Opinion issued October 11, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00885-CR
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ABNER L. WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1430059
MEMORANDUM OPINION
Appellant, Abner L. Washington, without an agreed recommendation from
the State, pleaded guilty to possession of a controlled substance. The trial court
found appellant guilty and assessed his punishment at sixty days’ confinement. In
two issues, appellant contends that (1) he was denied the right to counsel during the
time for filing a motion for new trial, and (2) the trial court erred in failing to grant
a hearing on his motion for new trial. We affirm.
Background
On May 29, 2014, appellant was arrested and charged with the state jail felony
offense of possession of a controlled substance, namely, cocaine weighing less than
one gram.1 The next day, the trial court appointed an attorney to represent appellant.
Pursuant to his plea, appellant signed a “Waiver of Constitutional Rights,
Agreement to Stipulate, and Judicial Confession” which stated, “I intend to enter a
plea of guilty and the prosecutor will recommend that my punishment should be set
at WOAR [without agreed recommendation].” The document also contained the
following language: “I waive any right of appeal which I may have should the court
accept the foregoing plea bargain agreement between myself and the prosecutor.”
The admonishment form signed by appellant stated “you are charged with the felony
of PCS.”
On June 17, 2014, the trial court signed the judgment. The judgment stated,
“Appeal waived. No permission to appeal granted.” The same day, the court signed
its certification of appellant’s right to appeal, reflecting that appellant “has waived
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a), (b) (West
2010).
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the right of appeal.”2 However, the court later amended the certification to reflect
that appellant had a right to appeal.
Thereafter, appellant began filing various pro se motions asking the trial court
to reduce his sentence; grant him additional time in the Harris County Jail law
library; grant him access to a “flat-rate billing” phone at the county’s expense; alter,
amend, or vacate his judgment and reduce his charge to possession of drug
paraphernalia; and set his post-trial motions for hearing and re-assign his attorney to
the case. By letter dated June 21, 2014, appellant requested that his case be set for
a hearing and indicated that he wanted to withdraw his guilty plea if the court did
not modify or amend the judgment. He also stated that his court-appointed counsel
“may no longer be assigned to the case” and that he was therefore representing
himself.
On July 2, 2014, appellant wrote a letter to the trial court stating that he wished
to withdraw his guilty plea because, at the time of the plea, he believed that he was
pleading “to a reduced charge as a misdemeanor offense and punishment.” He also
requested that he and his attorney appear before the court, or that the court amend
the judgment. T. Jones, a district court clerk, informed appellant in writing that the
2
There is no reporter’s record.
3
court took no action on his motions, and that appellant had completed his sentence
in the case and was currently being held on a parole violation.
On July 9, 2014, appellant filed a motion for new trial entitled “Post-Judgment
Hearing Conference Requested on Defendant’s Motions to Alter or Amend the
Judgment or Alternatively Request to Withdraw Guilty Plea Due to
Misunderstanding of Terms.” After appellant filed a notice of appeal, Jones
informed appellant in writing that the trial court took no action on the notice and
advised appellant that “[y]ou cannot appeal a sentence after it has been satisfied.”
Appellant subsequently filed several more motions with the trial court.
On September 15, 2014, the court appointed counsel to represent appellant on
appeal. The trial court entered a judgment nunc pro tunc stating that “the defendant
has the right to appeal.” Appellant’s motions, including his motion for new trial,
were overruled by operation of law.
Discussion
Appellant raises two points of error. First, he contends that he was denied his
constitutional right to counsel during the time for filing a motion for new trial.
Second, he argues that the trial court erred in failing to grant him a hearing on his
motion for new trial.
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Deprivation of Counsel
A. Applicable Law
A defendant may file a motion for new trial no later than thirty days after the
date when the trial court imposes or suspends a sentence in open court. TEX. R. APP.
P. 21.4(a). This thirty-day period is a “critical stage” in a criminal proceeding, and
a defendant has a constitutional right to counsel during that period. See Cooks v.
