Full opinion text
EN BANC OPINION ELSA ALCALA, Justice. Appellant, James Hail Benson, appeals from the trial court’s 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. dism’d, 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. Procedural Background In February 2000, the trial court accepted appellant’s guilty plea and placed him on five years’ deferred adjudication community supervision for aggravated assault. About four years later, the State filed a motion to adjudicate appellant’s guilt, alleging that he committed another aggravated assault with a deadly weapon. Appellant, who was represented by appointed attorney John Clark, pleaded not true to the allegation. Following an evidentiary hearing, the trial court found the allegation true. In the punishment phase of the hearing, no additional evidence was introduced, but each side made a closing argument, with the State requesting a sentence near the maximum of 20 years and appellant’s attorney asking for a sentence in the range of five or six years. The trial court sentenced appellant to 12 years in prison and a $500 fine on July 20, 2004. After appellant was sentenced, his trial counsel neither objected to the sentence, nor filed a motion to withdraw from the case, nor filed anything else with the trial court. Nine days after sentencing, appellant filed a pro se notice of appeal. Appellant’s pro se notice of appeal states, “Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL.” On January 14, 2005, almost five months after appellant filed the notice of appeal, the trial court certified appellant’s right of appeal, which included the notation that appellant’s attorneys were “J. Clark/J. Guerinot.” On February 18, 2005, appellant filed a pro se motion in this Court requesting an extension of time to file a pro se brief. On March 7, 2005, we abated the appeal. In our order of abatement, we stated, “The problem is that appellant is not represented by counsel on appeal.” (Emphasis added.) We ordered the trial court to conduct a hearing to determine whether appellant wished to pursue the appeal and whether appellant was indigent. Our order required the trial court to appoint appellate counsel for appellant if appellant desired to pursue the appeal and was found to be indigent. On April 15, 2005, the trial court conducted the hearing that was ordered by our abatement. At the hearing, the trial court found appellant to be indigent and appointed appellate counsel for appellant. At the time that appellate counsel was appointed, the trial court judge stated, “Well, I don’t know why you weren’t appointed a lawyer on appeal ... because you should have been appointed a lawyer. ...” (Emphasis added.) The hearing following our March 7 abatement did not address whether appellant was represented by trial counsel during the 30-day-window for filing a motion for new trial; rather, it concerned only whether appellant was represented by appointed counsel to pursue the appeal. After we reinstated the appeal, appellant’s newly appointed appellate counsel filed an appellate brief that requested a second abatement of the case, citing to Jack I and Jack II. See Jack I, 42 S.W.3d at 294; Jack II, 64 S.W.3d at 696-97. On July 19, 2006, we issued an order that abated this cause for a second time. Our order stated, ‘We abate the appeal and remand the cause for a hearing to determine whether appellant had counsel, and whether he received ineffective assistance of counsel, during the 30-day period for filing a motion for new trial.” While the first abatement order instructed the trial court to address appellant’s lack of representation by appellate counsel for the appeal, in the second abatement we instructed the trial court to address appellant’s purported lack of representation by trial counsel during the 30-day period for filing a motion for new trial. In our order abating the case for the second time, we stated, “Once the appeal is reinstated, we will rule on appellant’s request to file an out-of-time motion for new trial.” We therefore did not rule on the merits of whether we would allow appellant to file an out-of-time motion for new trial, which was the ultimate remedy sought by appellant. Instead, we opted to wait to decide that issue until after the trial court conducted an eviden-tiary hearing on whether appellant was represented by trial counsel during the 30-day window for filing a motion for new trial. The State filed a motion to reconsider the order that abated the case for a second time. Upon the State’s motion requesting rehearing, and after requesting a response from appellant, we withdrew the order abating this case, and reinstated the appeal on September 6, 2006. The trial court, therefore, never conducted the evi-dentiary hearing that had been ordered in the second abatement, concerning whether appellant was represented by trial counsel during the 30-day-window for filing a motion for new trial. Representation During Window for Filing Motion for New Trial In his first issue, appellant contends that he was denied his right to counsel at a critical stage of the proceedings against him — the period of time for filing a motion for new trial — because the trial court failed to appoint appellate counsel immediately after sentencing. Appellant requests remand of the cause to the trial court with instructions that appellant be permitted to file a motion for new trial and for the trial court to conduct a hearing on the motion. The State responds that we should discontinue our practice of abating appeals for the trial court to determine whether appellant was deprived of counsel during the period of time for filing a motion for new trial because we lack statutory or procedural authority to do so, and because the Court of Criminal Appeals has disapproved