                                NO. 07-00-0575-CR
                                NO. 07-00-0576-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL A

                                OCTOBER 4, 2001

                       ______________________________


                      OLLIE GRAY CHAMPION, APPELLANT

                                         V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

            FROM THE 179TH DISTRICT COURT OF HARRIS COUNTY;

      NOS. 841383 and 841382; HONORABLE MICHAEL WILKINSON, JUDGE

                       _______________________________

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


                          ON ABATEMENT AND REMAND


      Appellant Ollie Gray Champion pled guilty to two separate charges of aggravated

sexual assault and was sentenced on October 10, 2000, to 35 years confinement in the
Institutional Division of the Department of Criminal Justice in each case. Appellant gave

timely notice of appeal from those convictions.


         Appellant’s counsel has now filed a brief in which she certifies that, after diligently

searching the record, she is convinced that no reversible error exists, and the appeal is

without merit. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967). We have also been furnished a copy of a letter in which she notified appellant

that, after review of the record and research of the law, she was convinced there was no

reversible error. Counsel notified appellant of his right to review the record and file a pro

se brief if he so desired, and appellant has filed a pro se brief and a supplemental pro se

brief.


         In considering concerns of this type, we face two interrelated tasks as we consider

counsel’s motion to withdraw. We must first satisfy ourselves that the attorney has

provided the client with a diligent and thorough search of the record for any arguable claim

that might support the appeal, and then we must determine whether counsel has correctly

concluded the appeal is frivolous. See McCoy v. Court of Appeals of Wisconsin, 486 U.S.

429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978).


         In her brief, counsel has pointed out that appellant pled guilty without an agreed

recommendation for punishment, and therefore the only issues that might reveal reversible

error are those that constitute jurisdictional defects, questions concerning the


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voluntariness of the plea or error, which may have occurred after the plea which in this

case must have been during sentencing. See Jack v. State, 871 S.W.2d 741, 744

(Tex.Crim.App. 1994). Counsel discusses whether, based on the record, appellant’s plea

of guilty was knowing and voluntary and whether he received ineffective assistance of

counsel. Additionally, appellant asserts in his brief that the trial court erred in not holding

a hearing on his pro se motion for a new trial because he received ineffective assistance

of counsel, which caused his plea to be involuntary.


       The record shows that appellant waived his right to have the court reporter record

his plea and for the court to orally admonish him. However, appellant was admonished in

writing in compliance with article 26.13 of the Code of Criminal Procedure. Appellant

signed those admonishments which included waiver of trial by jury, representations that

he was aware of the consequences of his plea which had been explained by his attorney,

that he was mentally competent, that he made his plea freely and voluntarily, and that he

was satisfied with the representation of his counsel. Once a defendant attests that he

understands the nature of his plea and that it is voluntary, he has a heavy burden to prove

on appeal that his plea was not voluntary. Edwards v. State, 921 S.W.2d 477, 479

(Tex.App.--Houston [1st Dist.] 1996, no pet.). There is nothing in the record before us to

support any contention that the plea was not given freely and voluntarily.


       Furthermore, in determining whether a defendant received effective assistance of

counsel, we look to the totality of the representation furnished as shown by the record.



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Smith v. State, 676 S.W.2d 379, 385 (Tex.Crim.App. 1984), cert. denied, 471 U.S. 1061,

105 S.Ct. 2173, 85 L.Ed.2d 490 (1985). In addition to showing deficient performance,

appellant must show that there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different. Strickland v. Washington, 466 U.S.

668, 694, 104. S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is also a strong presumption that

trial counsel rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment. Id. at 690.


       Appellant argues the trial court erred in not holding a hearing on his pro se motion

for new trial because the court is required to do so when a motion for new trial presents

issues that are not determinable from the record. In his motion for new trial, appellant

alleged five areas in which his trial counsel was purportedly ineffective: 1) counsel failed

to explain the possible punishment range and the intentional abandonment of defendant’s

right to a jury trial and right to appeal, therefore his plea was not knowing and voluntary;

2) counsel failed to file a motion to suppress any oral or written statements by appellant;

3) counsel failed to read the pre-sentence investigation report to “adequately prepare a

cross-examination of the testifying witnesses” and failed to object “to hearsay statements

not contained within the report”; 4) counsel failed to read the pre-sentence investigation

report and was therefore not able to refute any evidence with medical evidence or other

evidence which could have mitigated his punishment or shown some of the testimony to

be false; and 5) defendant failed to file a motion to have his competency evaluated, even

though he told his attorney “many times” that he did not understand why he was arrested,


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the nature of the proceedings, or that he was in “real jeopardy of loss of liberty” and even

though there was some evidence in the pre-sentence investigation report to indicate he

was incompetent.1


       In his affidavit in support of his motion for new trial, appellant states that his

confession was coerced by the arresting officers and he was not read his rights prior to

making the confession; however, his attorney refused to file a motion to suppress at his

request because “there was no such thing as a motion to suppress evidence.” His trial

counsel also allegedly told him to plead guilty and a secret arrangement would be worked

out with the trial court to ensure he got probation. Thus, he signed the papers put before

him without reading them. Additionally, he told his attorney to ask for the sentencing

hearing to be re-set so his counsel could study the pre-sentence investigation report, but

his attorney refused to do so because probation was assured. He also told his counsel he

was mentally ill and needed a psychological evaluation. Additionally, there were affidavits

from two character witnesses for appellant at the punishment hearing which offered

opinions that the lack of legal representation “was appauling [sic]” and that appellant’s

attorney was “no good.”


       In order to be able to attack the judgment of the trial court on the basis of matters

extrinsic to the record, the motion must be supported by a sufficient affidavit that



       1
         The pre-sentence investigation report is not in the record, but appellant claims in
his affidavit that he told the “probation lady who did the ‘PSI’” that he thought he had a
mental problem and needed to see a doctor.

