Affirmed and Memorandum Opinion filed July 23, 2019.




                                         In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00408-CR

                     TRAVEIN STRAUGHTER, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1438544

                  MEMORANDUM OPINION

      Appellant Travein Straughter appeals his sentence for murder. In his first
issue, appellant argues that he was effectively deprived of counsel during most of
the thirty-day period in which to file a motion for new trial. He seeks an abatement
of the appeal and an opportunity to file an out-of-time motion for new trial. In his
second issue, appellant contends his trial counsel provided ineffective assistance,
for which appellant seeks a new trial.
      We conclude neither issue has merit, and we affirm the trial court’s
judgment.

                                    Background

      A Harris County grand jury indicted appellant for the felony offense of
murder. The court appointed counsel for appellant two days later. Appellant
pleaded guilty without an agreed recommendation as to punishment. The trial
court deferred punishment pending a presentence investigation.            Before the
punishment hearing, appellant filed a “Motion for Preferential Setting,” in which
he stated that he sought to withdraw his plea. There is no indication in the record
that the trial court considered or ruled on appellant’s motion.

      The court conducted a punishment hearing, at which attorneys for the State
and the defense presented argument but no witnesses. After the hearing, the trial
court sentenced appellant to forty years’ confinement in the institutional division of
the Texas Department of Criminal Justice. The day after the judge imposed the
sentence, appellant filed a timely motion for new trial signed by his trial counsel.
In the motion, appellant sought a new trial on grounds of new evidence in that the
ballistic report allegedly indicated “two shooters.”    Appellant also sought a new
trial “in the interests of justice.” No hearing occurred on the motion, which was
overruled by operation of law. Our record does not reveal that appellant’s trial
counsel filed a motion to withdraw. Appellant filed a timely pro se notice of
appeal, and the court subsequently appointed new counsel for appeal, though the
appointment did not occur until after the motion for new trial deadline expired.




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                                      Analysis

A.    Assistance of Counsel at a Critical Stage

      In his first issue, appellant asserts that although his trial counsel filed a
timely motion for new trial, he failed to present it to the court. Based on that fact,
appellant contends the trial court erred in failing to appoint new counsel within the
thirty-day new trial window so that newly appointed counsel could file another
motion for new trial. Appellant contends he was denied representation during a
critical stage of the proceedings.

      The time period for filing a motion for new trial is a critical stage of criminal
proceedings, and a defendant has a constitutional right to counsel during that
period. See Cooks v. State, 240 S.W.3d 906, 908 (Tex. Crim. App. 2007). To
prevail on a claim of deprivation of counsel, a defendant must affirmatively show
he was not represented by counsel during the critical period at issue. See Oldham
v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (op. on reh’g). When, as
here, trial counsel does not withdraw and is not replaced by new counsel after
sentencing, a rebuttable presumption exists that trial counsel continued to represent
the defendant during the time for filing a motion for new trial. See Smith v. State,
17 S.W.3d 660, 662 (Tex. Crim. App. 2000); Oldham, 977 S.W.2d at 363; see also
Smallwood v. State, 296 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.] 2009,
no pet.). The rebuttable presumption of adequate representation arises, in part,
because counsel remains as the defendant’s counsel for all purposes until expressly
permitted to withdraw, even if the appointment or retention is for trial only. See
Nguyen v. State, 222 S.W.3d 537, 540 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d); see also Ex parte Axel, 757 S.W.2d 369, 373-74 (Tex. Crim. App. 1988)
(retained counsel has not concluded a case until he has filed a motion to withdraw
if he knows his client intends to appeal). The burden to produce evidence to rebut

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the presumption is on the appellant.           See Oldham, 977 S.W.2d at 363. The
presumption is not rebutted when nothing in the record suggests that appellant was
unrepresented by counsel during the period in question. See Smith, 17 S.W.3d at
662-63; Nguyen, 222 S.W.3d at 540.

