Heath Alan Thompson v. State ( 2006 )

Affirmed and Memorandum Opinion filed June 20, 2006

Affirmed and Memorandum Opinion filed June 20, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00532-CR

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HEATH ALAN THOMPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1008047

M E M O R A N D U M   O P I N I O N

Appellant Heath Alan Thompson appeals after a jury found him guilty of burglary of a habitation with intent to commit sexual assault and assessed punishment at forty years= incarceration.  In two points of error, appellant argues that (1) he was denied counsel during the time frame within which a motion for new trial had to be filed, and (2) he was denied effective assistance of counsel during the time frame within which a motion for new trial had to be filed.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.4.  We affirm.

The trial court imposed sentence on May 18, 2005.  On the same day, appellant=s retained trial counsel filed a notice of appeal on his behalf and moved to withdraw.  In the notice of appeal, appellant represented to the court that he was indigent and asked the court to immediately appoint appellate counsel to represent him and to file a timely motion for new trial.  The trial court found that appellant was indigent and appointed appellate counsel.  The court further ordered the court reporter to prepare a reporter=s record at no cost to appellant.  Appellate counsel did not file a motion for new trial, which would have been due June 17, 2005.  See Tex. R. App. P. 21.4.  On July 6, 2005, appellant filed a motion with this court stating that he had retained other appellate counsel and requesting substitution of counsel.  We granted appellant=s motion and permitted retained counsel to be substituted for the previously appointed counsel.

In his first point of error, appellant contends that he was denied counsel during the critical thirty-day period of time to file a motion for new trial. Although the Court of Criminal Appeals has not addressed whether a defendant is entitled to counsel during the time limit for filing a motion for new trial, several courts of appeals, including this court, have held that there is such a right.  E.g., Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  Appellant bears the burden to demonstrate from the record that he was deprived of counsel during a critical stage of the proceedings.  See Oldham v. State, 977 S.W.2d 354, 362B63 (Tex. Crim. App. 1998).

In this case, the record reflects that appellate counsel was appointed for appellant on the day sentence was imposed.  Because appellant was represented by counsel, he must rebut the presumption that he was adequately informed of his rights and effectively represented during the thirty days following the judgment.  See Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000).  Appellant contends that he rebutted this presumption because the trial court ordered counsel to file a motion for new trial.  Appellant contends that because he requested that counsel be appointed for the purpose of filing a motion for new trial and for appeal, it follows that the trial court ordered counsel to file a motion for new trial.  We disagree with this inference.  The trial court ordered appellate counsel to represent appellant on appeal but did not order counsel to file a motion for new trial. 

Appellant further contends that he rebutted the presumption of representation because appellate counsel Adid nothing.@  There is nothing in the record to suggest that appellant was not counseled by his attorney regarding the merits of a motion for new trial.  We therefore presume that counsel effectively represented appellant at this stage.  See Smith, 17 S.W.3d at 663.  Appellant offers no evidence to rebut this presumption.  We do not find that appellant was inadequately counseled regarding his right to file a motion for new trial.  Appellant=s first point of error is overruled.

In his second point of error, appellant contends that he was denied effective assistance of counsel because appellate counsel failed to file a motion for new trial. Appellant argues that appellate counsel was ineffective in failing to file a motion for new trial challenging the effectiveness of his representation at trial.  To prove ineffective assistance of counsel, appellant must demonstrate that his counsel=s performance was deficient because it fell below an objective standard of reasonableness, and that there was a reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 689 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995).  Whether this standard has been met is to be judged by the totality of the representation rather than by isolated acts or omissions of counsel.  Rodriguez, 899 S.W.2d at 665.  Appellant must prove ineffectiveness by a preponderance of the evidence.  Id. There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record.  Thompson v. State, 9 S.W.3d 808, 812B13 (Tex. Crim. App. 1999).

The record before us presents no evidence to rebut the presumption that the representation appellant received during the time for filing a motion for new trial was adequate.  In his brief, appellant lists potential points that could have been raised in a motion for new trial.  He contends that trial counsel were ineffective because they did not provide him with a rational and factual understanding of the case.  He further complains of several instances in which counsel could have objected to evidence but failed to do so.  However, the question is not whether appellant=s motion for new trial might have been successful, but whether his appellate attorney=s alleged deficient performance caused him to be denied an opportunity to file a motion for new trial.  See Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005). Nothing in the record rebuts the presumption that appellant was adequately informed of his rights and effectively represented; therefore, counsel=s alleged deficient performance did not deprive appellant of the opportunity to file a motion for new trial.  See Smith, 17 S.W.3d at 663.  Accordingly, appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed June 20, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).