Motion Granted; Abatement Order filed October 25, 2012.




                                         In The

                      Fourteenth Court of Appeals
                                     ____________

                                 NO. 14-12-00523-CR
                                   ____________

                    KENNETH LYNN SCHROEDER, Appellant

                                           V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 10th District Court
                             Galveston County, Texas
                         Trial Court Cause No. 10CR2872


                               ABATEMENT ORDER

      A jury convicted appellant of felony driving while intoxicated. The court assessed
punishment, enhanced by a prior conviction, at 25 years in prison, and sentence was
imposed on April 26, 2012. At sentencing, appellant informed the court, with counsel
present, that he wanted to file a motion for new trial. Appellant filed a pro se notice of
appeal the same day, although he was still represented by retained counsel who had not
moved to withdraw. On May 29, 2012, appellant filed a pro se motion extension of time
to file a motion for new trial, complaining that his attorney had not responded to his
several attempts to contact him. 1 On June 4, 2012, the trial court signed an order denying
the request, acknowledging that it lacked authority to extend the deadline. No motion for
new trial was filed. Appellant’s counsel moved to withdraw on June 12, 2012, after the
time for filing a motion for new trial had expired. The trial court granted the motion, and
the court appointed current counsel on June 29, 2012.2

         Appellant asks that we abate the appeal and remand to the trial court so that he
may file a motion for new trial and have a hearing thereon to develop his claim of
ineffective assistance of counsel. Appellant asserts that, in addition to prior counsel’s
failure to respond during the time to file a motion for new trial, counsel’s representation
was deficient in other respects. Appellant complains about his former counsel’s failure to
comply with the agreed upon strategy to hire a well respected pharmaceutical expert to
testify about appellant’s prescription medication. Based on prior counsel’s false
assurances that the proposed expert testimony would clear him, it is alleged that appellant
turned down an 8-year plea bargain and now faces 25 years in prison. Appellant alleges
that former counsel never contacted or hired the proposed expert and instead call a
pharmacist, who counsel represented in another matter, to testify and his testimony was
discredited.

         The thirty-day period for filing a motion for new trial is a critical stage of the
proceedings during which a criminal defendant is constitutionally entitled to effective
assistance of counsel. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007).
When the record does not reflect that trial counsel withdrew or was replaced by new
counsel after sentencing, there is a rebuttable presumption that trial counsel continued to
effectively represent the defendant following conviction even if no motion for new trial
was filed and the defendant filed a pro se notice of appeal. See Oldham v. State, 977

1
  May 29, 2012, was the last day for filing a motion for new trial because the deadline was extended by
the Memorial Day holiday. See Tex. R. App. P. 4.1.
2
    Appellant’s current counsel has now been retained.

                                                     2
S.W.2d 354, 363 (Tex. Crim. App. 1998) (holding that appellant failed to rebut the
presumption that he was adequately represented by counsel during the time for filing a
motion for new trial). Even when a defendant can rebut the presumption, the deprivation
of counsel is subject to a harm analysis. Cooks, 240 S.W.3d at 911.

       We find that appellant has rebutted the presumption that he was adequately
represented during the thirty-day period for filing a motion for new trial. See
Blumenstetter v. State, 117 S.W.3d 541, 545–46 (Tex. App.—Texarkana 2003, order). In
addition, appellant has raised a “facially plausible claim” that could have been alleged in
a motion for new trial; therefore, the error is not harmless beyond a reasonable doubt. See
Cooks, 240 S.W.3d at 912; see e.g., Ex parte Napper, 322 S.W.3d 202, 247-48 (Tex.
Crim. App. 2010) (finding counsel’s failure to hire expert constituted deficient
performance under Strickland); Wright v. State, 223 S.W.3d 36, 43-45 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) (reversing on ineffective assistance where counsel
did not hire expert).

       We may abate to remedy the deprivation of appellant’s constitutional right to
effective counsel. See Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim. App. 1998);
Rogers v. State,___ S.W.3d ___, No. 14-09-00665-CR, 2011 WL 7290492 (Tex. App.—
Houston [14th Dist.] Feb. 8, 2011, order) (designated for publication).

       Accordingly, we GRANT appellant’s motion, and issue the following order
pursuant to Texas Rule of Appellate Procedure 43.6:

       We abate this appeal for 120 days and remand to the trial court to allow: (1)
appellant the opportunity to file and present a motion for new trial; (2) the trial court the
opportunity to conduct a hearing, if necessary, and rule on such a motion; and (3) for the
record to be supplemented accordingly. The timetable applicable to a motion for new trial
shall begin as if appellant was sentenced on the date this order issues. A supplemental
clerk’s record containing appellant’s motion for new trial, any response thereto, the trial


                                             3
court’s ruling thereon, if any, and a reporter’s record from any hearing on a motion for
new trial shall be filed on or before February 22, 2013.

       The appeal is abated, treated as a closed case, and removed from this court’s active
docket. The appeal will be reinstated on this court’s active docket when the supplemental
record is filed in this court. The court will also consider an appropriate motion to reinstate
the appeal filed by either party.

       It is so ORDERED.

                                       PER CURIAM


Panel consists of Chief Justice Hedges and Justices Brown and Busby.




                                              4
