Oldham v. State

KELLER, Judge,

dissenting.

A jury found Appellant guilty of forgery, and the trial court assessed her punishment at three years confinement. The Fourteenth Court of Appeals held that Appellant had been denied counsel during the time period in which she could have filed a motion for new trial, - set aside Appellant’s conviction, and remanded the ease to the trial court for a hearing on the motion for new trial. Oldham, v. State, 889 S.W.2d 461 (Tex.App.Houston [14th] 1994). We granted the State’s petition for discretionary review to determine whether the record supports the Court of Appeal’s holding that Appellant was denied her right to counsel during a critical stage of the proceedings. Further, we granted the petition to determine whether the remedy adopted by the Court of Appeals in this case is proper. A majority of the Court dismisses the petition as improvidently granted. To this action I respectfully dissent.

On appeal, Appellant alleged that her trial attorney was released on the day of sentencing, and since appellate counsel was not appointed until sixty-two days later, she was therefore without assistance of counsel during the time period for filing a motion for new trial. Tex.RApp.Pro. 31. The Court of Appeals agreed, and found that the lack of counsel constituted “good cause” under Tex. RApp.Pro. 2(b) for extending the deadline for filing a motion for new trial.

The State contends the Court of Appeals was wrong to assume that trial counsel had been relieved from further involvement in the ease, because nothing in the record indicates that counsel sought or was permitted to withdraw, or was otherwise replaced by counsel during a critical stage of the proceedings. Secondly, the State contends the Court of Appeal’s action in remanding the case to the point in time at which sentence was imposed was improper.

Appellant was sentenced on January 14, 1992. On February 10, 1992, Appellant filed a timely pro se notice of appeal. The following day, the district clerk sent notice to Appellant that the appeal had been assigned to the Fourteenth Court of Appeals, and that appellate counsel was “to be determined.” However, appellate counsel was not appointed until March 16,1992, past the deadline for filing a motion for new trial.

In holding that Appellant had been denied her constitutional right to counsel during a critical stage of the proceedings, the Court of Appeals relied on Cox v. State, 797 S.W.2d 958 (Tex.App.—Houston [1st] 1990, no pet.), and Callis v. State, 756 S.W.2d 826 (Tex.App.—Houston [1st] 1988, no pet.). In each of those cases, the Court of Appeals held that the failure to appoint counsel for appeal until the deadline for filing a motion for new trial had passed was a denial of the right to counsel at a critical stage of the proceedings. In each case, the First Court of Appeals suspended Tex.R.App.P. 31(a), requiring that the defendant file his motion for new trial within thirty days of the imposition of sentence, and remanded the case to the trial court for resentencing.

However, the record in Callis clearly showed that trial counsel was permitted to withdraw from the case following the imposition of sentence. In Callis, there was a notation on the docket sheet that counsel on appeal was “to be determined.”1 In the present case, there is no such docket entry. There is nothing in this record to demonstrate that counsel filed a motion to with*575draw, or that he was in any way released of his obligations to remain as Appellant’s counsel until “appeals are exhausted.” See Art. 26.04(a), V.A.C.C.P. The only similar entry in the record is found in the letter of assignment to the Court of Appeals from the district clerk’s office, stating that the clerk’s records indicate that the attorney on appeal was to be determined. The Court of Appeals has not referred to any evidence within the record to support its conclusion that “appellant’s trial attorney also seemed to believe his representation of appellant ended after trial.” Oldham, 889 S.W.2d at 462.

The Court of Appeals expressly declined to follow the holding in Ortega v. State, 837 S.W.2d 831 (Tex.App.-San Antonio 1992, no pet.). In Ortega, the defendant also alleged he was deprived of counsel during the period for filing a motion for new trial. The San Antonio Court of Appeals relied on this Court’s holding in Ward v. State, 740 S.W.2d 794, 798 (Tex.Cr.App.1987), that “appointed trial counsel remains as the defendant’s counsel for all purposes until he is expressly permitted to withdraw.” The Court held that there was nothing in the record to indicate that appointed trial counsel sought or was permitted to withdraw, or was otherwise replaced by counsel. The Court stated that simply because trial counsel did not file a motion for new trial on the defendant’s behalf, did not mean that the defendant was denied his right to counsel during this period of time. Id. at 832. We find the reasoning applied by the appellate court in Ortega applies in this case as well.

Appellant has failed to rebut the presumption that she was represented by counsel following sentencing. Merely because she filed a pro se notice of appeal does not indicate she was without counsel; it may simply mean that initially she told counsel she did not want to pursue the appeal, and she changed her mind at the last minute. Likewise, simply because a motion for new trial was not filed does not mean that Appellant-was without counsel during that time period in which a motion could have been filed. There is nothing in the statement of facts of this trial to reflect that counsel asked or was permitted to withdraw following sentencing. Finally, the notice from the district clerk’s office is inadequate to reflect that trial counsel had been permitted to withdraw from the case, and that Appellant was without counsel.

I would hold that the Court of Appeals improperly found Appellant was not represented by counsel during the time in which a motion for new trial could have been filed, and I would reverse the judgment of the Court of Appeals.2 Because the majority instead dismisses the State’s petition, I dissent.

McCORMICK, P. J., joins.

. The facts as set out in the appellate opinion in Cox are not as specific as to whether trial counsel was permitted to withdraw following sentencing. it appears the Court of Appeals summarily granted relief based on its decision in Callis.

. Since I would hold that the Court of Appeals erred in finding that Appellant was not represented by counsel during a critical stage of the proceedings, the remaining issue as to the form of the relief provided by the Court of Appeals would be moot.