Opinion
No. 04-02-00299-CR
Delivered and Filed: July 23, 2003 Do Not Publish
Appeal From the 410th Judicial District Court, Montgomery County, Texas, Trial Court No. 01-10-06418-CR, Honorable K. Michael Mayes, Judge Presiding. AFFIRMED
Sitting: Alma L. LOPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Walter Otto Price appeals his conviction of possession of methamphetamine. According to Price, because his counsel failed to timely file a motion for new trial, he was denied effective assistance of counsel during the time required for filing a motion for new trial. We disagree and affirm the trial court's judgment.
Background
Edward T. McFarland represented Price in the trial court. On March 21, 2002, the trial court sentenced Price in accordance with the jury verdict. The deadline for filing a motion for new trial was Monday, April 22, 2002. Price, however, through his attorney, Norm Silverman, did not file a motion for new trial until April 26, 2002. Price's affidavit, which was attached to the motion for new trial, was signed and notarized on the same date, April 26, 2002. The motion and affidavit allege, among other things, that Price received ineffective assistance of counsel at trial because Price's trial counsel failed to inform him that, by electing a jury to decide punishment, he was ineligible for community supervision. On appeal, Price claims that his appellate attorney was ineffective because he failed to timely file the motion for new trial.Standard of Review
Because the test for ineffective assistance of counsel is the same under the state and federal constitutions, both inquiries are subsumed into one. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez, 726 S.W.2d at 55-57. The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Second, assuming the appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. When the record is silent as to the reasons for counsel's conduct, finding counsel ineffective would call for speculation on our part. Perez v. State, 56 S.W.3d 727, 731 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). For this reason, it is critical for an accused relying on an ineffective assistance of counsel claim to make the necessary record in the trial court. Id. (citing Thompson, 9 S.W.3d at 814).Discussion
In two issues, Price argues that he was denied effective assistance of counsel in violation of the United States and Texas Constitutions. Although it is not well settled that a criminal defendant has a constitutional right to effective assistance of counsel during the time required for filing a motion for new trial, some courts of appeals have so held. See Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.App.-Texarkana 2000, no pet.); Hanson v. State, 11 S.W.3d 285, 288 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Massingill v. State, 8 S.W.3d 733, 736 (Tex.App.-Austin 1999, no pet.); Burnett v. State, 959 S.W.2d 652, 656 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). These court have reasoned that, because the court of criminal appeals held in Trevino v. State, 565 S.W.2d 938, 939 (Tex.Crim.App. 1978), that a hearing on a motion for new trial is a critical stage of the proceedings, it is only logical that the time period for filing the motion is also a critical stage. Prudhomme, 28 S.W.3d at 119. We agree with these courts of appeal and hold that the time period for filing a motion for new trial is a critical stage of the proceedings during which a criminal defendant is entitled to assistance of counsel. Price argues that because his counsel was late in filing the motion for new trial, his counsel rendered ineffective assistance. In support of his argument, Price cites Prudhomme v. State, 28 S.W.3d 114 (Tex.App.-Texarkana 2000, no pet.), and Massingill v. State, 8 S.W.3d 773 (Tex.App.-Austin 1999, no pet.). In those cases, however, the record showed that the defendant was actually without counsel during some part of the thirty-day period for filing a motion for new trial. See Prudhomme, 28 S.W.3d at 120; Massengill, 8 S.W.3d at 736. In both cases, the appellate courts found prejudice based on the fact that the late-filed motions for new trial stated a facially plausible claim. In this case, however, we never reach the issue of whether Price was prejudiced, because Price has failed to satisfy the first prong of Strickland — that his counsel, by filing an untimely motion for new trial, was deficient. The record before us does not indicate that Price was ever unrepresented during the thirty-day period for filing a motion for new trial. And, Price does not claim he was ever without counsel. The record does show that at the trial-court level, Price, claiming indigency, initially made an application for appointment of an attorney. Based on that application, the trial court appointed counsel to represent Price. Before trial, however, Price's court-appointed counsel filed a motion to substitute McFarland as attorney of record for Price. McFarland represented Price in the trial court. On March 21, 2002, the trial court sentenced Price in accordance with the jury verdict. On March 27, 2002, McFarland filed a notice of appeal and request for appeal bond. The trial court granted the request for appeal bond. Nothing more appears in the record until April 26, 2002 when Price, through his attorney, Norm Silverman, filed the motion for new trial four days too late. The record does not show what else might have occurred during the thirty-day period for filing a motion for new trial. There is no indication that McFarland ever withdrew nor is there any indication of when Silverman was retained. Silverman may or may not have been retained before the trial court's plenary power expired. If he was retained after the trial court's plenary power expired, sometime after April 22, 2002 but before April 26, 2002, then there certainly could be no claim of ineffective assistance of counsel by the mere filing of an untimely motion for new trial. To conclude from this record that by filing the motion for new trial untimely, counsel was ineffective, would require us to speculate and make assumptions that are not apparent from the record. See Perez, 56 S.W.3d at 731. In such situations, the issues are better presented within the framework of a post-conviction writ of habeas corpus under article 11.07 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003); Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex.Crim.App. 1997); see also Thompson, 9 S.W.3d at 813 ("A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim. . ."). We overrule both of Price's issues.Conclusion
Because Price's allegation of ineffectiveness is not firmly founded in the record, we affirm the judgment of the trial court. Karen Angelini, Justice Do not publishThe majority correctly holds that the period appellant had to file and present a motion for new trial is a critical stage of a criminal prosecution. The majority then disposes of Price's ineffective assistance of counsel claim by stating that Price's allegations are not firmly founded in the record since Price failed to show that he was "actually without counsel during this critical stage." Because I would hold that Price's counsel was deficient by filing an untimely motion for new trial, I respectfully dissent. The majority distinguishes Price's case from Massengill and Prudhomme stating that the record does not indicate that Price was ever unrepresented during the thirty-day period for filing a motion for new trial. "Normally on a direct appeal, as here, it is difficult for appellant to rebut the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Belcher v. State, 93 S.W.3d 593, 597 (Tex.App.-Houston [14th Dist.] 2002, no pet.) ; see also Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In this case, however, the record reveals that appellant, through retained counsel, filed a motion for new trial that alleged in pertinent part that trial counsel was ineffective. The motion was supported by appellant's affidavit. The record therefore reveals that Price's counsel considered the strategy of filing a motion for new trial, prepared the motion, but filed it late. "Regardless of the outcome on the motion for new trial, every competent lawyer [should] strive to obtain the trial court's ruling rather than the statutory denial." Belcher v. State, 93 S.W.3d at 597. When counsel's error is blatant and no possible strategy could explain counsel's conduct, we do not need a record showing his subjective intent, so there is no need for information outside the record. Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003) (Meyers, J., dissenting). "If there is no viable reason for counsel's trial conduct then why should we allow the opportunity to explain?." Id. In such situations, an appellant should be able to bring a direct appeal and obtain a judgment from the appellate court. Id. Because the untimely filing of a motion for new trial is not reasonable professional assistance, I would hold that appellant was deprived of his constitutional right to effective assistance of counsel during a critical stage of his criminal prosecution. As a result, I would abate this appeal and remand this cause to the trial court for further proceedings.