of the practice. A. Time Period for Filing Motion for New Trial is Critical Stage of Proceeding A defendant has a right to file a motion for new trial, but must do so no later than 30 days after sentence is imposed. See Tex.R.App. P. 21.4(a). A trial court has 75 days from the imposition of sentence to rule on the motion for new trial. Tex. RApp. P. 21.8(a). Although a motion for new trial is not required in order to present a point of error on appeal, see Tex.R.App. P. 21.2, a hearing on the motion serves to develop evidence that is not otherwise in the record. See Oldham v. State, 977 S.W.2d 354, 361 (Tex.Crim.App.1998) (en banc). Motions for new trial have been used primarily for claims of newly discovered evidence or jury misconduct, and are helpful for developing evidence of a trial attorney’s ineffective assistance of counsel, particularly when the issues concern a claim that is premised on a trial attorney’s failure to act. See id. at 361-62. Texas courts of appeals have held the period for filing a motion for new trial is a critical stage at which a defendant is entitled to counsel. See Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.App.-Texarkana 2000, order), disp. on merits, 47 S.W.3d 683 (Tex.App.-Texarkana 2001, pet. ref'd); Hanson v. State, 11 S.W.3d 285, 288-89 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Massingill v. State, 8 S.W.3d 733, 736-37 (Tex.App.-Austin 1999, order), disp. on merits, Nos. 03-99-00301-CR, 03-99-0302-CR, 2000 WL 564168 (Tex.App.-Austin, May 11, 2000, pet. ref'd) (not designated for publication); Burnett v. State, 959 S.W.2d 652, 656 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). When a defendant is deprived of effective counsel during the period for filing a motion for new trial, the remedy is to reset the appellate time limits. See Ward v. State, 740 S.W.2d 794, 800 (Tex.Crim.App.1987) (en banc). Here, appellant did not file a motion for new trial, but in his brief he contends that had he been represented by counsel after sentencing, he would have filed a motion for new trial alleging ineffective assistance of trial counsel. If appellant was deprived of effective counsel during the window for filing a motion for new trial, then our remedy would be to reset the appellate time periods to allow him to file the motion for new trial. See id. We determine whether appellant was deprived of effective counsel during the window for filing a motion for new trial by applying the rebuttable presumption set forth by the Court of Criminal Appeals. See id. at 798. B. Appellate Courts Must Presume that Trial Counsel Continues Representation 1. The Presumption “Appointed trial counsel remains as the defendant’s counsel for all purposes until he is expressly permitted to withdraw, even if the appointment was for the trial only.” Id. “[I]t is abundantly clear that an appointed attorney’s legal responsibilities do not magically and automatically terminate at the conclusion of the trial ... The continuity of representation from trial to appeal is necessary to correct the ambiguity of representation which all too often follows a conviction.” Id. at 796-97. “[T]rial counsel, retained or appointed, has the duty, obligation, and responsibility to consult with and fully to advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, and the necessity of giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal.” Ex Parte Axel, 757 S.W.2d 369, 374 (Tex.Crim.App.1988) (en banc). Our appellate review, therefore, begins with the presumption that trial counsel continued to effectively represent appellant during the window for filing a motion for new trial. See Ward, 740 S.W.2d at 798; Oldham, 977 S.W.2d at 361. Further, we presume that the reason that a motion for new trial was not filed was because the appellant considered filing it but opted not to file it. Oldham, 977 S.W.2d at 363 (“When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected.”). The presumption that trial counsel continued to represent the appellant, however, may be rebutted. See id. 2. Evidence Necessary to Rebut Presumption If a defendant rebuts the presumption by showing that he was not adequately represented during the period for filing a motion for new trial, then the remedy is to abate the proceedings and restart the appellate timetable. See Ward, 740 S.W.2d at 800. The burden to produce evidence to rebut the presumption falls on the appellant. See Oldham, 977 S.W.2d at 363. To defeat the presumption, the record must show more than the mere facts that • appellant filed a pro se notice of appeal and indigency; • the trial court noted that the appellate attorney was “to be determined”; • the trial court appointed appellate counsel after the expiration of the time for filing a motion for new trial; • on appeal, appellant claims that he would have complained about ineffective assistance of counsel in a motion for new trial, had one been presented; • appellant appeared in court without counsel when he signed the pauper’s oath requesting appointed appellate counsel; and • the record shows no activity by trial counsel or any motion to withdraw from the case. Oldham, 977 S.W.2d at 362-63 (holding that facts that Oldham filed pro se notice of appeal and indigency, that trial court noted that attorney of record on appeal was “to be determined,” that trial counsel did not withdraw from case or conduct any activity after Oldham was sentenced, and that trial court appointed appellate counsel after expiration of window for filing motion for new trial, were insufficient to rebut presumption that trial counsel continued to represent appellant during window for filing motion for new trial); Smith v. State, 17 S.W.3d 660, 662-63 (Tex.Crim.App.2000) (Smith II) (reversing Smith v. State, 990 S.W.2d 893 (Tex.App.