Opinion
No. 14-05-00321-CR
Memorandum Opinion filed June 15, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 988,006. Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
MEMORANDUM OPINION
Appellant, Samuel Medrano, was charged with committing aggravated robbery. On December 16, 2004, appellant entered a plea of guilty without an agreed recommendation. On February 24, 2005, after a presentence investigation hearing, the trial court found appellant guilty, made an affirmative finding of a deadly weapon, and sentenced him to serve 14 years in the Texas Department of Criminal Justice, Institutional Division. In a single document, appellant's counsel filed a notice of appeal on appellant's behalf and a motion to withdraw as counsel. The record is unclear as to the actual date the notice of appeal and the motion to withdraw were filed and the date the trial court granted the motion to withdraw. The file stamp on the notice of appeal and motion to withdraw reflects that they were filed on March 11, 2005, while a docket sheet notation shows that the notice of appeal and motion to withdraw were filed on March 17, 2005. The trial court granted the motion to withdraw. However, the date on the order granting the motion to withdraw as counsel shows that it was granted on March 1, 2005, 10 days or 16 days prior to the date the motion was filed, depending on whether the March 11 file stamp or the March 17 docket sheet notation reflects the date it was actually filed. On March 17, 2005, the trial court certified appellant's right to appeal. On June 23, 2005, when the reporter's record had not been filed because appellant had not paid or made arrangement to pay the reporter's fee to prepare the record, we ordered appellant's appeal abated and ordered the trial court to convene a hearing with appellant, his attorney, if any, and the State's attorney in attendance, to determine whether appellant desired to prosecute his appeal and, if so, whether he was indigent. On July 7, 2005, the trial court conducted a hearing via video teleconference, at which only appellant was present, but no attorneys. When the trial court asked whether appellant had an attorney, appellant responded, "No, sir. I've been without counsel since my sentencing date." The trial court subsequently made a finding of indigency and appointed counsel to represent appellant in this appeal. On July 11, 2005, we reinstated appellant's appeal. On August 1, 2005, appellant's counsel filed in this court a motion to abate his appeal to allow him to file an out-of-time motion for new trial to raise matters properly cognizable through a motion for new trial and for the trial court to conduct a hearing. On September 15, 2005, we denied appellant's motion to abate. In his sole issue in this appeal, appellant claims he was denied the assistance of counsel during the time for preparing and filing a motion for new trial, and seeks a remand of his case to the trial court in order to file and request a hearing on a motion for new trial with the assistance of counsel so that he can raise an unspecified claim for ineffective assistance of counsel and challenge the proportionality of his sentence. To establish a claim for ineffective assistance of counsel, appellant must first demonstrate his counsel's performance was deficient and not reasonably effective and, thereafter, that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88, 693 (1984). Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App. 1998). However, in most cases, the record on direct appeal will not be sufficiently developed to establish a claim for ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). It is for this reason that appellant requests that we remand this case so that he may file an out-of-time motion for new trial and request a hearing and develop a record for a direct appeal on his claim of ineffective assistance of counsel. Appellant also asserts that because a claim for disproportionate sentence can be waived if not presented to the trial court at trial or in a post-trial motion, he could, with the assistance of counsel during this critical stage, preserve his claim of cruel and unusual punishment for appeal. See Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (holding the defendant waived complaint of cruel and unusual punishment because he did not object at the time his sentence was announced or raise his complaint in a post-trial motion). A defendant is entitled to counsel at all critical stages of the proceedings. Trevino v. State, 565 S.W.2d 938, 940 (Tex.Crim.App. 1978). The period for filing a motion for new trial is a critical stage of the proceedings. Hanson v. State, 11 S.W.3d 285, 288 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). To prevail on a claim of deprivation of counsel during the time to file a motion for new trial, appellant must rebut the presumption that he was represented by counsel and that counsel acted effectively. Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App. 1998). When a motion for new trial is not filed in a case, there is a rebuttable presumption that it was considered by the appellant and rejected. Id. Appellant claims the record rebuts the presumption that he had effective assistance of counsel during the period for filing a motion for new trial. Appellant contends that although the record demonstrates that from February 24, 2005 until March 17, he was presumptively represented by counsel, it may have been a conflict of interest for appointed trial counsel to prepare and file a motion for new trial alleging her own ineffective assistance. Appellant further argues that after March 17, the date upon which the trial court permitted trial counsel to withdraw, the record conclusively demonstrates he was without counsel until appellate counsel's appointment, and lacking representation during even part of the time period for filing a motion for new trial is an unconstitutional deprivation of the right to counsel. Finally, appellant asserts his statement to the trial court at the July 7, 2005 hearing that he had been without counsel since sentencing supports his claim that he did not have the assistance of counsel during the period for filing a motion for new trial. Appellant, however, does not assert that his trial counsel did not inform him of the opportunity and grounds for filing a motion for new trial. See Oldham, 977 S.W.2d at 361 (observing that the appellant did not assert that she was not informed by trial counsel of the opportunity and grounds for filing a motion for new trial). Moreover, we find nothing in the record indicating that appellant's attorney did not discuss the merits of a motion for new trial with him, which he decided to reject. See id. at 363 (observing there was nothing in the record to suggest the appellant's attorney did not discuss the merits of a motion for new trial with the appellant, which she rejected). Nor is there anything in the record to suggest that given the opportunity to do so, appellant would have filed a motion for new trial during the time period for doing so. The fact that a notice of appeal was filed on appellant's behalf suggests that he was aware of some of his appellate rights. Cf. id. (stating that fact that the appellant filed a pro se notice of appeal was an indication that she was aware of some of her appellate rights). Without some contrary indication, we presume appellant was adequately counseled on his right to file a motion for new trial. Appellant's issue is overruled. Accordingly, the judgment of the trial court is affirmed.