Opinion
01-23-00337-CR
07-09-2024
ROBERT GERMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court Harris County, Texas Trial Court Case No. 1719912
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
ORDER OF ABATEMENT
Terry Adams, Chief Justice
Robert German was convicted of arson. On the day German was convicted and sentenced, the trial court granted German's appointed trial counsel's motion to withdraw. The trial court, however, did not appoint substitute or appellate counsel until over two months later-well after the deadline for filing a motion for new trial.
In his first issue, German contends that he was deprived of counsel during the critical period for filing a motion for new trial, and he requests that we abate this appeal so he can file an out-of-time motion for new trial.
We agree and abate the appeal.
Background
German was charged with arson after he started a fire in a hotel room. The jury found German guilty "as charged in the indictment," but in a special issue determined that German did not use or exhibit a deadly weapon, namely, a fire, during the commission of the offense. On May 3, 2023, the jury sentenced German to 33 years' imprisonment.
Because the facts surrounding the offense and trial are not relevant for purposes of this appeal, we address only the facts as they relate to what occurred after conviction and sentencing.
German's court-appointed trial counsel filed a notice of appeal the same day.In that notice of appeal, trial counsel moved to withdraw and requested that the court (1) appoint appellate counsel, (2) order a free record by provided to German, and (3) set bail. Also on that same day, the trial court conducted a hearing and found German indigent. The trial court granted trial counsel's motion to withdraw and ordered the court reporter to prepare and file the reporter's record without charge to German. But the trial court did not appoint appellate counsel for German. On May 8, 2023, the district clerk's notice of appellant's appeal indicated that the appellate attorney of record was "TO BE DETERMINED." German did not file a motion for new trial.
The trial court appointed German's trial counsel in January 2022, after finding German indigent.
The trial court did not appoint appellate counsel until July 12, 2023.
Deprivation of Counsel
In his first issue, German argues that he was denied his Sixth Amendment right to counsel when the trial court failed to appoint appellate counsel until over two months after his sentence was imposed. Because his trial counsel withdrew the day he was sentenced, German argues that harm is presumed, and that he is entitled to an abatement to allow him to file an out-of-time motion for new trial.
The State concedes error.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to have counsel present at all "critical" stages of his prosecution. Montejo v. Louisiana, 556 U.S. 778, 786 (2009); 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."). The Texas Court of Criminal Appeals has held that, as a matter of federal constitutional law, "the time for filing a motion for new trial is a critical stage of the proceedings, 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); see also Carnell v. State, 535 S.W.3d 569, 571-72 (Tex. App.-Houston [1st Dist.] 2017, order of abatement). If a defendant is deprived of counsel during this stage of his prosecution, his constitutional rights are violated. Cooks, 240 S.W.3d at 911; Carnell, 535 S.W.3d at 572.
See also Tex. R. App. P. 21.4(a) (defendant has thirty days after trial court "imposes or suspends sentence in open court" to file motion for new trial).
However, if the defendant was represented by counsel at trial, there is a rebuttable presumption that trial counsel continued to represent the defendant after trial, including during the critical motion-for-new-trial stage. Cooks, 240 S.W.3d at 911; Carnell, 535 S.W.3d at 572. If the defendant was represented by counsel at trial and he does not file a motion for new trial, we assume it was because the defendant, with the benefit of counsel's continued representation, considered and rejected that option. Cooks, 240 S.W.3d at 911 n.6; Carnell, 535 S.W.3d at 572.
See also Monakino v. State, 535 S.W.3d 559, 563 (Tex. App.-Houston [1st Dist.] 2016, order of abatement).
The defendant has the burden of presenting evidence to rebut the presumption of continued representation. See Oldham v. State, 977 S.W.2d 354, 361-63 (Tex. Crim. App. 1998); Carnell, 535 S.W.3d at 572. If the defendant rebuts this presumption and shows that he was deprived of counsel during a critical stage of his prosecution, the error is reviewed to determine whether it was harmful. Cooks, 240 S.W.3d at 911.
How the harm is analyzed depends on whether the defendant was deprived of counsel for all or only part of the critical stage. Carnell, 535 S.W.3d at 572. If the defendant was deprived of counsel for all of the critical stage, then the deprivation was total, and harm is presumed. See Batiste v. State, 888 S.W.2d 9, 14 (Tex. Crim. App. 1994) ("[W]ith some varieties of Sixth Amendment violation, such as the actual or constructive denial of counsel altogether at a critical stage of the criminal proceeding, . . . prejudice is presumed."); Carnell, 535 S.W.3d at 572.
See also Parker v. State, 604 S.W.3d 555, 558 (Tex. App.-Houston [14th Dist.] 2020, order of abatement).
