Opinion issued April 5, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00063-CR
JAMES HAIL BENSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 818465
I respectfully dissent. This is appellant's second request for abatement. We previously abated the appeal, in February 2005, and ordered the trial court to conduct a hearing to determine whether appellant, a pro se litigant, was indigent and wished to appeal and, if so, to appoint appellate counsel. The trial court held the hearing and appointed counsel for appellant on April 15, 2005. In his second request for abatement, appellant contends the record demonstrates that he was without counsel from the date of sentencing, July 20, 2004, until April 15, 2005, when the trial court appointed appellate counsel, and, therefore, he was deprived of his constitutional right to counsel during a critical phase of these criminal proceedings. He asks that we abate the appeal and remand the cause to the trial court to start the appellate timetable running again so that he may file a motion for new trial.
When appellant first made his request for a second abatement, we mistakenly understood him to be requesting, first, abatement for a Jack I hearing to permit him to overcome the presumption that he was represented by counsel during the running of the appellate timetable and, second, abatement to start the appellate timetable running again so that he could file an out-of-time motion for new trial. See 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); Smith v. State, 17 S.W.3d 660, 662 (Tex. Crim. App. 2000) ("[w]hen a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected"); Oldham v. State, 977 S.W.2d 354, 368 (Tex. Crim. App. 1998) (motions for new trial are helpful for developing evidence of trial attorney's ineffective assistance of counsel, particularly when issues concern claim premised on trial attorney's failure to act).
On July 19, 2006, the panel issued an order in response to appellant's request that abated this cause for a second time. We 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." We also stated, "Once the appeal is reinstated, we will rule on appellant's request to file an out-of-time motion for new trial." We 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 remedy appellant sought. 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. This put us in the position of ordering abatement for a purpose for which it was not sought and creating and implementing a duplicative process of our own that would require yet another abatement should we ultimately grant appellant's request to restart the appellate timetable to permit an out-of-time 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 our July 19, 2006 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.
The majority of the full court now compounds the panel's error by denying appellant the right to the hearing he did not seek (to determine whether he had post-trial counsel) but which the panel inappropriately granted, holding (in my view, erroneously) on the basis of the record already before the Court that appellant did not overcome the presumption that he was represented by counsel in the critical post-trial period; the majority then erroneously denies appellant the remedy he did seek in the belief that he had overcome the presumption that he had had representation in the post-trial period, namely abatement to file his out-of-time motion for new trial. In the process, we overrule Jack I, which is before the Court only because we misconstrued appellant's request for the second abatement, and not otherwise.
The Court, like the panel, mistakenly characterizes appellant's request as a request that we abate the proceedings to allow him the opportunity to overcome the presumption that he was represented by counsel during the critical period between sentencing and the running of appellate deadlines. Such a hearing is called a Jack I hearing. Because I do not think the issue of overruling Jack I is properly presented by this case, I think it is a mistake to address it and that our en banc opinion overruling Jack I is advisory. Not only is a Jack I situation not before us, so that our overruling JacF
k I is advisory, but also by overruling Jack I in an improper case we make it unavailable to us in a proper case. Nothing in Jack I itself requires this court to hold a Jack I hearing when we have a record sufficient to determine whether an appellant was or was not represented by counsel in the immediate post-sentencing hearing. The majority nevertheless now posits such a requirement and overrules the requirement it posits.
As Justice Jennings' dissent likewise points out, appellant did not ask for abatement to allow him to make a record to overcome the presumption that he was represented between the time of sentencing and the time the timetable for filing a motion for new trial ran. Appellant actually argues that he has overcome the presumption, and he asks for abatement to start the appellate timetable running again. This is the appropriate remedy once it is established that an appellant was without counsel during the critical post-sentencing period. See Ward v. State, 740 S.W.2d 794, 800 (Tex. Crim. App. 1987) (when defendant is deprived of effective counsel during period for filing motion for new trial, remedy is to reset appellate time limits); see also Ex parte Axel, 757 S.W.2d 369, 374-75 (Tex. Crim. App. 1988) (when defendant is denied constitutional right to effective assistance of counsel in protecting and preserving his appellate rights, appellant is entitled to out-of-time appeal); Jack II, 64 S.W.3d at 697.
I agree with appellant that the record before this Court amply supports the conclusion that appellant was not represented by counsel between the time of sentencing, July 20, 2004, and the appointment of appellate counsel on April 15, 2005. As the majority acknowledges, after appellant was sentenced, his counsel neither objected to the sentence, nor filed a motion to withdraw from the case, nor filed anything else with the trial court. Appellant filed a pro se notice of appeal nine days after sentencing that clearly stated, "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. 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, stating, "The problem is that appellant is not represented by counsel on appeal." We ordered 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, found that appellant was indigent and wished to be represented, appointed appellate counsel, and stated, "Well, I don't know why you weren't appointed a lawyer on appeal . . . because you should have been appointed a lawyer . . . ."
There is less than a scintilla of evidence in the record that appellant had counsel at any time between July 20, 2004 and April 15, 2005. Therefore, there is nothing in the record to overcome appellant's evidence rebutting the presumption of counsel during the critical post-trial period and nothing to be gained by creating--and then denying--a requirement that we abate so that appellant can make such a record.
Nevertheless, the Court, after overruling Jack I, determines, solely on the basis of a string of presumptions of its own, that appellant has not overcome the presumption that he was represented by counsel during the time for filing a motion for new trial. I cannot imagine what more the Court would require to determine that appellant was not represented by counsel between the date of his sentencing on July 20, 2004 and April 15, 2005. Nor can I imagine on what evidentiary basis it can conclude that he has not overcome the presumption that he was represented by counsel during the running of deadlines in the trial court. Nor can I imagine what purpose would be served by holding a hearing to make such a determination. Nor, finally, can I interpret appellant's request that we abate this appeal so that he can file a motion for new trial to build a record on ineffective assistance of counsel during the post-trial period as a request that the trial court hold a hearing to determine whether he had counsel during the period for filing a motion for new trial. Appellant requests a Ward and Jack II abatement, not a Jack I abatement.
I would hold, on the basis of Smith and Oldham, that appellant has overcome the presumption that he was represented by counsel during the running of appellate timetables and that his appellate counsel is now seeking the appropriate remedy under Ward, namely, remand to start the appellate timetable running again so that he can file a motion for new trial to build a record to substantiate appellant's claims of ineffective assistance of counsel. See Smith, 17 S.W.3d at 662; Oldham, 977 S.W.2d at 368; Ward, 740 S.W.2d at 800.
I would abate the appeal and remand the cause to the trial court with instructions that the court reset the appellate timetables. I would not use this occasion to revisit our holding in Jack I because I do not believe that issue is properly before us, and, therefore, the majority opinion is advisory.
Evelyn V. Keyes
Justice
Panel consisted of Justices Keyes, Alcala, and Bland.
En banc consideration was requested. See Tex. R. App. P. 41.2(c).
A majority of the Court voted for en banc consideration.
The en banc Court consists of Chief Justice Radack and Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley, and Bland.
Justice Alcala, writing for the majority of the en banc Court, joined by Chief Justice Radack and Justices Taft, Nuchia, Hanks, Higley, and Bland.
Justice Jennings, dissenting.
Justice Keyes, dissenting.
Publish. Tex. R. App. P. 47.2(b).