Walter Otto Price v. The State of Texas--Appeal from 410th District Court of Montgomery County

DISSENTING OPINION
No. 04-02-00299 CR
Walter Otto PRICE,
Appellant
v.
The STATE of Texas,
Appellee
From the 410th District Court of Montgomery County, Texas
Trial Court No. 01-10-06418-CR
Honorable K. Michael Mayes, Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 23, 2003

The majority correctly holds that the period appellant had to file and present a motion for new trial is a critical stage of a criminal prosecution. The majority then disposes of Price's ineffective assistance of counsel claim by stating that Price's allegations are not firmly founded in the record since Price failed to show that he was "actually without counsel during this critical stage." Because I would hold that Price's counsel was deficient by filing an untimely motion for new trial, I respectfully dissent.

The majority distinguishes Price's case from Massengill and Prudhomme stating that the record does not indicate that Price was ever unrepresented during the thirty-day period for filing a motion for new trial. "Normally on a direct appeal, as here, it is difficult for appellant to rebut the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Belcher v. State, 93 S.W.3d 593, 597 (Tex. App. Houston [14th Dist.] 2002, no pet.); see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In this case, however, the record reveals that appellant, through retained counsel, filed a motion for new trial that alleged in pertinent part that trial counsel was ineffective. The motion was supported by appellant's affidavit. The record therefore reveals that Price's counsel considered the strategy of filing a motion for new trial, prepared the motion, but filed it late.

"Regardless of the outcome on the motion for new trial, every competent lawyer [should] strive to obtain the trial court's ruling rather than the statutory denial." Belcher v. State, 93 S.W.3d at 597. When counsel's error is blatant and no possible strategy could explain counsel's conduct, we do not need a record showing his subjective intent, so there is no need for information outside the record. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (Meyers, J., dissenting). "If there is no viable reason for counsel's trial conduct then why should we allow the opportunity to explain?." Id. In such situations, an appellant should be able to bring a direct appeal and obtain a judgment from the appellate court. Id.

Because the untimely filing of a motion for new trial is not reasonable professional assistance, I would hold that appellant was deprived of his constitutional right to effective assistance of counsel during a critical stage of his criminal prosecution. As a result, I would abate this appeal and remand this cause to the trial court for further proceedings.

Alma L. L pez, Chief Justice

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