Burnett v. State

• Decision Date: 22 May 1997
• Docket Number: No. 01-96-00768-CR,01-96-00768-CR
• Citation: 959 S.W.2d 652
• Parties: Andrew Dwayne BURNETT, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 652

959 S.W.2d 652

Andrew Dwayne BURNETT, Appellant, v. The STATE of Texas, Appellee.

No. 01-96-00768-CR.

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

May 22, 1997.

Discretionary Review Refused Oct. 15, 1997.

Isidro Dominguez Cantu, Houston, for Appellant.

Keli Pool Roper, Houston, for Appellee.

Before TAFT, MIRABAL and WILSON, JJ.

OPINION

TAFT, Justice.

Appellant, Andrew Dwayne Burnett, pleaded guilty to the offense of aggravated robbery. The trial court found appellant guilty and assessed punishment at 40-years confinement. The important issue we address is whether appellant was deprived of counsel during the time he was required to file a motion for new trial so as to entitle appellant to another opportunity to file and seek a hearing on a motion for new trial. We also consider whether trial counsel was ineffective for not objecting to prosecutorial argument and whether the trial court erred in limiting defense counsel to one argument. We affirm.

Facts

Appellant was sentenced on May 7, 1996. No motion to withdraw filed by appellant's court-appointed trial counsel appears in the record. On June 4, 1996, appellant attempted to file a pro se notice of appeal in this Court. It appears that appellant's mother is the person who tried to file notice of appeal on behalf of appellant based on a letter written by her that appears to have accompanied the notice of appeal. The notice of appeal stated that appellant was told by his attorney that appellant needed to "write this letter" [apparently referring to the notice of appeal] to appeal the length of the sentencing. The letter of appellant's mother explained she was writing the accompanying letter asking for a lighter sentence because she and her son had not had much cooperation with trial counsel. The clerk of the appellate court forwarded the notice of appeal to the Harris County district clerk's office. Appellant's notice of appeal was filed in the district court on June 11, 1996. Appellant filed an affidavit of indigency and requested the court to appoint appellate counsel on June 19, 1996; counsel was appointed that day. The same day a letter of assignment was written by the clerk's office stating that appellate counsel was "to be determined." A motion for extension of time to file notice of appeal was timely filed by appointed appellate counsel; this Court granted the motion, rendering notice of appeal effective.

Deprivation of Counsel During Time to File Motion For New Trial

In his first point of error, appellant contends he was deprived of counsel and urges this court to abate the appeal so that he may file an out-of-time motion for new trial. Appellant claims he was deprived of counsel during the period in which a desired motion for new trial was required to be filed.

A defendant in a criminal case may file or amend a motion for new trial within 30 days of the imposition of sentence. TEX.R.APP.P. 31(a)(1). Appellant's sentence was imposed on May 7, 1996, but appellate counsel was not appointed until June 19, 1996, 12 days after the required period to file a motion for new trial. Rule 2(b) of the Texas Rules of Appellate Procedure allows a court of appeals to suspend rules in criminal matters "in the interest of expediting a decision or for other good cause shown." This Court has held that where a defendant has been effectively denied the right to counsel during the period in which a motion for new trial must be filed, good cause to suspend the rules and reinstate jurisdiction to the trial court has been shown under rule 2(b). See Cox v. State, 797 S.W.2d 958, 959 (Tex.App.--Houston [1st Dist.] 1990, no pet.); Callis v. State, 756 S.W.2d 826, 827 (Tex.App.--Houston [1st Dist.] 1988, no pet.). The State urges us to reconsider these cases in light of State v. Garza, 931 S.W.2d 560 (Tex.Crim.App.1996), which recently addressed whether a trial court can grant an out-of-time motion for new trial. The court defined the scope of rule 2(b) as not authorizing the retroactive suspension of rules governing events that have already occurred at the trial level before the record has been conveyed to the appellate court. Id. at 563. The court indicated that even if an appellate court had authority to extend jurisdiction of the trial court, it would not hold an appellate court was bound to, even on a showing of good cause. Id.