-Houston [1st Dist.] 1999) (Smith /)) (holding that facts that Smith filed pro se notice of appeal, that trial court appointed appellate counsel after expiration of window for filing motion for new trial, that Smith was brought to court without counsel when he signed pauper’s oath to receive appointed appellate counsel, and that Smith complained about ineffective assistance of counsel that he claims he would have developed at motion for new trial hearing, were insufficient to rebut presumption that trial counsel continued to represent appellant during window for filing motion for new trial). In Oldham, the Court of Criminal Appeals explained why each of these facts was insufficient to rebut the presumption of continued representation by trial counsel. Oldham, 977 S.W.2d at 362-63. Concerning the fact that appellant filed a pro se notice of appeal, the Court of Criminal Appeals explained that the filing of the notice of appeal is evidence that the appellant was informed of at least some of his appellate rights. Id. at 363. Other circumstances that show an absence of representation by appellate counsel do not translate into an absence of representation by trial counsel, who is presumed to have continued to effectively represent the appellant, “unless the record affirmatively displays otherwise.” See id. at 362-63. The court concluded in Oldham that “the record shows that the appellant was officially represented by counsel at all times in the litigation, and the appellant has failed to overcome the presumption that counsel was acting effectively at all times.” Id. at 363. The Court of Criminal Appeals’ decisions in Oldham and Smith thus require that appellate courts presume that the appellant was represented by counsel during the window for filing a motion for new trial unless the defendant rebuts the presumption. However, in Jack I we declined to apply the presumption immediately, and instead ordered the abatement of the appeal for a factual determination by the trial court to determine whether appellant was represented by counsel during the window for filing a motion for new trial. Jack I, 42 S.W.3d at 294. We then applied the Oldham and Smith presumptions after abatement of the ease. Id. at 292-94. Because the State is requesting that we discontinue these abatements, we review in more detail the Jack decisions. C. The Jack Decisions 1. Jack I Requires an Initial Abatement by Appellate Court In Jack I, we held that “an abatement is proper to allow appellant the opportunity to rebut the rebuttable presumption that he was effectively represented by [his trial counsel] during the 80-day period after [sentencing].” Id. at 293. We remanded “the cause for a hearing to determine whether appellant had counsel, and whether he received effective assistance of counsel, during the 30-day period for filing a motion for new trial.” Id. at 294. In opting to abate the case, we expressly declined to apply the Smith and Oldham presumption at that time, noting instead that we would carry the issue. Id. at 293. We did not set out a test for determining when abatement was warranted, commenting only that, ‘Whether abatement is appropriate will depend, of course, on the facts of each case” and that “it is appropriate in this case.” Id. at 294. In Jack I, we observed that, “Everything in the record indicates that appellant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial.” Id. at 293. We referred to the record that showed that • the trial judge made a statement on the docket sheet that indicated that an attorney on appeal was to be appointed; • the district clerk made a statement in a letter to the court of appeals stating that the attorney of record for the appeal was to be determined; • appellant and his appellate attorney’s motion to abate the appeal indicated that had appellate counsel been appointed within the 30-day critical stage for filing a motion for new trial, she would have filed a motion for new trial alleging ineffective assistance of trial counsel because trial counsel did not subpoena material witnesses; and • trial counsel did not file a motion for new trial, or move to withdraw from the case. Id. at 292. We stated in Jack I that, “The present record may be stronger in some respects for appellant than the record in Smith,” but we opted to abate the case rather than to “ ‘determine’ the facts based upon the present record, nor yet grant the motion for an out-of-time motion for new trial.” Id. at 293. Based on the record in the direct appeal of Jack I, the only difference between the Jack cases, Oldham, and Smith appears to be that in the Jack cases, the defendant did not file a pro se notice of appeal, as opposed to Oldham and Smith, who did file pro se notices of appeal. See id. at 292. If Jack I controls this case, therefore, we must abate the appeal for a factual determination to be conducted by the trial court on the issue of whether appellant was represented by counsel during the period for filing a motion for new trial, and we may not apply the presumption in Oldham and Smith until after such an abatement occurs. See id. at 293. Stated more plainly, Jack I requires that we defer the presumption — that the defendant was effectively represented by counsel during the period for filing a motion for new trial — until after the case is abated to the trial court where additional facts will be acquired, but the Court of Criminal Appeals in Old-ham and Smith requires that we immediately apply the presumption based on the evidence that is available in the direct appeal, without abating for additional facts. In short, in Jack I we added a step to the appellate process. 