John Edward Gonzales v. State ( 2006 )

Affirmed and Memorandum Opinion filed May 30, 2006

Affirmed and Memorandum Opinion filed May 30, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00562-CR

NO. 14-05-00563-CR

NO. 14-05-00564-CR

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JOHN EDWARD GONZALES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 959,620, 959,621 & 959,622

M E M O R A N D U M    O P I N I O N

Appellant entered pleas of guilty without an agreed recommendation to three separate counts of possession with intent to deliver controlled substances.  After a pre-sentence investigation and a punishment hearing, the trial court sentenced appellant to sixty, twenty, and ten years= confinement, respectively.  In four issues, appellant contends (1) the trial court erred in failing to appoint counsel for the purpose of preparing, filing, and presenting a motion for new trial, and in refusing to hold a hearing on the motion, and (2) he was denied effective assistance of counsel because his retained counsel abandoned him at a critical stage of trial, and committed errors that rendered his plea of guilty involuntary.  We affirm.

I.  Factual and Procedural Background

Appellant was indicted for possession with intent to deliver almost 12,000 doses of 3, 4-methylenedioxy methamphetamine, commonly known as ecstasy.  He was also indicted for possession of cocaine and methamphetamine.  He entered pleas of guilty in each of the cases and requested a pre-sentence investigation.  Appellant was represented by retained counsel during the plea process and at the punishment hearing.  Following sentencing, appellant filed a pro se motion to withdraw his plea of guilty and also filed a pro se notice of appeal.  In appellant=s motion to withdraw his guilty plea, appellant claimed his trial counsel was ineffective because his counsel allegedly provided him with incorrect information in an effort to persuade him to plead guilty. In his notice of appeal, appellant stated he was indigent and requested appointment of appellate counsel.

No action was taken on the appeal until over one year later.  At that time, this court ordered the trial court to conduct a hearing to determine whether appellant desired to pursue his appeal and whether he was indigent.  The trial court held a hearing and found appellant was not indigent, had retained an attorney, and intended to pursue his appeal.

II.  Analysis

A.      Did the Trial Court Err in Failing to Appoint Counsel at a Critical Stage of the Judicial Proceedings?

In his first issue, appellant contends the trial court erred in failing to appoint counsel at a critical stage of the judicial proceedings.  In his third issue, appellant contends he was denied his right to effective assistance of counsel because retained counsel abandoned him in the post-judgment stage.  Specifically, appellant claims he was denied counsel during the critical thirty-day period of time to file a motion for new trial.  Appellant=s retained counsel represented him through his guilty plea and at the punishment hearing.  After judgment, appellant filed a pro se notice of appeal stating he was indigent and requesting that counsel be appointed on appeal.  Appellant also filed a motion to withdraw his guilty plea, which is treated as a motion for new trial if filed after judgment and sentence. See State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992).  The trial court subsequently held a hearing at which it determined appellant was not indigent and had retained an appellate attorney. 

In order to prevail on a claim of deprivation of counsel during the time to file a motion for new trial, appellant must affirmatively prove that he was not represented by counsel during a critical stage of the proceeding. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). There is a rebuttable presumption that the appellant was represented by counsel and that counsel acted effectively. See id.  Here, the record does not reflect trial counsel withdrew during the thirty-day period following judgment, or attempted to withdraw until appellant retained appellate counsel.  We presume, therefore, that trial counsel adequately informed appellant of his appellate rights and effectively represented him during the time for filing a motion for new trial and a notice of appeal.  Id.

Appellant contends that by filing a pro se notice of appeal requesting appointment of counsel, he has rebutted the presumption that he was represented at a critical stage of the proceedings.  However, these acts are insufficient to rebut the presumption of effective representation. See id.  To the contrary, the fact that appellant filed a pro se notice of appeal and a pro se motion to withdraw his guilty plea is some evidence that appellant was informed of his appellate rights.  See id.

Appellant further contends he has rebutted the presumption that he was represented by counsel by filing a motion to withdraw his plea alleging ineffective assistance of counsel.  See Prudhomme v. State, 28 S.W.3d 114, 120 (Tex. App.CTexarkana 2000, no pet.) (allegation in motion for new trial of ineffective assistance creates conflict of interest that effectively deprives appellant of counsel).  Although appellant asserted in his motion that the ineffectiveness of his trial counsel rendered his guilty plea involuntary, this does not rebut the presumption that his trial counsel was still representing him and informing him of his appellate rights.  See Cantu v. State, 988 S.W.2d 481, 483 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (although appellant indicated he would raise the issue of ineffective assistance of counsel on appeal, there was no evidence that counsel withdrew from representation).  Because there is no evidence in the record to show that trial counsel abandoned appellant post-judgment, we overrule appellant=s first and third issues.

