Motion for En Banc Reconsideration Dismissed a s Moot; Majority and

Dissenting Opinions of July 2 3, 2020 , Withdrawn ; Affirmed and Substitute Memorandum Opinion filed April 2 9 , 2021

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 01066

- CR NO. 14

- 18

- 010 6 7

- CR

ELONDA CALHOUN , Appellant

V.

THE STATE OF TEXAS , Appell ee

On Appeal from the 230th District Court

Harris Co unty, Texas Tr ia l Court Cause No s . 15 45108 a nd 1545140

SUBSTITUTE MEMORANDUM OPINION

W e withdraw the opinion s issued in this case on July 2 3 , 2020, and issue this
substitute memorandum opinion. We d is miss as moot appellant ’ s motion for en banc reconsideration. Appellant pleaded guilty to two aggravated robberies involving the use of a deadly weapon without a n agreed recommendation as to puni s hment. A fter2

hearing evidence about these robb eri es, t hre e o ther robberies, and appellant ’s criminal history, the trial court assessed punishment at fifty years ’ imprisonment in each case to run concurrently. In her sole issue on appeal, appellant reque s ts an abatement to file a motion for new trial because she co n tends that she wa s not represented by counsel during the time perio d for filing the motion. We affirm.

I. Background

The trial court sentenced ap pellant and signed a judgment of conviction on
Dec e mber 5, 2018. Her trial counsel withdrew on the same day. T he record includes a pauper ’ s oath and order signed by the trial court that states the court held a hearing on December 5, 2018, found appellant indigent, and appointed Harris County A ssistant P u blic D efender Scott Pope to represent appellant on appeal

. T he document, however, was file

- stamped by the district clerk on J anuary 3, 2019. The court ’ s docket sheet includes an entry for December 5, 2018: “ The defendant filed a sworn pauper ’ s oath, and JUDGE MORTON, CHRIST O PHER DEAN ordered POPE, SCOTT CHRISTO PHE R appointed as PUBLIC
DEFENDER APPOINTED ON APPE AL. ” Pope did not file a motion for n ew trial. On January 16, 2019, Harris County Assistant P ublic Defender Daucie Schindler was designated as a ppellant ’ s new counsel on appeal ; Pope was removed.

II. A nal ysi s Appellant contends tha t Pope was not appointed until January 3, 2019, when
the district clerk file

- stamped the order , and thus, appellant was unrepresented by
counsel for almost all of the tim e available for filing a motion for new trial. See,

e.g. , Coo ks v. State , 240 S.W.3d 906, 907

– 08 (Tex. Crim. App. 2007) (holding that
the thirty

- day time period for filing a motion for new trial is a critical stage of a3

criminal proceeding for which a def e ndant is constitutionally entitled to effective
assistance of counsel in filing a motion for new trial). The State contends tha t Pope was appo inted on December 5, so appellant was not denied rep resentation for

any period of time during the thirty

- day per i od for filing a mo tion fo r new trial. We agree with the S tat e.
Orders of the court, like judgment s, routinely go throu gh three stages: (1) rendition, (2) si gning, and (3) entry. See Butler v. Amegy Bank, N.A. , No. 14

- 15

- 0041 0

- CV, 2016 WL 3574685, at *7 ( Tex. App.

— Houston [14th Dist.] June
30 , 2016, no pet. ) ( mem. op.). The signing of an order is a judicial function that is
distinct from the clerk ’ s ministerial act of enter ing the order into the records of the

court. State v. Wachtendorf , 475 S.W.3d 895 , 899 , 901

– 02 (Tex. Crim. App. 2015) (plurality op.) (holding that the time for the Stat e to appeal began on the date the trial judge signed the ord er, not the later date that the clerk file

- stamped the order , although the State lacked actual notice of the signed order until the date it was file

stamped) ; see also Wi lson v. State , 677 S.W.2d 518, 522 (Tex. Crim. App. 1984).
Here, the order itself states, and the docket entry confirms, that Pope was appointed as appellate counsel on December 5 , the same day t he trial court sentenced appellant and signed the judgment of conviction . Thus, appellant was

re presented by counsel during the entire time period for filing a motio n for new
trial. No abatement is necessary to determine whether appellant was repr esente d by counsel during the time period for filing a motio n for ne w trial. Nor is such an
abatement advisable. See Benson v. State , 224 S.W.3d 485, 493

– 95 (Tex. App.

— Houston [1st Dist.] 2007, no pet. ) (en banc) (abandoning the “ double abatement ” procedure by which the court would abate for the trial court to determine whether
the appel lant was represented by counsel during the time period for filing a motion4

fo r new trial ) (citing Jack v. State , 149 S.W.3d 119 (Tex. Crim. App. 2004) (per curiam))

. The recor d does not affirma tively show that Pope rendered ineffective

a ssistance or that he lacked notice of his appointment until after the time period for filing a motion for new trial , and even if such an argument could be inferred from appellant ’ s briefing to t h is court , we may not consider factual assertions that are

out side the record. See Cooks v. S t ate , 190 S.W.3d 84, 88

– 89 (Tex. App.

— Houston [1st Dist.] 2005), aff ’ d , 240 S.W.3d 906 (Tex. Crim. App. 2007). If Pope ’ s appellate representation was def icient o r he lacked notice of his appointment such that appellant ’ s ri ght to appeal has been prejudiced, a habeas proceeding would allow appellant to develop a record

. See id. (citing Oldham v.
State , 977 S.W.2d 35 4, 363 (Tex. Crim. App. 199 8); cf. Ex parte Mayfi e ld , No.
AP

- 75 , 396 , 2006 WL 1 250837 (Tex. Crim. App. May 10, 2 006) (per c uriam) ( not designat ed for publication) (granting out

- of

- time appeal when appellate counsel was not timely informed of the appointment).

III. Conclusion Appellant ’ s sole issue is overruled

. The trial court ’ s judgment is affirmed.

/s/ Ken W ise Justi ce

Pa nel consists of Justices Wise , Jewell, and Poissant

. Do Not Pub li sh

— Tex. R. App. P. 47 .2( b).