Opinion
NO. 14-17-00621-CR
04-12-2018
ENGWIN WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas
Trial Court Cause No. 1517569
ABATEMENT ORDER
Appellant was convicted of aggravated robbery and sentenced to 22 years' confinement. Appellant filed a motion requesting we abate this appeal and remand the case for the filing of an out-of-time motion for new trial based on ineffective assistance of counsel. Appellant contends this remedy is warranted as appellant was unrepresented during the entire 30-day period for filing a motion for new trial. The State did not file a response to appellant's motion.
Appellant was sentenced by the trial court on July 24, 2017. That same day, appellant's trial counsel filed a notice of appeal, motion to withdraw as counsel, and motion to appoint appellate counsel. The trial court signed an order granting the motion to withdraw and motion to appoint appellate counsel on the same day. The trial court's order included a blank for appellate counsel's name, but the blank was left empty.
On December 1, 2017, appellant, acting pro se, filed a motion for appointment of appellate counsel in this court. On December 7, 2017, this court abated the case and ordered the trial court to determine if appellant was entitled to appointed appellate counsel and to appoint counsel, if necessary. The trial court appointed E. R. (Ned) Turnbull as appellate counsel on December 11, 2017.
A defendant has a constitutional right to counsel during all critical stages in a proceeding. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 2085 (2009). The motion for new trial stage is a critical stage in the proceeding. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007); see Tex. R. App. P. 24.1(a) (providing 30 days for defendant to file a motion for new trial).
When a defendant is represented at trial, there is a rebuttable presumption that trial counsel continues to represent defendant after trial. Cooks, 240 S.W.3d at 911; Carnell v. State, 535 S.W.3d 569, 572 (Tex. App.—Houston [1st Dist.] 2017, order). The burden is on the defendant to present evidence to rebut the presumption of continued representation. Carnell, 535 S.W.3d at 572. If the record establishes that defendant was not adequately represented by counsel during the motion for new trial stage, the presumption is rebutted. See Cooks, 240 S.W.3d at 911.
The record before our court establishes that appellant was not represented by counsel during any part of the motion for new trial stage of the proceeding. We conclude appellant has rebutted the presumption of continued representation and has shown he was deprived of counsel during the entire motion for new trial stage. See Carnell, 535 S.W.3d at 574.
If the presumption of continued representation is rebutted, the deprivation of counsel during the motion for new trial stage is subject to a harmless error analysis. See Cooks, 240 S.W.3d at 911. If appellant presents a 'facially plausible claim' which could have been raised in a motion for new trial, the error is not harmless beyond a reasonable doubt. See id. at 912; Tex. R. App. P. 44.2(a). The question of whether a facially plausible claim has been presented is resolved by "looking to the allegations alone without considering any contradictory record evidence." Rogers v. State, No. 14-09-00665-CR, 2011 WL 7290492, at *4 (Tex. App.—Houston [14th Dist.] Feb. 8, 2011, order); see also Carnell, 535 S.W.3d at 572 (stating in cases of total deprivation of representation harm is presumed and in cases of partial deprivation appellant must show harm by alleging a facially plausible claim).
Appellant contends his trial counsel was ineffective for, among other things, failing to investigate and present mitigating evidence during the punishment stage of the proceedings. "The sentencing process consists of weighing mitigating and aggravating factors." See Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). The failure to investigate and present evidence of mitigating factors is a claim which, if true, could result in prejudice to appellant. See id. We conclude appellant has alleged at least one facially plausible claim and deprivation of counsel during the motion for new trial stage was not harmless beyond a reasonable doubt.
Having concluded that the deprivation was not harmless, we grant appellant's motion. 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. See Rogers, 2011 WL 7290492, at *4; Carnell, 535 S.W.3d at 573 (remedy if deprivation is harmful is to abate and remand to the trial court to allow the filing of an out-of-time motion for new trial). The timetable applicable to a motion for new trial shall begin as if appellant was sentenced on the date this order issues. The appeal is abated, treated as a closed case, and removed from this court's active docket. The court will consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion. If the record is supplemented prior to the expiration of the 120 days, the appeal will be reinstated.
PER CURIAM Panel consists of Justices Busby, Brown, and Jewell.