2. Jack II Requires a Second Abatement by Appellate Court After the abatement in Jack I, the trial court conducted the evidentiary hearing that we ordered, and it entered findings of fact and conclusions of law concerning trial counsel’s representation of Jack during the period for fifing a motion for new trial. Jack II, 64 S.W.3d at 695-96. We then lifted the order of abatement. It was not until after we lifted the order of abatement that we applied the Court of Criminal Appeals’ presumption that trial counsel continued to effectively represent Jack during the window for fifing a motion for new trial. See id. at 696. We determined that the evidence presented to the trial court during the first abatement was sufficient to rebut the presumption that trial counsel continued to represent Jack during the period for fifing a motion for new trial. Id. We held, “[t]he proper remedy is to abate the appeal and remand the cause to recommence the time period for fifing a new trial motion.” Id. at 697. In short, in Jack II, we restarted the appellate timetable and ordered that the case be abated to allow Jack the opportunity to file a motion for new trial and request a motion for new trial hearing. Jack II was a per curiam order. En banc review was requested and a majority of the court denied the request, with several justices dissenting. The State filed a petition for discretionary review of our Jack II decision, which the Court of Criminal Appeals addressed in Jack III. See Jack III, 149 S.W.3d at 123. 3. Jack III After initially granting the petition for discretionary review, the Court of Criminal Appeals dismissed the petition because it concluded that the order was interlocutory. Id. at 123-25. However, in discussing its procedural posture, the Court of Criminal Appeals criticized the abatement procedure employed by our court. Id. at 121-23. The court said, “The First Court of Appeals explicitly stated that it was not relying upon Tex.R.App. P. 2, but it did not state what rule that it was relying upon.” Id. at 121 (emphasis in original). The Court of Criminal Appeals referred to Justice Taft’s dissent in Jack II, as follows: Although agreeing that the “double abatement” procedure might be an admirable exercise in equity, Justice Taft dissented because the court had no “authority to create a new abatement mechanism, even to achieve a just result.” ... He stated that “The [original abatement] order set an ill-advised judicial precedent by adding a new, time-consuming step to the appellate process without citing any supporting authority on point,” and argued that “the double abatement procedure established in our order does not conserve judicial resources.” Id. at 122. After quoting Justice Taft’s dissent, the Court of Criminal Appeals observed that the abatement procedure in Jack did not conserve judicial resources, but rather “had the opposite effect” because “[b]y twice remanding the case, the beginning of the appellate timetable had already been delayed by more than eighteen months.” Id. The court held that it could not review the interlocutory decision, “[r]egardless of the validity of the procedure ordered by the court of appealsf.]” Id. at 125. But, citing its decisions in Ward, Oldham, and Smith, the Court of Criminal Appeals observed that “the State is correct” that it “has thrice reviewed this out-of time motion for new trial abatement procedure and has held, in those cases, that the Rules of Appellate Procedure did not permit this practice.” Id. at 123-24. Although the Court of Criminal Appeals held that its review of the abatement procedure in Jack II was interlocutory, it repeatedly criticized our decision by noting that the abatement was not authorized by the Rules of Appellate Procedure. See id. at 124. We thus conclude that the Court of Criminal Appeals has disapproved of the abatement procedure used in Jack I and Jack II and questioned our legal authority to abate the appeals in that case. Id. In view of its disapproval, and its observation that the Jack procedure does not comport with the Court of Criminal Appeals’ decisions in the area, we follow the pronouncements of our superior court as stated in Jack III, and hold that, in view of those pronouncements, the prec-edential value of Jack I and Jack II has been abrogated. We therefore abandon the abatement procedure used in Jack I. See Jack I, 42 S.W.3d at 294. D. The Relief Requested by Appellant The dissenting opinions contend that our decision to abandon the abatement procedure used in Jack I is advisory because appellant never sought a Jack I abatement, and instead requested only a Jack II abatement to reset the appellate timetables. See id.; Jack II, 64 S.W.3d at 696-97. This is incorrect for two reasons. First, appellant’s original appellate brief requests relief under Jack I and Jack II. Appellant states, “Appellant prays that this Honorable Court enter the following order of relief [citation to authority]: That this appeal be ABATED under the abatement procedures outlined in Jack v. State, 42 S.W.3d 291 (Tex.App.-Houston [1st Dist.] 2001) [Jack I ] and subsequent order 64 S.W.3d 694 (Tex.App.