                                  NO. 07-00-0575-CR
                                  NO. 07-00-0576-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    APRIL 16, 2002

                         ______________________________


                        OLLIE GRAY CHAMPION, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 179TH DISTRICT COURT OF HARRIS COUNTY;

      NOS. 841383 and 841382; HONORABLE MICHAEL WILKINSON, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


                           ON ABATEMENT AND REMAND


      Appellant Ollie Gray Champion challenges his conviction of two separate charges

of aggravated sexual assault after pleas of guilty and his resulting sentences of 35 years

confinement in the Institutional Division of the Department of Criminal Justice and a
$10,000 fine. In one issue, he asserts that he was deprived of the assistance of counsel

during the time period for filing and presenting a motion for new trial in violation of federal

and state constitutions.


       Appellant was represented at trial by retained counsel and pled guilty to the charges

without an agreed recommendation as to punishment. After sentence was imposed on

October 10, 2000, appellant filed a pro se notice of appeal on November 2, 2000, and

requested appointment of an attorney to represent him on appeal. On the same day, he

also filed a pro se motion for new trial in which one of his assertions was that he was

denied effective assistance of counsel because he was not adequately explained his

waiver of rights and therefore his plea was not knowingly and intelligently made. The

motion for new trial was supported by his own affidavit in which he further stated that he

agreed to plead guilty in reliance on his attorney’s promise he would get probation. The

record does not show that the motion was ever presented to the trial court or ruled upon.

Counsel was not appointed for appellant until February 6, 2001, after the appeal was

abated by this court, because the record showed that appellant had previously been

represented by retained counsel, was currently asserting his indigent status, and was

requesting appointment of an attorney on appeal.


       Appellant argues that, although his motion for new trial was timely filed, he was

entitled to counsel during the time to file and present his motion for new trial. Because

counsel was not appointed for him until after the 75-day period for the court to rule on the



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motion had passed, the motion was not presented to the trial court and no hearing was

held. In response, the State argues that appellant has failed to rebut the presumption that

his trial counsel was still representing him during the time for filing and presenting the

motion for new trial because the record does not reflect that his trial counsel ever withdrew

or abandoned his representation of appellant.


       An indigent defendant is entitled to counsel by the sixth amendment to the federal

constitution at every “critical” stage of a criminal prosecution where adversarial

proceedings have begun absent a valid waiver. Upton v. State, 853 S.W.2d 548, 553

(Tex.Crim.App. 1993). In Trevino v. State, 565 S.W.2d 938 (Tex.Crim.App. 1978), it was

held that a hearing on a motion for new trial is such a critical stage of a criminal

proceeding during which a defendant is entitled to counsel. Id. at 940. However, the Court

of Criminal Appeals has not yet addressed whether a defendant is entitled to counsel

during the time limit for filing a motion for new trial to assist with the preparation and

presentation of that motion. Smith v. State, 17 S.W.3d 660, 663 n.3 (Tex.Crim.App. 2000);

Oldham v. State, 977 S.W.2d 354, 360 (Tex.Crim.App. 1998), cert. denied, 525 U.S. 1181,

119 S.Ct. 1121, 143 L.Ed.2d 116 (1999). Nevertheless, several courts of appeal have

addressed the issue and found such a right to exist. See Prudhomme v. State, 28 S.W.3d

114, 119 (Tex.App.-- Texarkana 2000, no pet.); Hanson v. State, 11 S.W.3d 285, 288-89

(Tex.App.--Houston [14th Dist.] 1999, pet. ref’d); Massingill v. State, 8 S.W.3d 733, 736

(Tex.App.--Austin 1999, no pet.); Boyette v. State, 908 S.W.2d 56, 59 (Tex.App.--Houston

[1st Dist.] 1995), remanded on other grounds, 982 S.W.2d 428 (Tex.Crim.App. 1998).


                                             3
       The Court of Criminal Appeals has not found it necessary to address the issue

because in the cases before it, the defendant failed to show that he was not represented

by counsel. In Oldham, the defendant was represented by retained counsel at her trial.