B.      Did the Trial Court Abuse its Discretion in Refusing to Hold a Hearing on Appellant=s Motion for New Trial?

In his second issue, appellant contends the trial court abused its discretion in refusing to hold a hearing on his motion for new trial. However, appellant waived any right to a hearing by failing to timely present the motion to the trial court.  See Tex. R. App. P. 21.6 (requiring presentment within ten days of filing); see also Landers v. State, 110 S.W.3d 617, 626 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). To prove presentment, the record must establish that the motion was delivered to the trial court or otherwise brought to the trial court=s attention.  See Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998) (en banc).

The record is devoid of any showing that appellant actually presented the motion for new trial to the trial court.  There is no ruling on the motion, no signature or notation on the motion or any proposed order, and no hearing date noted on the docket sheet or on any other form.  See id. at 79B80 (providing nonexclusive list of methods of proof). A trial court cannot abuse its discretion by denying a motion for new trial without a hearing when the motion was not timely presented.  Birdwell v. State, 996 S.W.2d 381, 384 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  Appellant=s second issue is overruled.

C.      Was Appellant Denied Effective Assistance of Counsel?

In his fourth issue, appellant contends he received ineffective assistance of counsel at his punishment hearing.  Appellant complains his trial counsel failed to (1) discover that a prior judgment of deferred adjudication was void, (2) argue that appellant should be placed on probation, and (3) object to the relevance of a punishment witness=s testimony. 

To prevail on a claim of ineffective assistance of counsel, an appellant must show:  (1) his attorney=s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability the result of the trial would have been different but for counsel=s deficient performance.  Strickland v. Washington, 466 U.S. 668, 693B94 (1984); Mallett v. State, 65 S.W.3d 59, 62B63 (Tex. Crim. App. 2001).  A reasonable probability is one sufficient to undermine confidence in the outcome of the proceedings.  Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).  In our review, we indulge a strong presumption that counsel=s actions were motivated by sound trial strategy, and in the absence of evidence of counsel=s reasons for the challenged conduct, we will not conclude the action was deficient unless it was so outrageous that no competent attorney would have engaged in such conduct.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

Appellant first argues trial counsel was ineffective for failing to discover that a prior judgment of deferred adjudication was void. On December 21, 1993, appellant received a judgment of deferred adjudication when he pleaded guilty to delivery of lysergic acid diethylamide (LSD), weighing more than twenty-eight, but less than 400 grams.  Appellant contends that because deferred adjudication was unavailable for that crime in 1993, the judgment is void.  Therefore, his counsel should have objected to the trial court=s consideration of the prior judgment at the punishment hearing.  In support of that argument, appellant relies on Ludwick v. State, 931 S.W.2d 752, 754  (Tex. App.CFort Worth  1996, no pet.). Ludwick merely points out that offenses under certain statutes were not punishable by deferred adjudication prior to September 1, 1993. Appellant=s prior offense was committed after September 1, 1993, and was not governed by the statutes at issue in Ludwick.  Because there is no support for appellant=s contention that the 1993 judgment was void, trial counsel did not render ineffective assistance by failing to object to the use of the prior judgment in sentencing.

Appellant next complains trial counsel failed to request deferred adjudication for the current offense.  Appellant also claims his counsel rendered ineffective assistance when he failed to object to the testimony of Steven Januhowski because his name did not appear on the State=s witness list and he had not been personally involved in the investigation.  Januhowski, an investigator with the Harris County District Attorney=s office, testified to the street value of the controlled substance appellant possessed. Januhowski also testified that the amount of the controlled substance indicated appellant was a significant dealer of controlled substances.

No evidence in the record demonstrates counsel=s trial strategy in choosing not to request deferred adjudication, or to object to Januhowski=s testimony.  Accordingly, on the record before us, appellant has not rebutted the presumption that these decisions were reasonable and his counsel was effective.  See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  Appellant=s fourth issue is overruled.

The judgment of the trial court is affirmed.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed May 30, 2006.

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

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