-Houston [1st Dist.] 2002), [Jack II] and the cause be REMANDED back to the trial court....” Appellant thus precisely cited to Jack I in his request for an abatement. Secondly, even if we assumed that appellant had not requested an abatement under Jack I by requesting only a Jack II abatement for the resetting of the appellate timetables, we are required to follow the applicable law that controls an issue. In Jack I, we stated, “Everything in the record indicates that appellant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial.” Jack I, 42 S.W.3d at 293 (emphasis added). But rather than conclude in Jack I that Jack had rebutted the presumption in his presentation of the case in the direct appeal, we abated the case for Jack to have an evidentiary hearing on the issue of whether trial counsel abandoned him. Id. at 293-94. We said in Jack I that we should abate when “it is appropriate” depending on “the facts of each case.” Id. at 294. Therefore, even if we assumed that appellant did not request an abatement under Jack I, we would still have to apply the precedent of this Court, which includes the requirement that we abate for an evi-dentiary hearing, even when “[everything in the record indicates that appellant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial.” See id. at 293. Our decision thus is not advisory, because unless we abandon the Jack I abatement procedure, our precedent would require that we abate under Jack I before we could abate under Jack II. Our decision today to abandon the Jack I abatement procedure requires that we now apply the presumptions set forth in Oldham and Smith to the facts that are currently available in the record before us. See Oldham, 977 S.W.2d at 362-63; Smith II, 17 S.W.3d at 662. E. Application to Appellant Under Oldham and Smith, we must determine whether the record evidence is sufficient to rebut the presumption that appellant was effectively represented by counsel during the post-trial period for filing a motion for new trial. Oldham, 977 S.W.2d at 362-63; Smith II, 17 S.W.3d at 662. With one exception, the facts here are identical to those in Oldham and Smith. Oldham, 977 S.W.2d at 362-63; Smith II, 17 S.W.3d at 662. Like Oldham and Smith, appellant filed a pro se notice of appeal and indigency, and the trial court appointed appellate counsel after the expiration of the window for filing a motion for new trial. See Oldham, 977 S.W.2d at 355; Smith II, 17 S.W.3d at 661. Also as in Oldham, trial counsel did not withdraw from the case or conduct any activity after the trial court sentenced appellant. See Oldham, 977 S.W.2d at 362-63. Further, no appellate attorney was appointed by the trial court when either Oldham or appellant was sentenced, with Oldham’s attorney “to be determined” and appellant’s attorney being appointed after an abatement to determine who his counsel was because no appellate attorney was appointed for the appeal. See id. at 355. Also, as in Smith, appellant contends on appeal that he would have developed his complaint of ineffective assistance of counsel at a motion for new trial hearing. See Smith II, 17 S.W.3d at 661. The only fact that is dissimilar to Old-ham and Smith is appellant’s statement in his pro se notice of appeal. Appellant’s pro se notice of appeal, filed nine days after he was sentenced, included the statement, “NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING [appellant] also prays for the APPOINTMENT OF APPELLATE COUNSEL.” Appellant presents this Court only with the eonclusory statement, made nine days after he was sentenced, that he had not been “represented since sentencing.” According to the dissenting opinions, when a defendant asserts that he has not been “represented since sentencing,” that statement is sufficient, in and of itself, to require that the appellate timetables be reset. We disagree. Appellant does not assert that trial counsel failed to consult with and fully advise appellant about the “meaning and effect of the judgment rendered by the court.” See Ex Parte Axel, 757 S.W.2d at 374. Appellant does not allege that trial counsel failed to consider or discuss the option of filing a motion for new trial, or that he refused to file one, or even that appellant made such a request. See generally Burnett v. State, 959 S.W.2d 652, 659 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Appellant further does not argue that trial counsel failed to express his professional judgment as to possible grounds for appeal and their merit, or failed to delineate advantages and disadvantages of appeal. See Ex Parte Axel, 757 S.W.2d at 374. In short, appellant did not represent to the trial court — nor does he or his counsel represent to this Court — that trial counsel failed to advise him of his right to file a motion for new trial, to appeal from the trial court’s judgment or the necessity of giving notice of appeal, or refused to take such actions after discussing them with appellant. As the Court of Criminal Appeals has noted, the filing of the notice of appeal is evidence that the appellant was informed of at least some of his appellate rights. See Oldham, 977 S.W.2d at 363. In Burnett, we considered appellant’s statement made in a notice of appeal that claimed that trial counsel told him that he needed to “write this letter to appeal the length of sentence” and concluded that the statement was insufficient to establish deprivation of counsel. Burnett, 959 S.W.2d at 659. We said in Burnett, “For all we know, trial counsel told appellant about a panoply of appellate rights, rules, odds of success, and left it up to appellant to contact counsel if appellant wanted to appeal.” Id. Like Burnett, the record here is insufficient to rebut the presumption that trial counsel advised appellant about his appellate rights, rules, and odds of success. It is further insufficient to rebut the presumption that trial counsel acted in accordance with his continuing duty to represent his client. Id. We cannot conclude that appellant’s con-clusory statement is sufficient to rebut the presumption that trial counsel continued to represent him effectively. See Oldham, 977 S.W.2d at 362-63; see also Buerger v. State, 60 S.W.3d 358, 362 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (disapproving of conclusory affidavits). We must presume that counsel who represented appellant at the motion to adjudicate hearing “adequately counseled” appellant and continued to represent him during the window for filing a motion for new trial See id. at 363. We