ROGERS v. STATE (2012)

ABATEMENT ORDER

Appellant Hilton Earl Rogers pleaded guilty or nolo contendere to engaging in organized criminal activity, and the trial court sentenced him to seven years' imprisonment. He argues that he was denied counsel during the thirty-day time period for filing a motion for new trial and requests that we abate his appeal so he may file a motion for new trial based on ineffective assistance. We abate this appeal to allow appellant the opportunity to file and present a motion for new trial to the trial court.

Background

Appellant was indicted for engaging in organized crime by delivering a prescription or prescription forms for a controlled substance for other than a valid medical purpose during the course of professional practice. He pleaded guilty or nolo contendere,¹ and the trial court sentenced appellant on July 28, 2009. On the same day, appellant filed a notice of appeal, appellant's trial counsel moved to withdraw, and appellant asked the trial court to appoint appellate counsel. Also on the same day, the trial court entered a written order granting trial counsel's motion to withdraw and granting appellant's motion for appointment of appellate counsel. This order included a blank for appellate counsel's name, but the blank was left empty.

Thirty-one days later, on August 28, 2009, the trial court appointed Jerald Graber to represent appellant. Graber filed an Anders brief in this court, and before we issued an opinion, appellant filed a pro se “petition for discretionary review” that we treated as a brief. In the brief, appellant alleged numerous grounds of ineffective assistance. Among the various grounds, he argued that trial counsel promised appellant would receive probation if he pleaded no contest, and appellant would have pleaded not guilty but for trial counsel's misrepresentation. He also noted that Graber was not appointed until after the thirty-day period for filing a motion for new trial had expired.

We disagreed with Graber's conclusion that there were no arguable issues for appeal, abated the appeal, and remanded the case to the trial court for the appointment of new appellate counsel. The trial court appointed new counsel, and this appeal followed.

Analysis

Appellant argues that he was denied representation by counsel during the time period allowed for filing a motion for new trial, and thus his appeal should be abated for a hearing on a motion for new trial. The State responds that appellant's lack of counsel during this time period was harmless beyond a reasonable doubt because appellant's grounds for a motion for new trial are contradicted by record evidence or conclusory. We hold that appellant was denied representation, and this error was not harmless beyond a reasonable doubt because appellant has alleged a facially plausible claim. We abate the appeal to allow appellant the opportunity to file and present a motion for new trial.

A. Denial of Right to Counsel

The thirty-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); see also Tex.R.App. P. 21.4(a) (providing thirty days for a defendant to file a motion for new trial). 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. This presumption 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 v. State, 977 S.W.2d 354, 363 (Tex.Crim.App.1998); see also Cooks, 240 S.W.3d at 911 (holding that the presumption was rebutted when the record showed that the defendant was unrepresented during the initial twenty days, 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.) (holding that the presumption was rebutted when the record showed that the defendant was unrepresented for more than half of the time period for filing a motion for new trial).

Here, the record shows that appellant was not represented by counsel during any part of the applicable time period. The trial court granted trial counsel's request to withdraw on the same day that appellant was sentenced and filed a notice of appeal. The trial court also granted appellant's request to appoint appellate counsel but did not appoint counsel until after the time period for filing a motion for new trial had expired. These facts rebut the presumption that appellant was adequately represented, and the State does not argue otherwise. See Blumenstetter v. State, 117 S.W.3d 541, 545–46 (Tex.App.-Texarkana 2003, no pet.) (holding that the presumption was rebutted when trial counsel's motion to withdraw was granted and substitute counsel was not notified of appointment until after the thirty-day time period expired); Massingill, 8 S .W.3d at 735, 737 (holding that the presumption was rebutted when trial counsel's motion to withdraw was granted and appellate counsel was appointed shortly before the thirty-day time period expired); see also Garcia v. State, 97 S.W.3d 343, 347–48 (Tex.App.-Austin 2003, no pet.) (noting that the presumption is rebutted “when counsel has withdrawn and a defendant is without counsel during the crucial thirty days to prepare and file a motion for new trial”).