State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007).
If an appellant is represented by counsel during trial, there is a rebuttable
presumption that the trial attorney continued to adequately represent appellant
during the motion for new trial period. See id.; Green v. State, 264 S.W.3d 63, 69
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). The rebuttable presumption of
adequate representation arises, in part, because appointed counsel remains as the
defendant’s counsel for all purposes until expressly permitted to withdraw, even if
the appointment is for trial only. Nguyen v. State, 222 S.W.3d 537, 540 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d). To prevail on a claim of deprivation of
counsel, a defendant must affirmatively show he was not represented by counsel
during this period. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App.
1998). Appellant bears the burden to produce evidence to rebut the presumption.
See id.; Benson v. State, 224 S.W.3d 485, 491 (Tex. App.—Houston [1st Dist.] 2007,
no pet.).
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To defeat the presumption, an appellant must show more than (1) appellant
filed a pro se notice of appeal; (2) the appellate attorney was “to be determined”; (3)
the trial court appointed appellate counsel after the expiration of the time for filing
a motion for new trial; (4) on appeal, appellant would have raised further complaints
had a motion for new trial been filed; (5) appellant appeared without counsel when
signing a pauper’s oath and requesting appellate counsel; and (6) the record shows
no activity by trial counsel or any motion to withdraw from the case. See Smith v.
State, 17 S.W.3d 660, 662–63 (Tex. Crim. App. 2000); Green, 264 S.W.3d at 69
(citing Oldham, 977 S.W.2d at 362–63). If a defendant rebuts the presumption with
evidence he was deprived of adequate counsel during this stage, the deprivation of
counsel is subject to a harm analysis. See Cooks, 240 S.W.3d at 911.
B. Analysis
Appellant contends that he has rebutted the presumption that appointed trial
counsel continued to represent him during the time for filing a motion for new trial
because (1) the trial court erroneously told him that he did not have the right to
appeal; (2) the court eventually appointed appellate counsel to represent him; and
(3) he filed several pro se motions during the motion for new trial period.
Appellant argues that “[b]ecause the trial court pronounced that Mr.
Washington could not appeal, then appointed trial counsel would not have continued
to have represented Mr. Washington on any appeal.” The record reflects that the
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trial court initially certified that appellant had waived his right to appeal but later
amended the certification to reflect appellant’s right to appeal. The clerk of the court
also sent a letter to appellant which stated, in part, “[y]ou cannot appeal a sentence
after it has been satisfied.” However, as the Court of Criminal Appeals has noted,
“motions for new trial and appeals are sufficiently different that an appellate waiver
will not waive a defendant’s right to file a motion for new trial.” Lundgren v. State,
434 S.W.3d 594, 600 (Tex. Crim. App. 2014). Thus, even if appellant had validly
waived his right to appeal, this does mean that his trial counsel ceased to represent
him during the new trial period. Appellant further asserts that, if he had been
represented during the new trial period, then his counsel would have taken some
action to correct the trial court’s certification and district clerk’s letter regarding his
right to appeal. However, to defeat the presumption of continued representation, an
appellant must do more than show that the record reflects no activity by trial counsel.
See Green, 264 S.W.3d at 69.
Appellant next contends that the trial court’s appointment of appellate counsel
three months after his conviction effectively rebuts the presumption that his
appointed trial counsel continued to represent him during the time for filing a new
trial motion. A showing that the trial court appointed appellate counsel after the
expiration of the time for filing a motion for new trial is not sufficient to demonstrate
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that a defendant was not counseled by his trial attorney regarding the merits of filing
a motion for new trial. See Oldham, 977 S.W.2d at 362–63.