       Here, appellant’s counsel filed a timely motion for new trial on appellant’s
behalf and did not withdraw during the new trial period. Appellant nevertheless
contends that he was unrepresented “during most of the Motion-for-New Trial
Window.”       To rebut the presumption of counsel’s continued representation,
appellant cites the following facts: (1) trial counsel failed to present the motion for
new trial or obtain a ruling; (2) appellant filed a pro se notice of appeal eight days
before the thirty-day window expired, which “should have alerted the trial court
appellant was without counsel” and would have allowed sufficient time to appoint
new counsel, who could file an amended motion for new trial; and (3) the trial
court was aware that appellant’s appellate counsel was “to be determined.”1

       Comparing this case with cases in which the Court of Criminal Appeals has
concluded that a defendant did not rebut the presumption of adequate
representation during the time period for filing a motion for new trial, we similarly
conclude that appellant has not done so here. See, e.g., Smith, 17 S.W.3d at 662-63
(holding the following facts insufficient to rebut presumption: appellant filed pro
se notice of appeal and indigency; letter of assignment from trial court to appellate
court stated attorney of record on appeal was “to be determined”; and appellant

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          Appellant refers to the district clerk’s notification that appellant’s appeal had been
assigned to the Fourteenth Court of Appeals, with appellant’s attorney of record on appeal “TO
BE DETERMINED.” But this notice is dated thirty-three days after the court sentenced
appellant, and therefore was outside the new-trial window. Thus, the record contradicts
appellant’s suggestion that the trial court was aware that new counsel had not been assigned
before the deadline for filing an amended motion for new trial. Even if we were to consider the
letter of assignment in our analysis, it would not support appellant’s requested relief for the
reasons explained below.

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appeared without counsel when signing pauper’s oath and requesting new
counsel); Oldham, 977 S.W.2d at 362-63 (holding the following facts insufficient
to rebut presumption: appellant filed pro se notice of appeal and indigency; and
letter of assignment from trial court to appellate court stated attorney of record on
appeal was “to be determined”). Additionally, both Houston courts of appeals
have rejected similar claims under comparable circumstances. See Green v. State,
264 S.W.3d 63, 69 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“To defeat
the presumption, an appellant must show more than that (1) appellant filed a pro se
notice of appeal; (2) the appellate attorney was ‘to be determined’; (3) the trial
court appointed appellate counsel after the expiration of the time for filing a
motion for new trial; (4) on appeal, appellant would have raised further complaints
had a motion for new trial been filed; (5) appellant appeared without counsel when
signing a pauper’s oath and requesting appellate counsel; and (6) the record shows
no activity by trial counsel or any motion to withdraw from the case.”); Gonzales
v. State, No. 14-05-00562-CR, 2006 WL 1459845, at *2 (Tex. App.—Houston
[14th Dist.] May 30, 2006, no pet.) (mem. op., not designated for publication)
(rejecting appellant’s deprivation of counsel claim and noting the fact that
appellant filed a pro se notice of appeal and a pro se motion to withdraw his guilty
plea “is some evidence that appellant was informed of his appellate rights”). As in
these cases, nothing in the present record shows that trial counsel did not advise
appellant of his post-conviction rights, or that counsel refused to take any action
requested by appellant. Although appellant may develop a record to support an
ineffectiveness claim in a habeas corpus proceeding, he has failed here to
overcome the presumption that he was adequately represented by trial counsel
during the time period to file a motion for new trial.

      We overrule appellant’s first issue.


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B.    Ineffective Assistance of Counsel Claim

      In his second issue, appellant argues that his trial counsel rendered
ineffective assistance by failing to: (1) present mitigation evidence at the
punishment hearing; (2) obtain a ruling on a motion for continuance; (3) obtain a
ruling on a motion to withdraw appellant’s guilty plea; (4) present the motion for
new trial; and (5) withdraw from the case.

      We examine claims of ineffective assistance of counsel under the familiar
two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
See Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d).    Under Strickland, the defendant must prove that his trial
counsel’s representation was deficient, and that the deficient performance was so
serious that it deprived him of a fair trial. Strickland, 466 U.S. at 687. Counsel’s
representation is deficient if it falls below an objective standard of reasonableness.
Id. at 688. But a deficient performance will deprive the defendant of a fair trial
only if it prejudices the defense. Id. at 691-92. To demonstrate prejudice, the
defendant must show a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694. Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.

