Opinion issued December 21, 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00500
- CR

——————————— MARLON WINDON , Appella nt

V. THE STATE OF T EXAS , Appell e e

On A p p eal from the 180th District Court

Harris County, Texas T rial Court Ca se No. 1535144

MEMORANDUM OPINION
A ppellant, Marlon Windon, ple aded guilty without an agreed recommendat ion to evading arrest with a motor vehicle , and the trial court assessed punishment at 10 years ’ confinement

. I n his sole point of error , appe llant argues2

that the trial court failed to appoint appellate cou nsel within the time period in which to file a motion for new trial.
W e affirm

. Background In 2017, the State charged appellan t by indictm e n t with evading arrest with a motor vehicl e in c ause numbe r 1535144 and unauthorized u se of a vehicle in cause number 1535145. The indictments alleged two prior convictions for possession of a controlled substance and ind ecency with a c hild.
At a May 8, 2018 plea hearing , appellant ple a d ed gu ilty to e vading arres t

. The t rial court noted that “ there is no plea bargain. ” The tr ial court aske d appellant if he understood that he wa s giving up his right to appeal, and appellant responded,

“ Ye s, Ma ’ a m. ” He also answered that he understood e veryth ing that he signed and everything his appointed counsel explained to him about his pending cases. After

a ppellant ’ s couns e l sta ted that she believed her client was competent, the trial court found him guilty of evading arre s t with a motor vehicle and asse ssed punishment at 10 years ’ confinement

. T he record contain s appellant ’ s sig ned “ Waiver of Constitutional R i ghts, Agreement to Sti pulate, and Judicial Confession, ” which notes that the “ State abandons 1s t enhancement parag r a ph. ” Although the first enh a ncement wa s

crosse d out, t he waiver still included an enhan cement f or the felony offense of3

ind ecen c y with a child. Appellant signed the confession, noting that he inten d ed to

e nter a plea of guil ty and that his pun i s hmen t was without an agree d recommenda tion and that “ I w aive my right of appeal whic h I may have sho uld the court accept the foregoing plea bargain agreement between myself and the prosecutor. ” Appellant signed the plea admonishm ents, indicating th a t he was cha rged with evadi n g arre st, a thir d

- degree felony, a nd acknowledging provis ions on plea bar gains, per mission to appeal , 1 and his judicial confession, amon g other provisions. Appellant signed the document titled, “ A d vice of Defendant ’ s Righ t of Appeal ” stating that “ If you pled guilty or n o contest and acce pted the pun ishment

recommen ded by the prosecutor, you cann ot appeal your conviction unless this Court gives you permission. If you waived or gave up your right t o appeal, you

canno t appe al your conviction. ” The trial court ’ s original c ertification of
ap pellan t ’ s right to app eal check ed the box that state s, “ The defendant ha s waived the right of appeal. ” On May 8, 2018, the trial court enter ed judgment, finding a p pellant ple aded guilty to ev ading arrest and that the terms of the plea b argain were “ No agre ed rec,
state abandoned one enhancement paragraph. ”

1 His plea a dmonish ment stated that “ I f the punishment assess ed by th e Court does not exceed the punishmen t recommended by the prosecuting attorney and agreed to b y you and your attorney, th e Court must give its permis sion to you before you can a ppeal any matter in th e case, except for matters that were raised by wr itten mo tion filed p rior to trial. ”4

On May 22, 201 8, appellant filed a pro se not i ce of appe al , s tating that his

counse l was aware that appel l ant was unde r the influen ce o f a mind

- alter ing substance when he ple a d ed gu ilty and asked to withd raw hi s plea

