                                   NO. 07-01-0267-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                  FEBRUARY 21, 2002

                          ______________________________


                           STEVE D. MCNEAL, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

         NO. 99431348; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

                         _______________________________

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


       Appellant Steve D. McNeal was convicted of the offense of assault on a public

servant after a guilty plea pursuant to a plea bargain agreement, and was sentenced to

five years confinement in the Institutional Division of the Department of Criminal Justice.

He challenges that conviction in three issues by contending that the trial court 1) erred in

not granting a hearing on his motion for new trial, 2) erred in ruling on the motions to
withdraw of two separate defense counsel without conducting a hearing, and (3) abused

its discretion in ordering appellant’s sentence “to run concurrent with any other sentence.”

We affirm the judgment of the trial court.


         If an appeal is from a judgment rendered on a plea of guilty or nolo contendere and

the punishment assessed does not exceed that recommended by the prosecutor, the

notice must specify that the appeal is for a jurisdictional defect, the substance of the

appeal was raised by written motion and ruled on before trial, or state that the trial court

granted permission to appeal. Tex. R. App. P. 25.2(b)(3). In this instance, the record

shows that the judgment was rendered on a plea of guilty. Furthermore, the trial court

denied appellant permission to appeal. Although appellant originally filed only a general

notice of appeal, he subsequently filed an amended notice of appeal, in which he asserts

that the substance of the appeal was raised in part by written motion and ruled on prior to

trial and further raised on the trial court’s denial of a hearing on appellant’s motion for new

trial.


         In his first issue, appellant complains that the trial court erred in not granting a

hearing on his motion for new trial. In that motion, appellant alleged his trial counsel was

ineffective, the trial court failed to rule on his pro se pretrial motions, he was affected by

not being present when the trial court ruled on the motions of his defense counsel to

withdraw, his plea was involuntary due to his mental state, and there was undue delay in

bringing him to trial. A motion for new trial is a prerequisite to presenting a point of error



                                              2
on appeal when necessary to adduce facts not in the record. Tex. R. App. P. 21.2

Sentence was imposed in open court on June 19, 2001. No motion for new trial was filed,

but appellant filed a timely general pro se notice of appeal and requested appointment of

counsel to represent him in that appeal. That request was denied by the trial court. By

order dated July 17, 2001, we abated the appeal back to the trial court in order that

counsel could be appointed to represent appellant. Counsel was appointed on July 24,

2001. A motion for new trial was then filed on August 16, 2001, and denied the same day.


       A motion for new trial must be filed no later than 30 days after the date when the

trial court imposes or suspends sentence in open court. Tex. R. App. P. 21.4(a). It has

been held that the time for filing a motion for new trial is a critical stage of a proceeding

during which a defendant is entitled to assistance of counsel. Jack v. State, 42 S.W.3d

291, 292 (Tex.App.--Houston [1st Dist.] 2001, no pet.); Prudhomme v. State, 28 S.W.3d

114, 119 (Tex.App.--Texarkana 2000, no pet.). However, we have no authority to suspend

through Rule 2 of the Rules of Appellate Procedure the time period in which such a motion

must be filed. 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). Furthermore, a motion for new

trial is not a motion ruled on prior to trial such as to give this court jurisdiction through

appellant’s notice of appeal.


       Additionally, whether to grant a motion for new trial is within the discretion of the

trial court, and the trial court’s decision will not be disturbed unless the court acted



                                             3
arbitrarily or unreasonably. Lincicome v. State, 3 S.W.3d 644, 646 (Tex.App.--Amarillo

1999, no pet.).1 When an accused presents a motion for new trial raising matters not

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

discretion in failing to hold an evidentiary hearing if the motion is supported by affidavit

specifically showing the truth of the grounds of attack. King v. State, 29 S.W.3d 556, 569

(Tex.Crim.App. 2000). However, the trial court does not abuse its discretion in failing to

hold a hearing when the affidavit is conclusory in nature. Jordan v. State, 883 S.W.2d

664, 665 (Tex.Crim.App. 1994). Here, appellant provided no affidavits supporting the

allegations in his motion for new trial. Therefore, the trial court could not have abused its

discretion in denying appellant a hearing. Appellant’s first issue is overruled.


       In his second issue, appellant complains the trial court erred in ruling on the

motions to withdraw of two defense counsel without conducting a hearing in his presence.

The record shows that appellant was represented by three different defense counsel

during the trial court proceedings. Appellant, who was incarcerated at the time of his

offense, was initially represented by an attorney working for the staff of the Texas Board

of Criminal Justice.      By affidavit dated July 24, 2000, appellant expressed his

dissatisfaction with his appointed counsel and requested the court to appoint him other

counsel. On the same date, appellant filed an affidavit of inability to employ counsel, and



       1
        Appellant signed a waiver of his right to file a motion for new trial; however, to the
extent that it can be said that such a waiver was not knowing and voluntary due to the
issue raised as to his competency, we will discuss the motion for new trial as if such a
waiver had not been signed.