must further presume that appointed trial counsel discussed with appellant the option of filing a motion for new trial and that appellant chose not to file one. See id. We hold that the record shows that appellant was officially represented by counsel at all times in the litigation, and appellant has failed to overcome the presumption that counsel was acting effectively at all times. See id.; see also Smith II, 17 S.W.3d at 662. We overrule appellant’s first issue. Waiver of Sentencing Complaints In his second issue, appellant contends that his 12-year sentence for the offense of aggravated assault with a deadly weapon constitutes a cruel and unusual punishment prohibited by the Eighth Amendment. See U.S. Const, amend. VIII. In his third issue, appellant contends that the 12-year sentence violated his due process rights under the Texas Constitution. See Tex. Const, art. I, § 19. An appellant must present to the trial court a timely, specific objection and obtain an adverse ruling to preserve for appeal his complaints concerning cruel and unusual punishment and violation of due process rights. See Tex.R.App. P. 33.1(a)(1)(A); Alexander v. State, 137 S.W.3d 127, 130-31 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (holding failure to object to trial court of violations of federal and state due process rights waives appellate review of those claims); Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (holding failure to object to trial court that sentence is grossly disproportionate to offense and violates federal and state constitutional guarantees against cruel and unusual punishment waives appellate review of those claims). The record contains no objections by appellant concerning his 12-year sentence. We conclude that appellant waived his challenge to his 12-year sentence by failing to assert objections on the grounds that the sentence constitutes cruel and unusual punishment and violates his due process rights. We overrule appellant’s second and third issues. Conclusion We affirm the judgment of the trial court. En banc consideration was requested. Tex.R.App. P. 41.2(c). A majority of the Court voted for en banc consideration. The en banc court consists of Chief Justice RADACK and Justices TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, HIGLEY, and BLAND. Justice ALCALA, writing for the majority of the en banc Court, joined by Chief Justice RADACK and Justices TAFT, NUCHIA, HANKS, HIGLEY, and BLAND. Justice KEYES, dissenting. Justice JENNINGS, dissenting. . Appellant has a right to appeal the sentencing phase of the motion to adjudicate hearing. See Kahookele v. State, 189 S.W.3d 303, 304 (Tex.Crim.App.2006) (en banc); Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App.2006); TexCode Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp.2006). . We note that the Court of Criminal Appeals has expressed its disapproval of our consideration of an affidavit attached to a motion filed with this court, which was not a part of our appellate record. See Jack v. State, 149 S.W.3d 119, 121 n. 1 (Tex.Crim.App.2004) (Jack III). .The trial court's findings of fact following the abatement hearing stated, FINDINGS OF FACT 2. Attorney Jeff Hale was appointed to represent the defendant. 3. Attorney Jeff Hale represented the defendant at his jury trial. 4. On July 6, 2000, the defendant was convicted.... 5. On July 6, 2000, a pro se Notice of Appeal was filed. The Notice of Appeal was completed by Mr. Hale and signed by the defendant at Mr. Hale’s instruction. 6. Mr. Hale did not discuss the merits and/or grounds for a Motion for New Trial with the defendant. 7. Mr. Hale told the defendant that he no longer represented the defendant and that appellate counsel would be appointed. 8. The court staff advised Mr. Hale that he no longer represented the defendant and that appellate counsel would be appointed. 9. Mr. Hale did not speak with or in any way counsel the defendant after July 6, 2000. 10. Mr. Hale believed his duties were completed with the end of the jury trial on July 6, 2000. 11. The defendant was not aware of the 30-day time limit for filing a motion for new trial. 12. The defendant relied on Mr. Hale's assurance that the court would appoint appellate counsel. 13. The defendant was not aware of his appellate rights and did not attempt to represent himself. 14. On September 13, 2000, appellate counsel, Mary Acosta, was appointed. Jack v. State, 64 S.W.3d 694, 695-96 (Tex. App.-Houston [1st Dist.] 2002, pet. dism'd) {Jack II). . Rule 2 of the Rules of Appellate Procedure reads: On a party’s motion or on its own initiative an appellate court may — to expedite a decision or for other good cause — suspend a rule’s operation in a particular case and order a different procedure; but a court must not construe this rule to suspend any provision in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case. Tex.R.App. P. 2. . Although we do not abate the appeal, we note that a defendant may develop a record of ineffective assistance of trial counsel or lack of counsel during the post-judgment phase through habeas corpus proceedings. As the Court of Criminal Appeals has previously stated, ”[W]hen direct appeal has not provided an adequate record to evaluate a claim which might be substantiated through additional evidence gathered in a habeas corpus proceeding, we will not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal.” Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.1998); Ex Parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997) (en banc). Therefore, although Justice Cohen noted in his dissenting opinion that, "In every Jack hearing so far, the evidence has shown that the defendant was denied his constitutional right to counsel during that critical stage of proceedings,” see Jack II, 64 S.W.3d at 698 at 698, we note that this evidence could alternatively have been gathered in a habeas corpus proceeding. . Intermediate Texas courts of appeals are split regarding this type of abatement procedure. Waco and Amarillo have abated cases. See, e.g., In re K.K., 180 S.W.3d 681, 681 (Tex.App.-Waco 2005, no pet.) (abating parental rights termination proceedings); Salazar v. State, No. 07-04-0090-CR, 2004 WL 2608303 *T (Tex.App.-Amarillo 2004) (not designated for publication). But other courts have not. See Hardge v. State, No. 14-00-01095-CR, 2001 WL 1340546 *1 n. 1 (Tex.App.-Houston [14th Dist.] 2001, pet. ref’d); Yarbrough v. State, 57 S.W.3d 611, 616 (Tex.App.-Texarkana 2001, no pet.).
