Opinion issued May 20, 2010.
Court of Appeals
First District of Texas
NO. 01-09-00006-CR NO. 01-09-00007-CR ——————————— ALTRUCE DEWAYNE STUARD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas Trial Court Case Nos. 1037611 & 1037613
MEMORANDUM OPINION Appellant, Altruce Dewayne Stuard, pleaded guilty without an agreed punishment recommendation to two indictments, the first alleging tampering with a
governmental record (trial court case no. 1037611), a second-degree felony, and the second alleging theft of property valued at $20,000 or more and less than $100,000 (trial court case no. 1037613), a third-degree felony. See TEX. PENAL CODE ANN. §§ 37.10(a)(1), (d)(3), 31.03(a), (e)(5) (Vernon Supp. 2009). After the punishment hearing, the trial court found appellant guilty and assessed his punishment at five years in prison in each case, to run concurrently. Appellant
timely filed a motion for new trial. We determine whether appellant carried his burden of showing that his retained appellate counsel was ineffective for having failed to obtain a hearing on that motion before it was overruled by operation of law. We affirm. INEFFECTIVE ASSISTANCE OF COUNSEL In one issue, appellant contends that the counsel whom he retained for appeal, Carmen Roe, was ineffective when she “failed to obtain a hearing on his motion for new trial before the trial court lost jurisdiction” of the case. A. The Law Criminal defendants are entitled to reasonably effective assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove ineffective assistance of counsel, appellant must show that (1) counsel ’s performance fell below an
objective standard of reasonableness and (2) but for counsel ’s unprofessional error or omission, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). A failure to make a showing under either prong defeats an ineffectiveassistance challenge. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Under the first Strickland prong, the appellant must overcome the strong presumption that counsel’s complained-of conduct fell within the wide range of reasonable professional assistance. See Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005); Rylander, 101 S.W.3d at 110. This review is highly deferential. Chandler, 182 S.W.3d at 354. For this reason, a Strickland challenge must be firmly founded in a record that affirmatively demonstrates the meritorious nature of the challenge. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). When counsel’s reasons for failing to do what the defendant contends should have been done do not appear in the record—as, for example, when counsel has not been afforded an opportunity to explain her actions—we should not find deficient performance unless the challenged conduct was “’so outrageous that no competent attorney would have engaged in it.’” Id. (quoting Rylander, 101 S.W.3d at 111). That is, we normally will not speculate to find trial counsel ineffective
when the record is silent on her reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). “Under normal circumstances, the record on direct appeal will not be sufficient to demonstrate that counsel’s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). But when the record on direct appeal is
sufficient to prove that counsel’s performance was deficient, an appellate court “should obviously address the claim . . . .” Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). B. Discussion Appellant pleaded guilty to both indictments on July 25, 2008. At the time, appellant was represented by retained counsel, Craig Washington. No record was made of the plea hearing, but the docket sheet and the reporter’s record from the later punishment hearing both indicate that the trial court accepted appellant’s pleas, ordered a presentence-investigation (“PSI”) report, and continued the case until a later date for sentencing. The same day that appellant pleaded guilty, he moved for community supervision in both cases.
The punishment hearing occurred on December 16, 2008 (“the PSI hearing”). Timberly Davis, Washington’s associate, appeared for appellant at the PSI hearing, announcing, “[W]ith the permission of the Defendant, Timberly Da vis is standing in for Mr. Craig Washington.” Davis presented appellant and his father as witnesses. She requested deferred-adjudication community supervision, or
alternatively community supervision, in both cases. The State argued at closing, “And so I would ask the Court to assess the punishment that I’ve offered the Defendant the entire time, [which] is ten years ” in prison. The trial court at first announced that it found appellant guilty and assessed his punishment at five years in prison on each charge, to run concurrently. However, upon appellant’s request to “have a little time before I turn myself in” to “put my kids somewhere,” the trial court rescinded that pronouncement, finding only sufficient evidence to substantiate guilt and resetting sentencing until December 30, 2008. There is no reporter’s record from the December 30 sentencing hearing, but appellant represents, and the docket sheets confirm, that Washington appeared for appellant. The court found appellant guilty and assessed his pu nishment at five years in prison on each charge, to run concurrently. Appellant filed his notices of appeal the same day (December 30), signed by new counsel, Carmen Roe, whom appellant had retained for appeal.
