Order issued April 13, 2017




                                        In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00519-CR
                           ———————————
                  JARVIS LAMONT CARNELL, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


         On Appeal from the County Criminal Court at Law No. 10
                          Harris County, Texas
                      Trial Court Case No. 1933252


                          ORDER OF ABATEMENT

      Jarvis Lamont Carnell was convicted of misdemeanor assault of a person with

whom he had a dating relationship.1 On the day Carnell was convicted and

sentenced, the trial court permitted Carnell’s court-appointed trial counsel to


1
      See TEX. PENAL CODE § 22.01(a).
withdraw. The trial court did not, however, appoint substitute counsel until over ten

months later—well after the deadline for filing a motion for new trial. In his first

issue, Carnell contends that he was deprived of counsel during the critical period for

filing a motion for new trial. He requests that we abate this appeal so he can file an

out-of-time motion for new trial. We abate the appeal.

                                    Background

      In December 2013, Carnell was charged with misdemeanor assault of a person

with whom he had a dating relationship. A few months later, in March 2014, Carnell

represented that he was indigent and requested the appointment of counsel. The trial

court granted the request (without finding Carnell indigent) and appointed Mark Ash

as Carnell’s trial counsel.

      Over a year later, on May 28, 2015, Carnell was tried and convicted by a jury.

The trial court entered judgment in accordance with the jury’s verdict and sentenced

Carnell to 240 days’ confinement in county jail.

      Immediately after his sentencing, Carnell filed a three-in-one pleading. The

pleading consisted of (1) Carnell’s notice of appeal, (2) Ash’s motion to withdraw,

and (3) Carnell’s motion to appoint appellate counsel. That same day, in a form

order, the trial court found Carnell indigent for purposes of employing counsel for

his appeal and paying for the record, granted Ash’s motion to withdraw, and granted




                                          2
Carnell’s motion to appoint appellate counsel. The trial court did not, however,

actually appoint a new attorney to represent Carnell on appeal.

      After the trial court granted Ash’s motion to withdraw, the trial court and this

Court continued to send Ash notifications and identify him as Carnell’s attorney of

record. For example, in a letter dated June 3, 2015, the district clerk identified Ash

as Carnell’s “appeal attorney of record” and informed Ash of several “appeal

updates.” In a letter dated June 8, 2015, our clerk notified Ash and the prosecutor of

the deadline for filing the clerk’s record in Carnell’s appeal. And in a July 14, 2015

postcard notice, our clerk informed Ash and the prosecutor that the clerk’s record

had been filed.

      In response to the notifications identifying him as Carnell’s attorney on

appeal, on July 22, 2015, Ash filed a renewed motion to withdraw. In the motion,

Ash explained that, although the trial court had granted his original motion to

withdraw, the clerk’s record still identified him as Carnell’s counsel on appeal. Ash

requested that the trial court permit him to withdraw completely and appoint new

counsel to represent Carnell on appeal. That same day, the trial court granted trial

counsel’s renewed motion to withdraw. It did not, however, appoint new counsel to

represent Carnell on appeal.

      On March 30, 2016—over ten months after the trial court granted Ash’s

original motion to withdraw and nearly eight months after the trial court granted


                                          3
Ash’s renewed motion to withdraw—the trial court appointed a public defender to

represent Carnell on appeal.

                               Deprivation of Counsel

      In his first issue, Carnell argues that he was deprived of counsel during the

period for filing a motion for new trial because the trial court permitted Ash to

withdraw on the day the period began but did not appoint substitute counsel until

months after the period ended.

      The State responds that Carnell was not deprived of counsel during this period

because Ash continued to represent Carnell after the trial court had granted his

motion to withdraw. The State further responds that, assuming Carnell was deprived

of counsel, the error was harmless because Carnell has failed to allege a “facially

plausible claim” that he could have developed in a motion for new trial.

A.    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); see U.S.

CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence.”). One such critical stage

is the period for filing a motion for new trial. Cooks v. State, 240 S.W.3d 906, 911

(Tex. Crim. App. 2007); see TEX. R. APP. P. 21.4(a) (defendant has thirty days after


                                           4
trial court “imposes or suspends sentence in open court” to file motion for new trial).

If a defendant is deprived of counsel during this stage of his prosecution, his

constitutional rights are violated. Cooks, 240 S.W.3d at 911.

