Opinion
NO. 01-16-00906-CR
10-26-2017
LUIS FELIPE FIERRO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas
Trial Court Case No. 1302306
MEMORANDUM ORDER OF ABATEMENT
Appellant, Luis Felipe Fierro, has filed an appellant's brief in which his sole issue is that, because he was denied the assistance of trial counsel during the time for filing a motion for new trial, the case should be abated to restart the timetable so that he may develop the record in an out-of-time motion for new trial. The State has filed a brief agreeing that this case should be abated because Fierro has presented a facially-plausible claim that his trial counsel was ineffective for failing to investigate Fierro's mental illness. We construe the briefs as a joint motion to abate, grant the motion, and remand for additional proceedings.
The time for filing a motion for new trial is a critical stage of the proceedings in a criminal case, and a defendant has a constitutional right to counsel during that period. See Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007). There is, however, a rebuttable presumption, in cases where a defendant is represented by counsel during trial, that counsel continued to adequately represent the defendant during this critical stage. Id. Further, "[e]ven when a defendant can rebut this presumption with evidence that he was deprived of adequate counsel during this critical stage, this deprivation of counsel is subject to a harmless error or prejudice analysis." Cooks, 240 S.W.3d at 911. When the defendant was deprived of counsel for part of the period for filing a motion for new trial, and, as a result, failed to file a motion, he must show harm by alleging a "facially plausible" claim that he could have developed in a motion for new trial. See id. at 912; see also Bearman v. State, 425 S.W.3d 328, 331 (Tex. App.—Houston [1st Dist.] 2010, order of abatement) (abating appeal to allow appellant to file motion for new trial because he had shown "facially plausible claim" of ineffective assistance of counsel for failing to address appellant's right to offset). If the deprivation was harmful, the proper remedy is to abate the appeal and remand the case to the trial court to allow the defendant to file an out-of-time motion for new trial. See Ward v. State, 740 S.W.2d 794, 800 (Tex. Crim. App. 1987); Carnell v. State, No. 01-15-00519-CR, —S.W.3d —, —, 2017 WL 1352129, at *3 (Tex. App.—Houston [1st Dist.] Apr. 13, 2017, order of abatement) (citations omitted), op. by, 2017 WL 2871780 (Tex. App.—Houston [1st Dist.] July 6, 2017, no pet.) (per curiam) (mem. op., not designated for publication).
Here, after Fierro pleaded guilty to the second-degree felony offense of tampering with a governmental record without an agreed punishment recommendation, the trial court deferred adjudication of Fierro's guilt and placed him on community supervision for a period of five years on April 16, 2012. See TEX. PENAL CODE ANN. § 37.10(a)(5), (d)(3) (West 2015). On November 11, 2015, the State moved to adjudicate guilt, alleging that Fierro had failed to report as directed. Fierro's probation officer, Napoleon Abbey, was the only State witness at the adjudication hearing. Officer Abbey testified that, among other things, Fierro had completed over half of his supervision period before his first missed appointment in September 2015, but that he had no other problems and was aware that Fierro had been diagnosed with schizophrenia while on community supervision. Fierro testified on his own behalf that, among other things, he was diagnosed with schizophrenia sometime in 2014 or 2015, and that he had not reported since September 2015 because he had become homeless.
On August 5, 2016, the trial court adjudicated Fierro's guilt and sentenced him to four years' confinement. Appellant's retained trial attorney, André A. Wheeler, did not file a motion to withdraw. On August 24, 2016, Fierro filed a pro se motion for new trial, which was denied without a hearing the next day. Although Fierro filed a pro se notice of appeal on August 25, 2016, it was not assigned to this Court.
On November 3, 2016, Fierro timely filed a second pro se notice of appeal, which the district clerk assigned to this Court. See TEX. R. APP. P. 26.2(a)(1). On December 20, 2016, this Court's Order of Abatement directed the trial court to determine whether appellant still desired to pursue his appeal and whether his trial counsel, Wheeler, intended to represent him or whether he should be permitted to withdraw. On January 18, 2017, the trial court appointed assistant public defender Angela L. Cameron as appellant's counsel, and then granted Wheeler's motion to withdraw the next day.
On April 21, 2017, Fierro's counsel filed his appellant's brief which claims that he was denied the assistance of counsel during the time for filing a motion for new trial because his trial counsel testified, during the abatement hearing, that he had been informed by Fierro's family that they had hired new counsel for an appeal on the adjudication hearing date. Thus, Fierro requested abatement of this appeal to restart the appellate timetable so that he may file a counseled out-of-time motion for new trial to develop the record of his facially-plausible claims that his trial counsel was ineffective for several different reasons, including failing to investigate Fierro's mental illness as a factor in violating his probation.
On August 9, 2017, the State filed its appellate brief agreeing that this case should be abated and remanded to reset the appellate timetable because appellant had been deprived of the assistance of counsel during the 30-day time period for filing a motion for new trial. The State agreed that Fierro had presented at least one facially-plausible claim, that trial counsel was ineffective for failing to investigate potential mitigating evidence of Fierro's mental illness. See Monakino v. State, No. 01-14-00361-CR, —S.W.3d —, —, 2016 WL 6087683, at *7-8 (Tex. App.—Houston [1st Dist.] Oct. 18, 2016, order of abatement) (concluding that appellant had raised "facially plausible claim" of his trial counsel's failure to investigate his mental health as potential mitigating evidence, and abating to restart appellate timetable to allow out-of-time motion for new trial).
We hold that Fierro has established that he is entitled to an abatement of this appeal to file an out-of-time motion for new trial. See Monakino, 2016 WL 6087683, at *7. Accordingly, we construe Fierro's and the State's briefs as a joint motion to abate, grant the motion, abate this appeal, and remand to the trial court to restart the appellate timetable from the date of this order. See TEX. R. APP. P. 43.6, 44.4; Cooks, 240 S.W.3d at 912; Ward, 740 S.W.2d at 800; Monakino, 2016 WL 6087683, at *8. This appeal is abated, treated as a closed case, and removed from this Court's active docket. If the trial court grants the out-of-time motion for new trial, this appeal will be dismissed. If the trial court overrules the out-of-time motion for new trial, the appeal will be reinstated on this Court's active docket.
It is so ORDERED.
PER CURIAM Panel consists of Justices Higley, Massengale, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).