Motions Denied and Order filed August 6, 2015 

In The

Fourteenth Court of Appeals

NO. 14-15-00258-CR

TOMMIE RAY LIMBRICK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1389665

ORDER

Appellant filed a motion and amended motion for permission to file an out 

of time motion for new trial and requests this Court to abate this appeal and 

remand for a hearing on his motion for new trial. The State did not file a response. 

Appellant claims that he was not represented by counsel during the entire 

30-day period for filing a motion for new trial and was thereby prevented from 

presenting his claim of ineffective assistance of counsel. Trial counsel has a duty to 

represent the client throughout the appellate process or file leave to withdraw with 

the court. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) (en 

banc) (retained counsel has not concluded a case until he has filed a motion to 
withdraw if he knows his client intends to appeal). The Texas Court of Criminal 

Appeals in Axel held:

[T]rial counsel, retained or appointed, has the duty, obligation and 

responsibility to consult with and fully to advise his client concerning 

meaning and effect of the judgment rendered by the court, his right to 

appeal from that judgment, the necessity of giving notice of appeal 

and taking other steps to pursue an appeal, as well as expressing his 

professional judgment as to possible grounds for appeal and their 

merit, and delineating advantages and disadvantages of appeal. The 

decision to appeal belongs to the client.

Id. To prevail on a claim of deprivation of counsel during the time to prepare, file, 

and present a motion for new trial, appellant must affirmatively prove that he was 

not represented by counsel during this critical stage of the proceedings. See Garcia 

v. State, 97 S.W.3d 343, 347 (Tex.App.—Austin 2003, no pet.) (citing Oldham v. 

State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (en banc)). When the record 

does not reflect that trial counsel withdrew or was replaced by new counsel after 

sentencing, there is a rebuttable presumption that trial counsel continued to 

effectively represent the defendant during the time limit for filing a motion for new 

trial. Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000) (Johnson, J., 

concurring).

The record reflects, and appellant concedes, that trial counsel did not file a 

motion to withdraw and there is no order allowing counsel to withdraw. 

Accordingly, the record does not establish appellant was entirely without counsel 

during the critical stage to file a motion for new trial. See Rogers v. State, 14-09-

00665-CR, 2011 WL 7290492, *2 (Tex. App.—Houston [14th Dist.] Feb. 8, 2011, 

no pet.) (mem. op.) (not designated for publication).
Appellant refers to the fact that on March 2, 2015, appellant filed a pro se 

notice of appeal requesting appointment of appellate counsel. Appellant’s notice of 

appeal is insufficient to rebut the presumption of adequate representation. See 

Smallwood v. State, 296 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.] 2009, 

no pet.). Moreover, appellant’s timely-filed pro se notice of appeal is evidence he 

was advised of at least some of his rights, and we presume that he was adequately 

represented unless the record affirmatively demonstrates otherwise. See Oldham, 

977 S.W.2d at 363.

Appellant claims in his motion that trial counsel “informed the appellant that 

he would not represent him on appeal, and filed a Certification of Appeal which 

indicated that the appellant’s case was a plea bargain case, and appellant had no 

right to appeal.” Appellant’s affidavit asserts no facts regarding the above claims. 

It states only that “[t]he allegations listed in the aforementioned Motion for New 

Trial are correct and true to the best of my knowledge.”

The record reflects that on the trial court’s certification of the defendant’s 

right of appeal (“CORTA”) filed February 13, 2015, the box is checked that 

provides this case “is not a plea-bargain case, and the defendant has the right of 

appeal.” The box providing this “is a plea-bargain case, and the defendant has NO 

right of appeal” is also checked but it is crossed out. The CORTA is signed by 

defendant’s trial counsel. The CORTA does not reflect that trial counsel filed the 

CORTA or that trial counsel marked the incorrect box. Regardless, the CORTA is 

signed by appellant and states “I have also been informed of my rights concerning 

any appeal of this criminal case.” Neither appellant’s motion nor his affidavit 

contradicts this statement.

Appellant’s motion also asserts “Mr. Limbrick’s affidavit confirms that trial 

counsel did not discuss potential issues for filing a motion for new trial with him.”
However, appellant’s motion makes no factual allegations regarding whether trial 

counsel conferred with him regarding the merits of an appeal or a motion for new 

trial.

There is a rebuttable presumption a defendant’s trial counsel continued to 

represent the defendant adequately during this critical stage. Cooks v. State, 240 

S.W.3d 906, 911 (Tex. Crim. App. 2007).

When a motion for new trial is not filed, courts apply a rebuttable 

presumption that the attorney discussed the merits of the motion for 

new trial with the appellant, and the appellant rejected it. Oldham, 977 

S.W.2d at 363. The Court of Criminal Appeals indicated that 

appropriate rebuttal evidence would show that “trial counsel thought 

that his duties were completed with the end of trial, and had thereafter 

abandoned the appellant.” Id. Under Oldham and its progeny, an 

appellant’s statement that he has not been represented since 

sentencing is not enough to rebut the presumption of effective 

assistance. See id. at 363; Smith v. State, 17 S.W.3d 660, 662–63 (Tex.

Crim. App. 2000). Appellant must also show that counsel did not 

confer with him regarding the merits of filing of a motion for new 

trial. See Smith, 17 S.W.3d at 663. 

Nguyen v. State, 222 S.W.3d 537, 540 (Tex. App.—Houston [14th Dist.] 2007, pet. 

ref’d). Appellant’s motion makes no allegations that, even if correct and true as 

averred to in his affidavit, show counsel failed to confer him. 

Based on the record before us, we find appellant has not rebutted the 

presumption of adequate representation. See Smallwood v. State, 296 S.W.3d 729, 

734-35 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Smith v. State, 17 

S.W.3d 660, 662–63 (Tex. Crim. App. 2000), and Oldham, 977 S.W.2d at 362–63.

Accordingly, appellant’s motions are denied.

PER CURIAM

Panel consists of Justice Christopher, Brown and Wise.