Opinion
No. 05-02-01634-CR No. 05-02-01635-CR
Opinion filed July 1, 2003. Do Not Publish
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 199-80087-02 and 199-80791-02. AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
OPINION
Paul William Schremp appeals two convictions for aggravated sexual assault of a child. After entering open pleas of guilty to the trial court, appellant was found guilty and sentenced to fifty years in prison in each case. In two points of error, appellant contends he was denied (1) the right to counsel during the time for filing a motion for a new trial, and (2) the effective assistance of counsel. We affirm. In his first point of error, appellant complains he was denied the right to counsel during the time for filing a motion for new trial, which violated his Sixth Amendment right to counsel during a critical stage of the proceedings. Appellant was indicted on allegations that he penetrated the vagina of a seven-year-old girl with his finger. While free on bond, appellant sexually assaulted his seven-year-old son and was indicted for that offense. Sentencing in both cases was on August 29, 2002, and any motion for new trial was due no later than September 28. See Tex.R.App.P. 21.4. The record reflects that on September 5, appellant's trial counsel filed a request for compensation, which was approved by the court one week later. Then between September 10 and 27, appellant filed numerous pro se documents, including two pauper's oaths for appeal, two notices to prepare a statement of facts, a designation of material for the appellate record, and a notice of appeal and affidavit of indigency on appeal. On October 9, the trial court appointed appellate counsel. No motion for new trial was filed. Appellant argues that trial counsel's request for payment on September 5 demonstrates that he was no longer on the case. Because appellate counsel was not appointed until October 9, eleven days after the time expired for filing a motion, appellant argues he was without counsel during the period of time allowed to file a motion for new trial. Appellant further asserts that a motion for new trial was necessary for him to present his claim that counsel was ineffective for failing to call his therapist as a witness to support his request for deferred adjudication probation. Initially, we note the Texas Court of Criminal Appeals has yet to address the issue of whether a defendant is constitutionally entitled to counsel during the time to file a motion for new trial. See Smith v. State, 17 S.W.3d 660, 663 n. 3 (Tex.Crim.App. 2000). However, several of our sister courts have held that the time period for filing a motion for new trial is a critical stage of the proceeding, during which a criminal defendant is constitutionally entitled to assistance of counsel. See Champion v. State, 82 S.W.3d 79, 81 (Tex.App.-Amarillo 2002); Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.App.-Texarkana 2000, no pet.); Hanson v. State, 11 S.W.3d 285, 288-89 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Massingill v. State, 8 S.W.3d 733, 736 (Tex.App.-Austin 1999, no pet.); Boyette v. State, 908 S.W.2d 56, 59 (Tex.App.-Houston [1st Dist.] 1995), remanded on other grounds, 982 S.W.2d 428 (Tex.Crim.App. 1998). We will assume for purposes of this opinion that a defendant is constitutionally entitled to assistance of counsel during the thirty days following imposition of his sentence; however, after reviewing the record, we cannot conclude appellant has rebutted the presumption that he received assistance. Absent a motion to withdraw as counsel, there is a presumption trial counsel continues to effectively represent the defendant after sentencing and during the time to file a motion for new trial. Smith, 17 S.W.3d at 662. This presumption is not rebutted by pro se motions filed by the defendant. In fact, the motions filed in this case indicate Schremp was informed of at least some of his appellate rights and support the proposition that he was effectively represented by counsel. See Kane v. State, 80 S.W.3d 693, 695 (Tex.App.-Fort Worth 2002, pet. ref'd). Further, there is a presumption that if a motion for new trial was not filed, it is because the defendant was informed of the option and rejected it. Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App. 1998). To rebut the presumption that he was represented, appellant points to his trial counsel's September 5th request for payment, the fact he never submitted another request for additional fees, and the fact trial counsel filed nothing with the court after conviction that would indicate he was still acting as appellant's counsel. In addition, appellant relies on the fact that he filed various documents pro se. That trial counsel requested payment for work does not demonstrate that he was no longer assisting appellant after his conviction nor does it constitute a motion to withdraw as counsel, and there is no affirmative evidence in the record to support such an assertion. Moreover, appellant's assertion that trial counsel never submitted a request for additional fees is unsupported in the record and likewise will not overcome the presumption. What we do find compelling is that appellant filed numerous pro se documents, which suggest he did receive legal assistance concerning his appellate rights. These documents demonstrate that appellant was aware that (1) a notice of appeal had to be filed, (2) he was entitled to a reporter's record and clerk's record upon a showing of indigency, and (3) he needed to file an affidavit to establish indigency. Under these circumstances, we cannot conclude appellant has rebutted the presumption that he had assistance of counsel after sentencing and during the time for filing a motion for new trial. We overrule the first point of error. In his second point of error, appellant contends he was denied effective assistance of counsel during a critical stage of trial. Again, he argues counsel effectively withdrew from the case after sentencing without officially notifying the court so that new counsel could be appointed. Because of trial counsel's inaction, he was unable to pursue a motion for new trial, which prejudiced his "ability to raise issues on appeal on which he may prevail." In order to prevail on an ineffective assistance claim, an appellant has the burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 688 (1980)). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance — that the challenged actions might be considered sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. In this case, there obviously is no record to indicate why trial counsel did not file a motion for new trial nor is there any record evidence to support appellant's contention that, during the thirty-day period, he wanted to file a motion for new trial, that he communicated that desire to his attorney, or that he believed counsel was ineffective at trial. To the extent he complains that trial counsel was ineffective for failing to call his therapist to testify at punishment, there is nothing in this record to suggest the therapist's testimony would have been favorable to appellant. We conclude the record is insufficient to support appellant's claim and overrule the second point of error. We affirm the trial court's judgments.