AFFIRM; and Opinion Filed April 22, 2016.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00621-CR
BYRON KEITH BOOKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0958130-U
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Brown
Byron Keith Booker appeals the trial court’s judgment adjudicating him guilty of
aggravated robbery. In two issues, he contends he was denied the right to counsel during the
time for filing a motion for new trial and contends the presumption that trial counsel continued to
represent him after sentencing should not apply in the context of this case. We affirm the trial
court’s judgment.
In September 2009, appellant was indicted for aggravated robbery. He entered an open
plea of guilty. In June 2010, the trial court deferred adjudication of guilt and placed appellant on
community supervision for seven years. Between July 2010 and November 2013, the State
moved four times to proceed with an adjudication of guilt. Each time, appellant was continued
on community supervision, but the conditions of community supervision were modified. In
February 2015, the State moved again to proceed with an adjudication of guilt. Appellant and
the State entered into a plea agreement, by which appellant agreed to plead true to the allegations
in the motion in exchange for a ten-year sentence. He signed a judicial confession stipulating
that he violated various conditions of his community supervision. At a hearing on April 27,
2015, the trial court adjudicated appellant’s guilt and assessed his punishment in accordance with
the plea agreement. Any motion for new trial was due by May 27, 2015. See TEX. R. APP. P.
21.4 (defendant may file motion for new trial no later than thirty days after date court imposes
sentence in open court). No motion for new trial was filed. Appellant timely filed a pro se
notice of appeal.
Appellant was represented by several court-appointed attorneys during the pendency of
his case. The attorney who represented appellant in April 2015 when the trial court imposed his
sentence was appointed in February 2015. Nothing in the record indicates that attorney
withdrew from the case before the time for filing a motion for new trial expired. Appellant’s
appellate counsel was appointed on September 30, 2015, after this Court abated the appeal to
have the trial court determine the accuracy of its certification of appellant’s right to appeal and
determine why appellant’s brief had not been filed.
In his first issue, appellant contends he was denied his Sixth Amendment right to counsel
during the time period for filing a motion for new trial. To show he did not have counsel,
appellant relies on the following: (1) he filed a pro se notice of appeal; (2) nothing in the record
shows his trial attorney provided any legal representation after the date sentence was imposed;
and (3) his appellate counsel was appointed well after the deadline for filing a motion for new
trial. Although appellant does not specify what he would have raised in a motion for new trial,
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he refers to a letter in the record written on his behalf in 2010 that asserted a claim of ineffective
assistance of counsel against one of his attorneys, who was not named. 1
The Sixth Amendment right to counsel extends to all “critical stages” of a criminal
proceeding, not just the actual trial. Gilley v. State, 418 S.W.3d 114, 120 (Tex. Crim. App.
2014). The time period during which a motion for new trial may be filed is a critical stage for
which a defendant has a constitutional right to counsel. See Cooks v. State, 240 S.W.3d 906, 911
(Tex. Crim. App. 2007); McBride v. State, 249 S.W.3d 673, 674 (Tex. App.—Fort Worth 2008,
no pet.). There is a rebuttable presumption that a defendant’s trial counsel continued to represent
him during the window for filing a motion for new trial. Green v. State, 264 S.W.3d 63, 69 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d); see Oldham v. State, 977 S.W.2d 354, 361 (Tex.
Crim. App. 1998). In addition, when no motion for new trial is filed in a case, there is a
rebuttable presumption that the defendant considered and rejected filing such a motion. Oldham,
977 S.W.2d at 363. The fact that a defendant filed a pro se notice of appeal is evidence that he
must have been informed of at least some of his appellate rights. Smith v. State, 17 S.W.3d 660,
663 (Tex. Crim. App. 2000); Oldham, 977 S.W.2d at 363. Therefore, absent a showing in the
record to the contrary, we presume a defendant was adequately counseled regarding his right to
file a motion for new trial. Smith, 17 S.W.3d at 664.
Here, we presume appellant’s trial counsel continued to represent him during the thirty-
day period for filing a motion for new trial. We also presume his attorney adequately counseled
him regarding the right to file a motion for new trial and that appellant made a conscious
decision not to file one. Nothing in the record rebuts these presumptions. See id. at 663–64
(when defendant filed pro se notice of appeal, appellate counsel was appointed after deadline for
1
The letter asserts counsel was ineffective for failing to bring certain information to the trial court’s attention, such as appellant’s desire to
participate in “the freeworld inpatient and outpatient drug rehab program” rather than the SAFPF program.
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filing motion for new trial, and defendant alleged ineffective assistance of counsel, presumption
not rebutted); Green, 264 S.W.3d at 70–71 (same); Benson v. State, 224 S.W.3d 485, 497–98
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (same).
In his brief, appellant recognizes that these presumptions work against him. Therefore, in
his second issue, he contends we should not apply them because his case involved a negotiated
plea agreement. Appellant maintains that an attorney who negotiated a plea agreement for his
client would normally have no reason to file a motion for new trial to undo the agreement or to
assert an ineffective assistance claim. Appellant invites us to either distinguish this case from
Oldham and others or make a change in the law. We decline to do so. While it is true that
Oldham and Smith did not involve negotiated plea agreements, nothing in those cases suggests
the court of criminal appeals intended to limit the applicable presumptions to contested
proceedings. It is not our role as an intermediate appellate court to modify the law in this regard.
Appellant has failed to show that he was denied his right to counsel during the time for filing a
motion for new trial. We overrule appellant’s first and second issues.
We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
150621F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BYRON KEITH BOOKER, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-15-00621-CR V. Trial Court Cause No. F-0958130-U.
Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee Lang and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 22nd day of April, 2016.
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Byron Keith Booker v. State
Combined Opinion