Opinion
Appellate case number: 01-14-00121-CR
06-30-2015
Paul Briones v. The State of Texas
ORDER Trial court case number: 1268863 Trial court: 178th District Court of Harris County
Appellant, Paul Briones, has filed a Motion to Abate the Appeal to Allow Appellant an Out of Time Motion for New Trial Hearing and a Motion to Extend Time within which to File Appellate Brief. We deny the motion to abate and grant the motion to extend time.
Appellant was convicted of indecency with a child, but obtained a new trial when items not admitted into evidence were submitted to the jury during its deliberations. In his second trial, at which he was represented by different counsel, appellant was again convicted and sentenced to confinement for twenty years in the Institutional Division of the Texas Department of Criminal Justice. The trial court entered judgment on January 17, 2014. Appellant then timely filed a motion for new trial, arguing that he received ineffective assistance of counsel at his second trial because his attorney failed to investigate the case, prepare for trial, properly examine witnesses, make use of prior testimony to impeach the State's witnesses, or call critical witnesses who would have provided testimony tending to show his innocence. As support, he presented his own affidavit, as well as affidavits from his wife, son, daughter, and the attorney who represented him both in his first trial and at the motion for new trial stage following his second trial.
The trial court held a hearing on the motion spanning four days: April 2, 10, 11, and 25 of 2014. The motion for new trial, however, was overruled by operation of law on April 2, 2014, the seventy-fifth day after imposition of sentence. See TEX. R. APP. P. 21.8(a). Thus, three of the days on which the hearing was conducted fell outside of the 75-day window during which the trial court was required to rule on the motion. Id. At the April 2, 2014 portion of the hearing, the trial court indicated its intention to continue the hearing. Appellant's counsel observed,
For the record, the motion's overruled by operation of law today. But the Court does retain jurisdiction for 30 more days. And [the trial court] could enter an order granting it, if you elected to within 30 days after today.The court then addressed scheduling matters with counsel for appellant and the State and continued the hearing. Although the motion for new trial was overruled by operation of law on April 2, the trial court purported to deny the motion on May 2, 2014.
Appellant appealed his conviction to this Court and, before the deadline for filing his brief, filed a Motion to Abate the Appeal to Allow Appellant an Out of Time Motion for New Trial Hearing. In the motion, he asks that we abate the appeal and permit the trial court to conduct an out-of-time hearing on his new trial motion. He contends that he was entitled to such a hearing, and his counsel rendered ineffective assistance by failing to obtain a hearing and ruling on the motion.
A trial court must "rule on a motion for new trial within 75 days after imposing or suspending sentence in open court." TEX. R. APP. P. 21.8(a). After this period has run, the trial court has no jurisdiction over the motion for new trial and can neither grant nor deny it. Garza v. State, 931 S.W.2d 560, 562 (Tex. Crim. App. 1996); Laidley v. State, 966 S.W.2d 105, 107-08 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). An order on the motion entered after the motion has been overruled by operation of law is therefore void. State v. Bates, 889 S.W.2d 306, 310 (Tex. Crim. App. 1994). Further, "[a] hearing conducted after a motion for new trial has been overruled by operation of law is not authorized and will not be considered on appeal." Trevino v. State, 565 S.W.2d 938, 941 (Tex. Crim. App. 1978); see also Laidley, 966 S.W.2d at 108.
The motion for new trial stage, however, is a critical stage of the proceedings, in which a criminal defendant has a right to be represented by counsel. Trevino, 565 S.W.2d at 940. "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." Id. "The right to file and have heard a motion for new trial is deemed absolute, provided the right is asserted within the time specified by law." Huizar v. State, 841 S.W.2d 875, 877 (Tex. App.—Corpus Christi 1992, no pet.); see also McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985) (trial court has no discretion to deny hearing on motion for new trial supported by sufficient affidavit). The right to counsel at this stage is protected by the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984). Moreover, the right to counsel "is the right to the effective assistance of counsel." Strickland, 466 U.S. at 686, 104 S. Ct. at 2064. When an attorney fails to render effective assistance at this critical stage, a court of appeals will correct the constitutional violation. Oldham v. State, 977 S.W.2d 354, (Tex. Crim. App. 1998); Trevino, 565 S.W.2d at 941-42.
In order to demonstrate that his counsel rendered ineffective assistance, appellant must make two showings. First, he must show that the assistance that he received "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id., 466 U.S. at 686, 104 S. Ct. at 2064. "Judicial scrutiny of counsel's performance must be highly deferential." Id.. 466 U.S. at 689, 104 S. Ct. at 2065.
