Motion Granted; Abatement Order filed November 29, 2011




                                           In The

                       Fourteenth Court of Appeals
                                       ____________

                                   NO. 14-11-00149-CR
                                     ____________

                        MARVIN DWAYNE SMITH, Appellant

                                              V.

                           THE STATE OF TEXAS, Appellee


                        On Appeal from the 230th District Court
                                 Harris County, Texas
                            Trial Court Cause No. 1147188


                                ABATEMENT ORDER

       After a bench trial, appellant was found guilty of aggravated assault with a deadly
weapon and sentenced to 45 years in the Institutional Division of the Texas Department
of Criminal Justice. He filed a motion to abate the appeal arguing he was denied counsel
during the thirty-day time period for filing a motion for new trial and requests that we
abate his appeal so he may file a motion for new trial based on ineffective assistance of
counsel.   We grant appellant’s motion and abate this appeal to allow appellant the
opportunity to file and present a motion for new trial to the trial court.
       Appellant was sentenced on January 19, 2011. On February 9, 2011, he filed a
notice of appeal and his trial counsel was permitted to withdraw. Appellate counsel was
not appointed until April 25, 2011. Appellant argues that he was denied representation
by counsel during the time period allowed for filing a motion for new trial, and thus his
appeal should be abated to allow counsel to file a motion for new trial.

       The thirty-day time period for filing a motion for new trial is a critical stage in a
criminal proceeding, and a defendant has a constitutional right to counsel during that
period. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007); see also Tex. R.
App. P. 21.4(a) (providing thirty days for a defendant to file a motion for new trial). The
record shows that appellant was not represented by counsel during a portion of the
applicable time period.

       The denial of counsel during the time period for filing a motion for new trial is
subject to harmless error analysis. Cooks, 240 S.W.3d at 911. Because this error is
constitutional in nature, we must decide whether the error was harmless beyond a
reasonable doubt. See id. at 911–12; see also Tex. R. App. P. 44.2(a). If an appellant
alleges a facially plausible claim that could have been alleged in a motion for new trial,
the error is not harmless beyond a reasonable doubt. Cooks, 240 S.W.3d at 912. In his
motion, appellant alleges his trial counsel did not file a motion for new trial before he
withdrew. Further, appellant’s competency to stand trial appears to have been an issue
during trial.   Appellate counsel has obtained appellant’s medical records and is
investigating potential witnesses for a hearing on a motion for new trial. Appellant was
without counsel for more than three months after he was sentenced. Appellant’s motion
has been on file for more than ten days, but the State has not filed a response.

       Appellant was not represented by counsel during a portion of the time period for
filing a motion for new trial, and this lack of representation was not harmless beyond a
reasonable doubt. Accordingly, we abate this appeal for 60 days and remand to the trial
court to (1) allow appellant the opportunity to properly file and present a motion for new


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trial, (2) allow the trial court the opportunity to rule on such a motion, and (3) allow the
parties the opportunity to supplement the record. The timetable applicable to a motion
for new trial shall begin as if appellant was sentenced on the date of this abatement order.
If the record is supplemented prior to the expiration of 60 days, the appeal will be
reinstated.



                                                 PER CURIAM



Panel consists of Justices Frost, Seymore, and Jamison.




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