Appellant also argues that he rebutted the presumption of continued
representation because he filed post-trial pro se motions requesting appointment of
counsel. However, the filing of a pro se motion “does not, in and of itself, rebut the
presumption that trial counsel acted in accordance with his continuing duty to
represent his client.” See Green, 264 S.W.3d at 70. We further note that, in other
post-judgment correspondence, appellant asked the court to “summon my attorney
to be present” and “contact Ms. Denise Crawford, [a]ttorney, and arrange for us to
appear before you,” suggesting that his trial counsel continued to represent him after
the entry of judgment.
However, even if appellant was improperly denied counsel during this critical
stage, any such error was harmless. In order to be entitled to a reversal, appellant
had to establish that the deprivation of counsel during this period resulted in harm.
See Cooks, 240 S.W.3d at 911. Appellant argues that because his motion alleges
reasonable factual grounds, the error was not harmless. However, appellant has
offered no explanation as to how he was harmed, for example, by showing how his
motion for new trial would have been different had he had counsel or what
arguments he would have made on appeal that he was prohibited from making as a
result. See id. at 911–12 (finding no harm when defendant did not show any facially
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plausible claims he was precluded from bringing); Mashburn v. State, 272 S.W.3d
1, 5 (Tex. App.—Fort Worth 2008, pet. ref’d) (“Appellant does not say what issues
he would have raised on appeal that were not preserved by the motion for new trial
filed and presented by trial counsel, nor are any of the issues in his brief barred from
consideration by this court for lack of them being properly raised in a motion for
new trial.”). Because we hold that error, if any, in denying appellant representation
during this critical stage was harmless, we overrule appellant’s first issue.
Motion for New Trial Hearing
In his second point of error, appellant contends that the trial court erred in
failing to grant a hearing on his motion for new trial. He argues that his motion
alleged reasonable grounds outside the record and, thus, required a hearing.
A. Standard of Review and Applicable Law
We review a trial court’s decision on whether to hold a hearing on a
defendant’s motion for new trial for abuse of discretion. Hobbs v. State, 298 S.W.3d
193, 199 (Tex. Crim. App. 2009). The purposes of a new trial hearing are (1) to
determine whether the case should be retried, or (2) to complete the record for
presenting issues on appeal. Id. Therefore, in order for a defendant to be entitled to
a hearing, the motion for new trial must satisfy two requirements: (1) it must assert
matters that are “not determinable from the record” and (2) it must assert “reasonable
grounds” showing that the defendant could be entitled to relief. Smith v. State, 286
9
S.W.3d 333, 338–39 (Tex. Crim. App. 2009). A motion for new trial must be
“supported by an affidavit specifically setting out the factual basis for the claim.” 3
Hobbs, 298 S.W.3d at 199. No hearing is required if “the affidavit is conclusory, is
unsupported by facts, or fails to provide requisite notice of the basis for the relief
claimed.” Id.
B. Analysis
Appellant contends that his motion for new trial set forth the following facts
which rendered his plea involuntary: (1) previously unknown collateral
consequences; (2) his mistaken belief that his plea would result in a misdemeanor
conviction; and (3) the residual substance found in drug paraphernalia was
insufficient to sustain a felony conviction. He argues that these allegations amount
to reasonable grounds which are not determinable from the record and, therefore,
entitle him to a hearing.
Appellant asserts that the first allegation in his motion—that he was unaware
of the collateral consequences of his plea—is not determinable from the record and
3
An unsworn declaration may be used in lieu of a written sworn declaration,
verification, certification, oath, or affidavit required by statute. TEX. CIV. PRAC. &
REM. CODE ANN. § 132.001(a) (West Supp. 2016). “The inclusion of the phrase
‘under penalty of perjury’ is the key to allowing an unsworn declaration to replace
an affidavit.” Dominguez v. State, 441 S.W.3d 652, 658 (Tex. App.—Houston [1st
Dist.] 2014, no pet.) (citing Bahm v. State, 219 S.W.3d 391, 393–94 (Tex. Crim.
App. 2007)). Here, appellant included a jurat at the bottom of the last page of his
motion which states, “I Abner L.Washington, declare under the penalty for perjury
that the foregoing is true and correct.”