      However, if the defendant was represented by counsel at trial, there is a

rebuttable presumption that trial counsel continued to represent the defendant after

trial, including during the critical motion-for-new-trial stage. Id. If the defendant was

represented by counsel at trial and he does not file a motion for new trial, we assume

it was because the defendant, with the benefit of counsel’s continued representation,

considered and rejected that option. Id. at 911 n.6; Monakino v. State, No. 01-14-

00361-CR, 2016 WL 6087683, at *3 (Tex. App.—Houston [1st Dist.] Oct. 18, 2016,

no pet.).

      The defendant has the burden of presenting evidence to rebut the presumption

of continued representation. Green v. State, 264 S.W.3d 63, 69 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d). If the defendant rebuts this presumption and

shows that he was deprived of counsel during a critical stage of his prosecution, the

error is reviewed to determine whether it was harmful. Cooks, 240 S.W.3d at 911.

      How the harm is analyzed depends on whether the defendant was deprived of

counsel for all or only part of the critical stage. If the defendant was deprived of

counsel for all of the critical stage, then the deprivation was total and harm is

presumed. Batiste v. State, 888 S.W.2d 9, 14 (Tex. Crim. App. 1994) (“[W]ith some


                                           5
varieties of Sixth Amendment violation, such as the actual or constructive denial of

counsel altogether at a critical stage of the criminal proceeding, . . . prejudice is

presumed.”); Prudhomme v. State, 28 S.W.3d 114, 120 (Tex. App.—Texarkana

2000, order) (same).2 But 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.3 For example, when the defendant was deprived of counsel for part of



2
      See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081 (1993) (noting
      that “total deprivation of the right to counsel” is constitutional error not “amenable
      to harmless-error analysis”); United States v. Cronic, 466 U.S. 648, 659 n.25, 104
      S. Ct. 2039, 2047 n.25 (1984) (“The Court has uniformly found constitutional error
      without any showing of prejudice when counsel was either totally absent, or
      prevented from assisting the accused during a critical stage of the proceeding.”);
      Woodward v. State, 996 S.W.2d 925, 927 (Tex. App.—Houston [1st Dist.] 1999,
      pet. ref’d) (“The Court acknowledged that certain circumstances are ‘so likely to
      prejudice the accused’ that it is not necessary to ‘litigate’ their effect, pointing to
      total absence of counsel, or denial of counsel at a critical stage of trial, as
      examples.”); Garcia v. State, No. 01-10-00250-CR, 2012 WL 2923172, at *5 (Tex.
      App.—Houston [1st Dist.] July 12, 2012, no pet.) (mem. op., not designated for
      publication) (“Prejudice is presumed when . . . the accused is denied the presence
      of counsel at a critical stage of his trial . . . .”).
3
      Although some of the relevant case law includes language suggesting that a
      defendant who is deprived of counsel for all of a critical stage must show harm,
      these cases involved defendants who were represented by counsel for some but not
      all of the relevant critical stage of the prosecution. See, e.g., Cooks v. State, 240
      S.W.3d 906, 911 (Tex. Crim. App. 2007) (defendant had to show harm when
      appointed appellate counsel represented defendant for last ten days of thirty-day
      period for filing motion for new trial); Monakino v. State, No. 01-14-00361-CR,
      2016 WL 6087683, at *5 (Tex. App.—Houston [1st Dist.] Oct. 18, 2016, order)
      (defendant had to show harm when he was “technically still represented by counsel
      during the time period for filing a motion for new trial” but “effectively did not
      receive adequate representation during this time period”); Trujillo v. State, No. 01-
      14-00397-CR, 2015 WL 4549242, at *2 (Tex. App.—Houston [1st Dist.] July 28,
      2015, pet. ref’d) (mem. op., not designated for publication) (defendant had to show
                                             6
the period for filing a motion for new trial, and, as a result, failed to file a motion,

he must show harm by alleging a “facially plausible” claim that he could have

developed in a motion for new trial. See Cooks, 240 S.W.3d at 912; Monakino, 2016

WL 6087683, at *3.

      If the deprivation was harmful, the proper remedy is to abate the appeal and

remand the case to the trial court to allow the defendant to file an out-of-time motion

for new trial. See Ward v. State, 740 S.W.2d 794, 800 (Tex. Crim. App. 1987);

Green, 264 S.W.3d at 69; Massingill v. State, 8 S.W.3d 733, 738 (Tex. App.—Austin

1999, no pet.).

