Ovidio Garcia, Jr. v. State

  No. 04-99-00513-CR

                                                             Ovidio GARCIA, Jr.,

                                                                       Appellant

                                                                             v.

                                                             The STATE of Texas,

                                                                       Appellee

                                 From the 229th Judicial District Court, Starr County, Texas

                                                          Trial Court No. 91-CR-43

                                            Honorable Gilberto Hinojosa, Judge Presiding

Opinion by:       Phil Hardberger, Chief Justice

Sitting:  Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed:      December 6, 2000

ABATED AND REMANDED

Ovidio Garcia, Jr. (AGarcia@) was granted an out-of-time appeal by the Texas Court of Criminal Appeals.  Garcia presents nine issues in his brief which raise various complaints relating to: (1) the trial court=s failure to appoint Garcia appellate counsel in a timely manner; and (2) the trial court=s involvement in the plea negotiations.  Because we find that Garcia was deprived of appellate representation during a critical stage of the proceedings, we abate this appeal and remand the cause to the trial court to the point at which Garcia was convicted and sentence was imposed.

                                                       Procedural History

Garcia was indicted in Starr County, but venue was subsequently transferred to Hidalgo County.  Garcia was represented by retained counsel at trial.  On March 24, 1992, Garcia was convicted of capital murder and sentenced to life in prison.  On February 28, 1995, Garcia=s appeal was dismissed by the Thirteenth Judicial District for want of jurisdiction because his notice of appeal was not timely filed. 

In November of 1994, Garcia filed a pro se application for writ of habeas corpus seeking an out-of-time appeal.  After a significant delay, the trial court ordered a hearing to address the following issues: (1) who was responsible for the untimely filing of Garcia=s notice of appeal; (2) who was responsible for the failure to file Asaid document@ in a timely manner once it became apparent that the notice could not be timely filed; and (3) whether Garcia timely expressed his desire to appeal his conviction, while then detrimentally relying on one or both of his attorneys to timely pursue said appeal.  The hearing was ordered to consist only of the submission of affidavits by Garcia=s trial attorneys within sixty days from the date of the order.  Despite numerous efforts by the trial court, Garcia=s trial attorneys failed to file the affidavits.  The trial court then entered an order containing findings of fact, conclusions of law, and a recommendation.  After reviewing the procedural history of the case, the trial court concluded that A[t]he available data indicates that [Garcia=s trial attorneys] did not meet their responsibility to consult with, and fully advise, [Garcia] concerning post-trial remedies and the deadline to pursue said remedies.@ Based on its findings and conclusions, the trial court recommended that Garcia be granted an out-of-time appeal. The Court of Criminal Appeals agreed and ordered that Garcia be Areturned to that point in time at which he may give written notice of appeal . . . . For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the sentence had been imposed on the date that the mandate of this Court issues.@  The Court of Criminal Appeals issued its mandate on May 10, 1996.

On May 28, 1996, Garcia filed a pro se notice of appeal and a Pauper=s Oath on Appeal requesting the appointment of counsel.  Garcia also filed a motion for new trial, alleging his plea was involuntary and that the trial judge participated in the plea negotiations. The motion for new trial contains a prayer that a hearing be held on the motion.  On July 3, 1996, Garcia filed an affidavit in support of his motion for new trial, detailing the circumstances which he contended caused his plea to be involuntary.  On July 17, 1996, Garcia filed a supplemental motion for new trial.  The supplemental motion also contains a prayer that a hearing be held on the motion.  The supplemental motion for new trial was accompanied by a cover letter in which Garcia asks whether and when an attorney was going to be appointed to represent him.

On August 11, 1996, Garcia wrote the trial court clerk in Starr County inquiring about the status of a motion to return venue to Starr County that the Starr County district attorney had filed.  Garcia also asked whether a hearing date had been set Aso that an attorney [could] be appointed to help [Garcia] in the appellate process, including motions for new trial.@

On August 20, 1996, the trial court in Hidalgo County entered an order transferring venue back to Starr County.^[1]  The cover letter to the Starr County District Clerk from the Hidalgo County District Clerk accompanying the record states: AI believe that the defendant will need an attorney to represent him on this appeal. Therefore, some action needs to be taken as soon as possible . . . .@

On August 29, 1996, Garcia wrote the judge of the 229th District Court of Starr County, where Garcia=s case had been returned.  Garcia=s letter requests that he be bench warranted back to Starr County so that an attorney could be appointed and his motions for new trial could be presented, heard and ruled on by the court.

On September 6, 1996, the Starr County district attorney filed an application for writ of habeas corpus ad prosequendum, requesting that Garcia be brought to the Starr County trial court for a AIndigence Hearing on Motion for New Trial and on his Appeal@ to be held on September 9, 1996.  At the hearing, the trial court presumably determined that Garcia was indigent because Jose Luis Ramos was appointed to represent him on September 12, 1996. 