                                             5
demonstrates reasonable grounds exist for believing a new trial is warranted because of

some matter outside the record. Burns v. State, 844 S.W.2d 934, 936 (Tex.App.--Amarillo

1992, no pet.). The affidavit must state facts, not mere suspicions. Reed v. State, 841

S.W.2d 55, 57 (Tex.App.--El Paso 1992, pet. ref’d). The defendant must also present the

motion for new trial to the trial court within 10 days of filing it. Tex. R. App. P. 21.6. Filing

a motion for new trial alone is not sufficient to “present” it. Carranza v. State, 960 S.W.2d

76, 78 (Tex.Crim.App. 1998); Martinez v. State, 28 S.W.3d 815, 816 (Tex.App.--Corpus

Christi 2000, pet. granted); Amaro v. State, 970 S.W.2d 172, 173-74 (Tex.App.--Fort Worth

1998, no pet.). It must be delivered or otherwise brought to the attention of the court.

Coronado v. State, 25 S.W.3d 806, 810 (Tex.App.--Waco 2000, pet. ref’d); Amaro, 970

S.W.2d at 173-74. In this instance, the trial court neither set a hearing on the motion for

new trial or ruled on it. Nothing in the record before us indicates that appellant’s motion

was ever “presented” to the trial court.


       The record shows that appellant waived his right to have his plea recorded and to

be admonished orally. Therefore, we can only look to the clerk’s record which shows that

appellant was admonished in writing as to the possible range of punishment, which he

signed and initialed. Appellant was also admonished as to his right to a jury and his right

to appeal. He further admitted his guilt several times at the punishment hearing. Appellant

also pled guilty without an agreed recommendation as to punishment. Although his

counsel filed a motion for community supervision and argued for it at the punishment

hearing, the trial court was not required to grant it.


                                               6
         The record also shows that appellant’s counsel filed a motion to suppress evidence

obtained by an unlawful search and seizure, and the failure to file a motion to suppress

any oral or written statements is not a jurisdictional defect and did not occur during the

punishment phase. Appellant additionally complains of the failure of his counsel to file a

motion to have his competency evaluated but, once again, any failure to do so is not a

jurisdictional defect and did not affect the punishment phase of the trial. Furthermore,

appellant’s current claim of mental illness to the extent that it might relate to his

competency to stand trial is in contrast to the record which shows he acknowledged being

mentally competent.


         At the punishment hearing, contrary to appellant’s assertion, his trial counsel

objected to hearsay statements contained in the pre-sentence investigation report,

although the report was not admitted into evidence at the punishment hearing and is not

in the record before this court. The only witnesses presented at the punishment hearing

were those of appellant, and therefore there was no need for “cross-examination” of them

by his counsel. While appellant also complains of his counsel’s failure to present medical

evidence or other evidence to refute the pre-sentence investigation report, this is only a

conclusory statement, because he fails to state what evidence was available and how it

might have helped his defense. See Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App.

1994).




                                              7
       Nevertheless, we are required to make an independent examination of the record

to determine whether there are any arguable grounds which might support the appeal.

See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Appellant asserted in

his affidavit that he pled guilty because his counsel told him he would get probation. In

Prudhomme v. State, 28 S.W.3d 114 (Tex.App.--Texarkana 2000, no pet.), the defendant,

who was represented by counsel, had similarly pled guilty to aggravated sexual assault

without a recommendation as to punishment and was sentenced to life imprisonment. He

then filed what was effectively a pro se motion for new trial based on a claim of ineffective

assistance of counsel in that he had pled guilty because his counsel told him he would get

a probated sentence. The motion was not presented to the trial court and was thus never

ruled on.


       On appeal, Prudhomme complained that he was deprived of effective assistance

of counsel during the time period for filing and presenting a motion for new trial. The court

found the time period for filing a motion for new trial to be a critical stage of the

proceedings during which a defendant has a right to assistance of counsel. Id. at 119.

The court further held that the fact the motion was grounded on a claim of ineffective

assistance of counsel and was not presented to the trial court, together with appellant’s

filing of a pro se notice of appeal and pro se motion to substitute trial counsel for appellate

counsel rebutted the presumption that the defendant was assisted by counsel during that

time. Id. at 120. Thus, harm occurred because the motion asserted a facially plausible




                                              8
claim based on matters not determinable from the record and the court would have been

required to hold a hearing if properly presented. Id. at 121.


         Appellant also pled guilty without a recommendation as to punishment and now

asserts that he did so because he was told by his attorney he would get probation. He

filed a pro se motion for new trial, which was not presented to the trial court and therefore

not ruled on. He also filed a pro se notice of appeal and request for appointment of

appellate counsel. Because these facts are on point with those in Prudhomme, we find

there are arguable grounds for appeal. We must therefore ensure appellant’s right to

counsel by permitting appellant’s present appellate counsel to withdraw, and require

appointment of other counsel to rebrief the grounds deemed arguable on appeal, as well

as any other grounds that new counsel believes might support the appeal. To secure the

appointment of other counsel, we must abate the appeal and remand the cause to the trial

court.


         Accordingly, the motion of appellant’s present appellate counsel to withdraw is

granted, the appeals are abated, and the causes remanded to the trial court with

instructions.   Upon remand, the trial court shall appoint other counsel to present the

grounds deemed arguable on appeal and any other grounds that might support the

appeals. The court shall direct the newly appointed counsel to file appellant’s brief within

30 days after his or her appointment, and shall furnish the name, address and State Bar




                                             9
number of appointed counsel to the Clerk of the Court immediately after the appointment

is made.


      It is so ordered.


                                               Per Curiam


Do not publish.




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