                                              4
the court appointed Vince Martinez to represent him on July 27, 2000. A motion to

withdraw was filed on November 20, 2000, by the Texas Department of Criminal Justice

requesting to withdraw from representation because appellant had “retained a free-world

attorney to represent him.” A second identical motion was also filed on February 28, 2000.

The motion was granted on March 7, 2001.


       By March 13, 2001, appellant had filed two complaints against Vince Martinez with

the court, one dated January 10, 2001, and one dated February 16, 2001, alleging that his

counsel had failed to file a number of motions sent by appellant, including a motion for

discovery, motion for bond reduction, motion to disclose, a motion to set aside the

indictment, and a motion for fair and impartial trial and had failed to interview him and his

witnesses, examine the physical evidence, serve subpoenas, gather information significant

to the case, prepare reports, perform legal research, advise him on the strengths and

weaknesses of the case, and give an opinion as to the fairness of a plea offer.2 Appellant

also filed a declaration of conflict between attorney and client and requested substitution

of other counsel in place of Martinez. By order dated May 21, 2001, the court appointed

Dwight McDonald to represent appellant, and on May 25, 2001, accepted the withdrawal

of Martinez.




       2
       Appellant had previously filed a pro se motion for discovery and application for writ
of habeas corpus seeking a bond reduction.

                                             5
      Appellant now argues that he was harmed because the trial court failed to hold

hearings in his presence on his requests for substitution of counsel as required by article

28.01 of the Code of Criminal Procedure. Article 28.01 provides:




       Sec. 1. The court may set any criminal case for a pre-trial hearing before it
       is set for trial upon its merits, and direct the defendant and his attorney, if
       any of record, and the State’s attorney, to appear before the court at the time
       and place stated in the court’s order for a conference and hearing. The
       defendant must be present at the arraignment, and his presence is required
       during any pre-trial proceeding. The pre-trial hearing shall be to determine
       any of the following matters:

       (1) Arraignment of the defendant, if such be necessary; and appointment of
       counsel to represent the defendant, if such be necessary; . . . .


Tex. Code Crim. Proc. Ann. art. 28.01 § 1(1) (Vernon 1989). Appellant has not pointed

us to anywhere in the record where he sought a hearing on his requests for new counsel.

Therefore, we question whether the substance of appellant’s complaint was raised by

written motion prior to trial and ruled on by the court. However, in one pro se document,

appellant did make reference to the fact that the court had not held a hearing on his

request that Martinez be replaced. To the extent that it might be said that such a

statement in the record supports appellant’s notice of appeal that the complaint was raised

by written motion prior to trial, we will for the sake of argument discuss the merits of

appellant’s complaint.


       In Malcolm v. State, 628 S.W.2d 790 (Tex.Crim.App. 1982), the court held that no

“proceeding” as contemplated by article 28.01 had taken place so as to require the

                                             6
defendant’s presence when there was no written order, but only a notation on a docket

sheet saying that a motion had been overruled. Id. at 792. In the order appointing

Martinez to represent appellant, it recited that appellant had that day been brought before

the court and made an affidavit of inability to employ counsel, as well as indicated his

desire to have counsel appointed to represent him. Thus, there is nothing in the record

to indicate appellant was not present at the time of that appointment. The order appointing

Dwight McDonald to represent appellant recited only that appellant had made known to

the court that he desired to be represented by counsel and that he was too poor to employ

counsel. Several days later, the court entered an order which substituted McDonald for

Martinez. That order recites that the matter came on for hearing; however, there is no

indication whether the court actually held a hearing, and there are no transcripts of any

hearing that may have been held. Thus, the record seems to indicate that a proceeding

within the contemplation of article 38.08 may not have occurred.


       Even if such a proceeding did take place, appellant does not contend that the trial

court erred in granting his requests for new counsel, only that a hearing should have been

held on those requests and he should have been present. The State concedes that,

according to Melendez v. State, 895 S.W.2d 714 (Tex.App.--Corpus Christi 1994, no pet.),

and United States v. Young, 482 F.2d 993 (5th Cir. 1973), reversible error generally occurs

when a defendant voices a substantial complaint about counsel and the judge fails to make

an inquiry into the matter. However, in both of those cases, the court refused to grant the

appointment of new counsel. In this instance, new counsel was appointed, and appellant


                                            7
asserts that he was harmed because the effect of such action on his defense was not

considered. Since appellant does not explicate what the adverse effect was, if any, on his

defense as a result of the court granting his requests without a hearing, and since

appellant obtained the relief he requested, we fail to see how he was harmed by the trial

court’s action. See Tex. R. App. P. 44.2; Adanandus v. State, 866 S.W.2d 210, 220

(Tex.Crim. App. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686

(1994); Malcolm, 628 S.W.2d at 792. Appellant’s second issue is overruled.