She was sentenced on January 13, 1992. She then filed a pro se notice of appeal and

indigency. On March 16, 1992, the court found her indigent, and counsel was appointed

to represent her. She then sought to have the appeal abated so that the trial court could

grant her leave to file a motion for new trial because she was denied her right to counsel

during a critical stage of her criminal proceedings. The court found she had failed to show

she was denied counsel. Oldham, 977 S.W.2d at 361. In so holding, the court noted that

the defendant did not file a motion for new trial, never indicated any grounds she would

have raised in the motion, never claimed she would be entitled to a hearing on her motion,

did not claim she was unable to raise certain issues because she did not first file a motion

for new trial, did not claim her trial counsel was ineffective for failing to file a motion for

new trial, and did not assert that she was not informed by her trial counsel of the

opportunity and grounds to file a motion for new trial. Id. There was also nothing in the

record to show trial counsel concluded his duties were completed at the end of trial. Id.

at 362. Therefore, the court held that when a motion for new trial is not filed, there exists

a rebuttable presumption that its filing was considered and rejected. Moreover, the fact

a pro se notice of appeal was filed only served to show that she was informed of at least

some of her rights, and the court would therefore presume she was adequately counseled.

Id. at 363.



                                              4
       In Smith, the defendant pled guilty to a lesser offense without an agreed

recommendation as to punishment. The adjudication of his guilt was deferred and he was

placed on community supervision. Later, the court found he had violated his community

supervision and proceeded to adjudicate and assess punishment. The defendant then

filed a pro se notice of appeal alleging he received ineffective assistance of counsel at the

punishment hearing. He was brought to court where he signed a pauper’s oath and

requested new counsel, which was appointed, but not until after the time for filing a motion

for new trial had expired. On appeal, the defendant argued that he was denied effective

assistance of counsel during the time for filing a motion for new trial, which deprived him

of the opportunity to develop an appellate record to show he received ineffective

assistance of counsel with respect to punishment.


       The court found the only distinguishing facts between Smith and Oldham were that

the defendant was claiming his trial counsel was ineffective and he appeared without

counsel at the time he signed his pauper’s oath. It held these facts were not sufficient to

justify a holding different than the one in Oldham. Smith, 17 S.W.3d at 663. There was

nothing in the record to show that the defendant was not counseled regarding a motion for

new trial, and therefore he failed to rebut the presumption that he was adequately

represented. Id.


       Contrary to these two cases, in the case at bar, appellant did file a pro se motion

for new trial, in which he alleged as one basis that his trial counsel was ineffective, which



                                             5
rendered his plea involuntary. As already discussed, it has been held that the fact trial

counsel was retained and then, for purposes of appeal, the defendant asserts his

indigency, does not demonstrate that he is not still represented by his trial counsel. There

is nothing in this record to show that trial counsel had withdrawn from representation.

Further, the fact that appellant filed a pro se notice of appeal has been held to be some

evidence that he was counseled as to his rights and presumably the same logic could

extend to the fact appellant filed a pro se motion for new trial. Nevertheless, we are

concerned with the possible conflict of interest of retained counsel, who is presumably no

longer being paid as his client now claims to be indigent, being able to counsel his client

as to the manner and means of asserting counsel’s own ineffectiveness at trial. Further,

if the hearing on a motion for new trial is a critical stage of a criminal proceeding, we are

hard-pressed to make the distinction between the hearing itself and the preparation and

presentation of the motion that would entitle one to that hearing.


       A motion for new trial is a prerequisite to presenting a point of error on appeal when

necessary to adduce facts not in the record. Tex. R. App. P. 21.1. A motion for new trial

is to be filed within 30 days after the date the trial court imposes or suspends sentence

in open court. Tex. R. App. P. 21.4(a). The motion must then be presented to the trial

court within ten days of its filing, unless the trial court permits it to be presented and heard

within 75 days from the date when the court imposes or suspends sentence in open court.

