Albert Anthony Duvall v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-05-440 CR ____________________ ALBERT ANTHONY DUVALL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 94308 MEMORANDUM OPINION In this appeal, we consider whether the record shows that the appellant was represented by counsel during the period of time for filing a motion for new trial. Finding that appellant was not deprived of counsel during this critical stage, we affirm. Without the benefit of a plea bargain, Albert Anthony Duvall pled guilty to robbery. (1) The trial court heard punishment evidence, found Duvall guilty of robbery, and assessed Duvall's punishment at twenty years' confinement and a $10,000 fine. The trial court's judgment sentencing Duvall was signed on August 29, 2005. Duvall's retained counsel did not file a motion for new trial, notice of appeal, or motion to withdraw. On September 16, 2005, Duvall filed his "motion of self-representation on appeal" along with his pro se notice of appeal/motion for new trial in which he alleged, among other things, that he received ineffective assistance of counsel. His motion for new trial was overruled by operation of law. On August 4, 2006, in response to this Court's Per Curiam Order entered July 13, 2006, the trial court conducted a hearing to determine whether Duvall wanted to pursue his appeal and found Duvall wanted to pursue his appeal through his newly-retained attorney. In his sole issue on appeal, Duvall contends he was deprived of counsel during the critical stage between the entry of judgment and the deadline for filing a motion for new trial in violation of the Texas Constitution and the Sixth Amendment to the United States Constitution, and that this Court should abate the appeal and remand the cause to the trial court for a hearing on his motion for new trial. Criminal defendants have a constitutional right to assistance of counsel at every critical stage of a criminal prosecution, absent a valid waiver of the right. Upton v. State, 853 S.W.2d 548, 553 (Tex. Crim. App. 1993) (en banc). The period for filing a motion for new trial and the hearing on the motion are critical stages during which a defendant is entitled to counsel. See Connor v. State, 877 S.W.2d 325, 326 (Tex. Crim. App. 1994) (en banc); Barnett v. State, 76 S.W.3d 739, 741 (Tex. App.--Waco 2002, pet. ref'd); Prudhomme v. State, 28 S.W.3d 114, 119 (Tex. App.--Texarkana 2000, order), disp. on merits, 47 S.W.3d 683 (Tex. App.--Texarkana 2001, pet. ref'd). Duvall had retained trial counsel. On at least three separate occasions, Duvall filled out the form on which he could have declared indigence and asked for appointed counsel, but he affirmatively represented to the court that he was retaining counsel. Trial counsel has a duty to represent the client throughout the appellate process or file leave to withdraw with the court. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) (en banc) (retained counsel has not concluded a case until he has filed a motion to withdraw if he knows his client intends to appeal). The Texas Court of Criminal Appeals in Axel held: [T]rial counsel, retained or appointed, has the duty, obligation and responsibility to consult with and fully to advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, the necessity of giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal. The decision to appeal belongs to the client. Id. To prevail on a claim of deprivation of counsel during the time to prepare, file, and present a motion for new trial, Duvall must affirmatively prove that he was not represented by counsel during this critical stage of the proceedings. See Garcia v. State, 97 S.W.3d 343, 347 (Tex. App.--Austin 2003, no pet.) (citing Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (en banc)). When the record does not reflect that trial counsel withdrew or was replaced by new counsel after sentencing, there is a rebuttable presumption that trial counsel continued to effectively represent the defendant during the time limit for filing a motion for new trial. Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000) (Johnson, J., concurring). Based on this record, there is no evidence that Duvall was deprived of counsel to assist in preparing a motion for new trial. The record does not reflect that Duvall's retained counsel withdrew or was replaced, or that Duvall requested a determination of indigency or an appointed attorney at any time. Although Duvall argues "[i]t is clear from the record that Trial Counsel was going to abandon any representation or responsibility to represent Appellant in a Motion for New Trial[,]" we find no such evidence in the record. Nothing in the record suggests Duvall was not represented by counsel throughout the time concerned or that he requested an attorney before he filed his motion. Moreover, Duvall's timely-filed pro se notice of appeal is evidence he was advised of at least some of his rights, and we presume that he was adequately represented because the record does not affirmatively indicate otherwise. See Oldham, 977 S.W.2d at 363. Without notice that Duvall required, desired, or was entitled to appointed counsel before he filed his motion for new trial, and in the absence of a motion to withdraw from Duvall's retained counsel, we hold Duvall was not denied his right to counsel during a critical stage. Unlike the case upon which Duvall relies in arguing for abatement, Jack v. State, 42 S.W.3d 291, 292-93 (Tex. App.--Houston [1st Dist.] 2001, order) (Jack I) (2), Duvall timely filed his motion for new trial. We decline to abate the appeal, and we hold that Duvall has failed to rebut the presumption that he was represented by trial counsel during the period of time for filing a motion for new trial. Duvall's sole issue is overruled. We affirm the trial court's judgment. (3) AFFIRMED. __________________________________ CHARLES KREGER Justice Submitted on May 17, 2007 Opinion Delivered September 5, 2007 Do not publish Before Gaultney, Kreger, and Horton, JJ. 1. The indictment charged Duvall with second degree felony robbery as a habitual felony offender, but in exchange for Duvall's guilty plea, the State waived the "habitual felon" count. 2. "[T]he Court of Criminal Appeals has disapproved of the abatement procedure used in Jack I and Jack II [Jack v. State, 64 S.W.3d 694 (Tex. App.--Houston [1st Dist.] 2007), pet. dism'd, 149 S.W.3d 119 (Tex. Crim. App. 2004).]" Benson v. State, 224 S.W.3d 485, 495 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (citing Jack v. State, 149 S.W.3d 119, 124 (Tex. Crim. App. 2004) (Jack III)). 3. As for Duvall's ineffective assistance claims, the Court of Criminal Appeals has indicated that when, as here, the record on direct appeal concerning the representation is undeveloped and does not reflect counsel's motives, "an application for a writ of habeas corpus is [a] more appropriate vehicle [than by direct appeal] to raise ineffective assistance of counsel claims." Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (en banc).