Marlon Windon v. the State of Texas ( 2021 )


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  • Opinion issued December 21, 2021
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-18-00500-CR
    ———————————
    MARLON WINDON, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 180th District Court
    Harris County, Texas
    Trial Court Case No. 1535144
    MEMORANDUM OPINION
    Appellant,   Marlon    Windon,     pleaded   guilty   without    an   agreed
    recommendation to evading arrest with a motor vehicle, and the trial court assessed
    punishment at 10 years’ confinement. In his sole point of error, appellant argues
    that the trial court failed to appoint appellate counsel within the time period in
    which to file a motion for new trial.
    We affirm.
    Background
    In 2017, the State charged appellant by indictment with evading arrest with a
    motor vehicle in cause number 1535144 and unauthorized use of a vehicle in cause
    number 1535145. The indictments alleged two prior convictions for possession of
    a controlled substance and indecency with a child.
    At a May 8, 2018 plea hearing, appellant pleaded guilty to evading arrest.
    The trial court noted that “there is no plea bargain.” The trial court asked appellant
    if he understood that he was giving up his right to appeal, and appellant responded,
    “Yes, Ma’am.” He also answered that he understood everything that he signed and
    everything his appointed counsel explained to him about his pending cases. After
    appellant’s counsel stated that she believed her client was competent, the trial court
    found him guilty of evading arrest with a motor vehicle and assessed punishment at
    10 years’ confinement.
    The record contains appellant’s signed “Waiver of Constitutional Rights,
    Agreement to Stipulate, and Judicial Confession,” which notes that the “State
    abandons 1st enhancement paragraph.”          Although the first enhancement was
    crossed out, the waiver still included an enhancement for the felony offense of
    2
    indecency with a child. Appellant signed the confession, noting that he intended to
    enter a plea of guilty and that his punishment was without an agreed
    recommendation and that “I waive my right of appeal which I may have should the
    court accept the foregoing plea bargain agreement between myself and the
    prosecutor.” Appellant signed the plea admonishments, indicating that he was
    charged with evading arrest, a third-degree felony, and acknowledging provisions
    on plea bargains, permission to appeal,1 and his judicial confession, among other
    provisions. Appellant signed the document titled, “Advice of Defendant’s Right of
    Appeal” stating that “If you pled guilty or no contest and accepted the punishment
    recommended by the prosecutor, you cannot appeal your conviction unless this
    Court gives you permission. If you waived or gave up your right to appeal, you
    cannot appeal your conviction.”        The trial court’s original certification of
    appellant’s right to appeal checked the box that states, “The defendant has waived
    the right of appeal.”
    On May 8, 2018, the trial court entered judgment, finding appellant pleaded
    guilty to evading arrest and that the terms of the plea bargain were “No agreed rec,
    state abandoned one enhancement paragraph.”
    1
    His plea admonishment stated that “If the punishment assessed by the Court does
    not exceed the punishment recommended by the prosecuting attorney and agreed
    to by you and your attorney, the Court must give its permission to you before you
    can appeal any matter in the case, except for matters that were raised by written
    motion filed prior to trial.”
    3
    On May 22, 2018, appellant filed a pro se notice of appeal, stating that his
    counsel was aware that appellant was under the influence of a mind-altering
    substance when he pleaded guilty and asked to withdraw his plea.
    On August 15, 2019, this Court ordered the trial court to conduct a hearing
    to determine whether appellant waived his right of appeal and whether the
    enhancement paragraph was dismissed as consideration for appellant’s waiver of
    his right to appeal and, if necessary, to execute an amended certification of
    appellant’s right to appeal.
    At an August 30, 2019 hearing, appellant communicated that he wanted to
    proceed pro se. Appellant stated that he thought he was agreeing to do six years
    but he later discovered that he agreed to 10 years. When asked again about the
    waiver of appeal, appellant responded, “I don’t remember, because I was high that
