Motion for En Banc Reconsideration Dismissed as Moot; Majority and 

Dissenting Opinions of July 23, 2020, Withdrawn; Affirmed and Substitute 

Memorandum Opinion filed April 29, 2021.

In The

Fourteenth Court of Appeals

NO. 14-18-01066-CR

NO. 14-18-01067-CR

ELONDA CALHOUN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause Nos. 1545108 and 1545140

SUBSTITUTE MEMORANDUM OPINION

We withdraw the opinions issued in this case on July 23, 2020, and issue this 

substitute memorandum opinion. We dismiss as moot appellant’s motion for en 

banc reconsideration.

Appellant pleaded guilty to two aggravated robberies involving the use of a 

deadly weapon without an agreed recommendation as to punishment. After 
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hearing evidence about these robberies, three other 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 requests an 

abatement to file a motion for new trial because she contends that she was not 

represented by counsel during the time period for filing the motion. We affirm.

I. Background

The trial court sentenced appellant and signed a judgment of conviction on 

December 5, 2018. Her trial counsel withdrew on the same day. The 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 Assistant Public Defender Scott Pope to represent appellant on 

appeal. The document, however, was file-stamped by the district clerk on January 

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, CHRISTOPHER 

DEAN ordered POPE, SCOTT CHRISTOPHER appointed as PUBLIC 

DEFENDER APPOINTED ON APPEAL.” 

Pope did not file a motion for new trial. On January 16, 2019, Harris 

County Assistant Public Defender Daucie Schindler was designated as appellant’s 

new counsel on appeal; Pope was removed. 

II. Analysis

Appellant contends that 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 time available for filing a motion for new trial. See, 

e.g., Cooks 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 a 
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criminal proceeding for which a defendant is constitutionally entitled to effective 

assistance of counsel in filing a motion for new trial). The State contends that 

Pope was appointed on December 5, so appellant was not denied representation for 

any period of time during the thirty-day period for filing a motion for new trial. 

We agree with the State.

Orders of the court, like judgments, routinely go through three stages: 

(1) rendition, (2) signing, and (3) entry. See Butler v. Amegy Bank, N.A., No. 14-

15-00410-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 entering 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 State to appeal began on the date the 

trial judge signed the order, 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 filestamped); see also Wilson 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 the trial court 

sentenced appellant and signed the judgment of conviction. Thus, appellant was 

represented by counsel during the entire time period for filing a motion for new 

trial. No abatement is necessary to determine whether appellant was represented

by counsel during the time period for filing a motion for new 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 appellant was represented by counsel during the time period for filing a motion 
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for new trial) (citing Jack v. State, 149 S.W.3d 119 (Tex. Crim. App. 2004) (per 

curiam)). 

The record does not affirmatively show that Pope rendered ineffective 

assistance 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 this court, we may not consider factual assertions that are 

outside the record. See Cooks v. State, 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 deficient or he lacked notice of his 

appointment such that appellant’s right 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 354, 363 (Tex. Crim. App. 1998); cf. Ex parte Mayfield, No. 

AP-75,396, 2006 WL 1250837 (Tex. Crim. App. May 10, 2006) (per curiam) (not 

designated 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 Wise

Justice

Panel consists of Justices Wise, Jewell, and Poissant.

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