          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-02-00416-CR


                                         Joe Garcia, Appellant

                                                    v.

                                     The State of Texas, Appellee


      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
             NO. 1010306, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Joe Garcia appeals his conviction for aggravated assault upon Samuel

Melendrez by threatening Melendrez with imminent bodily injury while using a deadly weapon, a

firearm. See Tex. Pen. Code Ann. ' 22.02(a)(2) (West 1994). In a bench trial, the trial court found

appellant guilty and, after finding the allegations as to two prior felony convictions were true, assessed

appellant=s punishment at twenty-five years= imprisonment.


                                             Points of Error

                Appellant advances two points of error. First, appellant contends that his rights to counsel

under the federal and state constitutions were denied when the trial court failed to timely appoint

replacement counsel after his appointed [trial] counsel was permitted to withdraw. Second, appellant urges

that he was denied the effective assistance of counsel on appeal because of the belated appointment of

counsel on appeal. See U.S. Const. amends. VI & XIV; Tex. Const. art. I, ' 10. Thus, appellant presents
a claim of deprivation of counsel at a critical stage of the proceedingsCduring the time to prepare, file, and

present a motion for new trial, and obtain a hearing on such motion. We will abate and remand the case to

the trial court based on our disposition of the first point of error.


                                                Background

                 At the conclusion of the three-part bench trial, the trial court pronounced sentence on May

17, 2002. Appointed counsel stated that appellant wanted to appeal and AI will do so.@ The record then

reflects:


            THE DEFENDANT:          I don=t feel like my lawyer did the right -- you know, I don=t feel
                                    like he represented me right on my case.

            THE COURT:              Walter, do you want to withdraw on the deal and I=ll
                                    appoint him another lawyer to do his appeal?

            MR. PRENTICE:           That=s fine.

            THE COURT:              Let=s go ahead and do that. If you=ll get in touch with
                                    Pretrial Services and have them go ahead and get the next
                                    lawyer on the list.

            MR. PRENTICE:           Somebody on the appeals list.

            THE COURT:              Yeah, on the appellate list. Thank you. We=re going to
                                    appoint you another lawyer to do the appeal so that way if
                                    they disagree with the way Mr. Prentice did the Defense,
                                    then he can bring that up. Okay. Thank you.


                 The formal judgment and sentence was signed on May 22, 2002, and filed on May 23,

2002. On June 3, 2002, no action having been taken on the appointment of new counsel,

appellant=s appointed trial counsel filed a notice of appeal, and a formal written motion to withdraw as


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counsel and requesting that a new attorney be appointed for the purposes of appeal. This motion was

granted by the trial court Aon this the ____ day of June, 2002@ as reflected by the trial court=s order.

                The incarcerated appellant executed a sworn handwritten pro se motion for new trial

dated June 12, 2002. For reasons unclear from this record, the new trial motion was not filed until

June 20, 2002. The motion alleged that appellant had been denied the effective assistance of trial

counsel in that counsel was not prepared for trial and counsel=s performance at trial was deficient in

several matters that injured and harmed appellant. The trial court apparently wrote on the motion:

AThis [motion] is a nullity because it=s not timely filed.@1

                On July 3, 2002, the trial court appointed another attorney to represent appellant. On

July 8, 2002, that attorney was allowed to withdraw and appellant=s present counsel was appointed to

represent appellant on appeal. Thus, appellant asserts that he was in effect without counsel from May

17, 2002 until July 8, 2002 during a critical stage of the proceedings, and that the delay in appointing

counsel has also caused his appeal to be without the effective assistance of counsel.


                                              Discussion




        1
           A motion for new trial is to be filed within thirty days after the date the trial court imposes
or suspends sentence in open court. See Tex. R. App. P. 21.4(a). Both parties here agree that
sentence was imposed on appellant in open court on May 17, 2002. Thus, the pro se motion was not
timely filed.




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               The Acontinuity of representation from trial to appeal is necessary to correct the

ambiguity of representation which all too often follows conviction.@ Ward v. State, 740 S.W.2d 794,

797 (Tex. Crim. App. 1987). This statement furnishes the backdrop for the issue we discuss today.

               An accused is entitled to counsel by virtue of the Sixth Amendment to the United

States Constitution at Aevery critical stage of a criminal prosecution@ where the adversarial

proceedings have begun, absent a valid waiver of the right to counsel. See Upton v. State, 853 S.W.2d

548, 553 (Tex. Crim. App. 1993); see also Champion v. State, 82 S.W.3d 79, 81 (Tex. App.CAmarillo

2000, no pet.); Massingill v. State, 8 S.W.3d 733, 736 (Tex. App.CAustin 1999, no pet.). Whether a

particular stage is critical turns on an assessment of the usefulness of counsel to the accused at the

time. See Upton, 853 S.W.2d at 553 (citing Patterson v. Illinois, 487 U.S. 285, 299-330 (1998); United

States v. Wade, 388 U.S. 218, 235-39 (1967)); see also United States v. Ash, 413 U.S. 300, 313 (1973).