B. Harm

The denial of counsel during the time period for filing a motion for new trial is subject to harmless error analysis. Cooks, 240 S.W.3d at 911 (citing Satterwhite v. Texas, 486 US. 249, 257 (1988)). Because this error is constitutional in nature, we must decide whether the error was harmless beyond a reasonable doubt. See id. at 911–12; see also Tex.R.App. P. 44.2(a). If an appellant alleges on appeal a “ ‘facially plausible claim’ that could have been alleged in a motion for new trial,” the error is not harmless beyond a reasonable doubt. Cooks, 240 S.W.3d at 912 (citing Prudhomme v. State, 28 S.W.3d 114, 120–21 (Tex.App.-Texarkana 2000, no pet.); Massingill, 8 S.W.3d at 737–38).

Appellant alleges that he received ineffective assistance of counsel when his attorney erroneously promised him that he would receive probation in exchange for pleading no contest, which caused appellant to plead no contest rather than not guilty, thus rendering his plea involuntary.² By itself, this claim is a reasonable ground to be alleged in a motion for new trial and, if true, would render appellant's plea involuntary. See Prudhomme, 28 S.W.3d at 120–21 (holding that the deprivation of counsel during the time period for filing a motion for new trial was harmful because appellant asserted a claim that “his guilty plea was involuntary on the basis that trial counsel told him he would get a probated sentence”); see also Ex parte Bratchett, 513 S.W.2d 851, 853–54 (Tex.Crim.App.1974) (granting habeas relief when the petitioner showed that his trial counsel erroneously assured him that another charge would be dropped if he pleaded guilty); Tabora v. State, 14 S.W.3d 332, 326–27 & n. 7 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding that counsel was misinformed as to the defendant's eligibility for deferred adjudication community supervision, but also holding that the court could not determine whether the defendant was harmed because there was no motion for new trial hearing at which the defendant could have testified that he would not have entered his plea of no contest but for counsel's errors). See generally 42 George E. Dix & Robert O. Dawson, Trial Practice: Criminal Practice and Procedure § 24.102a (Supp.2009) (“A common attack on counsel's effectiveness is that counsel unacceptably advised or assured the defendant that a particular punishment would result from a plea of guilty or nolo contendere.”)

The State argues that appellant's claim of ineffective assistance is not facially plausible because the record demonstrates that appellant was aware that he was not guaranteed probation when he entered his plea. During appellant's sentencing hearing, after he pleaded guilty or nolo contendere, appellant acknowledged on the record that no one “promised” him anything and that he was merely “asking” the court to place him on probation. Appellant also signed a plea paper that stated his punishment would be set “without an agreed recommendation.”³

First, we note that a trial court has discretion to hold an evidentiary hearing when presented with a motion for new trial. See Smith v. State, 286 S.W.3d 333, 339 (Tex.Crim.App.2009) (noting that an appellate court reviews for an abuse of discretion the denial of a hearing on a motion for new trial). An evidentiary hearing is not required if the facts supporting a defendant's claim are determinable from the record. Id. at 338. But even if the facts supporting the defendant's claim are determinable from the record, the “trial judge may still, in his discretion, conduct a hearing before granting or denying the motion.” Id. at 340 n. 23. Essentially, the State asks us to usurp the trial court's discretion to grant an evidentiary hearing when the facts underlying appellant's claim are determinable from the record.⁴ We decline to do so.

Further, the State has cited no authority for the argument that we should consider record evidence in determining whether a claim is “facially plausible.”⁵ To the contrary, courts seem to resolve this issue by looking to the allegations alone without considering any contradictory record evidence. See Prudhomme, 28, S.W.3d at 120–21 (holding that the deprivation of counsel during the time period for filing a motion for new trial was harmful because appellant “asserted” the claim that his plea was involuntary on the basis that his trial counsel promised he would receive probation); see also Bearman v. State, No. 01–08–00787–CR, ––– S.W.3d ––––, 2010 WL 724516, at *3 (Tex.App.-Houston [1st Dist.] Mar. 4, 2010, no pet.) (holding that the deprivation of counsel was harmful because appellant's request to abate the appeal showed that he would raise the claim of ineffective assistance for failing to address appellant's right to an offset when charged with misappropriating fiduciary funds, and the result of his case would have been different because he would not have pleaded guilty); Bowie v. State, No. 14–09–00621–CR, 2010 WL 4618349, at * 1–2 (Tex.App.-Houston [14th Dist.] Nov. 16, 2010, no pet. h.) (mem. op., not designated for publication) (holding that the deprivation was harmless because appellant's allegation that an unnamed family member believed that appellant was incompetent to stand trial, which was otherwise unsupported by any evidence in the record, “does not establish a facially plausible claim that appellant was incompetent to stand trial”); Thomas v. State, 286 S.W.3d 109, 115 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (holding that the deprivation of counsel was harmless because appellant offered no explanation as to how he was harmed; for example, he did not show what arguments he would have made on appeal that he was prohibited from making as a result of the deprivation).