"Second, the defendant must show that the deficient performance prejudiced the defense." Id., 466 U.S. at 687, 104 S. Ct. at 2064. We will presume that the defendant was prejudiced, however, in certain circumstances in which the error in question is "both 'easy to identify' and 'easy for the government to prevent.'" Ex parte McFarland, 163 S.W.3d 743, 752 (Tex. Crim. App. 2005); see also Strickland, 466 U.S. at 692, 104 S. Ct. at 2067 (citing U.S. v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046 (1984)). Such circumstances include "the complete denial of counsel," when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," when the defendant is "denied the right of effective cross-examination," or when surrounding circumstances make it unlikely that even competent counsel could provide effective assistance. Cronic, 466 U.S. 659-60, 104 S. Ct. 2047-48. "The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee" if the advocate is silent on crucial matters. Holloway v. Arkansas, 435 U.S. 475, 490, 98 S. Ct. 1173, 1181 (1978); Belcher v. State, 93 S.W.3d 593, 596 (Tex. App.—Houston [14th Dist.] 2002, pets. dism'd) (published order).
Thus, for example, the Fourteenth Court of Appeals has held that a defendant received ineffective assistance of counsel when the trial court repeatedly miscalculated the 75-day deadline for ruling on a motion for new trial, requested counsel's assistance in calculating the date, and stated the miscalculation on the record, but counsel did not object or correct the miscalculation. Belcher, 93 S.W.3d at 596. The defendant was therefore entitled to remand for a hearing on the motion for new trial. Id.
Here, the record of the first day of appellant's hearing on his motion for new trial makes clear that his counsel knew that the 75-day deadline was about to expire. Counsel mistakenly represented to the trial court, however, that the trial court would retain jurisdiction for 30 more days and would still be able to grant the motion, when in fact the trial court lost jurisdiction at that point. See Garza, 931 S.W.2d at 562; Laidley, 966 S.W.2d at 107-08. By failing to secure a hearing within the 75-day deadline imposed by Rule 21.8(a) and by agreeing to continue the hearing past that deadline, appellant's counsel at the motion for new trial stage rendered ineffective assistance. No objectively reasonable strategy would lead counsel to state the law incorrectly on a critical issue, encourage the trial court to delay ruling until after it had lost jurisdiction, and waive appellant's only opportunity to build a record sufficient to present his arguments on appeal.
In Belcher, our sister court held that counsel's mere silence regarding a miscalculation of the rule 21.8(a) deadline constituted an absence of counsel. 93 S.W.3d at 599. Here, counsel was present and spoke, but in so doing she affirmatively encouraged the trial court to take a course of action which it was powerless to do, with a detrimental result for her client. Appellant was thus deprived of effective counsel to at least the same extent as the appellant in Belcher. Under these circumstances, counsel was effectively absent under Cronic, and we will presume prejudice to appellant. See Holloway, 435 U.S. at 490, 98 S. Ct. at 1181. Appellant has thus satisfied both prongs of the Strickland test by demonstrating that his counsel at the motion for new trial stage rendered assistance that fell below an objective standard of reasonableness, and that ineffective assistance deprived him of his right to be heard on his motion. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064.
Appellant was entitled to a hearing on his motion for new trial, as it raised issues that were not preserved in the record of the trial itself, were supported by affidavits, and, if true, would have entitled him to a new trial. See McIntire, 698 S.W.2d at 660; Huizar, 841 S.W.2d at 877. If no hearing had been had, or if the hearing had been left unfinished, we would abate this case and order the trial court to conduct a hearing. See Trevino, 565 S.W.2d at 942-42 (remedy when defendant is denied counsel at motion for new trial stage is to abate appeal for hearing on motion); Benson v. State, 224 S.W.3d 485, 491 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ("If a defendant rebuts the presumption by showing that he was not adequately represented during the period for filing a motion for new trial, then the remedy is to abate the proceedings and restart the appellate timetable."). But appellant did have a complete hearing, and the record generated by that hearing is included in the reporter's record filed in this Court. Neither appellant nor the State argues that appellant was deprived of an opportunity at the motion for new trial hearing to make a sufficient record to enable him to raise a claim on appeal that he received ineffective assistance from his trial counsel during his second trial. We can protect appellant's rights, conserve the limited resources of the trial court and the parties, and further the interests of justice by considering the existing record, rather than ordering the trial court and the parties to incur the expense and delay of producing a new one.
We therefore deny the motion to abate as mooted by the fact that the trial court has already held a hearing on the motion. We will consider the record of that hearing as necessary to resolve the merits of the appeal.
In light of our order on the motion to abate, we grant the motion to extend time. We order appellant to file his brief on the merits within thirty days of this order.
It is so ORDERED. Judge's signature: /s/ Justice Jennings
[×] Acting individually [ ] Acting for the Court
Panel consists of Justices Jennings, Bland, and Brown Date: June 30, 2015