On January 29, 2009—the thirtieth day after sentencing in open court—Roe timely filed a motion for new trial on appellant’s behalf. See TEX. R. APP. P. 21.4(a) (requiring that motion for new trial be filed within 30 days of date when trial court imposes or suspends sentence in open court) . That motion alleged that (1) some of the materials considered by the court at the PSI hearing were lost or destroyed without appellant’s fault;1 (2) appellant was denied effective assistance of trial counsel because Washington did not attend the PSI hearing and Davis, who was unfamiliar with the case, did not call available witnesses; and (3) Washington’s erroneous advice and promises concerning pleading guilty resulted in those pleas’ being involuntary. Attached to the motion was appellant’s affidavit, in which he averred various supporting facts that were not determinable from the record.2 Roe recited in the motion that appellant was entitled to a hearing. See
On February 25, 2009, upon appellant’s motion, the trial court ordered the State to produce the missing documents, and they now appear in the appellate record. Appellant averred that (1) Washington had advised him that “we were not taking any risk [in entering open pleas] because the judge was very reasonable and would give probation and the State would not argue against probation”; (2) appellant would not have pleaded guilty without these and other assurances made by Washington; (3) Davis stood in for Washington at the PSI hearing without appellant’s consent; (4) appellant had “hardly ever spoke[n]” with Davis because she was hostile to him and they did not get along; (5) appellant “had prepared at least 20 witnesses for the [PSI] hearing and they were on standby,” as Washington had instructed before the hearing; (6) Davis did not want to call any witnesses, but appellant insisted that at least he and his father testify; and (7) Davis refused to offer in rebuttal an audiotape of a community outreach speech that appellant had given. 6
Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (“We . . . hold that when an accused presents a motion for new trial raising matters not determinable from the record, upon which the accused could be entitled to relief, the trial judge abuses his discretion in failing to hold a hearing . . . .”); see also Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009) (holding that post-judgment motions “are not self-proving and any allegations made in support of them by way of affidavit or otherwise must be offered into evidence at a hearing.”). Roe timely presented appellant’s motion for new trial, as evidenced by the trial court’s February 3, 2009 order acknowledging same. See TEX. R. APP. P. 21.6 (requiring that defendant present motion for new trial within 10 days of its filing). The record indicates that a hearing on an unspecified motion was scheduled for February 25, 2009,3 but nothing shows that the hearing was ever held. Neither does anything show that Roe obtained, or that the trial court conducted, a hearing on the motion for new trial before the expiration of 75 days, which was March 15, 2009, a Sunday. Because the trial court did not rule on the motion for new trial by
Two motions were then pending: the new-trial motion and a motion requesting a hearing on a motion to compel production of certain documents from the PSI hearing. The trial court had already denied the motion to compel, but then appellant moved for a hearing on it, and the trial court would later grant the requested relief by orders dated February 25, 2009. The State represents that the hearing scheduled for February 25 was on appellant’s motion for new trial, but appellant does not confirm this. The docket sheets do not indicate what the motion was. 7
written order, the motion was overruled by operation of law on Monday, March 16, 2009. See TEX. R. APP. P. 4.1(a), 21.8(a), (c). On March 26, 2009, Roe moved to withdraw as appellant’s counsel, citing “potential or realized violations of Texas Rules of Disciplinary Procedure [sic] 1.15(a)(1) and (b).”4 The motion recited that Roe had “noticed the defendant . . . of her intention to withdraw as attorney of record,” but did not specify when that had occurred. The hearing on that motion occurred on April 13, 2009. At the