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therefore requires a hearing. When the record demonstrates that the defendant was
properly admonished, it constitutes prima facie evidence that the defendant’s plea
was knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim.
App. 1998) (per curiam). Here, the record reflects that appellant was properly
admonished. He signed a waiver of constitutional rights, agreement to stipulate, and
judicial confession stating that he understood the effects of his waivers and had fully
discussed his case with his trial counsel. The trial court signed the form below the
paragraph stating, “After I admonished the defendant of the consequences of his
plea, I ascertained that he entered it knowingly and voluntarily after discussing the
case with his attorney.” Appellant also initialed and signed written admonishments
acknowledging that he was aware of the consequences of his plea and that he made
his plea freely and voluntarily.
We also note that a reviewing court will not find a guilty plea involuntary due
to the appellant’s lack of knowledge of a collateral consequence. See State v.
Collazo, 264 S.W.3d 121, 128 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). A
plea is not involuntary simply because the defendant “did not correctly assess every
relevant factor entering into his decision.” Talbott v. State, 93 S.W.3d 521, 526
(Tex. App.—Houston [14th Dist.] 2002, no pet.) (internal citation omitted)
(concluding that failure to admonish defendant that her parental rights could be
terminated as result of her guilty plea did not render plea involuntary).
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Appellant argues that the second allegation in his motion—that he mistakenly
believed that he would receive a misdemeanor conviction in exchange for a guilty
plea based on his attorney’s incorrect advice—is not determinable from the record
and, thus, requires a hearing. As previously noted, appellant signed a waiver of
constitutional rights, agreement to stipulate, and judicial confession acknowledging
that he understood the effects of his waivers and had fully discussed his case with
his trial counsel. In his sworn written admonishments, appellant initialed the
paragraphs stating “you are charged with the felony of PCS. If convicted, you face
the following range of punishment: STATE JAIL FELONY AND SENTENCE
UNDER 12.44(a): a term of confinement in the county jail not to exceed one year
and in addition, a fine not to exceed $4,000.00 may be assessed, or both. This is a
felony conviction.” (emphasis added) By signing the admonishment form, appellant
also acknowledged that he was aware of the consequences of his plea and that his
plea was freely and voluntarily made. These facts are in contrast to the statements
in appellant’s motion that he did not understand the nature of his plea. As the
factfinder, the trial court was free to determine appellant’s statements in his motion
were not credible. See Bryant v. State, 974 S.W.2d 395, 400 (Tex. App.—San
Antonio 1998, pet. ref’d) (stating there was no need for trial court to look outside
record to determine that defendant’s motion was without merit where, even if trial
counsel had failed to fully explain defendant’s plea bargain to him, trial judge fully
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admonished defendant prior to plea); see also Chacon v. State, No. 04-11-00501-
CR, 2012 WL 2551162, at *2 (Tex. App.—San Antonio June 27, 2012, pet. ref’d)
(mem. op., not designated for publication).
Appellant contends that the third allegation in his new trial motion—that the
residue found in the crack pipe is insufficient to sustain a felony conviction—is
outside the record and requires a hearing. His argument is without merit. Appellant
expressly waived his right to confront and cross-examine witnesses, and he
consented to written stipulations of evidence in his case. Further, other than a
conclusory assertion that the evidence does not support his conviction, appellant’s
motion alleges no facts to support his claim. See King v. State, 29 S.W.3d 556, 569
(Tex. Crim. App. 2000); see also Lopez v. State, No. 01-09-01048-CR, 2011 WL
941779, at *3 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, pet. ref’d) (mem. op.,
not designated for publication).
The trial court did not abuse its discretion in failing to hold a hearing on
appellant’s motion for new trial. Accordingly, we overrule his second point of error.
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Conclusion
We affirm the trial court’s judgment. We dismiss all pending motions as
moot.
Russell Lloyd
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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