Sorrow, Loyd Landon v. The State of Texas--Appeal from 263rd District Court of Harris County

Affirmed and Opinion filed August 26, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01042-CR

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LOYD LANDON SORROW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 874,978

O P I N I O N

Appellant, Loyd Landon Sorrow, was charged with aggravated sexual assault of a child. Pursuant to appellant=s plea agreement with the State, the trial court placed appellant on deferred adjudication probation for a period of seven years and assessed a fine of $250.00. On June 11, 2002, the State moved to adjudicate appellant=s guilt. On September 6, 2002, the trial court adjudicated appellant=s guilt and sentenced him to 222years= confinement in the Institutional Division of the Texas Department of Corrections. On September 13, 2002, appellant filed pro-se a notice of appeal in which he also requested the appointment of counsel on appeal.

On November 7, 2002, we entered an order abating the case and directing the trial court to conduct a hearing to determine appellant=s indigent status and, thus, whether he was entitled to the appointment of counsel on appeal. On November 15, 2002, the trial court appointed appellate counsel, who, on December 13, 2002, filed a motion for leave and a motion for new trial alleging ineffective assistance of counsel at the hearing on the State=s motion to adjudicate guilt. The trial court denied both motions.

In his sole issue on appeal, appellant claims he was denied effective assistance of counsel during the 30-day time period for filing a motion for a new trial and the trial court erred in denying his motion for leave to file a motion for new trial so that he could develop issues related to his punishment assessed by the trial court. Therefore, appellant requests that we find that he was denied effective assistance of counsel during the time period for filing a motion for new trial, abate the appeal, and order the trial court to conduct a hearing on his motion for new trial.

A defendant may file a motion for new trial no later than 30 days after the date on which the trial court imposes or suspends the sentence in open court. Tex. R. App. P. 21.4. A defendant has the right to counsel during the time limit for filing a motion for new trial. Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.CHouston [14th Dist.] 1999, no pet.). The defendant=s court appointed attorney shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record. Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2003); see also Ward v. State, 740 S.W.2d 794, 796 (Tex. Crim. App. 1987) ( it is abundantly clear that an appointed attorney=s legal responsibilities do not magically and automatically terminate at the conclusion of the trial ). When the defendant=s trial counsel does not withdraw from representation after sentencing and is not replaced by new counsel, a rebuttable presumption exists that trial counsel continued to effectively represent the defendant during the time for filing a motion for new trial. Smith v. State, 17 S.W.3d 660, 662 (Tex. Crim. App. 2000); Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (op. on reh g). Because there is nothing in the record to suggest that appellant=s counsel withdrew from representation or that he was replaced with new counsel, we presume that trial counsel continued to effectively represent appellant during the time for filing a motion for new trial.

Appellant points out that the record shows that (1) he filed a notice of appeal and request for appellate counsel within seven days of being sentenced; (2) the trial court, by its notation on the docket sheet and the judgment adjudicating guilt, was aware of the notice of appeal; and (3) appellate counsel was not appointed until after the time for filing a motion for new trial had expired. These facts do not rebut the presumption that appellant was represented by counsel or that counsel=s representation of him was effective. Oldham, 977 S.W.2d at 362B63. Because there is no indication in the record that appellant was not advised of the merits of a motion for new trial by his trial counsel, we assume appellant considered, but rejected this option. Smith, 17 S.W.3d at 663; Oldham, 977 S.W.2d at 363. Moreover, the fact that appellant filed his pro se notice of appeal is evidence that he was informed of at least some of his appellate rights. Smith, 17 S.W.3d at 663; Oldham, 977 S.W.2d at 363.

Appellant has failed to overcome the presumption that he was represented by counsel during the period after sentencing. Therefore, we overrule his sole issue, decline to abate the appeal, and accordingly, affirm the judgment of the trial court.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed August 26, 2003.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish CTex. R. App. P. 47.2(b).