Texas Disciplinary Rule of Professional Conduct 1.15(a)(1) provides: “(a) A lawyer shall decline to represent a client or, where representation has commenced, shall withdraw, except as stated in paragraph (c), from the representation of a client, if: (1) the representation will result in violation of Rule 3.08, other applicable rules of professional conduct or other law . . . .” Tex. Disciplinary R. Prof’l Conduct, 1.15(a)(1), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtitle G app. A (Vernon 2005). Rule 1.15(b) provides: “Except as required by paragraph (a), a lawyer shall not withdraw from representing a client unless: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services, including an obligation to pay the lawyer’s fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.” Id. 1.15(b). 8
hearing, Roe again erroneously represented that the deadline for hearing the motion for new trial was April 15, 2009,5 and she further stated: I’m now filing a Motion to Withdraw and—as of March 16, 2009 [sic, should be March 26, 2009]—and I just wanted to get on the record that I have admonished my client of the need to get substitute counsel for the impending deadlines that are coming up, including the April 15, 2009 deadline, which is just two days from now. I have advised him of the ethical concerns that I have and my reason for withdrawing .... In response, appellant advised the court that he had insufficient funds to hire another attorney “in the next two days.” The trial court granted the motion to withdraw and, a fter a brief recess, appointed Deborah Summers as appellant’s counsel. Summers then stated that, because she had been appointed only an hour and a half before and because “Mr. Stuard’s 75th day runs tomorrow,” she wanted to “get familiar with the case” by having the court recess the hearing for 30 days. The trial court granted the reques t. On May 15, 2009, when the case was again called, Summers advised the court that it had lost jurisdiction to rule on the motion for new trial . The trial court sustained the State’s objection to Summers’s proffer of correspondence between appellant and Roe. That proffer does not appear in our record.
Roe had made the same erroneous assertion in a footnote to her motion for new trial. 9
A trial court must rule on a motion for new trial within 75 days of its filing, or the motion is overruled by operation of law. TEX. R. APP. P. 21.8(a), (c). The 75-day period has been held to be jurisdictional with regard to action on the motion for new trial. See, e.g., State v. Garza, 931 S.W.2d 560, 562 (Tex. Crim. App. 1996); Laidley v. State, 966 S.W.2d 105, 107 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see also State v. Moore, 225 S.W.3d 556, 569 (Tex. Crim. App. 2007) (“Of course, . . . the authority (if not the jurisdiction) of the trial court to act on a motion for new trial cannot extend beyond seventy-five days after the imposition or suspension of sentence in open court.”). Accordingly, a hearing on a motion for new trial that occurs after the 75 -day window is a nullity, and a record from it may not be considered on appeal, including as support for an appellate challenge to counsel’s ineffectiveness. See Laidley, 966 S.W.2d at 108 (holding same in context of ineffective-assistance-of-counsel challenge). But the trial court never purported to rule on the motion for new trial after the 75-day period had expired. Rather, what the trial court heard after that time was Roe’s motion to withdraw as appellate counsel. The rules depriving the trial court of jurisdiction to grant new trial after 75 days apply to motions for new trial, not to other motions such as for the appointment or release of counsel. The State nonetheless argues that we may not consider Roe’s statements from the April 13 hearing on her motion to withdraw because (1) appellant’s notice
of appeal was “prematurely filed” on the same day as sentence was pronounced, on December 30, 2008; (2) that premature notice of appeal was “not effective until March 15, 2009 [sic],” when the motion for new trial was overruled by operation of law; and (implicitly) (3) the notice of appeal deprived the trial court of jurisdiction to consider anything else because “the filing of a notice of appeal vests jurisdiction with the reviewing court.” Appellant’s notice of appeal was filed on the same date as sentence was imposed in open court. See TEX. R. APP. P. 26.2(a)(1) (providing that notice of appeal in criminal case is due within 30 days of imposition of sentence in open court). The State is correct that its filing did not deprive the trial court of