       In his last issue, appellant contends by way of a supplemental brief that the trial

court abused its discretion in ordering his sentence “to run concurrent with any other

sentence.” Appellant bases his argument on article 42.08 of the Code of Criminal

Procedure, which provides:


       (b) If a defendant is sentenced for an offense committed while the defendant
       was an inmate in the institutional division of the Texas Department of
       Criminal Justice and the defendant has not completed the sentence he was
       serving at the time of the offense, the judge shall order the sentence for the
       subsequent offense to commence immediately on completion of the
       sentence for the original offense.


Tex. Code Crim. Proc. Ann. art. 42.08(b) (Vernon Supp. 2002). Appellant argues that

because the court had no discretion to run the sentences concurrently, the plea agreement

was incapable of being performed, and the judgment must be set aside. Attached to

appellant’s supplemental brief is an affidavit from his trial counsel stating that a specific

term of the plea bargain was that his sentence would run concurrent with any other



                                             8
sentences. Further, appellant argues that his right of appeal on this issue is not limited

because the punishment which must be assessed (i.e., stacking of the sentences) exceeds

that recommended by the State (i.e., concurrent sentences).


       The record contains a “Statement of Plea Bargain” signed by appellant’s trial

counsel, which shows the plea bargain to have been five years in the Institutional Division

of the Texas Department of Criminal Justice, plus $247.25 in court costs. There is no

indication in that document that the sentences were to run concurrent. Further, the

judgment originally showed that, as part of the plea bargain, the sentence was to run

consecutively with Cause No. 87-406,716, although that provision was later deleted by the

trial court after accepting appellant’s plea. It is also undisputed that appellant was

incarcerated for another offense at the time he assaulted a correctional officer. The

assault offense was enhanced by three prior convictions. The following discussion took

place at the hearing during which appellant pled guilty:


                                        *    *   *

       THE COURT: And do you understand the plea agreement in this case to be
       that upon a plea to this case, the State would recommend that you would be
       sentenced to five years in the Texas Department of Corrections?

       THE DEFENDANT: Yes, sir.

       THE COURT: Okay. Let me clear this up. The State is waiving the
       enhancement paragraph?

       MS. NORRIS: We are waiving them all, Your Honor.




                                            9
THE COURT: And the plea agreement indicated that this is to run
consecutively with Cause Number 87-406,716.

MS. NORRIS: I am sorry, Your Honor. I didn’t see the plea papers. He
served that.

MR. MCDONALD: That is the one he is discharged on.

MS. NORRIS: He discharged it totally. And he has 843 days credit, Your
Honor. That includes time he spent in TDC being held on these charges.

THE COURT: What I am going to do is on the judgment on the last
paragraph, it indicates that the sentences run consecutive with that other
cause number. The Court is going to mark that out and put in here that if he
has any other sentences, that this sentence is to run concurrent.

MR. MCDONALD: Okay.

THE COURT: You said he had how many days of jail credit?

MS. NORRIS: From February the 25th,1999, which was 843 days, Your
Honor.

THE COURT: Is that your understanding of your jail credit, Mr. McNeal?

THE DEFENDANT: Yes, sir, February 25, 1999.

THE COURT: And is that the attorney’s understanding of the plea
agreement in this case?

MR. MCDONALD: It is, Your Honor.

                                 *   *    *




                                     10
Therefore, in two places in the judgment, the court deleted that portion which indicated the

sentences were to run consecutively and wrote “this sentence is to run concurrent with any

other sentence.”3


       A trial court has no discretion to order sentences for offenses committed while a

defendant is incarcerated to run concurrently, Resanovich v. State, 906 S.W.2d 40, 42

(Tex.Crim.App. 1995), and the parties cannot agree to a punishment that is not authorized

by law. Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App. 1993), overruled on other

grounds by Ex parte McJunkins, 954 S.W.2d 29 (Tex.Crim.App. 1997).              However, even

if the court was not authorized to provide that any other sentences would run concurrent

with the assault charge, there is no evidence in the record that appellant was actually

serving any other sentences. In fact, at the time of the plea, the record shows that

appellant had finished serving his sentence for commission of the offense for which he was

in prison at the time of his assault on the correctional officer. The trial court, the attorneys,

and appellant all appear to have agreed that he was not serving any other sentences.

Therefore, there has been no showing that the provision added by the court to the

judgment had the effect of ordering the sentences to be served concurrently. Appellant’s

third issue is overruled.


       In summary, we have found no reversible error and affirm the judgment of the trial

court. We also note that, in a prior opinion of this court, we delayed a ruling on appellant’s


       3
       The court failed to delete one other sentence in the judgment, which stated that the
sentence was to be served consecutively with that in Cause No. 87-406,716.

                                               11
counsel’s motion to withdraw pending our determination of this matter on the merits.

Therefore, at this time, we hereby grant counsel’s motion to withdraw.



                                               John T. Boyd
                                                Chief Justice

Do not publish.




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