               Without question, the hearing on a motion for new trial is a critical stage of the

proceedings. Conner v. State, 877 S.W.2d 325, 326 (Tex. Crim. App. 1994); Trevino v. State, 565

S.W.2d 938, 940 (Tex. Crim. App. 1978). AIt is the only opportunity to present to the trial court

certain matters that may warrant a new trial and to make a record on those matters for appellate

review.@ Trevino, 565 S.W.2d at 940. Trevino makes clear that a criminal prosecution, within the

meaning of the Sixth Amendment and article I, section 10, does not end with the defendant=s

conviction. Massingill, 8 S.W.3d at 736.

               The issue raised by appellant here is whether the time allotted for preparing and filing

a motion for new trial, and presenting the same to the trial court, Tex. R. App. P. 21.4, 21.6, is a

critical stage of the proceedings, like the hearing on the motion for new trial. The Texas Court of

Criminal Appeals does not appear to have addressed this issue. See Smith v. State, 17 S.W.3d 660, 663

                                                  4
n.3 (Tex. Crim. App. 2000); Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim. App. 1998); Conner,

877 S.W.2d at 326-27. Several courts of appeals have addressed the issue and found that the right to

counsel exists. Champion, 82 S.W.3d at 83; Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.

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

[14th Dist.] 1999, pet. ref=d); Massingill, 8 S.W.3d at 736; Boyette v. State, 908 S.W.2d 56, 59 (Tex.

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

1998). If a hearing on a motion for new trial is a critical stage of the proceedings Athen logic dictates

that the time period for filing a motion [for new trial] is also a critical stage of the proceedings.@

Burnett v. State, 959 S.W.2d 652, 656 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d).

                In order to prevail on a claim of deprivation of counsel during the time to prepare, file,

and present a motion for new trial, an appellant must affirmatively prove that he was not represented

by counsel during a critical stage of the proceedings. Oldham, 977 S.W.2d at 363. Hanson, 11 S.W.3d

at 288. There is a rebuttable presumption that an appellant was represented by counsel and that

counsel acted effectively. Oldham, 977 S.W.2d at 363. This presumption arises, in part, because

appointed counsel remains as the accused=s counsel for all purposes until expressly permitted to

withdraw, even if the original appointment was for trial only. See Ward, 740 S.W.2d at 796. And the

presumption is not rebutted when there is nothing in the record to suggest otherwise. Smith, 17

S.W.3d at 662-63. In Smith and Oldham, the defendants failed to show that they were not

represented by counsel at the time in question. See Champion, 82 S.W.3d at 81.

                The above described presumption is inapplicable here or has been rebutted by the facts

of this case. First, appellant was actually or constructively denied counsel from the time of his


                                                    5
sentencing on May 17, 2002, when his trial counsel withdrew at the trial court=s suggestion, until July

8, 2002, when the second appellate counsel was appointed. The presumption does not apply when

counsel has withdrawn and a defendant is without counsel during the crucial thirty days to prepare

and file a motion for new trial, or the ten days in which to present the motion to the trial court. See

Tex. R. App. P. 21.4, 21.6; see Massingill, 8 S.W.3d at 735. Second, it is true that no timely motion

for new trial was filed. This, however, is not a situation where a defendant, counseled by his attorney,

decided to forego his option of filing a motion for a new trial. While incarcerated and without the aid

of counsel, appellant prepared a pro se motion for new trial six days before the filing deadline. It was

not filed until two days after the deadline. The motion alleged acts appellant claimed to constitute

ineffective assistance of counsel and the injury resulting therefrom.2

                AThe importance of counsel to a defendant immediately after conviction is recognized

in both case law and statute.@ Massingill, 8 S.W.3d at 736; Tex. Code Crim. Proc. Ann. art. 26.04(a)

(West Supp. 2003). A defendant Amust comply with a myriad of procedural rules in order to perfect a

meaningful appeal.@ Ward v. State, 740 S.W.2d 794, 797-98 (Tex. Crim. App. 1987). It is

indisputable that counsel can be useful in coping with legal problems in preparing, filing, and


        2
           The grounds for a new trial set forth in Rule 21.3 of the Texas Rules of Appellate Procedure
are not exclusive. See Read v. State, 965 S.W.2d 74, 77 (Tex. App.CAustin 1998, no pet.).
Ineffective assistance of counsel may be raised in a motion for new trial. Reyes v. State, 849 S.W.2d
812, 816 (Tex. Crim. App. 1993). A motion for new trial need not establish a prima facie case to
entitle a defendant to a hearing. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994).