In April of 1997, Ramos requested permission to withdraw because he was then working on five other appeals and the case would require a substantial amount of time.  Ramos=s request was granted, and Jose Luis Garza was appointed.  In July of 1997, Garza requested permission to withdraw because he was then working on three other appeals and the case would require a substantial amount of time.  Garza=s request was granted, and G. Allen Ramirez was appointed as new appellate counsel.  In September of 1997, Ramirez filed a motion to withdraw because he did not handle appeals and did not feel he was qualified to do so. Ramirez=s request was granted, and Joseph Connors was appointed.

In May of 1998, Garcia filed an application for writ of habeas corpus in Starr County because he believed the out-of-time appeal he was granted was a nullity given the passage of time.  In September of 1998, Connors filed a supplemental second application for writ of habeas corpus, asserting that Garcia was entitled to relief because the delay had caused Garcia to lose the out-of-time appeal he had been granted.  The Court of Criminal Appeals issued an opinion in response to that application, stating that it did not have jurisdiction to consider the application because Garcia had timely perfected an appeal in the out-of-time appeal by filing his pro se notice of appeal and that appeal was still pending.  A record was then filed in this court and the issues have been fully briefed.

                                          Effective Assistance of Counsel

Trial counsel, retained or appointed, has the duty, obligation and responsibility to consult with and fully advise his client concerning the meaning and effect of the judgment rendered by the trial 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. Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988).  A motion for new trial can be an extremely important tool for presenting an appeal. Prudhomme v. State, 285 S.W.3d 114, 118  (Tex. App.CTexarkana 2000, no pet. h.).  A motion for new trial is not a prerequisite to an appeal, but it can be indispensable for a meaningful appeal of issues which are reliant on facts outside the record.  Id.  Numerous obstacles must be overcome in preparing, filing, presenting, and obtaining a hearing on a proper motion for new trial, because the process of preserving error with a motion for new trial is governed by a myriad of rules and can be a rather arduous task.  Id. For these reasons, the time period for filing a motion for new trial is a critical stage of a criminal proceeding in which criminal defendants are entitled to assistance.  See id; see also Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d); Massingill v. State, 8 S.W.3d 733, 736 (Tex. App.CAustin 1999, no pet.); Burnett v. State, 959 S.W.2d 652, 656 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d).

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.  See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998).  This presumption will not be rebutted when there is nothing in the record to suggest otherwise.  See id. at 662-63.

In this case, the record rebuts this presumption. Garcia=s trial attorneys were retained.  The trial court concluded in its order addressing Garcia=s first application for writ of habeas corpus that  the trial attorneys Adid not meet their responsibility to consult with, and fully advise, their client concerning post-trial remedies and the deadline to pursue said remedies.@  In addition, the trial attorneys failed to file affidavits in response to the trial court=s order, indicating that they had either withdrawn their representation or abandoned Garcia. Garcia requested appointed counsel when he filed his pro se notice of appeal and motion for new trial and repeatedly requested the trial court to rule on his request and set a hearing on his motion for new trial.  The trial court failed to appoint counsel until September 12, 1996, over four months after Garcia=s out-of-time appeal was granted and almost three and one-half months after Garcia requested the appointment.  This deprivation of counsel was in violation of Garcia=s right to counsel under the Texas Constitution and the Sixth Amendment to the United States Constitution.

Assuming that Garcia is required to demonstrate harm, we note that his pro se motion for new trial asserted that his plea was involuntary based on matters outside the record.  Such a motion, if properly supported by his affidavit, would entitle him to a hearing if properly presented and requested.  See Prudhomme, 28 S.W.3d at 121; see also Alvarez v. State, 995 S.W.2d 185, 187 (Tex. App.CSan Antonio 1999, pet. ref=d). Because Garcia was deprived of counsel, he was deprived of the opportunity to present his motion to the trial court for a hearing and to make a record for appellate review.  See Prudomme, 28 S.W.3d at 121.  As a result, Garcia was harmed.

Because the deprivation of counsel did not contribute to Garcia=s conviction or punishment, reversal of the trial court=s judgment is not required.  See id.  Instead, we abate the appeal to the trial court to the point at which a motion for new trial can be filed. See id.

                                                                 Conclusion

This appeal is abated, and the cause is remanded to the trial court to the point at which Garcia was convicted and his sentence imposed.  The timetable for filing a motion for new trial shall begin on the date this opinion is received by the district clerk.  If a motion for new trial is filed and the trial court grants the motion, the record will be supplemented with a copy of the trial court=s order, and Garcia=s appeal will be dismissed.  If a motion for new trial is filed and the trial court overrules the motion for new trial, the record will be supplemented with the court=s order and the reporter=s record of any hearing held on such motion, and the parties will be permitted to brief any issues related to the overruled motion.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

  

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^[1]The transfer was permissible under article 31.08, section 3 of the Texas Code of Criminal Procedure.  See Tex. Code  Crim. Proc. Ann. art. 31.08, ' 3 (Vernon Supp. 2000); see also Tex. R. App. P. 25.2(e) (proceedings in trial court not suspended until record is filed in appellate court).