Belcher v. State

• Decision Date: 27 November 2002
• Docket Number: No. 14-00-00811-CR.,No. 14-00-00812-CR.,14-00-00811-CR.,14-00-00812-CR.
• Parties: James Clive BELCHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

93 S.W.3d 593

James Clive BELCHER, Appellant, v. The STATE of Texas, Appellee.

No. 14-00-00811-CR.

No. 14-00-00812-CR.

Court of Appeals of Texas, Houston (14th Dist.).

November 27, 2002.

Debora L. Perkey, Galveston, for appellants.

B. Warren Goodson, Jr., Galveston, for appellees.

Panel consists of Chief Justice BRISTER and Justices ANDERSON and FROST.

ABATEMENT ORDER

JOHN S. ANDERSON, Justice.

The issue presented in this appeal is the validity of James Clive Belcher's (appellant) contention his lawyer provided ineffective assistance for failing to alert the trial court to the proper deadline for ruling on his motion for new trial. For the reasons set forth below, we hold such inaction by counsel so undermined the proper functioning of the adversarial process that the hearing on the motion for new trial cannot be relied upon as having produced a just result. We abate this appeal and remand these causes to the trial court for a new hearing on appellant's motion for new trial.

I. Factual Background

Appellant filed a motion for new trial alleging, among other things, a juror was improperly permitted to be seated as a member of the jury. Specifically, appellant contends the juror should have been removed because he lied during voir dire, and during a later hearing, about knowing appellant.

During the motion for new trial hearing, the trial court expressed its concern regarding the eligibility of the juror and adverted twice to the deadline for ruling on appellant's motion for new trial, but on both occasions the court's calculation of the deadline was erroneous. Indeed, the trial court sought counsel's assistance in calculating the final date for ruling on the motion. Appellant's counsel, however, remained silent.

I have been counting on my fingers and toes here, and I think our 75 days are up on August the 2nd ... I am real troubled regarding the question of [one juror's eligibility], so I am going to look at some law on that ... I think that [the juror's] testimony ... makes me suspicious about his truthfulness ... and that coupled with the fact [trial counsel] already told us in this record that he should have ... stricken [the juror] and then made a mistake in doing so, ... troubles me with the selection process here.... So, I want to look at some law about this juror. I want to put everybody on notice what I am thinking with regards to briefing, and I would like to see some. I would welcome others counting the days, but I think our deadline is August the 2nd.

(emphasis added)

The trial court was mistaken as to the correct, final date for issuing a ruling on the motion for new trial. The judgment was signed May 17, 2000, and the seventy-fifth day following that event was July 31, 2000. If the trial court's ruling on a motion for new trial is not ruled on by written order within seventy-five days after imposing sentence, it is overruled by operation of law. TEX.R.APP. P. 21.8(c). Here, the final date for the trial court to rule before the motion was automatically overruled was July 31, 2000. The trial court signed an order granting appellant a new trial on August 2, 2000. Because the trial court acted too late on appellant's new trial motion, the motion was overruled by operation of law. Despite the fact that the trial court sought counsel's assistance in calculating the time for ruling on the motion, appellant's counsel remained silent.

On appeal, appellant asserts in his first point of error that he was denied effective assistance of counsel because counsel failed to correct the trial court when it miscalculated the time period for ruling on appellant's motion for new trial.

II. Standard of Review

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. Art. I, § 10. The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has established a two-prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate counsel's performance was deficient and not reasonably effective. Id. at 688-92, 104 S.Ct. 2052. Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 693, 104 S.Ct. 2052. Essentially, appellant must show his counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex.Crim.App. 1997).

Judicial scrutiny of counsel's performance must be highly deferential and we are to indulge the strong presumption counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). We presume counsel's actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is appellant's burden to rebut this presumption by a preponderance of the evidence, via evidence illustrating why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). A breakdown in the adversarial process implicating the Sixth Amendment is not limited to counsel's performance as a whole; specific errors and omissions may be the focus of a claim of ineffective assistance as well. United States v. Cronic, 466 U.S. 648, 657 n. 20, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

If appellant proves his counsel's representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693, 104 S.Ct. 2052. The appellant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. In short, appellant must prove that counsel's errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Id.

III. Analysis

Texas Rule of Appellate Procedure 21.8(a) provides the trial court must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court. TEX.R.APP. P. 21.8(a). Here, appellant's sentence was imposed May 17, 2000. The 75th day after sentence was imposed was July 31, 2000, not August 2, 2000, as the trial court apparently believed. The trial court requested the lawyers' assistance in the calculation of the deadline for ruling on the motion for new trial, reflecting an intent to make a ruling before the expiration of the 75-day period. Notably, a written ruling favorable to appellant was made, but it was two days beyond the deadline for granting a motion for new trial. Accordingly, the motion was overruled by operation of law. TEX.R.APP. P. 21.8(c).

A. Performance

Normally on a direct appeal, as here, it is difficult for appellant to rebut the strong presumption counsel's conduct fell within the wide range of reasonable professional assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. Id. Here, however, we have record evidence that appellant's counsel remained silent while the trial court repeatedly stated its misunderstanding as to the final day for ruling on the motion for new trial. Counsel was apparently uninformed as to the deadline under Rule 21.8(a), was ignoring or not closely following the trial court's statements regarding the motion for new trial, or was so preoccupied with other matters as to effectively deny appellant the presence of competent counsel. That a person who happens to be a lawyer is present at trial alongside the accused is not enough to satisfy the constitutional command. Strickland, 466 U.S. at 685, 104 S.Ct. 2052. An accused is entitled to be assisted by an attorney who plays the role necessary to ensure that the trial is fair. Id. As stated by the Court in Strickland, counsel has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. Id. at 688, 104 S.Ct. 2052. We view counsel's silence here as a breach of that duty, inasmuch as counsel's performance was not reasonable considering all of the circumstances. Errors of omission can reflect deficient performance just as fully as errors of commission. Failing to advise the trial court of its error as to the proper deadline does not fall within the wide range of reasonable professional assistance.

To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. The record on appeal affirmatively demonstrates the trial court was planning to rule on the motion for new trial, miscalculated the proper date, and requested assistance in calculating the deadline for that ruling. Nevertheless, appellant's counsel failed to speak. Silence at that moment was so inadequate that, in effect, appellant had no assistance of counsel. Regardless of the outcome on the motion for new trial, every competent lawyer would strive to obtain the trial court's ruling rather than the statutory denial (particularly when, as in this case, the trial court has strongly...