Jerry Jerger v. State

NO. 12-02-00291-CR NO. 12-02-00292-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

JERRY JERGER,

§ APPEAL FROM THE 114TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

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MEMORANDUM OPINION

Jerry Jerger ("Appellant") pleaded guilty to the offenses of aggravated assault on a public servant (12-02-00291-CR) and attempted manufacture of methamphetamine (12-02-00292-CR) pursuant to the trial court's "timely pass for plea" plan. ⁽¹⁾ After Appellant's guilty plea, the trial court sentenced him to 25 years of imprisonment and a $5,000.00 fine on the aggravated assault charge and to 20 years of imprisonment and a $5,000.00 fine on the attempted manufacture of methamphetamine charge. Appellant's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969), asserting that he did not believe that either of Appellant's cases had any meritorious issues for appeal. Appellant also filed a brief pro se, contending that he was denied his right to counsel during the post-trial, pre-appeal time period for filing a motion for new trial in the aggravated assault case. After undertaking the independent review of the record we are required to perform, we conclude that the aggravated assault case contains arguable grounds for appeal and therefore abate the appeal and remand Appellant's case to the trial court for further proceedings consistent with this opinion. We affirm Appellant's conviction for attempted manufacture of methamphetamine.

Background  

In separate indictments, Appellant was charged with 1) manufacture of methamphetamine in an amount of four grams or more but less than 200 grams, and 2) aggravated assault on a public servant. On August 19, 2002, Appellant pleaded guilty to aggravated assault on a public servant and to attempted manufacture of methamphetamine. Pursuant to the trial court's "timely pass for plea" plan, the court sentenced Appellant to 25 years of imprisonment and a $5,000.00 fine for the aggravated assault on a public servant charge and 20 years of imprisonment and a $5,000.00 fine for the attempted manufacture of methamphetamine charge. Appellant was represented by different counsel on each of the charges at the same plea hearing.

After the court imposed its sentence in each case, it gave Appellant the opportunity to withdraw his plea, disregard the sentences and have a jury trial on both his guilt or innocence and punishment, if convicted. Appellant chose to accept the sentences and avoid a jury trial. The trial court then formally pronounced its sentences and advised Appellant that he had 30 days from the date the sentences were imposed to file a notice of appeal, and 90 days from the date his sentences were imposed to file a notice of appeal if he filed a motion for new trial. Appellant was also advised that if he could not afford an attorney to represent him on appeal, one would be appointed for him. After Appellant had been advised of his appellate rights, the trial court asked him if he wanted to give his written notice of appeal; Appellant declined to do so at that time. Appellant then tendered to the court a document entitled, "Waiver of Motion for New Trial and Motion in Arrest of Judgment and Waiver of Right to Appeal" in the attempted manufacture of methamphetamine case, which was signed by Appellant and his counsel. ⁽²⁾ No such document was tendered by Appellant in the aggravated assault on a public servant case.

Anders Analysis of Attempted Manufacture of

Methamphetamine Conviction  

With regard to the attempted manufacture of methamphetamine case (12-02-00292-CR), counsel for Appellant states in his Anders brief that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. He further relates that he is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), Appellant's Anders brief presents a chronological summation of the procedural history of the case, and further states that Appellant's counsel is unable to raise any arguable issues for appeal. We have likewise reviewed the record for reversible error and have found none in that case.

Anders Analysis of Aggravated Assault on

a Public Servant Conviction  

On August 21, two days after Appellant pleaded guilty to both charges, his trial counsel for the aggravated assault on a public servant charge filed a motion to withdraw. The trial court granted the attorney's motion on August 22. On August 30, Appellant filed a pro se "Motion for Appeal," stating that he "was not properly advised as to all potential defensive issues to be raised" and requested that counsel be appointed to represent him. Appellate counsel was not appointed to represent Appellant until October 3, which was 34 days after Appellant requested the appointment.

A criminal defendant must file a motion for new trial within thirty days after his sentence has been imposed or suspended in open court. Tex. R. App. P. 21.4. A motion for new trial can be amended at any time within the same thirty days so long as the amendment is made before the court overrules any preceding motion for new trial, but a motion for new trial cannot be amended after thirty days, even with leave of court. Id.; see also Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989). In his pro se brief, Appellant argues that this time period is a "critical stage" of his criminal prosecution and that the denial of his right to counsel during this time period is a violation of the Sixth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution. We agree.  

