Benson v. State

• Decision Date: 05 April 2007
• Docket Number: No. 01-05-00063-CR.,01-05-00063-CR.
• Citation: 224 S.W.3d 485
• Parties: James Hail BENSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

224 S.W.3d 485

James Hail BENSON, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-00063-CR.

Court of Appeals of Texas, Houston (1st Dist.).

April 5, 2007.

Tony Aninao, Houston, for Appellant.

Carol M. Cameron, Assistant District Attorney, Houston, for Appellee.

Panel consisted of Justices KEYES, ALCALA, and BLAND.

EN BANC OPINION

ELSA ALCALA, Justice.

Appellant, James Hail Benson, appeals from the trial court's judgment that revoked his deferred adjudication and sentenced him to 12 years in prison and a $500 fine for the second-degree felony of aggravated assault with a deadly weapon. See TEX. PEN.CODE ANN § 22.02(a)-(b) (Vernon Supp.2006). In his first issue, appellant asserts that the trial court erred by failing to appoint appellate counsel in time for him to file a motion for new trial. He asks that we abate the present appeal and remand the cause to the trial court for an evidentiary hearing to determine whether he received effective assistance of counsel during the period for filing a motion for new trial. In his second and third issues, appellant contends that the 12-year sentence constitutes cruel and unusual punishment and violates his due process rights. We conclude that the Court of Criminal Appeals has disapproved of our procedure that requires abatement for an evidentiary hearing, as set forth in Jack v. State, 42 S.W.3d 291, 294 (Tex.App.-Houston [1st Dist.] 2001, order) (Jack I). See also Jack v. State, 64 S.W.3d 694, 696-97 (Tex.App.-Houston [1st Dist.] 2002) (Jack II), pet. dism'd, 149 S.W.3d 119 (Tex. Crim.App.2004) (Jack III). We decline to abate the appeal, and hold that appellant has failed on direct appeal to rebut the presumption that he was represented by trial counsel during the period of time for filing a motion for new trial. We further hold that he waived the right to complain about the length of his sentence because he failed to object on those grounds to the trial court. We affirm.

Procedural Background

In February 2000, the trial court accepted appellant's guilty plea and placed him on five years' deferred adjudication community supervision for aggravated assault. About four years later, the State filed a motion to adjudicate appellant's guilt, alleging that he committed another aggravated assault with a deadly weapon. Appellant, who was represented by appointed attorney John Clark, pleaded not true to the allegation. Following an evidentiary hearing, the trial court found the allegation true. In the punishment phase of the hearing, no additional evidence was introduced, but each side made a closing argument, with the State requesting a sentence near the maximum of 20 years and appellant's attorney asking for a sentence in the range of five or six years. The trial court sentenced appellant to 12 years in prison and a $500 fine on July 20, 2004. After appellant was sentenced, his trial counsel neither objected to the sentence, nor filed a motion to withdraw from the case, nor filed anything else with the trial court.

Nine days after sentencing, appellant filed a pro se notice of appeal. Appellant's pro se notice of appeal states, "Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL." On January 14, 2005, almost five months after appellant filed the notice of appeal, the trial court certified appellant's right of appeal,¹ which included the notation that appellant's attorneys were "J. Clark/J. Guerinot." On February 18, 2005, appellant filed a pro se motion in this Court requesting an extension of time to file a pro se brief.

On March 7, 2005, we abated the appeal. In our order of abatement, we stated, "The problem is that appellant is not represented by counsel on appeal." (Emphasis added.) We ordered the trial court to conduct a hearing to determine whether appellant wished to pursue the appeal and whether appellant was indigent. Our order required the trial court to appoint appellate counsel for appellant if appellant desired to pursue the appeal and was found to be indigent. On April 15, 2005, the trial court conducted the hearing that was ordered by our abatement. At the hearing, the trial court found appellant to be indigent and appointed appellate counsel for appellant. At the time that appellate counsel was appointed, the trial court judge stated, "Well, I don't know why you weren't appointed a lawyer on appeal ... because you should have been appointed a lawyer...." (Emphasis added.) The hearing following our March 7 abatement did not address whether appellant was represented by trial counsel during the 30-day-window for filing a motion for new trial; rather, it concerned only whether appellant was represented by appointed counsel to pursue the appeal.

