Perales, Roberto v. State ( 2005 )

Affirmed and Memorandum Opinion filed July 14, 2005

Affirmed and Memorandum Opinion filed July 14, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00853-CR

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ROBERTO PERALES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 822,265

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of guilty, on March 16, 2001, to the offense of driving while intoxicated.  On August 15, 2001, the trial court sentenced appellant to confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $1,000.00, but suspended the sentence and placed appellant on 10 years of community supervision. The State subsequently moved to revoke appellant=s community supervision.  On August 9, 2004, the trial court signed a judgment revoking community supervision and sentencing appellant to seven years in the Texas Department of Criminal Justice, Institutional Division and assessing a fine of $1,000.  Appellant filed a pro se notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  Appellant filed a pro se response, claiming that he was without counsel during the critical thirty-day period after sentencing, that the trial court erred in failing to hold a hearing on issues raised in his pro se motion for new trial, that trial and appellate counsel provided ineffective assistance, and that documents are missing from the record.

We turn first to appellant=s argument that he was denied counsel at a critical stage.   An appointed attorney=s legal responsibilities do not terminate at the conclusion of trial.  Oldham v. State, 977 S.W.2d 354, 362 (Tex. Crim. App. 1998) (citing Ward v. State, 740 S.W.2d 794 (Tex. Crim. App. 1987)).  Thus, trial counsel, whether appointed or retained, has the duty, obligation, and responsibility to advise his client concerning the meaning and effect of the judgment rendered, the right to appeal, and the necessity of filing a notice of appeal and other steps required to pursue appeal, as well as to offer his professional judgment regarding possible grounds for appeal, their merit, and the advantages and disadvantages of appeal.  Id. (citing Ex parte Abel, 757 S.W.2d 369 (Tex. Crim. App. 1988)).  There is a presumption that appellant was represented by counsel and that counsel acted effectively.  Id. If appellant claims he was not represented during the critical thirty days following judgment, the record must establish this.  See id. at 362-63 (holding fact that appellant filed a pro se notice of appeal and appellate counsel was appointed sixty-two days after judgment is insufficient to rebut presumption that appellant was represented during critical period). 

The record in this case contains no motion to withdraw by appointed trial counsel; however, a reset form (seeking reset of revocation hearing), filed by trial counsel includes a handwritten notation, Anot do appeal.@ Appellant states that trial counsel advised him she does not do appeals and that she mailed him a letter of withdrawal on August 12, 2004, but the record does not support these claims. The record also contains appellant=s pro se notice of appeal and motion for new trial. 

The facts and reasoning in Oldham v. State, 977 S.W.2d 354 (Tex. 1998) are helpful in analyzing appellant=s complaint.  In Oldham, the appellant was represented by counsel at trial.  Id. at 355.  Following sentencing, appellant filed a pro se notice of appeal.  Id.  Appellate counsel was appointed 62 days after sentencing.  Id. at 363.  The Court of Criminal Appeals held that these facts did not rebut the presumption that appellant was represented by counsel and that counsel acted effectively.  Id.  Nothing in the record suggested that the attorney failed to discuss the merits of a motion for new trial with appellant.  Id.  Furthermore, the fact that appellant filed a pro se notice of appeal was found to be evidence that appellant was informed of at least some of her appellate rights.  Id.

Here, the record shows the following: (1) appellant was represented by appointed trial counsel; (2) trial counsel allegedly made a notation that she would not handle the appeal; (3) appellant filed a pro se notice of appeal on August 11, 2004, two days after sentence was imposed (August 9, 2004); (4) appellant filed a pro se motion for new trial, which was filed within the 30-day deadline, given that it was mailed on September 7, 2004; and (5) counsel on appeal was appointed on August 23, 2004.  This does not establish that counsel abandoned appellant after sentence was imposed. The fact that appellant filed his pro se notice of appeal within two days of sentencing indicates that appellant must have been informed of at least some of his appellate rights. Furthermore, appellate counsel was appointed well before the deadline for filing a motion for new trial had run. Accordingly, we hold that the record shows that appellant was represented by counsel at all times, and that appellant has failed to establish that trial counsel acted ineffectively in failing to file a motion for new trial.

Appellant next complains the trial court abused its discretion by failing to hold a hearing on appellant=s motion for new trial.  To be entitled to a hearing, a defendant need only assert reasonable grounds for relief which are not determinable from the record.  Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). The motion for new trial must be supported by an affidavit of either the accused or someone else specifically showing the truth of the grounds asserted.  Id. (citing Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App.1993).  The affidavit need not reflect every component legally required to establish relief but the motion for new trial or affidavit must reflect that reasonable grounds exist for holding that such relief could be granted.  Id.

In Jordan, the motion was timely filed, properly presented to the trial judge and was supported by appellant=s sworn affidavit.  Id. Although appellant asserted nine allegations of ineffective assistance, the affidavit was conclusory in nature.  Id.  For example, appellant alleged counsel failed to properly investigate the facts and failed to subpoena two named witnesses, but appellant failed to say why counsel's investigation was deficient, or what further investigation would have revealed. In addition, appellant failed to state what the two witnesses would have said to exculpate him.  Id.  Because the court found the affidavit was deficient, the court held that the motion for new trial was not sufficient to put the trial judge on notice that reasonable grounds existed to believe counsel's representation may have been ineffective.  Id. Thus, the court found no abuse of discretion by the trial judge in failing to hold a hearing in accordance with Rule 31(d).  Id. (citing Tex. R. App. P. 31(d)).

Here, appellant filed a timely motion for new trial, alleging new evidence.  Appellant did not allege ineffective assistance of counsel, and he filed no affidavit with the motion.  As for the Anew evidence,@ appellant did not describe this evidence and did not explain how this new evidence would exculpate him.  When an accused presents a motion for new trial raising matters not determinable from the record, which could entitle him to relief, the trial judge abuses his discretion in failing to hold a hearing.  King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).  The motion must be supported by an affidavit specifically showing the truth of the grounds of attack.  Id.  None of appellant's bare assertions establish facts entitling him to a new trial.  Id.  Accordingly, we find no abuse of discretion by the trial judge in failing to hold a hearing on appellant=s motion for new trial.

Finally, appellant claims he received ineffective assistance of counsel.  Appellant is prohibited from attacking the original conviction on revocation of probation.  Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001).  A claim of ineffective assistance during the plea proceeding is an issue that may be raised by direct appeal from the conviction or in a post-conviction writ of habeas corpus.  Id. at 787 n. 18.  The only exception to the rule prohibiting an attack on the original conviction is if the underlying judgment is void.  Id. at 785.  Appellant does not raise an allegation that the original conviction is void. Accordingly, we will not address appellant=s claim of ineffective assistance 

We have carefully reviewed the record and counsel=s brief and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed July 14, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).