Appeal from the 239th District Court Brazoria County, Texas
Trial Court Cause Nos. 75194 and 75195
consists of Justices Boyce, Jamison, and Brown.
has filed a motion to abate these appeals so he may file an
out-of-time motion for new trial, asserting he was entitled
to but denied counsel during the period in which to file a
motion for new trial. Because the record does not
affirmatively demonstrate appellant was not adequately
represented by counsel during the period in which to file a
motion for new trial, we deny the motion.
represented by retained counsel, appellant pleaded guilty
without a sentencing recommendation to aggravated assault and
possession of a firearm by a felon. The trial court convicted
him and imposed sentence on December 13, 2016.
Appellant's deadline to file a motion for new trial was
January 12, 2017. See Tex. R. App. P. 21.4(a)
(motion for new trial may be filed no later than 30 days
after the date when sentence is imposed or suspended in open
court). Although he timely filed a pro se notice of appeal,
appellant did not file a motion for new trial. On January 17,
2017, past the deadline to move for a new trial, appellant
requested and was appointed counsel.
30-day time period for filing a motion for new trial is a
critical stage in a criminal proceeding, 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); Rogers v. State, No. 14-09-00665-CR, 2011 WL
7290492, *2 (Tex. App.-Houston [14th Dist.] Feb. 8, 2011, no
pet.); see also Monakino v. State, NO.
01-14-00361-CR, ___ S.W.3d ___, 2016 WL 6087683, *3 (Tex.
App.-Houston [1st Dist.] Oct. 18, 2016) (order) . If a
defendant was represented by counsel at trial, there is a
rebuttable presumption that trial counsel continued to
represent the defendant after trial. Cooks, 240
S.W.3d at 911; Smallwood v. State, 296 S.W.3d 729,
734 (Tex. App.-Houston [14th Dist.] 2009, no pet.); Green
v. State, 264 S.W.3d 63, 69 (Tex. App.-Houston [1st
Dist.] 2007, pet. ref'd). There is a corresponding
rebuttable presumption that, when no motion for new trial on
behalf of the defendant is filed, this decision was made
because the defendant, with the benefit of counsel's
advice and representation, considered and rejected that
option. Cooks, 240 S.W.3d at 911 n.6; Oldham v.
State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998);
Monakino, 2016 WL 6087683, at *3.
presumption of trial counsel's continued representation
is rebutted if the record affirmatively displays that the
defendant was not adequately represented by counsel during
the time period for filing a motion for new trial.
Oldham, 977 S.W.2d at 363. See, e.g.,
Cooks, 240 S.W.3d at 911 (presumption rebutted
because record showed defendant was unrepresented during
initial 20 days of 30-day period and appellate counsel stated
there was not enough time to adequately assist the defendant
in deciding whether to file a motion for new trial);
Massingill v. State, 8 S.W.3d 733, 737 (Tex.
App.-Austin 1999, no pet.) (presumption rebutted because
record showed defendant was unrepresented for more than half
of the 30-day period for filing motion for new trial);
Rogers, 2011 WL 7290492, at *2 (presumption rebutted
because record showed defendant was not represented during
any part of 30-day period for filing motion for new trial).
Under those circumstances, the remedy is to abate the
proceedings and restart the appellate timetable.
Green, 264 S.W.3d at 69.
presumption of continued representation is not rebutted,
however, by the following facts, either alone or in
combination: appellant filed a pro se notice of appeal; the
letter of assignment from the trial court to the court of
appeals stated attorney of record on appeal was "to be
determined"; or appellant appeared without counsel when
signing pauper's oath and requesting new counsel. See
Smith v. State, 17 S.W.3d 660, 662-63 (Tex. Crim. App.
2000); Green, 264 S.W.3d at 70-71. "The filing
of pro se matters does not establish deprivation of counsel,
because the practice is commonplace when defendants are
represented by counsel." Burnett v. State, 959
S.W.2d 652, 659 (Tex. App.-Houston [1st Dist] 1997, pet. ref
record reflects the following relevant facts. Appellant was
represented by two retained lawyers, Leonel Torres and Luis
Ledesma, Jr. On July 5, 2016, appellant pleaded guilty.
Ledesma signed the plea documents as counsel for appellant
and appeared with appellant at the plea hearing. The trial
court held a sentencing hearing on December 8 and 13, 2016.
Ledesma and Torres appeared with appellant at the hearing.
Appellant was sentenced on December 13, 2016. At the time of
sentencing, the trial court stated:
I do need to admonish you that you do have a right to appeal
this case to the Court of Appeals in Houston, Texas. If
you're without funds, the Court will appoint counsel and
a record will be furnished to perfect that appeal. Do you
responded, "Yes, sir, Your Honor." He filed a pro
se notice of ...