AT AUSTIN
ON STATE'S MOTION FOR REHEARING ON REMAND
NO. 3-89-229-CR NO. 3-89-230-CR AND NO. 3-89-231-CR
JAMES AUGUSTUS CONNOR,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
NOS. 4242, 4343, AND 4244, HONORABLE CLAYTON E. EVANS, JUDGE PRESIDING
Our original opinion and judgments on remand issued on September 28, 1994, are withdrawn and the instant opinion is substituted in its place.
Appellant entered pleas of guilty to three indictments charging him with fraudulent sale of securities in violation of the Texas Securities Act, Tex. Rev. Civ. Stat. Ann. arts. 581-29(C)(1) (West Supp. 1994) and 581-4(F) (West 1964). Punishment was assessed in each case at ten years probated. In points of error three, four and five, appellant contends the trial court erred in hearing his motions for new trial in the absence of counsel to represent him. On original submission, we held that appellant's motions for new trial were invalid, and therefore the absence of counsel to represent appellant at the hearing was not error. We overruled appellant's points of error and affirmed the judgments of the trial court. Connor v. State, 809 S.W.2d 560 (Tex. App.--Austin 1991). The Court of Criminal Appeals has remanded these causes to this Court for reconsideration of appellant's right to counsel claim. Connor v. State, 877 S.W.2d 325 (Tex. Crim. App. 1994). We now find that appellant was deprived of representation of counsel at a critical stage of the trial.
On June 13, 1989, the trial court found appellant guilty on his pleas of guilty and assessed probated sentences. The trial court held a hearing on what it "took" to be a motion for new trial on August 10, 1989. During the interim appellant sent the court two handwritten communications in which he stated that his pleas of guilty were not voluntary; that his attorney had pressured him to accept the plea bargain; that he was under great pressure to care for a sick and dying mother at the time of the entry of his pleas; and that his attorney had not investigated his cases nor explained them to him.
Appellant appeared at the August 10th hearing without counsel and advised the court that he had been unable to get his retained trial counsel to return his calls; that he could not raise the money that his trial counsel had wanted; and that "I just got the file and got it in an [another] attorney's hands night before last." When the trial court advised appellant that it was going to proceed with the hearing, appellant stated, "I don't understand this kind of stuff."
On original submission, we recognized that the hearing on a motion for new trial is a critical stage of the proceedings at which a defendant is entitled to representation of counsel under the Sixth Amendment of the United States Constitution and article I, § 10 of the Texas Constitution. See Trevino v. State, 565 S.W.2d 938 (Tex. Crim. App. 1978). However, we concluded that appellant's communications with the court did not comply with the rule requiring verification of motions for new trial, nor did they meet the more relaxed statutory requirements for prison or jail inmates filing such motions. We are now persuaded that representation by counsel at this critical stage of the trial is a fundamental right in our system of justice that takes precedence over the procedural rules on which we relied.
The State urges that appellant waived his right to counsel by abusing the right for purposes of delay and obstruction. In Minjares v. State, 577 S.W.2d 222 (Tex. Crim. App. 1978), cited by the State, the defendant appeared by himself and waived arraignment in July, 1976. On August 16, 1976, appellant appeared without counsel at a pretrial conference. At this conference, the trial court admonished the defendant to hire a lawyer. The court found that the defendant understood "at all times" that his trial was set for November 20, 1976, and, except for one contact, made no attempt to employ counsel. The court stated that a defendant cannot obstruct the orderly administration of justice by neglecting his obligations, and held that the defendant's failure to obtain counsel when provided adequate opportunity constituted a waiver of that right. Id. at 224. See Oliver v. State, 872 S.W.2d 713, 716 (Tex. Crim. App. 1994).
Appellant's written and oral communications to the trial court reflect efforts to secure counsel that were not present in Minjares. We hold that appellant's conduct was not such as to constitute a waiver of his right to be represented by counsel at the hearing on the motions for new trial. The trial court erred in hearing the motions for new trial in the absence of counsel to represent appellant at the hearing. (1)
In cases where a defendant was denied counsel at the motion for new trial, the appropriate procedure is to abate the appeal and return the defendant to the stage of the proceedings at which he was denied the assistance of counsel. See Trevino, 565 S.W.2d at 941. Because appellant was denied counsel at a stage prior to the judgments placing appellant on probation and notices of appeal, we set aside the judgments of conviction and notices of appeal and return the causes to the trial court for a hearing on the motions for new trial. In the event appellant's motions for new trial are denied, judgments should be pronounced and notices of appeal may be given.
The State's motion for rehearing is granted. The judgments of conviction are reversed and the causes are remanded to the trial court for a hearing on the motions for new trial and the orderly conduct of post-trial proceedings.
Tom G. Davis, Justice
Before Chief Justice Carroll, Justices Jones and Davis*
Reversed and Remanded on State's Motion for Rehearing on Remand on All Causes
Filed: December 7, 1994
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. Our opinion on original submission relied on Martin v. State, 806 S.W.2d 237 (Tex. App.--Austin 1991), a case that arose from the same transaction as the instant causes, in our resolution of appellant's points of error relative to the trial court's order on payment of restitution. The Court of Criminal Appeals has recently reversed Martin, holding that the trial court erred by ordering restitution to persons other than the victim of the crime for which Martin was convicted. Martin v. State, 874 S.W.2d 674 (Tex. Crim. App. 1994).