. On August 15, 2019 , this Court ordered the trial cour t to conduc t a h earing
to determine whether appellant w ai ved his right of appeal and w hether t h e enhan cement paragraph was dismissed as consideration for appellant ’ s waiver of his right to appeal and , if necessary, to execute an amended certification of
ap p ellant ’ s r ight to appeal.
At a n August 30, 201 9 hearin g , appe llant communicated that he wante d to proceed pro se. Appellant stated that he thought he was agreein g to do s ix y e ars but h e la ter discovered that he agreed to 10 years. When a sked again ab out the waiver of appeal, appellant responded, “ I don ’ t remember , because I was high that day. ” The trial court aske d if he was h igh w hen he ple a d ed , to which appell ant responded, “ Y es, sir. ” The tria l court also inquired if he was supposed to b e taking
p sych meds on the day of the plea. Appellant resp onded that he was supp osed to be taking those meds but that he was not taki ng th em. T he State added that appe llant w a s also charged with una uthorized use of a
motor vehicle in cause number 1535145, which was ultimately dismissed. The
St ate explained that the unauthorized use of a m otor v ehicl e was dis misse d because the appellant was convicted in the evading

- arrest ca se. T he Stat e further asserted5

that it would di rect the trial court to the plea p apers to determine if consideration

wa s given in exchange for the defendant plea ding w ithou t an agre ed

re commendat ion. After the hearing, the trial cou rt submitted the foll owing findings of fact : (1) T he Court finds the A ppellant did not waive his right to appea l

. (2) The Cou rt fin ds no indication appellant waived his right of appeal in exchange for the State a bandoning on e of the enha n cement paragraph s . O n July 7, 2020, t his Court abated the ca s e ag ain , noting that appellant appeared at the previou s hearing without counsel a nd nothing in the record indicated whether appellant had been ad monished regarding the dangers and disadva n tages of proceedin g pro se or whether he mad e an intelligent and

vo l unta ry waiver of the right to counsel on appeal. We i nstructed the t rial court t o determine if appellant wanted to pursue h is appeal and to determine if appellant wanted to proceed pro s e or if new counsel need ed t o be appointed. We further ordered the t

rial court to execute a n amended certification.
At a September 29, 2020 hearing , an assistant public d efende r appeared on appellant ’ s behalf , inform ing the trial court that it intended to fil e a brief addressing whether appellant w as represented during t he motion

- for

- new - tri al period. After we were notified that appellant had appellate counsel, we re insta ted6

the case . 2 O n February 25, 2021, a ppellant filed his brief , and on April 28, 2021, the State filed its brief , arguing that t hi s Court lack ed jurisdiction because the trial
court ’ s certificat ion stat ing that appellant ha d the rig h t to appeal was not inclu ded in the record.
On October 21, 2021, we abated again for the trial court to execute an amended certification. O n October 2 9, 2021 , the trial court filed an amended certificati on , check ing the box which s tates , “ the tri al court has gi ven permission to
app eal , and the [ a

ppellant ] has the right of appeal

. ”

Jurisdiction
Prior to this Court receiving the trial court ’ s amended ce rtification of

a ppe llant ’ s right to appeal, the State argued in its brief that w e lacked jurisdicti on because the re cord did not contain a certification giving appellant the right of appeal.
T he Court o f Criminal Appeals has held that a trial court ’ s per mi ssion to

a ppeal controls over a defendant ’ s previous waiver of app e al contained in preprinted plea pape rs. Ex parte De Leon , 400 S.W.3d 83, 90 (Tex. Crim. App. 2013); Willis v. State , 121 S .W.3d 400, 403 (Tex. C rim. App. 2003). Although we initially qu es tioned whether appellant waived his right of appeal , the record reflects that the trial court subse quen tly granted h im permission to appeal. See

2 On September 25, 2020, we were advised that Melissa Martin, an assistant public defender , would represent appellant.7

T EX
. P. A PP . P. 25.2 (a)(2)(B). The trial court ’ s amended certification, as confirme d by the supplement a l re co rd, indicates that the trial c ourt has given appellant permission to appeal, and accordingly this C ourt has appellat e jurisdiction. See Murray v. State , 261 S.W.3d 255, 257 & n .1 (Tex. App.

— Houston [14th Dist.] 2008) (citing T EX
. R. A PP . P. 25.2(a )( 2 )(B )) , aff ’ d , 302 S.W.3d 874 (Tex. Crim. App. 2009).