We continue to see cases dealing with "the ambiguity of representation which all too often follows a conviction." See Boyette v. State, 908 S.W.2d 56, 57 (Tex.App.--Houston [1st Dist.] 1995, no pet.) (quoting Ward v. State, 740 S.W.2d 794, 797 (Tex.Crim.App.1987)). Since 1987 with the holding of Ward and the enactment of article 26.04, ¹ appointed trial counsel continues to represent a defendant, as a matter of law, until officially relieved or the appeal is exhausted. Nevertheless, we continue to see claims that appointed trial attorneys are not providing representation in the critical 30-day period between sentencing and time for filing a motion for new trial. As the Court of Criminal Appeals recognized, trial courts occasionally appoint counsel for trial only. Ward, 740 S.W.2d at 797. Indeed, in the present case there are different forms in Harris County for the appointment of trial and appellate counsel, indicating a widespread practice we have observed of bifurcating the assistance of counsel into trial representation and appellate representation. The problem arises between sentencing, when trial counsel mistakenly believes representation has ceased despite not having obtained an order of the court relieving trial counsel of further representation in the case, and the appointment of appellate counsel. See Ward, 740 S.W.2d at 796-800. While Ward dealt with the denial of a statement of facts on appeal during this period, the same issues are involved where, as here, appellant is claiming a denial of the opportunity to file a motion for new trial.

Whether the claim is made in terms of deprivation of counsel or ineffective assistance, a common problem is the lack of a record from which to determine whether there has been a smooth transition of representation from trial to appeal. Where a defendant has been deprived of a meaningful appeal because of ineffective assistance of counsel, there no longer is any question that defendant is entitled to relief. See Evitts v. Lucey, 469 U.S. 387, 397, 105 S.Ct. 830, 837, 83 L.Ed.2d 821 (1985). This is most clearly the situation where, as in Ward, the deprivation of a statement of facts is devastating to the ability to pursue an appeal. It is less clear in regard to a motion for new trial, which is not necessary to pursue an appeal, and might be filed for purposes of extending appellate timetables. See Trevino v. State, 565 S.W.2d 938, 942 (Tex.Crim.App.1978) (Dally, J., dissenting) (commenting that motions for new trial are often abandoned).

In this opinion, we examine precedent, particularly from this Court, to reassess the most reasonable way to address the problem of ambiguous representation between trial and appeal as it impacts a defendant's opportunity to file a motion for new trial. The first, and most significant case is Callis v. State, 756 S.W.2d 826 (Tex.App.--Houston [1st Dist.] 1988, no pet.).

A. Principles From Precedents

In Callis, this Court initially responded to an objection to the record regarding the date on which appellate counsel was appointed. Id. at 827. Because the date was crucial to a determination of whether Callis had been deprived of counsel during the critical period in which a motion for new trial could have been filed, this Court had remanded the case to the trial court to hold a hearing and determine the true date of appointment. Id. The opinion cited Trevino v. State, 565 S.W.2d 938, 941 (Tex.Crim.App.1978), for the proposition that if appellate counsel is not appointed until after the 30 days in which to file a motion for new trial, then an accused has been denied his sixth amendment right to counsel during a critical stage of the prosecution. Callis, 756 S.W.2d at 827.

What Trevino actually stands for is that the motion for new trial is a critical stage of proceedings. Trevino, 565 S.W.2d at 940. In Trevino, defendant's counsel did not show up at the motion for new trial hearing which was conducted with the accused representing himself despite numerous complaints of need for his attorney. Id. at 940. While Trevino does not stand for the exact proposition for which it was cited in Callis, that proposition has been recognized to be a logical extension of the holding of Trevino. See Oldham v. State, 889 S.W.2d 461, 462 (Tex.App.--Houston [14th Dist.] 1994), pet. dism'd as improvidently granted, No. 1350-94, --- S.W.2d ---- 1996 WL 333687 (Tex.Crim.App. June 19, 1996) ("If a hearing on a motion for a new trial is a critical stage, then logic dictates that the time period for filing the motion is also a critical stage of the proceedings.").

In Callis, trial counsel filed notice of appeal on the date of sentencing. 756 S.W.2d at 827. This Court relied upon the trial court's docket sheet entry on the date of sentencing, stating that counsel on appeal was "to be determined," as showing the trial court's conclusion that trial counsel would not be further involved with the case. Id. This Court assumed that trial counsel would not have considered the motion for new trial a part of his responsibility. Id. ² At the hearing on remand, the trial court had been unable to determine when counsel was appointed on appeal. Id. To be safe, this Court refused to speculate that counsel might have represented Callis during the time when a motion for new trial could have been filed. Id. This Court cited Whitmore v. State, 570 S.W.2d 889 (Tex.Crim.App.1976), ³ for the proposition that procedural rules must yield to constitutional rights. Callis, 756 S.W.2d at 827. This Court concluded that Callis had successfully met his burden of showing he was not represented by coun...