Denial of Right to Counsel  

It is well established that criminal defendants have a constitutional right to effective assistance of counsel on appeal, whether counsel is appointed or retained. Prudhomme v. State, 28 S.W.3d 114, 118 (Tex. App.- Texarkana 2000, pet. ref'd). Absent a valid waiver, such defendants are also entitled to the effective assistance of counsel at each critical stage of a criminal prosecution. Michigan v. State, 475 U.S. 625, 626, 106 S. Ct. 1404, 1405-06, 89 L. Ed. 2d 631, 636 (1986); Upton v. State, 853 S.W.2d 548, 553 (Tex. Crim. App. 1993). In order to determine whether a particular time period is a critical stage, an assessment must be made as to whether, at the time in question, "the accused required aid in coping with legal problems or assistance in meeting his adversary." Prudhomme, 28 S.W.3d at 118 (citing United States v. Ash, 413 U.S. 300, 313, 93 S. Ct. 2568, 2575, 37 L. Ed. 2d 619 (1973)); Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994). Although the Texas Court of Criminal Appeals has not specifically addressed whether a defendant is entitled to counsel during the time limit for filing a motion for new trial, it has held that

[w]ithout a doubt the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review.

Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978). Several courts of appeal have held that the thirty-day time period for filing a motion for new trial is a critical stage of a criminal prosecution in which defendants are entitled to assistance of counsel. See Garcia v. State, 97 S.W.3d 343, 349 (Tex. App.- Austin 2003, no pet.); Prudhomme, 28 S.W.3d at 119; Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.- Houston [14th Dist.] 1999, no pet.); Massengill v. State, 8 S.W.3d 733, 736 (Tex. App.- Austin 1999, no pet.); Burnett v. State, 959 S.W.2d 652, 656 (Tex. App.- Houston [1st Dist.] 1997, pet. ref'd); Oldham v. State, 889 S.W.2d 461, 462 (Tex. App.- Houston [14th Dist.] 1994), rev'd on other grounds, 977 S.W.2d 354 (Tex. Crim. App. 1998). Those courts have looked to the court of criminal appeals' holding in Trevino that a hearing on a motion for a new trial is a critical stage in order to further hold that the thirty-day time period for filing a motion for new trial is a critical stage. See Burnett, 959 S.W.2d at 656 (emphasis added). In Oldham, the court stated that

[i]f the hearing on a motion for new trial is a critical stage of the proceedings, then logic dictates that the time period for filing the motion is also a critical stage of the proceedings. Obviously, if appellant is not allowed to file a motion for new trial [because of the absence of counsel], then she will not have her opportunity to present to the trial court reasons for a new trial any more than did the appellant in Trevino.

  Oldham, 889 S.W.2d at 462. While a motion for new trial is not a prerequisite to an appeal in every case, for a meaningful appeal of some issues a defendant must prepare, file, present, and obtain a hearing on a proper motion for new trial in order to adduce facts not otherwise shown in the record. Massengill, 8 S.W.3d at 736; see also Smith v. State, 968 S.W.2d 490, 494 (Tex. App.- Texarkana 1998, no pet.) (holding that because defendant did not use a motion for new trial to determine counsel's trial strategy for the record, his ineffective assistance of counsel claim must be denied).

We agree with the holdings of the other courts of appeal that the time period for filing a motion for new trial is a critical stage of the proceedings during which a criminal defendant is constitutionally entitled to assistance of counsel. ⁽³⁾

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. Oldham, 977 S.W.2d at 363. Furthermore, when a motion for new trial is not filed in a case, there is a rebuttable presumption that the defendant was counseled by his attorney regarding the merits of the motion and ultimately rejected that option. Id. The filing of a pro se notice of appeal is evidence that a defendant was informed of at least some of his appellate rights, and it is presumed that he was adequately counseled unless the record affirmatively displays otherwise. Id.

In the instant case, the record demonstrates that Appellant's trial counsel filed a motion to withdraw on August 21 (two days after Appellant was sentenced) and that the trial court granted the motion on August 22. Eight days later, Appellant filed a "Motion for Appeal," where he argued that he "was not properly advised as to all potential defensive issues to be raised" and requested that counsel be appointed to represent him. ⁽⁴⁾ The time period for Appellant to have filed a motion for new trial ended on September 18, 2002. Appellate counsel was not appointed to represent Appellant until October 3, fifteen days after the time period for filing a motion for new trial had ended. The record indicates that Appellant was without the effective assistance of counsel for 28 of the 30 critical days he could have filed a motion for new trial; therefore, the record affirmatively rebuts each presumption that Appellant was represented by counsel after he was sentenced. This deprivation of counsel violated Appellant's right to counsel under the Texas Constitution and the Sixth Amendment to the United States Constitution.