After we reinstated the appeal, appellant's newly appointed appellate counsel filed an appellate brief that requested a second abatement of the case, citing to Jack I and Jack II. See Jack I, 42 S.W.3d at 294; Jack II, 64 S.W.3d at 696-97. On July 19, 2006, we issued an order that abated this cause for a second time. Our order stated, "We abate the appeal and remand the cause for a hearing to determine whether appellant had counsel, and whether he received ineffective assistance of counsel, during the 30-day period for filing a motion for new trial." While the first abatement order instructed the trial court to address appellant's lack of representation by appellate counsel for the appeal, in the second abatement we instructed the trial court to address appellant's purported lack of representation by trial counsel during the 30-day period for filing a motion for new trial. In our order abating the case for the second time, we stated, "Once the appeal is reinstated, we will rule on appellant's request to file an out-of-time motion for new trial." We therefore did not rule on the merits of whether we would allow appellant to file an out-of-time motion for new trial, which was the ultimate remedy sought by appellant. Instead, we opted to wait to decide that issue until after the trial court conducted an evidentiary hearing on whether appellant was represented by trial counsel during the 30-day window for filing a motion for new trial.

The State filed a motion to reconsider the order that abated the case for a second time. Upon the State's motion requesting rehearing, and after requesting a response from appellant, we withdrew the order abating this case, and reinstated the appeal on September 6, 2006. The trial court, therefore, never conducted the evidentiary hearing that had been ordered in the second abatement, concerning whether appellant was represented by trial counsel during the 30-day-window for filing a motion for new trial.

Representation During Window for Filing Motion for New Trial

In his first issue, appellant contends that he was denied his right to counsel at a critical stage of the proceedings against him—the period of time for filing a motion for new trial—because the trial court failed to appoint appellate counsel immediately after sentencing. Appellant requests remand of the cause to the trial court with instructions that appellant be permitted to file a motion for new trial and for the trial court to conduct a hearing on the motion. The State responds that we should discontinue our practice of abating appeals for the trial court to determine whether appellant was deprived of counsel during the period of time for filing a motion for new trial because we lack statutory or procedural authority to do so, and because the Court of Criminal Appeals has disapproved of the practice.

A. Time Period for Filing Motion for New Trial is Critical Stage of Proceeding

A defendant has a right to file a motion for new trial, but must do so no later than 30 days after sentence is imposed. See TEX.R.APP. P. 21.4(a). A trial court has 75 days from the imposition of sentence to rule on the motion for new trial. TEX. R.APP. P. 21.8(a).

Although a motion for new trial is not required in order to present a point of error on appeal, see TEX.R.APP. P. 21.2, a hearing on the motion serves to develop evidence that is not otherwise in the record. See Oldham v. State, 977 S.W.2d 354, 361 (Tex.Crim.App.1998) (en banc). Motions for new trial have been used primarily for claims of newly discovered evidence or jury misconduct, and are helpful for developing evidence of a trial attorney's ineffective assistance of counsel, particularly when the issues concern a claim that is premised on a trial attorney's failure to act. See id. at 361-62.

Texas courts of appeals have held the period for filing a motion for new trial is a critical stage at which a defendant is entitled to counsel. See Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.App.-Texarkana 2000, order), disp. on merits, 47 S.W.3d 683 (Tex.App.-Texarkana 2001, pet. ref'd); Hanson v. State, 11 S.W.3d 285, 288-89 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Massingill v. State, 8 S.W.3d 733, 736-37 (Tex.App.-Austin 1999, order), disp. on merits, Nos. 03-99-00301-CR, 03-99-0302-CR, 2000 WL 564168 (Tex.App.-Austin, May 11, 2000, pet. ref'd) (not designated for publication); Burnett v. State, 959 S.W.2d 652, 656 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). When a defendant is deprived of effective counsel during the period for filing a motion for new trial, the remedy is to reset the appellate time limits. See Ward v. State, 740 S.W.2d 794, 800 (Tex.Crim.App. 1987) (en banc). Here, appellant did not file a motion for new trial, but in his brief he contends that had he been represented by counsel after sentencing, he would have filed a motion for new trial alleging ineffective assistance of trial counsel. If appellant was deprived of effective counsel during the window for filing a motion for new trial, then our remedy would be to reset the appellate time periods to allow him to file the motion for new trial. See id. We determine whether appellan...