Description: Houston, Texas criminal defense lawyer represented the Defendant charged with evading detention using a motor vehicle.

On January 7, 2019, Officer Shaikh was assigned to night shift patrol duty. He was in a marked patrol car and wearing his police uniform. At the intersection of Bellaire and Fondren roads, Officer Sheikh noticed a white vehicle driving at an excessive rate of speed. He testified that the speed limit is about thirty miles an hour in that area, and the car was traveling at approximately sixty to seventy miles an hour. When the driver saw his patrol car, he slammed on the brakes.

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If the defendant rebuts the presumption and shows that he was deprived of counsel for some but not all of the critical stage, then the deprivation was only partial and the defendant must show harm. Cooks, 240 S.W.3d at 911-12. To establish harm, and thus entitlement to an abatement of an appeal to file an out-of-time motion for new trial, the appellant must demonstrate a "facially plausible claim" that could have been developed in a motion for new trial. See id. at 912 (holding deprivation of counsel during motion-for-new-trial stage harmless beyond reasonable doubt because appellate counsel did not raise any facially plausible claims that could have been presented in motion for new trial). However, if the defendant was deprived of counsel for all of the critical stage, then the deprivation was total and harm is presumed. Batiste v. State, 888 S.W.2d 9, 14 (Tex. Crim. App. 1994) ("[W]ith some varieties of Sixth Amendment violation, such as the actual or constructive denial of counsel altogether at a critical stage of the criminal proceeding, . . . prejudice is presumed."). If the deprivation was harmful, the proper remedy is to abate the appeal and remand the case to the trial court to allow the defendant to file an out-of-time motion for new trial. See Ward v. State, 740 S.W.2d 794, 800 (Tex. Crim. App. 1987); Green v. State, 264 S.W.3d 63, 69 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd).

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Legal issue Was the appellant entitled to file an out-of-time motion for new trial due to being denied his right to counsel during the critical post-trial period?

Key Phrases Bench trial. Felony offense. Evading arrest. Sixth Amendment. Sufficient evidence.

Outcome: Defendant was found guilty and was sentenced to 5 years in prison, followed by three years of probation.

Affirmed

Plaintiff's Experts:

Defendant's Experts:

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