filed a motion to abate these appeals so he may file an out-of-time motion for new trial, asserting he was entitled to but denied counsel during the period in which to file a motion for new trial. Because the record does not affirmatively demonstrate appellant was not adequately represented by counsel during the period in which to file a motion for new trial, we deny the motion.
Background
While represented by retained counsel, appellant pleaded guilty without a sentencing recommendation to aggravated assault and possession of a firearm by a felon. The trial court convicted him and imposed sentence on December 13, 2016. Appellant's deadline to file a motion for new trial was January 12, 2017. See Tex. R. App. P. 21.4(a) (motion for new trial may be filed no later than 30 days after the date when sentence is imposed or suspended in open court). Although he timely filed a pro se notice of appeal, appellant did not file a motion for new trial. On January 17, 2017, past the deadline to move for a new trial, appellant requested and was appointed counsel.
Right to Counsel
The 30-day time period for filing a motion for new trial is a critical stage in a criminal proceeding, and a defendant has a constitutional right to counsel during that period. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007); Rogers v. State, No. 14-09-00665-CR, 2011 WL 7290492, *2 (Tex. App.—Houston [14th Dist.] Feb. 8, 2011, no pet.); see also Monakino v. State, NO. 01-14-00361-CR, ___ S.W.3d ___, 2016 WL 6087683, *3 (Tex. App.—Houston [1st Dist.] Oct. 18, 2016) (order) . If a defendant was represented by counsel at trial, there is a rebuttable presumption that trial counsel continued to represent the defendant after trial. Cooks, 240 S.W.3d at 911; Smallwood v. State, 296 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Green v. State, 264 S.W.3d 63, 69 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). There is a corresponding rebuttable presumption that, when no motion for new trial on behalf of the defendant is filed, this decision was made because the defendant, with the benefit of counsel's advice and representation, considered and rejected that option. Cooks, 240 S.W.3d at 911 n.6; Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); Monakino, 2016 WL 6087683, at *3.
The presumption of trial counsel's continued representation is rebutted if the record affirmatively displays that the defendant was not adequately represented by counsel during the time period for filing a motion for new trial. Oldham, 977 S.W.2d at 363. See, e.g., Cooks, 240 S.W.3d at 911 (presumption rebutted because record showed defendant was unrepresented during initial 20 days of 30-day period and appellate counsel stated there was not enough time to adequately assist the defendant in deciding whether to file a motion for new trial); Massingill v. State, 8 S.W.3d 733, 737 (Tex. App.—Austin 1999, no pet.) (presumption rebutted because record showed defendant was unrepresented for more than half of the 30-day period for filing motion for new trial); Rogers, 2011 WL 7290492, at *2 (presumption rebutted because record showed defendant was not represented during any part of 30-day period for filing motion for new trial). Under those circumstances, the remedy is to abate the proceedings and restart the appellate timetable. Green, 264 S.W.3d at 69.
Appellant cites Prudhomme.v. State, 28 S.W.3d 114 (Tex. App.—Texarkana 2000) (order), in support of abatement. We have already expressly declined to follow Prudhomme. Smallwood, 296 S.W.3d at 736; accord Green, 264 S.W.3d at 70 (declining to follow Prudhomme).
The presumption of continued representation is not rebutted, however, by the following facts, either alone or in combination: appellant filed a pro se notice of appeal; the letter of assignment from the trial court to the court of appeals stated attorney of record on appeal was "to be determined"; or appellant appeared without counsel when signing pauper's oath and requesting new counsel. See Smith v. State, 17 S.W.3d 660, 662-63 (Tex. Crim. App. 2000); Green, 264 S.W.3d at 70-71. "The filing of pro se matters does not establish deprivation of counsel, because the practice is commonplace when defendants are represented by counsel." Burnett v. State, 959 S.W.2d 652, 659 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd.
Application
The record reflects the following relevant facts. Appellant was represented by two retained lawyers, Leonel Torres and Luis Ledesma, Jr. On July 5, 2016, appellant pleaded guilty. Ledesma signed the plea documents as counsel for appellant and appeared with appellant at the plea hearing. The trial court held a sentencing hearing on December 8 and 13, 2016. Ledesma and Torres appeared with appellant at the hearing.
Appellant was sentenced on December 13, 2016. At the time of sentencing, the trial court stated:
I do need to admonish you that you do have a right to appeal this case to the Court of Appeals in Houston, Texas. If you're without funds, the Court will appoint counsel and a record will be furnished to perfect that appeal. Do you understand that?Appellant responded, "Yes, sir, Your Honor." He filed a pro se notice of appeal on January 3, 2017.
On January 17, 2017, after the 30-day period to move for a new trial expired, appellant submitted a written application for a court-appointed attorney. He indicated on his application that he had not attempted to hire an attorney. The next day, a notice of appointment was faxed to Perry Stephens stating the trial court had appointed him to represent appellant.
The record does not contain motions to withdraw by Torres or Ledesma, nor does it appear the trial court ordered their withdrawals sua sponte. The only indications that appellant was not represented by counsel during the 30-day period to file a motion for new trial are: (1) his pro se notice of appeal, and (2) his request for appointed counsel. Under Smith, those facts are insufficient to rebut the presumption that Torres and Ledesma continued to represent appellant during that period. Smith, 17 S.W.3d at 662-63; accord Green, 264 S.W.3d at 70-71.
In conclusion, the record does not affirmatively demonstrate appellant was not adequately represented by counsel during the period in which to file a motion for new trial. Accordingly, we DENY appellant's motion to abate.
PER CURIAM Panel consists of Justices Boyce, Jamison, and Brown.