B.    Carnell was deprived of counsel

      Carnell contends that he was deprived of counsel during the entire critical

period for filing a motion for new trial. Although he was represented by counsel at

trial, Carnell argues that he has rebutted the presumption of continued representation

because the record shows that the trial court permitted his appointed trial counsel,

Ash, to withdraw on the day the period for filing a motion for new trial began but

did not appoint substitute counsel until months after the period had ended.




      harm when she was represented by trial counsel for 28 days of 30-day period to file
      motion).

                                           7
      The period for Carnell to file a motion for new trial was from May 28, 2015

to June 29, 2015.4 On May 28, 2015, the day the period began, the trial court granted

Ash’s motion to withdraw as Carnell’s counsel. The trial court did not appoint

substitute counsel at that time. On June 29, 2015, the day the period for filing a

motion new trial ended, the trial court still had not appointed substitute counsel. It

was not until March 30, 2016—nine months after the period had ended—that the

trial court appointed an attorney to represent Carnell on appeal.

      Even though the trial court granted Ash’s motion to withdraw at the beginning

of the period for filing a motion for new trial, the State contends that Ash continued

to represent Carnell during this critical stage of the prosecution. The record shows

that, after the trial court granted Ash’s original motion to withdraw, Ash continued

to receive court notifications that identified him as Carnell’s attorney of record,

which eventually prompted him to file a renewed motion to withdraw. According to

the State, Ash’s failure to object to continued representation in response to receiving

the court notifications is evidence that Ash agreed to continue representing Carnell.




4
      Carnell was sentenced on May 28, triggering the thirty-day period for him to file a
      motion for new trial. TEX. R. APP. P. 21.4(a) (defendant has thirty days after trial
      court “imposes or suspends sentence in open court” to file motion for new trial).
      Thirty days from May 28 was Saturday, June 27. Therefore, Carnell had until that
      following Monday, June 29, to file a motion for new trial. TEX. R. APP. P. 4.1(a)
      (extending period to next day not a Saturday, Sunday, or legal holiday when last
      day of period falls on such day).

                                           8
The State further contends that Ash’s filing of the renewed motion—which sought

the appointment of appellate counsel, a form of relief for Carnell—is evidence that

Ash actually did continue representing Carnell. We disagree.

      Ash’s failure to make an immediate, formal objection after receiving the court

notifications does not show that he continued to represent Carnell. Although the

renewed motion sought a form of relief for Carnell, it cannot be fairly characterized

as evidence that Ash continued to represent Carnell after the trial court granted his

original motion to withdraw. At most, it is evidence that Ash realized that Carnell

was not being represented by anybody and that he—as Carnell’s former attorney and

presumably the only person aware of the situation—should do something about it.

      It is undisputed that Ash was permitted to withdraw on the day the period for

filing a motion for new trial began. And it is undisputed that Carnell was not

appointed substitute counsel until nine months after the period ended. On these

undisputed facts, we hold that Carnell has rebutted the presumption of continued

representation and has shown that he was deprived of counsel for the entire period

for filing a motion for new trial. See Massingill, 8 S.W.3d at 735–36 (holding that

defendant was deprived of counsel during motion-for-new-trial stage when trial

counsel’s “motion to withdraw was granted, but no substitute counsel was appointed

at that time”). Because Carnell was deprived of counsel for the entire period, and not




                                          9
just part of it, harm is presumed. Batiste, 888 S.W.2d at 14; Prudhomme, 28 S.W.3d

at 120.

      We therefore hold that Carnell is entitled to an abatement of this appeal to file

a motion for new trial. We sustain Carnell’s first issue.5




5
      Because we sustain Carnell’s first issue, abate the proceeding, and restart the
      appellate timetable to allow Carnell the opportunity to file a motion for new trial,
      we need not address Carnell’s other three issues, in which he contends that (1) the
      trial court’s judgment erroneously states that he assaulted a “family member,” (2)
      the trial court erred in omitting an extraneous-offense instruction from the
      punishment charge, and (3) the trial court erred in including the definition of
      “family” in the guilty-innocence charge. If the trial court grants Carnell’s motion
      for new trial, the record will be supplemented with the trial court’s order, and
      Carnell’s appeal will be dismissed. See Prudhomme v. State, 28 S.W.3d 114, 121
      (Tex. App.—Texarkana 2000, no pet.); Massingill v. State, 8 S.W.3d 733, 738–39
      (Tex. App.—Austin 1999, no pet.). 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 as well as the issues we do not reach in this abatement order. See
      Prudhomme, 28 S.W.3d at 121; Massingill, 8 S.W.3d at 739.
                                           10
                                      Conclusion

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

appellate timetable to allow Carnell 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.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




                                          11