jurisdiction to rule on the later-filed motion for new trial, as long as it did so within 75 days of sentencing. See McIntire v. State, 698 S.W.2d 652, 657 (Tex. Crim. App. 1985) (decided under statutory predecessor to new-trial provisions of Rules of Appellate Procedure); Ex Parte Drewery, 677 S.W.2d 533, 536 (Tex. Crim. App. 1984) (same), overruled on other grounds, Awadelkariem v. State, 974 S.W.2d 721 (Tex. Crim. App. 1998). But the State is incorrect that the mere filing of the notice of appeal deprived the trial court of all jurisdiction after the new -trial motion was overruled. This is because, in criminal cases, the mere filing of the notice of appeal is not what divests the trial court of jurisdiction: rather, it is the filing of the appellate record that does so. TEX. R. APP. P. 25.2(g) (“Once the
record has been filed in the appellate court, all further proceedings in the trial court—except as provided otherwise by law or by these rules—will be suspended until the trial court receives the appellate-court mandate.”); Moore, 225 S.W.3d at 568 (“Under current law, the subject-matter jurisdiction of the trial court over the case and the defendant extends, should the defendant timely file a sufficient notice of appeal, to the point in time at which the record is filed in the appellate court. ”). In these appeals, although the reporter’s record was filed well before the 75day new-trial deadline had expired (February 2, 2009), the clerk’s record was not filed until after the motion to withdraw was heard (April 27, 2009). What matters for divestment of the trial court’s plenary jurisdiction is the filing of the principal portions of the record following a notice of appeal—here, both the clerk’s and reporter’s records. See TEX. R. APP. P. 25.2(g); Taylor v. State, 163 S.W.3d 277, 281 (Tex. App.—Austin 2005, pet. dism’d) (“Normally then, both the clerk’s and court reporter’s record must be filed in the appellate court before Rule 25.2(g) is applicable.”); 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 43.309 (2nd ed. Supp. 2008-2009) (“Most reasonably, both the reporter’s record and the clerk’s record should have to be filed . . . [b]ut if both parts are filed, defects in these records should not somehow restore the trial court’s power to act.”). Moreover, to the extent that the court found appellant indigent and appointed counsel for the first time, the Code of Criminal Procedure
empowered it to do so “[w]henever” it determined that appellant was indigent or that the interests of justice required it. TEX. CODE CRIM. PROC. ANN. § 26.04(c) (Vernon Supp. 2009). In sum, we may consider any relevant statement by Roe from the April 13, 2009 hearing in our consideration of appellant’s ineffective assistance challenge. Roe’s statements at the April 13 hearing evidenced her mistaken belief t hat the court’s jurisdiction to entertain the motion for new trial extended a month longer than it did. But her statements do not demonstrate why she did not pursue a hearing before March 16. For example, assuming that the hearing that was set for February 25 (within the 75-day period) was for appellant’s new-trial motion, nothing in the record shows why it did not happen . More importantly, Roe’s motion to withdraw cited bases that could have included ethical conflicts or violations of law, and she stated at the April 13 hearing that she had “advised [appellant] of the ethical concerns . . . .” We simply have no way of knowing, from the appellate record that we may consider, what date counsel advised appellant to obtain new counsel, what the bases for her requested withdrawal were, or how, if at all, these matters affected her having failed to pursue a new-trial hearing. The record is also silent as to whether reasons unrelated to Roe’s decision to withdraw influenced her decision not to seek a hearing, in particular, whether the motion for new trial had any merit. In this context, and based on this record,
we cannot say that Roe’s omission was so outrageous that no competent attorney would have engaged in it. Goodspeed, 187 S.W.3d at 392. We overrule appellant’s sole issue. CONCLUSION We affirm the judgment of the trial court.
Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Bland and Sharp. Do not publish. TEX. R. APP. P. 47.2(b).