Straughter v. State
| Decision Date | 23 July 2019 |
| Docket Number | NO. 14-18-00408-CR,14-18-00408-CR |
| Parties | TRAVEIN STRAUGHTER, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 177th District Court Harris County, Texas
Appellant Travein Straughter appeals his sentence for murder. In his first issue, appellant argues that he was effectively deprived of counsel during most of the thirty-day period in which to file a motion for new trial. He seeks an abatement of the appeal and an opportunity to file an out-of-time motion for new trial. In his second issue, appellant contends his trial counsel provided ineffective assistance, for which appellant seeks a new trial.
We conclude neither issue has merit, and we affirm the trial court's judgment.
A Harris County grand jury indicted appellant for the felony offense of murder. The court appointed counsel for appellant two days later. Appellant pleaded guilty without an agreed recommendation as to punishment. The trial court deferred punishment pending a presentence investigation. Before the punishment hearing, appellant filed a "Motion for Preferential Setting," in which he stated that he sought to withdraw his plea. There is no indication in the record that the trial court considered or ruled on appellant's motion.
The court conducted a punishment hearing, at which attorneys for the State and the defense presented argument but no witnesses. After the hearing, the trial court sentenced appellant to forty years' confinement in the institutional division of the Texas Department of Criminal Justice. The day after the judge imposed the sentence, appellant filed a timely motion for new trial signed by his trial counsel. In the motion, appellant sought a new trial on grounds of new evidence in that the ballistic report allegedly indicated "two shooters." Appellant also sought a new trial "in the interests of justice." No hearing occurred on the motion, which was overruled by operation of law. Our record does not reveal that appellant's trial counsel filed a motion to withdraw. Appellant filed a timely pro se notice of appeal, and the court subsequently appointed new counsel for appeal, though the appointment did not occur until after the motion for new trial deadline expired.
In his first issue, appellant asserts that although his trial counsel filed a timely motion for new trial, he failed to present it to the court. Based on that fact, appellant contends the trial court erred in failing to appoint new counsel within the thirty-day new trial window so that newly appointed counsel could file another motion for new trial. Appellant contends he was denied representation during a critical stage of the proceedings.
The time period for filing a motion for new trial is a critical stage of criminal proceedings, and a defendant has a constitutional right to counsel during that period. See Cooks v. State, 240 S.W.3d 906, 908 (Tex. Crim. App. 2007). To prevail on a claim of deprivation of counsel, a defendant must affirmatively show he was not represented by counsel during the critical period at issue. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (op. on reh'g). When, as here, trial counsel does not withdraw and is not replaced by new counsel after sentencing, a rebuttable presumption exists that trial counsel continued to represent the defendant during the time for filing a motion for new trial. See Smith v. State, 17 S.W.3d 660, 662 (Tex. Crim. App. 2000); Oldham, 977 S.W.2d at 363; see also Smallwood v. State, 296 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The rebuttable presumption of adequate representation arises, in part, because counsel remains as the defendant's counsel for all purposes until expressly permitted to withdraw, even if the appointment or retention is for trial only. See Nguyen v. State, 222 S.W.3d 537, 540 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd); see also Ex parte Axel, 757 S.W.2d 369, 373-74 (Tex. Crim. App. 1988) (). The burden to produce evidence to rebutthe presumption is on the appellant. See Oldham, 977 S.W.2d at 363. The presumption is not rebutted when nothing in the record suggests that appellant was unrepresented by counsel during the period in question. See Smith, 17 S.W.3d at 662-63; Nguyen, 222 S.W.3d at 540.
Here, appellant's counsel filed a timely motion for new trial on appellant's behalf and did not withdraw during the new trial period. Appellant nevertheless contends that he was unrepresented "during most of the Motion-for-New Trial Window." To rebut the presumption of counsel's continued representation, appellant cites the following facts: (1) trial counsel failed to present the motion for new trial or obtain a ruling; (2) appellant filed a pro se notice of appeal eight days before the thirty-day window expired, which "should have alerted the trial court appellant was without counsel" and would have allowed sufficient time to appoint new counsel, who could file an amended motion for new trial; and (3) the trial court was aware that appellant's appellate counsel was "to be determined."1
Comparing this case with cases in which the Court of Criminal Appeals has concluded that a defendant did not rebut the presumption of adequate representation during the time period for filing a motion for new trial, we similarly conclude that appellant has not done so here. See, e.g., Smith, 17 S.W.3d at 662-63 (); Oldham, 977 S.W.2d at 362-63 (). Additionally, both Houston courts of appeals have rejected similar claims under comparable circumstances. See Green v. State, 264 S.W.3d 63, 69 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (); Gonzales v. State, No. 14-05-00562-CR, 2006 WL 1459845, at *2 (Tex. App.—Houston [14th Dist.] May 30, 2006, no pet.) (mem. op., not designated for publication) ( appellant's deprivation of counsel claim and noting the fact that appellant filed a pro se notice of appeal and a pro se motion to withdraw his guilty plea "is some evidence that appellant was informed of his appellate rights"). As in these cases, nothing in the present record shows that trial counsel did not advise appellant of his post-conviction rights, or that counsel refused to take any action requested by appellant. Although appellant may develop a record to support an ineffectiveness claim in a habeas corpus proceeding, he has failed here to overcome the presumption that he was adequately represented by trial counsel during the time period to file a motion for new trial.
We overrule appellant's first issue.
In his second issue, appellant argues that his trial counsel rendered ineffective assistance by failing to: (1) present mitigation evidence at the punishment hearing; (2) obtain a ruling on a motion for continuance; (3) obtain a ruling on a motion to withdraw appellant's guilty plea; (4) present the motion for new trial; and (5) withdraw from the case.
We examine claims of ineffective assistance of counsel under the familiar two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). Under Strickland, the defendant must prove that his trial counsel's representation was deficient, and that the deficient performance was so serious that it deprived him of a fair trial. Strickland, 466 U.S. at 687. Counsel's representation is deficient if it falls below an objective standard of reasonableness. Id. at 688. But a deficient performance will deprive the defendant of a fair trial only if it prejudices the defense. Id. at 691-92. To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.
Our review of trial counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable professional assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007); Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (op. on reh'g); see also Valdez v. State, No. AP-77,042, 2018 WL 3046403, at *25 (Tex. Crim. App. June 20, 2018) (); Luna v. State, No. 14-16-00844-CV, 2018 WL 1414175, at *1 (Tex. App.—Houston [14th Dist.] Mar. 22, 2018, no pet.) (mem. op., not designated for publication). If counsel's reasons for his conduct do not appear in...
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