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• Title: Benson v. State
• Author : Virginia Court of Appeals
• Release Date : January 05, 2007
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 73 KB

Description

Appellant, James Hail Benson, appeals from the trial courts judgment that revoked his deferred adjudication and sentenced him to 12 years in prison and a $500 fine for the second-degree felony of aggravated assault with a deadly weapon. See Tex. Pen. Code Ann. § 22.02(a)-(b) (Vernon Supp. 2006). In his first issue, appellant asserts that the trial court erred by failing to appoint appellate counsel in time for him to file a motion for new trial. He asks that we abate the present appeal and remand the cause to the trial court for an evidentiary hearing to determine whether he received effective assistance of counsel during the period for filing a motion for new trial. In his second and third issues, appellant contends that the 12-year sentence constitutes cruel and unusual punishment and violates his due process rights. We conclude that the Court of Criminal Appeals has disapproved of our procedure that requires abatement for an evidentiary hearing, as set forth in Jack v. State, 42 S.W.3d 291, 294 (Tex. App.--Houston [1st Dist.] 2001, order) (Jack I). See also Jack v. State, 64 S.W.3d 694, 696-97 (Tex. App.--Houston [1st Dist.] 2002) (Jack II), pet. dismd, 149 S.W.3d 119 (Tex. Crim. App. 2004) (Jack III). We decline to abate the appeal, and hold that appellant has failed on direct appeal to rebut the presumption that he was represented by trial counsel during the period of time for filing a motion for new trial. We further hold that he waived the right to complain about the length of his sentence because he failed to object on those grounds to the trial court. We affirm.

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