    day.” The trial court asked if he was high when he pleaded, to which appellant
    responded, “Yes, sir.” The trial court also inquired if he was supposed to be taking
    psych meds on the day of the plea. Appellant responded that he was supposed to
    be taking those meds but that he was not taking them.
    The State added that appellant was also charged with unauthorized use of a
    motor vehicle in cause number 1535145, which was ultimately dismissed. The
    State explained that the unauthorized use of a motor vehicle was dismissed because
    the appellant was convicted in the evading-arrest case. The State further asserted
    4
    that it would direct the trial court to the plea papers to determine if consideration
    was given in exchange for the defendant pleading without an agreed
    recommendation.
    After the hearing, the trial court submitted the following findings of fact:
    (1)    The Court finds the Appellant did not waive his right to appeal.
    (2)    The Court finds no indication appellant waived his right of
    appeal in exchange for the State abandoning one of the
    enhancement paragraphs.
    On July 7, 2020, this Court abated the case again, noting that appellant
    appeared at the previous hearing without counsel and nothing in the record
    indicated whether appellant had been admonished regarding the dangers and
    disadvantages of proceeding pro se or whether he made an intelligent and
    voluntary waiver of the right to counsel on appeal. We instructed the trial court to
    determine if appellant wanted to pursue his appeal and to determine if appellant
    wanted to proceed pro se or if new counsel needed to be appointed. We further
    ordered the trial court to execute an amended certification.
    At a September 29, 2020 hearing, an assistant public defender appeared on
    appellant’s behalf, informing the trial court that it intended to file a brief
    addressing whether appellant was represented during the motion-for-new-trial
    period. After we were notified that appellant had appellate counsel, we reinstated
    5
    the case.2 On February 25, 2021, appellant filed his brief, and on April 28, 2021,
    the State filed its brief, arguing that this Court lacked jurisdiction because the trial
    court’s certification stating that appellant had the right to appeal was not included
    in the record.
    On October 21, 2021, we abated again for the trial court to execute an
    amended certification. On October 29, 2021, the trial court filed an amended
    certification, checking the box which states, “the trial court has given permission to
    appeal, and the [appellant] has the right of appeal.”
    Jurisdiction
    Prior to this Court receiving the trial court’s amended certification of
    appellant’s right to appeal, the State argued in its brief that we lacked jurisdiction
    because the record did not contain a certification giving appellant the right of
    appeal.
    The Court of Criminal Appeals has held that a trial court’s permission to
    appeal controls over a defendant’s previous waiver of appeal contained in
    preprinted plea papers. Ex parte De Leon, 
    400 S.W.3d 83
    , 90 (Tex. Crim. App.
    2013); Willis v. State, 
    121 S.W.3d 400
    , 403 (Tex. Crim. App. 2003). Although we
    initially questioned whether appellant waived his right of appeal, the record
    reflects that the trial court subsequently granted him permission to appeal. See
    2
    On September 25, 2020, we were advised that Melissa Martin, an assistant public
    defender, would represent appellant.
    6
    TEX. P. APP. P. 25.2(a)(2)(B).        The trial court’s amended certification, as
    confirmed by the supplemental record, indicates that the trial court has given
    appellant permission to appeal, and accordingly this Court has appellate
    jurisdiction. See Murray v. State, 
    261 S.W.3d 255
    , 257 & n.1 (Tex. App.—
    Houston [14th Dist.] 2008) (citing TEX. R. APP. P. 25.2(a)(2)(B)), aff’d, 
    302 S.W.3d 874
     (Tex. Crim. App. 2009).
    Counsel During Motion for New Trial Period
    In his sole point of error, appellant argues that the trial court erred in failing
    to appoint appellate counsel within the 30-day window for filing a motion for new
    trial in violation of his Sixth Amendment right to counsel at every critical stage of
    the proceeding.3 Specifically, appellant argues that the trial court should have
    appointed appellate counsel when it received appellant’s pro se notice of appeal
    and that we should abate to allow appellant to file a motion for new trial. The
    State argues that appellant has not overcome the presumption that he had counsel