                                                   6
presenting a proper motion for a new trial. Prudhomme, 28 S.W.3d at 118. It is also beyond dispute

that a motion for new trial can be an extremely important tool for presenting error on appeal. Id.

While a motion for new trial is not a prerequisite to an appeal in every case, for a meaningful appeal of

some issues a defendant must prepare, file, present, and obtain a hearing on a proper motion for new

trial in order to adduce facts not otherwise shown by the record. See Tex. R. App. P. 21.2; Massingill,

8 S.W.3d at 736; 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and

Procedure ' 41.01 (2d ed. 2001). AIt is no more reasonable to require a defendant to perform these

tasks without the assistance of counsel than it is to require him to represent himself at a new trial

hearing,@ which is a critical stage of the proceedings. Massingill, 8 S.W.3d at 736.

                We conclude, under the circumstances presented, that appellant was without counsel

at a critical stage of the proceedings. To its credit, the State agrees.


                                                 Harm

                Except for certain federal constitutional errors deemed structural by the United States

Supreme Court, no error is categorically immune to a harmless error analysis. See Cain v. State, 947

S.W.2d 262, 264 (Tex. Crim. App. 1997); Massingill, 8 S.W.3d at 737. Structural errors are those

constitutional violations that infect the conduct of a trial from beginning to end. See Arizona v.

Fulminante, 499 U.S. 279, 309-10 (1991). One example of a structural error is the total deprivation of

counsel at trial. Id. at 309. Not every partial denial of counsel is structural error and harmful. See

Massingill, 8 S.W.2d at 737 (citing Coleman v. Alabama, 399 U.S. 1, 10-12 (1970)). We conclude, as

this Court did in Massingill, that the denial of counsel in the instant case, limited to the time period




                                                    7
for preparing and presenting a motion for new trial, is not structural error. Rather, it is subject to a

harm analysis for constitutional error.

               Sixth Amendment violations Aare subject to the general rule that remedies should be

tailored to the injury suffered from the constitutional violation.@ United States v. Morrison, 44 U.S.

361, 364 (1981); Massingill, 8 S.W.3d at 738. We see no reason why the same rule is not applicable

to violations of article I, section 10 of the Texas Constitution regarding the right to counsel.

               Here, the deprivation of counsel constituting constitutional error has not at this point

been shown to have contributed to appellant=s conviction or punishment and therefore reversal of the

judgment is not required. See Tex. R. App. P. 44.2(a); Prudhomme, 28 S.W.3d at 121. In Hanson, 11

S.W.3d at 289, the delay in the appointment of appellate counsel was held harmless despite the Sixth

Amendment violation. The circumstances in Hanson, however, are easily distinguishable from those

in the instant case. We conclude, without reiterating the facts, that appellant was harmed and is

entitled to relief. The prosecution agrees. Appellant=s first contention is sustained. We do not reach

the second contention.


                                             Conclusion

               Acting pursuant to our authority to remedy the constitutional violation shown by the

record, Prudhomme, 28 S.W.3d at 121; Massingill, 8 S.W.3d at 738, and in accordance with Rule 43.6

of the Texas Rules of Appellate Procedure,3 we abate the appeal and remand the cause to the trial


       3
          AThe court of appeals may make any other appropriate order that the law and the nature of
the case may require.@ Tex. R. App. P. 43.6; see also Tex. R. App. P. 44.4. It should be made clear
that we are not acting under Rule 2. Tex. R. App. P. 2.


                                                   8
court to the point where sentence was imposed and from which point a motion for new trial can be

filed by appointed counsel within the appellate timetables. This relief is in accordance with that

requested by appellant and the State.

                The timetable for the motion for new trial shall begin running anew from the date of

this opinion. If the trial court grants the motion for new trial, this record will be supplemented with a

copy of the trial court=s order and this appeal will be dismissed. If the trial court overrules the motion

for new trial, the record will be supplemented with a copy of the trial court=s order, the court reporter=s

record of any hearing on such motion, and other matters pertaining to the procedure after remand.

The parties will be permitted to brief any issues properly raised. Cf. Massingill, 8 S.W.3d at 739. In

view of the delay occasioned, the trial court is instructed to expedite the procedure where possible.

Under any circumstances, the supplemented record shall be filed in this Court on or before the 90th

day after the date of this opinion.

                It is so ordered.




                                                 __________________________________________

                                                 John F. Onion, Jr., Justice

Before Justices Kidd, Yeakel and Onion *

Abated and Remanded

Filed: January 24, 2003

Publish


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*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).




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