Order issued November 20, 2018.




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-17-00462-CR
                             ———————————
                      FERNANDO GUERRERO, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Case No. 1493328


                           ORDER OF ABATEMENT

      Appellant Fernando Guerrero was convicted of aggravated robbery and

sentenced to twenty years’ incarceration in the Texas Department of Criminal Justice

– Institutional Division. In a single issue, Guerrero argues that the trial court erred

by failing to appoint appellate counsel to represent him within the time for filing a
motion for new trial. Having determined that Guerrero was deprived of counsel for

the entire thirty-day period for filing a motion for new trial, we abate the

proceedings, remand the case to the trial court, and restart the appellate timetable to

allow Guerrero the opportunity to file a motion for new trial.

                                     Background

      A jury convicted Guerrero of aggravated robbery on June 1, 2017. On June 6,

2017, the trial court sentenced Guerrero to twenty years’ incarceration. That same

day, Guerrero’s appointed trial counsel filed (1) a notice of appeal, (2) a motion to

withdraw as Guerrero’s attorney, and (3) a request for appointment of appellate

counsel for Guerrero. The trial court certified Guerrero’s right to appeal and granted

the motion to appoint appellate counsel that day. The docket sheet states that the trial

court also granted trial counsel’s motion to withdraw as Guerrero’s attorney on June

6, 2017.1 The district clerk’s office generated a notice of assignment on June 16,

2017, stating that Guerrero had filed a notice of appeal on June 6, 2017, that the

appeal was assigned to this Court, and that Guerrero’s appellate attorney was “to be

determined.” No motion for new trial was filed in this case.

      On November 14, 2017, this Court sent a notice of late brief to Guerrero’s

trial counsel but received no response. On December 5, 2017, this Court (1) abated



1
      The trial court did not check the box indicating that it was granting trial counsel’s
      motion to withdraw.

                                            2
Guerrero’s appeal, (2) remanded the case to the trial court, (3) directed the trial court

to determine appointed trial counsel’s motion to withdraw, and (4) directed the trial

court to appoint appellate counsel if the motion to withdraw was granted. On

December 7, 2017, the trial court found Guerrero was indigent and appointed an

attorney with the Harris County Public Defender’s Office to represent him on appeal.

On March 21, 2018, Guerrero’s appellate counsel filed a motion to abate proceedings

to file an out-of-time motion for new trial. This Court denied the motion to abate on

May 10, 2018.

                               Deprivation of Counsel

      In his sole issue on appeal, Guerrero contends he should be allowed to file an

out-of-time motion for new trial because he was denied counsel during the entire

thirty-day period during which time he could have filed such a motion.

A.    Standard of Review and Applicable Law

      The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to have counsel present at all “critical” stages of his prosecution.

Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 2085 (2009); Carnell v.

State, 535 S.W.3d 569, 571 (Tex. App.—Houston [1st Dist.] 2017, no pet.). The

thirty-day period a criminal defendant has to file a motion for new trial is one such

critical stage. See Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007); TEX.

R. APP. P. 21.4.


                                           3
      When counsel represents a defendant during trial, there is a rebuttable

presumption that trial counsel “continued to adequately represent the defendant

during this critical [motion-for-new-trial] stage.” Cooks, 240 S.W.3d at 911.

Similarly, when a motion for new trial is not filed on behalf of a defendant, there is

a rebuttable presumption that a decision was made by the defendant, with the

assistance of counsel, not to file the motion for new trial. See id. at 911 n.6. The

defendant may rebut these presumptions on appeal by showing that his trial counsel

believed that the representation had ended. See id. at 911 (stating defendant rebutted

presumption that appointed trial counsel continued to adequately represent him by

showing trial counsel believed that representation had ended).

      In Carnell, this court held that the defendant had “rebutted the presumption

of continued representation and ha[d] shown that he was deprived of counsel for the

entire period for filing a motion for new trial,” based on the undisputed facts that (1)

the defendant’s trial attorney was permitted to withdraw on the day the period for

filing a motion for new trial began and (2) the trial court did not appoint appellate

counsel until six months after that period ended. Carnell, 535 S.W.3d at 574.