Counsel During Motion for New Trial Period
I n his s ole point of erro r , appellant argues that th e trial court erred in failing to appoint appella te counsel within the 30

- day window for filing a mot ion for ne w trial in violation of his Six t h Amend ment right to counsel at every c ritical sta ge of the proceedin g. 3 Specifically , appellant argues that the trial court should have appointed appellate counsel when it received appellant ’ s pro se notice of appeal and t ha t we sho uld abate to allow ap p ellant to file a motion for new trial

. The
State argues that appella nt has not overco me the presumption that he had counsel during the new

- trial period. A. Sta ndard of Review To abate an appeal for the filing of an out

- of

- time m otion for new trial, the defendant must satisfy two burdens: first, he must show that the trial cou rt

3 In Texas, a criminal defendant has thirty days to fil e a mo tion fo r new trial after the date on which the trial court imposes or suspends sentence in open court. See T EX
. R. A PP . P. 21 .4.8

deprived hi m o f counsel during the thirt y - day period f or filing a motion for new tria l; and second, he must show that the deprivation resulted in harm. S ee Cooks v.
State , 240 S.W.3d 906, 911

– 12 (Tex. Crim. App. 2007). We need only focus on the first of these burde n s, because appellant ’ s failu re to meet it fo recloses his claim for relief

. A defendant can show that the trial court deprived him of counsel i f the record establishes that his trial counsel withdrew on the day of sentencing (i.e., at the ver y beginning of th e thirty

- day period) and t hat the trial cou rt failed to appoint appella te counsel despite the defendant ’ s timely request to pursue an appe al

. See Parker v. State , 604 S.W.3d 555, 558 (Tex. App.

— Houston [14th Dist.] 2020, no pet.). Altern atively, if c ouns el did not withdraw on t he day of sentencin g, a defendant can still s how that he was deprived of counsel if the defendant establishes that c ounsel provided inadequate representation, which may be demonstrated by such evidence as counsel ’ s mistaken bel i ef t hat the defendant had

no right to appeal. See, e .g. , Monakino v. State , 5 35 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 pro cess because appe llant ’ s trial counsel expressed agreement with State and trial court that appellant d id not have right to appeal )

.9

B. Analysis The record s ho ws that appellant ple a d ed guilty without an agreed recommendation

. The trial court accepted the plea an d assessed punish ment on May 8, 2018 , sentencing appellant to 10 y ears in prison

. On May 22, 20 18 , appellant filed a pro se notice of appeal. Appellan t doe s not cite , and we have not found, any indication that appellant ’ s trial c ounsel sought to withdra w or ceased representing appellant. Although th ere m ay have been some co nfusion about whether appel lant had the r ight to appeal, nothing in the record s hows that appellant ’ s counsel attempted to withdraw , that the trial court permitted appellant ’ s

c ounsel to withdr aw , or that appellant ’ s counsel was under a mistaken belief that appellant had no right to appeal

. 4 In the absence of e vid ence to the contra ry , we must presume that trial counsel continued in his duties in representing appellant, as tria l counsel was obligated to continue representing appellant thr ough the appellate process unless he was permitted to withdraw by the tr ia l cou rt or relieved by th e appointment of appellate counsel

— neither of which occurred during the motion

for

- new - trial pe ri od

. See Oldham v. State , 977 S.W.2d 354, 361

– 63 (Tex. Crim. App. 1998) (explainin g that trial counsel remains defendant ’ s counsel for a ll

4 Appellant ’ s trial counsel filed a n “ Attorney Fees Expense Claim ” on May 31, 2018. See T EX
. C ODE C RIM
. P ROC . art. 26. 05. T his document shows that he spent considerable time on the case be fore the plea and for two days after the ple a. The trial court signed th e docume nt on June 4, 2018. Again, nothing shows that appellant withdr e w from repr esenting appellant or that he did n ot advise appellant of his right to file a motion for ne w trial.10

purposes until exp re ssly permitted to withdraw and is presumed to continue to represent defendant absent evidence s ho wing 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 lea st some of her appell at e rights ”)

. Because appellant has failed to overcome the pre sumption that trial cou nsel contin ue d to represent appellant durin g the period in which to file a motion for new t rial, we conclude that appellan t ’ s argument lacks merit. We overrule appellan t ’ s sole point of error. Conclusion
W e affirm the trial court ’ s judgmen t

.

Sher ry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Kelly and Landau.
Do no t publish. See T EX
. R. A PP . P. 47.2(b).