      Our review of trial counsel’s representation is highly deferential and
presumes that counsel’s actions fell within the wide range of reasonable
professional assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App.
2007); Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (op. on reh’g); see also Valdez v. State, No. AP-77,042, 2018 WL
3046403, at *25 (Tex. Crim. App. June 20, 2018) (not designated for publication);
Luna v. State, No. 14-16-00844-CV, 2018 WL 1414175, at *1 (Tex. App.—

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Houston [14th Dist.] Mar. 22, 2018, no pet.) (mem. op., not designated for
publication). If counsel’s reasons for his conduct do not appear in the record and
there exists at least the possibility that the conduct could have been grounded in
legitimate trial strategy, we defer to counsel’s decisions and deny relief on an
ineffective assistance claim on direct appeal. See Garza, 213 S.W.3d at 348; see
also Valdez, 2018 WL 3046403, at *25. The Court of Criminal Appeals has also
stated that if counsel has not had an opportunity to explain his actions, we may not
find deficient performance unless the conduct was “so outrageous that no
competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). In the majority of cases, the record on direct
appeal is simply undeveloped and insufficient to permit a reviewing court to fairly
evaluate the merits of an ineffective assistance of counsel claim. See Luna, 2018
WL 1414175, at *1.

      With this framework in mind, we turn to each of appellant’s contentions.

      1. Failure to present mitigation evidence

      Appellant argues that his counsel failed to offer any mitigation evidence
during his punishment hearing, thus prejudicing him during sentencing.

      The record is silent as to trial counsel’s decision-making regarding
mitigation evidence. Appellant’s motion for new trial did not raise any inadequate-
representation grounds, so counsel has had no opportunity to explain the reasons
for his decisions or the extent to which he investigated appellant’s background and
life circumstances to uncover any evidence that might have been offered in
mitigation of the offense to which appellant pleaded guilty. Nor is there evidence
in the record indicating that any such mitigation evidence existed. Given the
record before us, there is nothing to rebut the presumption of reasonably effective
assistance of counsel, and we will not speculate to the contrary. See, e.g., Swanner
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v. State, 499 S.W.3d 916, 921-22 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(on silent record, appellant failed to show that trial counsel provided ineffective
assistance by failing to put on mitigation evidence); see also Bone v. State, 77
S.W.3d 828, 834-35 (Tex. Crim. App. 2002) (rejecting ineffective assistance claim
for failure to offer mitigating evidence when record did not reflect whether such
evidence existed and because “defense counsel could have reasonably determined
that the potential benefit of additional witnesses or evidence was outweighed by
the risk of unfavorable counter-testimony”).

      2. Failure to obtain ruling on motion for continuance

      On the day that appellant entered his guilty plea, he also filed a motion for
continuance. In the motion, appellant argued that an eyewitness’s testimony would
“be vital for [appellant’s] defense” and that counsel had “lost track of family.”
There is no ruling on the motion in our record.        Appellant contends that his
counsel’s failure to obtain a ruling on the motion amounts to ineffective assistance.

      Failure to obtain a ruling on a pre-trial motion, in itself, is not ineffective
assistance of counsel. See Wills v. State, 867 S.W.2d 852, 857 (Tex. App.—
Houston [14th Dist.] 1993, pet. ref’d). Moreover, appellant has not shown that his
motion for continuance would have been successful had his counsel obtained a
ruling, or that an adverse ruling would have been an abuse of discretion. Thus,
appellant has not demonstrated harm. Garrett v. State, No. 14-94-00332-CR, 1996
WL 87186, at *2 (Tex. App.—Houston [14th Dist.] Feb. 29, 1996, no pet.) (not
designated for publication); see also Martinez v. State, No. 14-08-00345-CR, 2009
WL 3734154, at *6 (Tex. App.—Houston [14th Dist.] Nov. 10, 2009, pet. ref’d)
(mem. op., not designated for publication) (because appellant did not show that
pre-trial motions were meritorious or that failure to obtain rulings on motions
resulted in harm, appellant could not meet burden to show error or harm).

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       3. Failure to obtain ruling on assertion to withdraw plea

       Appellant also argues that his counsel provided ineffective assistance by
failing to obtain a ruling on appellant’s motion to withdraw his plea, which was
entitled “Motion for Preferential Setting.”