      A defendant who rebuts the presumption of continued representation is

ordinarily entitled to relief only if he was harmed by the denial of counsel. However,

in Strickland v. Washington, the United States Supreme Court recognized that in

“certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive


                                           4
denial of the assistance of counsel altogether is legally presumed to result in

prejudice.” 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984) (citing United States v.

Cronic, 466 U.S. 648, 659, & n.25, 104 S. Ct. 2039, 2046–47, & n.25 (1984)); see

also Batiste v. State, 888 S.W.2d 9, 14 (Tex. Crim. App. 1994) (stating that

Strickland Court “acknowledged that with some varieties of Sixth Amendment

violations, such as the actual or constructive denial of counsel altogether at a critical

stage of the criminal proceeding, . . . prejudice is presumed”). Thus, an appellate

court’s analysis of harm resulting from a defendant’s deprivation of counsel depends

on whether the defendant was deprived of counsel for some or all of the thirty-day

period for filing a motion for new trial. See Carnell, 535 S.W.3d at 572 (citing

Batiste, 888 S.W.2d at 14).

      If “the defendant was deprived of counsel for some but not all of the critical

stage, then the deprivation was only partial and the defendant must show harm.”

Carnell, 535 S.W.3d at 572. To prove harm resulting from the partial denial of

counsel during this critical stage, the defendant must demonstrate a facially plausible

claim that could have been presented in a motion for new trial, but was not due to

ineffective assistance of counsel. See Cooks, 240 S.W.3d at 912. If, however, the

defendant is “deprived of counsel for the entire [thirty-day] period [in which to file

a motion for new trial], and not just part of it, harm is presumed.” Carnell, 535

S.W.3d at 574 (citing Batiste, 888 S.W.2d at 14).


                                           5
B.    Analysis

      In this case, Guerrero’s deadline to file a motion for new trial began on June

6, 2017, the day he was sentenced, and ended thirty days later on July 6, 2017. See

TEX. R. APP. P. 21.4. It is undisputed that, despite certifying Guerrero’s right to

appeal, finding him indigent, and allowing his appointed trial counsel to withdraw

on June 6, 2017, the trial court did not appoint appellate counsel to represent

Guerrero until six months later in December 2017. The State does not dispute

Guerrero’s contention that he was deprived of counsel for the entire thirty-day period

to file a motion for new trial. Rather, the State concedes that Guerrero was denied

counsel during this critical period but argues that the error was harmless.2 Based on

this undisputed evidence, which is supported by the appellate record, we conclude

that Guerrero has rebutted the presumption of continued representation and shown

that he was deprived of counsel for the entire period for filing a motion for new trial.

See Carnell, 535 S.W.3d at 574. As we discussed in Carnell, harm is presumed under

such circumstances. See id.


2
      On pages 5 and 6 of its appellate brief, the State argues:
          There is a presumption that a defendant was adequately represented by trial
          counsel during the 30 days in which to file a motion for new trial. . .That
          presumption may be rebutted by the record. . .Here, trial counsel withdrew
          on June 06, 2017, and, although it found the Appellant indigent, the trial court
          did not appoint appellate counsel until December 07, 2017. Appellant was
          not represented by counsel during the thirty-day period in which he could file
          a motion for new trial. Therefore, Appellant is correct that he was denied
          counsel during that critical stage.

                                             6
      Accordingly, we hold that Guerrero is entitled to an abatement of this appeal

to allow him to file a motion for new trial. We sustain Guerrero’s sole issue.3

                                       Conclusion

      We abate the proceedings, remand the case to the trial court, and restart the

appellate timetable to allow Guerrero the opportunity to file a motion for new trial.

The timetable for filing a motion for new trial shall begin running on the date the

district clerk receives this order. See Carnell, 535 S.W.3d at 574.




                                                 Russell Lloyd
                                                 Justice

Panel consists of Justices Higley, Lloyd, and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).




3
      If the trial court grants Guerrero’s motion for new trial, the record will be
      supplemented with the trial court’s order, and Guerrero’s appeal will be dismissed.
      See Carnell v. State, 535 S.W.3d 569, 574, n.5 (Tex. App.—Houston [1st Dist.]
      2017, no pet.) (citations omitted). If the trial court overrules the motion, the record
      will be supplemented with the order and any reporter’s record of a hearing on the
      motion, and the parties will be allowed to brief any issues relating to the overruled
      motion. Id. (citations omitted).
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