Opinion
No. 12-04-00049-CR.
Opinion delivered April 30, 2004. DO NOT PUBLISH.
Appeal from the County Court at Law of Nacogdoches County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
MEMORANDUM OPINION
Appellant's court-appointed counsel has moved to abate this appeal and, in addition, moved for leave to file an out-of-time motion for new trial. The State has filed no opposition to Appellant's motion. The motion states that on December 29, 2003, Appellant was convicted by a jury of driving while intoxicated. Sentence was imposed on the same day. The motion further states that counsel was notified of her appointment by telephone on January 27, 2004. The thirty-day period within which Appellant could file his notice of appeal and a motion for new trial expired on January 29, 2004. See TEX. R. APP. P. 26.2(a)(1); 21.4(a). Counsel filed Appellant's notice of appeal on January 28, 2004. She asserts that had she been timely appointed, she could have filed a motion for new trial and sought an evidentiary hearing to determine whether Appellant's trial attorney rendered effective assistance of counsel. Because she learned of her appointment on January 27, she was unable to determine the necessity for such a motion prior to the January 29 filing deadline. Counsel has now reviewed the reporter's record of the trial and is of the opinion that a motion for new trial alleging ineffective assistance of counsel is necessary. It is well settled that such a motion, if timely filed, would have entitled Appellant to an evidentiary hearing. Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). "Without doubt the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review." Trevino v. State, 565 S.W.2d 938, 940 (Tex.Crim.App. 1978). When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected. Smith v. State, 17 S.W.3d 660, 662 (Tex.Crim. App. 2000); Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim. App. 1998). Appellant's motion, as well as the clerk's record, indicates that Appellant may not have been assisted by counsel during this critical stage of the proceeding. Therefore, we conclude that abatement is appropriate to provide Appellant an opportunity to rebut the presumption that he considered filing a motion for new trial, but decided not to do so. See Jacks v. State, 42 S.W.3d 291, 294 (Tex. App.-Houston [1st Dist.] 2001) (order) (holding whether abatement is appropriate will depend on facts of each case). Accordingly, we abate the appeal and remand the cause for a hearing to determine whether Appellant had counsel, and whether he received effective assistance of counsel, during the thirty-day period for filing a motion for new trial. The parties' attorneys are directed to contact the trial court coordinator to set the hearing date and to notify all parties and the court reporter of such date. The hearing shall be set for a date no later than sixty days from the date of this order. The trial court coordinator shall advise the Clerk of this Court of the hearing date as soon as it is set. The trial judge shall have a court reporter record the hearing and shall make findings of fact and conclusions of law. A supplemental record from the hearing and the trial judge's findings and conclusions shall be sent to this Court no later than ninety days from the date of this order. The appeal is abated, treated as a closed case, and removed from this Court's active docket. It will be reinstated when the supplemental record and the trial judge's findings of fact and conclusions of law are filed here. We will delay ruling on Appellant's request to file an out-of-time motion for new trial until the case is reinstated.