But if the defendant was deprived of counsel for some but not all of the critical stage, then the deprivation was only partial, and the defendant must show harm. Carnell, 535 S.W.3d at 572-73. For example, if the defendant was deprived of counsel for only 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 Cooks, 240 S.W.3d at 912; Monakino v. State, 535 S.W.3d 559, 565 (Tex. App.-Houston [1st Dist.] 2016, order of abatement).
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 Carnell, 535 S.W.3d at 573 (citing Ward v. State, 740 S.W.2d 794, 800 (Tex. Crim. App. 1987)).
The State notes that the Court of Criminal Appeals has recently granted discretionary review in Thomas v. State, __ S.W.3d ___, 2022 WL 3449815 (Tex. App.-Houston [1st Dist.] Aug. 18, 2022, pet. granted), to consider whether "a court of appeals [has] the authority to abate for an out-of-time motion for new trial" and whether "abatement" is the correct procedural vehicle, and states that because the "abatement debate" remains unanswered, it is not opposed to this Court waiting to decide this case until the Court of Criminal Appeals' opinion issues in Thomas. However, the issue in Thomas is whether an abatement could be granted to allow the defendant the opportunity to file an out-of-time motion for new trial based on newly discovered evidence. As the State expressly points out in its brief on the merits in Thomas, that is distinguishable from allowing for abatement and remand after a violation of rights has been established, such as where there has been a deprivation of counsel during the time period for filing a motion for new trial- which is what we are presented with here. Brief for State, at 26-30, Thomas v. State, PD-0507-22 (Tex. Crim. App. June 14, 2023). Consequently, we decline the State's invitation to wait until the opinion issues in Thomas, and we will continue to follow the current precedent from the Court of Criminal Appeals and this Court on this particular issue. See Oldham v. State, 977 S.W.2d 354, 361-63 (Tex. Crim. App. 1998); Carnell v. State, 535 S.W.3d 569, 573 (Tex. App.-Houston [1st Dist.] 2017, order of abatement); Monakino, 535 S.W.3d at 563.
Here, German was sentenced on May 3, 2023. On the same day, the trial court granted trial counsel's motion to withdraw as German's counsel but did not appoint appellate counsel. German had until June 2, 2023, to file a motion for new trial. See Tex. R. App. P. 21.4(a). But the trial court did not appoint appellate counsel until July 12, 2023. These facts are not in dispute.
And the State concedes that the trial court's failure to appoint appellate counsel until over a month after the time for filing a motion for new trial expired deprived German of his right to counsel during the entirety of this critical stage. Thus, the State agrees that German is entitled to an opportunity to file an out-of-time motion for new trial.
We therefore conclude that German 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, 535 S.W.3d at 574; see also Parker v. State, 604 S.W.3d 555, 558 (Tex. App.-Houston [14th Dist.] 2020, order of abatement). Because German was deprived of counsel for the entire period, we presume that he was harmed. Parker, 604 S.W.3d at 558; Carnell, 535 S.W.3d at 574. We hold that German is entitled to an abatement of this appeal to file a motion for new trial. Parker, 604 S.W.3d at 558-59; Carnell, 535 S.W.3d at 573-74.
We sustain German's first issue.
German raises a second issue that the trial court's judgment should be modified to delete an affirmative finding that he exhibited a deadly weapon during the commission of the offense, because, in response to a special issue, the jury determined that German did not use or exhibit a deadly weapon, namely, a fire, during the commission of the offense. The State concedes error on this second issue as well. But because we sustain German's first issue, abate this appeal, and restart the appellate timetable to allow German the opportunity to file a motion for new trial, we do not address German's second issue. If the trial court grants German's motion for new trial, the trial court clerk is ordered to file a supplemental clerk's record with a copy of the trial court's order, and German's appeal will be reinstated and dismissed. See Carnell, 535 S.W.3d at 574 n.5 (citing Prudhomme v. State, 28 S.W.3d 114, 121 (Tex. App.-Texarkana 2000, no pet.); Massingill v. State, 8 S.W.3d 733, 738-39 (Tex. App.-Austin 1999, no pet.)). If, on the other hand, the trial court overrules the motion, or the motion is deemed denied, (1) the trial court clerk is ordered to supplement the clerk's record with any written order, (2) the court reporter is ordered to file a supplemental reporter's record of the hearing on the motion, and (3) this Court will reinstate German's appeal. See Tex. R. App. P. 34.5(c); 34.6(d); Parker, 604 S.W.3d at 559; Carnell; 535 S.W.3d at 574 n.5. The parties then will be allowed to brief any issues relating to the overruled motion as well as the issues we do not reach in this abatement order. See Carnell; 535 S.W.3d at 574 n.5.
Conclusion
We abate this appeal, remand the case to the trial court, and restart the appellate timetable to allow German the opportunity to file a motion for new trial. The timetable for filing a motion for new trial shall begin running on the date the district clerk receives this order.