Opinion
No. 01-07-01038-CR
Opinion issued October 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1094950.
Panel consists of Justices KEYES, ALCALA, and HANKS.
MEMORANDUM OPINION
Appellant, Peter Silva, pled guilty in December 2006 to assault of a peace officer, and the trial court originally assessed punishment at five years' deferred adjudication. In April 2007, the State alleged that appellant did not comply with the terms of his deferred adjudication and moved to adjudicate guilt. After adjudicating appellant guilty, the trial court assessed punishment at four years' imprisonment. In three points of error, appellant contends that the trial court: (1) denied him the assistance of counsel because appellant did not receive appointed appellate counsel until almost seven months after he filed a pro se motion for appeal; (2) violated his constitutional right to be free from cruel and unusual punishment by imposing four years' imprisonment; and (3) violated his due process rights and abused its discretion by refusing to reinstate his deferred adjudication. We affirm.
See Tex. Pen. Code Ann. § 36.06 (Vernon 2008).
Background
On November 21, 2006, appellant was indicted for the felony offense of assaulting a peace officer. Appellant had no prior felony convictions. On December 5, 2006, appellant, represented by counsel, entered into a plea agreement and received five years' deferred adjudication. The terms of the deferred adjudication contained twenty conditions, including the requirement that appellant report to a probation officer monthly. On April 25, 2007, the State filed a motion to adjudicate guilt, claiming that appellant had failed to meet with his probation officer and, therefore, appellant had failed to adhere to the terms of his deferred adjudication. Appellant stipulated to the fact that he did not report to his probation officer and entered a plea of true to that allegation in the State's motion to adjudicate guilt. The trial court held a hearing on October 30, 2007 and adjudicated appellant guilty without an agreed recommendation as to punishment. Trial counsel represented appellant at the hearing. Appellant waived his opportunity to have the hearing transcribed by a court reporter. The trial court imposed four years' imprisonment on appellant. The same day, the trial court advised appellant of his right to appeal in a document entitled "Advice of Defendant's Right to Appeal," which appellant signed. On November 13, 2007, appellant timely filed a pro se notice of appeal which concluded with a request for appointment of appellate counsel. Appellant's pro se motion read, "Appellant, an indigent . . . NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL." (Emphasis in original.) Appellant did not file a motion for a new trial. The County Clerk sent the trial court notice of the appeal on December 4, 2007. Appellant received appointed appellate counsel on May 29, 2008. After the appointment of counsel, appellant sent his appointed appellate counsel two letters discussing his case and expressing his desire to appeal. The trial court held a hearing on June 19, 2008 in which appellate counsel represented appellant. The hearing concerned appellant's desire to appeal and his indigency.Discussion
A. Denial of Assistance of Counsel
In his first point of error, appellant alleges that, because the trial court did not appoint appellate counsel to him until nearly seven months after he had filed his notice of appeal, the trial court "deprived [him] of the opportunity to have the assistance of appellate counsel to file and pursue an evidentiary hearing for a new trial . . . [which must be] filed no later than thirty days after sentencing." An appellant must file a motion for a new trial within thirty days after the imposition of his sentence. Tex. R. App. P. 21.4(a). Appellant asserts that the window for filing a motion for new trial is a "critical stage" of the proceedings. Appellant argues that he did not file a motion for a new trial, but had he received effective appellate counsel he would have made such a motion. We understand appellant's argument to be that he was not effectively represented during the post-trial period for filing a motion for a new trial. The Sixth Amendment to the United States Constitution provides defendants with a right to the effective assistance of counsel during all critical stages of a trial and appeal. U.S. Const. amend VI; see also Tex. Const. art. I, § 10; Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978) (explaining that "appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected. . . .") (citing Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257 (1967)). When counsel represents a defendant at trial, counsel's responsibilities to that defendant do not end with the conclusion of the trial. Oldham v. State, 977 S.W.2d 354, 362 (Tex. Crim. App. 1998). Indeed, a rebuttable presumption exists that trial counsel continues to adequately represent the defendant during the critical thirty day window in which a defendant may file his notice of appeal. