Jorge Granados Rodriguez v. State

In The Court of Appeals Ninth District of Texas at Beaumont ______________________ NO. 09-06-271 CR ______________________ JORGE GRANADOS RODRIGUEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 06-01-00525 CR MEMORANDUM OPINION Jorge Granados Rodriguez pled guilty, without an agreed recommendation as to punishment, to attempted capital murder. See Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003); Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2006). In this appeal, Rodriguez argues he was deprived of counsel during the critical time for filing and presenting a motion for new trial. The record reflects he was represented by counsel and a motion for new trial was filed. We affirm the trial court's judgment. On May 18, 2006, the trial court sentenced Rodriguez to thirty years in prison. Rodriguez was represented by appointed counsel. The record does not contain a motion to withdraw by trial counsel. On June 16, Rodriguez filed a pro se notice of indigence and requested appointment of appellate counsel. On the same day, the trial court appointed appellate counsel. Because the June 18 deadline for filing a motion for new trial was on a Sunday, the deadline was tolled until Monday, June 19. See Tex. R. App. P. 4.1(a), 21.4(a). On June 19, appellate counsel filed a timely motion for new trial, asserting the "verdict" was "contrary to the law and the evidence," a new trial should be granted in the interest of justice, "and for such other reasons that may arise on the hearing," Rodriguez requested a new trial. On July 13, appellate counsel filed an untimely amended motion for new trial, adding the ground of ineffective assistance of counsel. (1) See Tex. R. App. P. 21.4(b). The trial court held a hearing on the motion for new trial on July 27. After hearing testimony from the appellant, the trial court denied the request for a new trial. On appeal, Rodriguez argues that trial counsel was ineffective because counsel failed to file any post-judgment motions or a notice of appeal, and did not adequately advise him of his appellate rights. There is a rebuttable presumption that trial counsel acted effectively. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); Donnell v. State, 148 S.W.3d 674, 676 (Tex. App.--Beaumont 2004, no pet.). To rebut the presumption, the record must affirmatively show appellant was not adequately counseled. See Oldham, 977 S.W.2d at 363. The record reflects that Rodriguez was represented by counsel at all relevant times. Trial counsel never withdrew from the case, and was counsel of record until Rodriguez requested and received appointment of appellate counsel. The fact that Rodriguez filed a pro se request for appellate counsel indicates he was informed of his appellate rights. See id. (noting that appellant's filing of pro se notice of appeal was evidence that she had been informed of some of her appellate rights). Although trial counsel did not file any post-judgment motions or a notice of appeal, this fact alone does not rebut the presumption of effective counsel. See id. Furthermore, appellate counsel filed a post-judgment motion and a timely notice of appeal, and we presume appellate counsel adequately counseled Rodriguez. Appellant does not argue on appeal any other reason his trial counsel was ineffective. He does not raise the issues presented at the hearing on his motion for new trial. Rodriguez has not met his burden to affirmatively demonstrate from the record that he was ineffectively represented during the time period for filing and presenting a motion for new trial, or that he was harmed by the alleged ineffectiveness. Rodriguez also argues that appellate counsel had inadequate time in which to investigate, research, and file the motion for new trial. Rodriguez requests that we "abate the appeal and remand the case to the trial court for consideration of an out-of-time motion for new trial." Appellate counsel was appointed on Friday, June 16, three days before the June 19 deadline. The original motion was broadly worded. Counsel had sufficient time between the filing of the original motion for new trial and the hearing to develop evidence in support of the motion and to contact potential witnesses. At the hearing on the motion, without any objection from the State, the trial court heard the testimony offered concerning appellant's ineffective assistance of counsel claims. Although the trial court denied the amended motion for new trial, the order reflects the court did so "[a]fter listening to the testimony and arguments of counsel[.]" Appellant was not deprived of counsel during the critical time for filing and presenting a motion for new trial. Appellant's sole issue is overruled. The trial court's judgment is affirmed. AFFIRMED. ____________________________ DAVID GAULTNEY Justice Submitted on January 31, 2007 Opinion Delivered May 16, 2007 Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ. 1. The amended motion asserted ineffectiveness as follows: The Defendant was denied [e]ffective assistance of counsel. See Tex. R. App. P. 21.3. The Defendant provided trial counsel with the names and phone numbers of witnesses who he wanted to testify at his hearing. Counsel failed to call any witnesses on his behalf and offered no evidence. Trial counsel did not seek to have the statement given by Defendant suppressed due to the failure of law enforcement to notify Defendant of his right to speak with the Consulate of Mexico prior to him giving a statement to detectives. Trial counsel did not contest the translation of Defendant's written statement from Spanish to English, however the translation was not correct. Trial counsel failed to adequately explain the terms of the plea bargain agreement to Defendant. Defendant believed that the charge of Attempted Capital Murder was being dismissed and he was pleading guilty to Aggravated Robbery. Appellant does not argue any of these grounds in this appeal. See Tex. R. App. P. 38.1(e).