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[W] Landers v. State4/17/2003
motion for new trial and conduct an evidentiary hearing on it, and that without a lawyer, she was prejudiced. Appellant was not abandoned, but was at all time represented by counsel during this critical post-trial period. A notice of appeal, a motion for new trial, and an amended motion for new trial were all timely filed on her behalf by post-trial counsel. See Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000), citing Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). Massingill v. State, 8 S.W.3d 733, 735–36 (Tex. App.—Austin 1999, no pet.), is distinguishable because that defendant was left without appointed counsel during the time for filing a motion for new trial.
Appellant claims her post-trial attorney rendered ineffective assistance of counsel by failing to present her motion and amended motion for new trial. A reviewing court presumes that defense counsel's actions are sound trial strategy. Jackson, 877 S.W.2d at 771. To defeat the presumption of reasonable professional assistance, allegation of ineffective assistance of counsel "must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500. Because the record is silent as to why appellant's post-trial counsel did not prosecute the motions for new trial, finding defense counsel ineffective would require this Court to speculate inappropriately regarding counsel's actions. See Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, no pet. h.).
" substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal . . . . In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 813–14; Tong, 25 S.W.3d 707, 714, n.10. Faced with the State's response and her trial counsel's detailed controverting affidavit, appellant's post-trial counsel may well have made a strategic decision not to pursue a hearing. Accordingly, appellant has not rebutted the presumption that her post-trial attorney's decision not to prosecute the amended motion for new trial was within the range of competent representation. Appellant's sixth issue is overruled.
VI. Lack of Hearing on Motion for New Trial
In her seventh and final issue, appellant asserts that, apart from her post-conviction counsel's failures, the trial court abused its discretion by not conducting an evidentiary hearing on her amended motion for new trial and allowing it to be overruled by operation of law. When an accused presents a motion for new trial raising matters that could entitle him to relief, and that are not determinable from the record, the trial court abuses its discretion in failing to hold a hearing. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).
The mere filing of a motion for new trial is insufficient to show "presentment." Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Butler v. State, 6 S.W.3d 636 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd). The record establishes that appellant timely filed her motion and amended motion for new trial, but it does not show that she presented her amended motion by bringing it to the trial court's attention or actual notice. To preserve error, a defendant must not only file the motion properly, but must also present the motion to the trial court within the statutory time frame. Id.; Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). On appeal, the record must demonstrate that the movant sustained his or her burden of actually delivering the motion to the trial court, or bringing the motion to the trial court'
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