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007) (citing Oldham, 977 S.W.2d at 360-63). An appellant must present the appellate court with evidence to rebut the presumption that he was adequately represented in the thirty-day window. Green v. State, 264 S.W.3d 63, 69 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). Should the appellant rebut the presumption, the appeal will be abated and the appellate timetable will be restarted. Id. When evaluating whether an appellant satisfied the rebuttable presumption that trial counsel continued to represent him after trial, the Court of Criminal Appeals has looked to factors such as: (1) whether the appellant pointed the court to any such evidence; (2) whether the court found any evidence to support his contention; and (3) whether trial counsel's actions indicate that he abandoned the appellant. Oldham, 977 S.W.2d at 362-63. In Benson v. State, this Court evaluated circumstances nearly identical to those presented by appellant. 224 S.W.3d 485, 496-97 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (en banc). Although Benson filed a pro se notice of appeal after he was sentenced, his trial counsel had not withdrawn from the case. Id. Benson did not assert that his trial counsel failed to consult with him regarding the meaning and effect of the judgment, and he did not assert that his trial counsel failed to consider or discuss a motion for a new trial or possible grounds for appeal. Id. We determined that Benson failed to rebut the presumption that he was effectively represented by counsel during the thirty-day period to file his motion for a new trial. Id. at 498. In Green, this Court again considered circumstances analogous to those presented here. This Court wrote, "As in Benson, there is nothing in this record to show that trial counsel did not advise appellant of his post-conviction rights, or that counsel refused to take any action requested by appellant." Green, 264 S.W.3d at 71. We explained:To defeat the presumption [that appellant was adequately represented during the thirty day period for asking for a new trial], an appellant must show more than that (1) appellant filed a pro se notice of appeal; (2) the appellate attorney was "to be determined"; (3) the trial court appointed appellate counsel after the expiration of the time for filing a motion for new trial; (4) on appeal, appellant would have raised further complaints had a motion for new trial been filed; (5) appellant appeared without counsel when signing a pauper's oath and requesting appellate counsel; and (6) the record shows no activity by trial counsel or any motion to withdraw from the case.Id. at 69 (citing Oldham, 977 S.W.2d at 362-63). Because we presume continued effective representation, appellant was required to produce some evidence that his trial counsel terminated his representation of him or became ineffective. Cooks, 240 S.W.3d at 911. Appellant did not direct us to such evidence, nor did our review of the appellate record uncover such evidence. Nothing in the appellate record suggests that appellant's trial counsel failed to provide appellant guidance on appellate issues or refused to take some action requested by appellant. Indeed, the record suggests that appellant was aware of the opportunity to ask for a new trial and that this opportunity would expire. Evidence of this awareness comes from appellant's pro se notice of appeal. Specifically, appellant's notice of appeal reads, "Now comes, the Defendant and pursuant to the provisions of [Texas Rules of Appellate. Procedure] 25.2 and within thirty days (30) of sentence having been imposed . . . or within 90 days of sentencing if a motion for new trial has been timely filed. . . ." This statement evinces appellant's awareness of the deadlines both for filing a notice of appeal and for filing a motion for new trial. Appellant contends that the fact that he filed his motion for appeal pro se is evidence of abandonment by his trial attorney. Appellant cites to Ex parte Axel to support this proposition. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). However, the Texas Court of Criminal Appeals, ten years after Ex parte Axel, held that an appellant's filing of his own pro se notice of appeal does not "rebut the presumption that the appellant was represented by [his trial] counsel and that counsel acted effectively." Oldham, 977 S.W.2d at 363; see also Green, 264 S.W.3d at 69 (listing other acts that do not rebut presumption of representation). Moreover, this Court has held that "the filing of the notice of appeal is evidence that the appellant was informed of at least some of his appellate rights." Benson, 224 S.W.3d at 497 (citing Oldham, 977 S.W.2d at 363). Therefore, we conclude that appellant has failed to rebut the presumption that he was adequately represented during the post-trial period for filing a motion for a new trial. See Cooks, 240 S.W.3d at 911; Oldham, 977 S.W.2d at 360-63. We overrule appellant's first point of error.