Tex. R. App. P. 21.6. The court must rule on the motion within that 75-day period, and a

motion not timely ruled on by written order is deemed denied after the 75-day period


                                               6
expires. Tex. R. App. P. 21.8(a) and (c). When a motion for new trial raises matters not

determinable from the record which could entitle the movant to relief, the trial judge abuses

his discretion in failing to hold a hearing if the allegations are supported by affidavit

showing the truth of the matters asserted.         King v. State, 29 S.W.3d 556, 569

(Tex.Crim.App. 2000).


       The facts before us are virtually identical to those in Prudhomme, in which the

defendant pled guilty to aggravated sexual assault without a recommended sentence for

punishment and received a life sentence. On appeal, he contended he was denied the

right to counsel during the time period for filing and presenting a motion for new trial. The

record showed that Prudhomme was represented by counsel through trial and no motion

to withdraw was filed by counsel. However, 25 days after sentence was imposed,

Prudhomme sent to the trial court a pro se notice of appeal, a pro se motion to substitute

counsel of record, and a pro se “Motion to Withdraw Plea,” in which he asserted his plea

was involuntary due to ineffective assistance of counsel, which the court considered to be

a motion for new trial. His assertion was that his plea was involuntary because he had

been told by counsel he would receive probation. Fifty-eight days after sentence was

imposed, he signed a pauper’s oath and was appointed counsel for appeal. The pro se

motion for new trial was never presented to the trial court and a hearing was never

requested.


       The Texarkana court found the presumption that trial counsel continued to

effectively represent Prudhomme during the time for filing a motion for new trial was


                                             7
rebutted by the filing of a pro se motion for new trial complaining of ineffective assistance

of counsel, but which neither requested a hearing nor was presented to the court, together

with the filing of a pro se notice of appeal and a pro se motion to substitute counsel.1

Prudhomme, 28 S.W.3d at 120. The court also found that Prudhomme was harmed

because he asserted a facially plausible claim based on matters outside the record upon

which the trial court would have been required to hold a hearing if the motion had been

presented and a hearing requested. Id. at 120-21.


       In the case at bar, appellant filed a pro se notice of appeal, which did not merely

request substitution of counsel, but appointment of counsel. He also filed a pro se motion

for new trial, which was sufficient to rebut the presumption he had chosen not to present

such a motion. Although appellant had retained counsel at trial, he asserted his indigent

status for purposes of appeal. This court abated the appeal for appointment of counsel

because the record did not reflect that the trial court had ever acted on appellant’s request.

Moreover, the motion for new trial was based at least in part on a claim of ineffective

assistance of counsel, which could create a conflict of interest for his trial attorney in the

preparation and argument of the same. The motion was never presented to the trial court

and a hearing was not requested. We believe the facts unique to this case rebut the

presumption that appellant continued to be represented by counsel and was adequately



       1
        This was apparently a limited holding because, in a more recent decision,
Yarbrough v. State, 57 S.W.3d 611 (Tex.App.--Texarkana 2001, pet. ref’d), the same court
distinguished the facts in that case from Prudhomme by noting that counsel had filed the
motion for new trial and there was no claim of ineffective assistance of counsel in the
motion which might create a conflict of interest.

                                              8
counseled. Further, we believe if appellant is entitled to counsel for purposes of a hearing

on a motion for new trial, he is entitled to counsel during the time for preparing and

presenting that motion for new trial, and his failure to be represented is a violation of his

right to counsel under the sixth amendment. Additionally, that error was not harmless

because he would have been entitled to a hearing if the motion had been presented to the

trial court, and his failure to receive that hearing prevented him from making a record for

appellate review.


       Therefore, the appeal is abated and remanded to the trial court to the point at which

appellant was convicted and sentence imposed. If the motion for new trial is granted, the

record shall be supplemented with a copy of the trial court’s order. If the motion for new

trial is overruled, the record shall be supplemented with the court’s order and the reporter’s

record of any hearing held. At that time, the parties may request an opportunity to brief

any issues regarding the court’s denial of the motion.


                                                  Per Curiam


Publish.




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