Both the United States Supreme Court and the Texas Court of Criminal Appeals have acknowledged that with some Sixth Amendment violations, "such as the actual or constructive denial of counsel altogether at a critical stage of the criminal proceeding, or an actual conflict of interest on the part of defense counsel, prejudice is presumed." Batiste v. State, 888 S.W.2d 9, 17 (Tex. Crim. App. 1994) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2053, 80 L. Ed. 2d 674 (1984)); Prudhomme, 28 S.W.3d at 120. Furthermore, such constitutional errors are subject to harmless error analysis, where reversal is required unless the court determines beyond a reasonable doubt that the error was harmless. Tex. R. App. P. 44.2(a). Appellant's pro se brief and "Motion for Appeal" indicate that he would have been asserting an ineffective assistance of counsel claim in a motion for new trial. If this argument had been included in a properly presented motion for new trial, the trial court would have been required to hold a hearing and make a record for appellate review. See Prudhomme, 28 S.W.3d at 121. However, Appellant did not have the effective assistance of counsel during the critical time period for filing a motion for new trial; therefore, he was deprived of the opportunity to present a motion for new trial and make a record for appellate review. Based on our review of the record, we conclude that Appellant was harmed by the deprivation of counsel during this critical stage. See Massengill, 8 S.W.3d at 738; see also Garcia, 97 S.W.3d at 349 (deprivation of counsel is not harmless where the defendant had a facially plausible claim but he was unable to present his claim to the trial court and make a record for appellate review). Based on our review of the record, we cannot determine that the failure to appoint counsel for Appellant was harmless beyond a reasonable doubt.

"Sixth Amendment violations 'are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation.'" Massengill, 8 S.W.3d at 738 (citing United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 668, 66 L. Ed. 2d 564 (1981)). The failure to provide Appellant with counsel did not contribute to Appellant's conviction or punishment; therefore, reversal of the trial court's judgment is not required. Tex. R. App. P. 44.2(a). The remedy that courts of appeal have utilized to correct such a violation is to abate the appeal and remand the cause to the trial court to the point where sentence was imposed and from which point a motion for new trial can be filed by appointed counsel within the appropriate appellate timelines. See  Tex. R. App. P. 43.6 ("The court of appeals may make any other appropriate order that the law and the nature of the case may require"); see also Garcia, 97 S.W.3d at 349; Prudhomme, 28 S.W.3d at 121; Massengill, 8 S.W.3d at 738.

Conclusion  

As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant's counsel has moved for leave to withdraw from the attempted manufacture of methamphetamine case (12-02-00292-CR). We carried the motion for consideration with the merits of the appeal. Having done so and finding no reversible error in that case, Appellant's counsel's motion for leave to withdraw in cause number 12-02-00292-CR is hereby granted.   

With regard to the aggravated assault on a public servant case (12-02-00291-CR), Appellant should have been appointed counsel during the critical thirty-day time period for filing a motion for new trial. Based on our review of the record, the trial court's failure to do so cannot be deemed harmless beyond a reasonable doubt; therefore, this appeal must be abated and the cause remanded to the trial court. This error was not addressed in the Anders brief; therefore, Appellant's counsel's motion to withdraw in cause number 12-02-00291-CR is granted, and on remand the trial court shall appoint new counsel for Appellant. See Guerrero v. State, 64 S.W.3d 436, 441 (Tex. App.- Waco 2001, no pet.) ("The Court of Appeals' determination that arguable issues were presented by the record . . . created a constitutional imperative that [new] counsel be appointed."). The abatement will also allow the timetable for the motion for new trial to begin running as soon as counsel is appointed, which shall occur no later than fifteen days from the date of this opinion. The court's order appointing new appellate counsel shall be filed with this court in a supplemental clerk's record. If the trial court grants the motion for new trial, this record will be supplemented with a copy of the trial court's order and this appeal will be dismissed. If the trial court overrules the motion for new trial, the record will be supplemented with a copy of the trial court's order, the court reporter's record of any hearing on such motion, and other matters pertaining to the procedure after remand. The parties will be permitted to brief any issues properly raised. Garcia, 97 S.W.3d at 349. Under any circumstances, the supplemented record shall be filed in this court on or before the ninetieth day after the date of this opinion.

The trial court's judgment in cause number 12-02-00292-CR is affirmed. Cause number 12-02-00291-CR is abated and removed from this court's docket and the cause remanded to the trial court for further proceedings consistent with this opinion. This appeal shall be abated until ninety days after the date of this opinion or until the required supplemental records are filed in this court, whichever is the earlier date, at which time this appeal shall be reinstated.

SAM GRIFFITH

Justice

Opinion delivered August 29, 2003.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

1.

The 114th District Court does not accept plea bargains; therefore, it created the "timely pass for plea" plan. Under the "timely pass for plea" plan, a defendant pleads guilty to the offense, the court orders a pre-sentence investigation report ("PSI") and then sentences the defendant. The defendant can either accept the sentence imposed by the court and waive his right to appeal or he can withdraw his guilty plea and reclaim his right to trial by jury with jury sentencing, if convicted.

2.

Appellant cannot appeal any issues related to his conviction for attempted manufacture of methamphetamine because he knowingly, intelligently, and voluntarily waived his right to appeal in that case. A valid waiver of the right to appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). A waiver of

Footnote continued

the right to appeal is valid when it is made voluntarily, knowingly, and intelligently. Id.

3.

In its brief, the State agrees that the time period for filing a motion for new trial is a critical stage in which Appellant was entitled to effective assistance of counsel.

4.

In his pro se brief, Appellant contends that his "Motion for Appeal" is a hybrid form of both a notice of appeal and a motion for new trial.