    during the new-trial period.
    A.    Standard of Review
    To abate an appeal for the filing of an out-of-time motion for new trial, the
    defendant must satisfy two burdens: first, he must show that the trial court
    3
    In Texas, a criminal defendant has thirty days to file a motion for new trial after
    the date on which the trial court imposes or suspends sentence in open court. See
    TEX. R. APP. P. 21.4.
    7
    deprived him of counsel during the thirty-day period for filing a motion for new
    trial; and second, he must show that the deprivation resulted in harm. See Cooks v.
    State, 
    240 S.W.3d 906
    , 911–12 (Tex. Crim. App. 2007). We need only focus on
    the first of these burdens, because appellant’s failure to meet it forecloses his claim
    for relief.
    A defendant can show that the trial court deprived him of counsel if the
    record establishes that his trial counsel withdrew on the day of sentencing (i.e., at
    the very beginning of the thirty-day period) and that the trial court failed to appoint
    appellate counsel despite the defendant’s timely request to pursue an appeal. See
    Parker v. State, 
    604 S.W.3d 555
    , 558 (Tex. App.—Houston [14th Dist.] 2020, no
    pet.). Alternatively, if counsel did not withdraw on the day of sentencing, a
    defendant can still show that he was deprived of counsel if the defendant
    establishes that counsel provided inadequate representation, which may be
    demonstrated by such evidence as counsel’s mistaken belief that the defendant had
    no right to appeal. See, e.g., Monakino v. State, 
    535 S.W.3d 559
    , 565 (Tex.
    App.—Houston [1st Dist.] 2016, no pet.) (inferring that appellant’s trial counsel
    gave no advice about motion for new trial or appellate process because appellant’s
    trial counsel expressed agreement with State and trial court that appellant did not
    have right to appeal).
    8
    B.    Analysis
    The record shows that appellant pleaded guilty without an agreed
    recommendation. The trial court accepted the plea and assessed punishment on
    May 8, 2018, sentencing appellant to 10 years in prison. On May 22, 2018,
    appellant filed a pro se notice of appeal. Appellant does not cite, and we have not
    found, any indication that appellant’s trial counsel sought to withdraw or ceased
    representing appellant.   Although there may have been some confusion about
    whether appellant had the right to appeal, nothing in the record shows that
    appellant’s counsel attempted to withdraw, that the trial court permitted appellant’s
    counsel to withdraw, or that appellant’s counsel was under a mistaken belief that
    appellant had no right to appeal.4 In the absence of evidence to the contrary, we
    must presume that trial counsel continued in his duties in representing appellant, as
    trial counsel was obligated to continue representing appellant through the appellate
    process unless he was permitted to withdraw by the trial court or relieved by the
    appointment of appellate counsel—neither of which occurred during the motion-
    for-new-trial period. See Oldham v. State, 
    977 S.W.2d 354
    , 361–63 (Tex. Crim.
    App. 1998) (explaining that trial counsel remains defendant’s counsel for all
    4
    Appellant’s trial counsel filed an “Attorney Fees Expense Claim” on May 31,
    2018. See TEX. CODE CRIM. PROC. art. 26.05. This document shows that he spent
    considerable time on the case before the plea and for two days after the plea. The
    trial court signed the document on June 4, 2018. Again, nothing shows that
    appellant withdrew from representing appellant or that he did not advise appellant
    of his right to file a motion for new trial.
    9
    purposes until expressly permitted to withdraw and is presumed to continue to
    represent defendant absent evidence showing otherwise and “[t]he fact that the
    appellant filed a pro se notice of appeal is evidence that she must have been
    informed of at least some of her appellate rights”). Because appellant has failed to
    overcome the presumption that trial counsel continued to represent appellant
    during the period in which to file a motion for new trial, we conclude that
    appellant’s argument lacks merit.
    We overrule appellant’s sole point of error.
    Conclusion
    We affirm the trial court’s judgment.
    Sherry Radack
    Chief Justice
    Panel consists of Chief Justice Radack and Justices Kelly and Landau.
    Do not publish. See TEX. R. APP. P. 47.2(b).
    10
    

Document Info

Docket Number: 01-18-00500-CR

Filed Date: 12/21/2021

Precedential Status: Precedential

Modified Date: 12/27/2021