EVELYN V. KEYES, Justice, dissenting on en banc. I respectfully dissent. This is appellant’s second request for abatement. We previously abated the appeal, in February 2005, and ordered the trial court to conduct a hearing to determine whether appellant, a pro se litigant, was indigent and wished to appeal and, if so, to appoint appellate counsel. The trial court held the hearing and appointed counsel for appellant on April 15, 2005. In his second request for abatement, appellant contends the record demonstrates that he was without counsel from the date of sentencing, July 20, 2004, until April 15, 2005, when the trial court appointed appellate counsel, and, therefore, he was deprived of his constitutional right to counsel during a critical phase of these criminal proceedings. He asks that we abate the appeal and remand the cause to the trial court to start the appellate timetable running again so that he may file a motion for new trial. When appellant first made his request for a second abatement, we mistakenly understood him to be requesting, first, abatement for a Jack I hearing to permit him to overcome the presumption that he was represented by counsel during the running of the appellate timetable and, second, abatement to start the appellate timetable running again so that he could file an out-of-time motion for new trial. See 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. dism’d, 149 S.W.3d 119 (Tex.Crim.App.2004) (Jack III); Smith v. State, 17 S.W.3d 660, 662 (Tex.Crim.App.2000) (“[w]hen a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected”); Oldham v. State, 977 S.W.2d 354, 368 (Tex.Crim.App.1998) (motions for new trial are helpful for developing evidence of trial attorney’s ineffective assistance of counsel, particularly when issues concern claim premised on trial attorney’s failure to act). On July 19, 2006, the panel issued an order in response to appellant’s request that abated this cause for a second time. We stated, ‘We abate the appeal and remand the cause for a hearing to determine whether appellant had counsel, and whether he received ineffective assistance of counsel, during the 30-day period for filing a motion for new trial.” We also stated, “Once the appeal is reinstated, we will rule on appellant’s request to file an out-of-time motion for new trial.” We did not rule on the merits of whether we would allow appellant to file an out-of-time motion for new trial, which was the remedy appellant sought. Instead, we opted to wait to decide that issue until after the trial court conducted an evidentiary hearing on whether appellant was represented by trial counsel during the 30-day window for filing a motion for new trial. This put us in the position of ordering abatement for a purpose for which it was not sought and creating and implementing a duplicative process of our own that would require yet another abatement should we ultimately grant appellant’s request to restart the appellate timetable to permit an out-of-time motion for new trial. The State filed a motion to reconsider the order that abated the case for a second time. Upon the State’s motion requesting rehearing, and after requesting a response from appellant, we withdrew our July 19, 2006 order abating this case and reinstated the appeal on September 6, 2006. The trial court, therefore, never conducted the evidentiary hearing that had been ordered in the second abatement. The majority of the full court now compounds the panel’s error by denying appellant the right to the hearing he did not seek (to determine whether he had post-trial counsel) but which the panel inappropriately granted, holding (in my view, erroneously) on the basis of the record already before the Court that appellant did not overcome the presumption that he was represented by counsel in the critical post-trial period; the majority then erroneously denies appellant the remedy he did seek in the belief that he had overcome the presumption that he had had representation in the post-trial period, namely abatement to file his out-of-time motion for new trial. In the process, we overrule Jack I, which is before the Court only because we misconstrued appellant’s request for the second abatement, and not otherwise. The Court, like the panel, mistakenly characterizes appellant’s request as a request that we abate the proceedings to allow him the opportunity to overcome the presumption that he was represented by counsel during the critical period between sentencing and the running of appellate deadlines. Such a hearing is called a Jack I hearing. Because I do not think the issue of overruling Jack I is properly presented by this case, I think it is a mistake to address it and that our en banc opinion overruling Jack I is advisory. Not only is a Jack I situation not before us, so that our overruling Jack I is advisory, but also by overruling Jack I in an improper case we make it unavailable to us in a proper case. Nothing in Jack I itself requires this court to hold a Jack I hearing when we have a record sufficient to determine