       The record does not indicate why counsel did not pursue appellant’s request
to withdraw his guilty plea. Counsel reasonably may have believed that he could
not rebut the recitations in the record that appellant’s plea was freely and
voluntarily entered. Nonetheless, speculation on counsel’s strategy is immaterial
to our determination that counsel has not been proven ineffective. Again, when the
record is silent as to why counsel failed to object, it is difficult for a defendant to
overcome the first prong of Strickland. See Mallett v. State, 65 S.W.3d 59, 64-65
(Tex. Crim. App. 2001) (rejecting appellant’s ineffective assistance claim when
record was silent as to why counsel failed to move to withdraw guilty plea).

       4. Failure to present motion for new trial

       A defendant is required to “present” a motion for new trial to the trial court
within ten days of filing it, unless the court in its discretion extends that time
period.    Tex. R. App. P. 21.6.          Appellant asserts that his counsel rendered
ineffective assistance by failing to present his motion for new trial; the State
contends that counsel presented the motion.2 We need not address whether counsel
failed to present the motion, or whether failing to present a motion for new trial
amounts to deficient performance, because Strickland’s prejudice prong is
dispositive of appellant’s argument under this issue. See My Thi Tieu v. State, 299
S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (when


       2
           The motion for new trial includes a “certificate of presentment,” in which counsel
certified that a copy of the motion was hand-delivered to the trial court on the date of filing.

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prejudice element is dispositive of appellant’s issue, reviewing court need only
address that prong on appeal).

      For ineffective assistance claims based on a failure of counsel to timely file
or obtain a hearing or ruling on a motion for new trial, courts have consistently
required a showing of actual prejudice, meaning that but for counsel’s deficient
performance, the trial court would have granted the defendant a new trial. See,
e.g., Jackson v. State, 550 S.W.3d 238, 243-44 (Tex. App.—Houston [14th Dist.]
2018, no pet.); Jimenez v. State, 240 S.W.3d 384, 415-16 (Tex. App.—Austin
2007, pet. ref’d); Redmond v. State, 30 S.W.3d 692, 699 (Tex. App.—Beaumont
2000, pet. ref’d); Bacey v. State, 990 S.W.2d 319, 333 (Tex. App.—Texarkana
1999, pet. ref’d); Bryant v. State, 974 S.W.2d 395, 400 (Tex. App.—San Antonio
1998, pet. ref’d).

      Appellant does not address prejudice in his brief. Accordingly, we conclude
that he has not established the requisite showing under Strickland. See Robbins v.
State, No. 01-14-00224-CR, 2015 WL 730116, at *3 (Tex. App.—Houston [1st
Dist.] Feb. 19, 2015, no pet.) (mem. op., not designated for publication) (no
ineffective assistance where appellant failed to demonstrate prejudice resulting
from counsel’s failure to present motion for new trial).

      5. Failure to withdraw from representation

      Finally, appellant argues that his trial counsel provided ineffective assistance
of counsel by failing to withdraw during the motion for new trial time period.

      Because there is no evidence to rebut the presumption that appellant was
adequately represented during the new trial period, as discussed above, the record
is insufficient to satisfy Strickland’s first prong. See Kane v. State, 80 S.W.3d 693,
696 (Tex. App.—Fort Worth 2002, pet. ref’d) (rejecting appellants argument that


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he was deprived of effective assistance of counsel during the time for filing a
motion for new trial because retained trial counsel did not file a motion for new
trial, seek to withdraw, or obtain appointed appellate counsel for him). Moreover,
appellant has not established any prejudice.          In the absence of any proof of
prejudice, we cannot conclude that trial counsel’s failure to withdraw was
ineffective assistance. See Miles v. State, No. 04-98-00561-CR, 1999 WL 43645,
at *2 (Tex. App.—San Antonio Feb. 3, 1999, no pet.) (not designated for
publication) (overruling appellant’s contention that counsel provided ineffective
assistance by failing to withdraw timely so that new appellate counsel could file a
motion for new trial, when there was no showing of harm).

                                  *         *     *

      We conclude none of the asserted bases for appellant’s ineffective assistance
of counsel claim has merit. Accordingly, we overrule appellant’s second issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                      /s/       Kevin Jewell
                                                Justice


Panel consists of Justices Wise, Jewell, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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