We conclude that appellant has alleged at least one facially plausible claim, and therefore, the denial of counsel was not harmless beyond a reasonable doubt.

Conclusion

Appellant was not represented by counsel during the time period for filing a motion for new trial, and this lack of representation was not harmless beyond a reasonable doubt. Accordingly, we abate this appeal for 120 days and remand to the trial court to allow (1) appellant the opportunity to properly file and present a motion for new trial, (2) the trial court the opportunity to rule on such a motion, and (3) the parties the opportunity to supplement the record .⁶ The timetable applicable to a motion for new trial shall begin as if appellant was sentenced on the date this order issues. If the record is supplemented prior to the expiration of 120 days, the appeal will be reinstated.

FOOTNOTES

1.  It is unclear from the record whether appellant pleaded guilty or nolo contendere. The typewritten judgment states that appellant pleaded nolo contendere, but “nolo contendere” is scratched out and replaced with a handwritten “guilty.” On the plea paper itself, “guilty” is scratched out and replaced with “no contest.” During the sentencing hearing, appellant argued with the prosecutor and court about whether he pleaded guilty or no contest.

2.  See Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App.1980) ( “A plea of guilty is not knowingly and voluntarily entered if it is made as a result of ineffective assistance of counsel.”); see also Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex.Crim.App.1999) (“When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel's advise was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” (quotation omitted)).

3.  However, we also note that the trial court's certification of appellant's right of appeal has check marks in both boxes stating that this case “is not a plea-bargain case” and “is a plea-bargain case,” with the latter scratched out. Appellant claims that this document was altered after he signed it.

4.  We render no opinion today on whether appellant's claims are actually “determinable from the record.”

5.  We do not find persuasive the State's reliance on Gonzales v. State, 963 S.W.2d 844 (Tex.App.-Austin 1998, no pet.). The issue in that case was whether the appellant had shown “good cause” for utilizing Rule 2 of the Texas Rules of Appellate Procedure to abate the appeal and remand for a hearing on his motion for a new trial based on the allegation that he did not understand English when he entered into his plea. Id. at 849–50. The issue in Gonzales was not whether the appellant had alleged a facially plausible claim or even whether his claim was determinable from the record. See id. The broad “good cause” inquiry under Rule 2 is a more difficult obstacle for an appellant to overcome compared to the question of whether the denial of counsel was harmless beyond a reasonable doubt. Further, Rule 2 does not play any role in our decision today. See Oldham, 977 S.W.2d at 360 (“[A] denial of constitutionally guaranteed counsel will be remedied, and the use of Rule 2(b) to effectuate this remedy is not necessary.”).

6.  See, e.g., Bearman v. State, No. 01–08–00787–CR, –––S.W.3d ––––, 2010 WL 724516, at *3 (Tex.App.-Houston [1 st Dist.] Mar. 4, 2010, no pet.); Davis v. State, 228 S.W.3d 917, 921 (Tex.App.Waco 2007, no pet.); Hole v. State, No. 12–06–00207–C R, 2007 WL 1868997, at * 6 (Tex.App.-Tyler June 29, 2007, pet. dism'd) (mem. op., not designated for publication); Funk v. State, 188 S.W.3d 229, 233 (Tex.App.-Fort Worth 2006, no pet.); Garcia v. State, 97 S.W.3d 343, 349 (Tex.App.-Austin 2003, no pet.); Champion v. State, 82 S.W.3d 79, 84 (Tex.App.-Amarillo 2002, pet. ref'd); Prudhomme v. State, 28 S.W.3d 114, 121 (Tex.App.-Texarkana 2000, no pet.).

SHARON McCALLY, Justice.