whether an appellant was or was not represented by counsel in the immediate post-sentencing hearing. The majority nevertheless now posits such a requirement and overrules the requirement it posits. As Justice Jennings’ dissent likewise points out, appellant did not ask for abatement to allow him to make a record to overcome the presumption that he was represented between the time of sentencing and the time the timetable for filing a motion for new trial ran. Appellant actually argues that he has overcome the presumption, and he asks for abatement to start the appellate timetable running again. This is the appropriate remedy once it is established that an appellant was without counsel during the critical post-sentencing period. See Ward v. State, 740 S.W.2d 794, 800 (Tex.Crim.App.1987) (when defendant is deprived of effective counsel during period for filing motion for new trial, remedy is to reset appellate time limits); see also Ex parte Axel, 757 S.W.2d 369, 374-75 (Tex.Crim.App.1988) (when defendant is denied constitutional right to effective assistance of counsel in protecting and preserving his appellate rights, appellant is entitled to out-of-time appeal); Jack II, 64 S.W.3d at 697. I agree with appellant that the record before this Court amply supports the conclusion that appellant was not represented by counsel between the time of sentencing, July 20, 2004, and the appointment of appellate counsel on April 15, 2005. As the majority acknowledges, after appellant was sentenced, his counsel neither objected to the sentence, nor filed a motion to withdraw from the case, nor filed anything else with the trial court. Appellant filed a pro se notice of appeal nine days after sentencing that clearly stated, “Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL.” On January 14, 2005, almost five months after appellant filed the notice of appeal, the trial court certified appellant’s right of appeal. On February 18, 2005, appellant filed a pro se motion in this Court requesting an extension of time to file a pro se brief. On March 7, 2005, we abated the appeal, stating, “The problem is that appellant is not represented by counsel on appeal.” We ordered the trial court to appoint appellate counsel for appellant if appellant desired to pursue the appeal and was found to be indigent. On April 15, 2005, the trial court conducted the hearing, found that appellant was indigent and wished to be represented, appointed appellate counsel, and stated, “Well, I don’t know why you weren’t appointed a lawyer on appeal ... because you should have been appointed a lawyer....” There is less than a scintilla of evidence in the record that appellant had counsel at any time between July 20, 2004 and April 15, 2005. Therefore, there is nothing in the record to overcome appellant’s evidence rebutting the presumption of counsel during the critical post-trial period and nothing to be gained by creating — and then denying — a requirement that we abate so that appellant can make such a record. Nevertheless, the Court, after overruling Jack I, determines, solely on the basis of a string of presumptions of its own, that appellant has not overcome the presumption that he was represented by counsel during the time for filing a motion for new trial. I cannot imagine what more the Court would require to determine that appellant was not represented by counsel between the date of his sentencing on July 20, 2004 and April 15, 2005. Nor can I imagine on what evidentiary basis it can conclude that he has not overcome the presumption that he was represented by counsel during the running of deadlines in the trial court. Nor can I imagine what purpose would be served by holding a hearing to make such a determination. Nor, finally, can I interpret appellant’s request that we abate this appeal so that he can file a motion for new trial to build a record on ineffective assistance of counsel during the post-trial period as a request that the trial court hold a hearing to determine whether he had counsel during the period for filing a motion for new trial. Appellant requests a Ward and Jack II abatement, not a Jack I abatement. I would hold, on the basis of Smith and Oldham, that appellant has overcome the presumption that he was represented by counsel during the running of appellate timetables and that his appellate counsel is now seeking the appropriate remedy under Ward, namely, remand to start the appellate timetable running again so that he can file a motion for new trial to build a record to substantiate appellant’s claims of ineffective assistance of counsel. See Smith, 17 S.W.3d at 662; Oldham, 977 S.W.2d at 368; Ward, 740 S.W.2d at 800. I would abate the appeal and remand the cause to the trial court with instructions that the court reset the appellate timetables. I would not use this occasion to revisit our holding in Jack I because I do not believe that issue is properly before us, and, therefore, the majority opinion is advisory.
TERRY JENNINGS, Justice, dissenting. The majority misstates the relief actually requested by appellant, James Hail Benson, misconstrues the statement that he made in his pro se notice of appeal, and then, in violation of the doctrine of stare decisis, proceeds to use this case to overrule and “abandon” the well-reasoned and six-year-old precedent of Jack v. State, 42 S.W.3d 291 (Tex.App.-Houston [1st Dist.] 2001, order) (Jack I). In so doing, the majority establishes in Texas jurisprudence a classic “catch-22,” which violates the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. Const, amend. XIV; Tex. Const. art. I, § 19. Accordingly, I respectfully dissent. The Problem: A Legal Catch-22 Texas Courts have long noted that, in reviewing a criminal defendant’s contention that he received ineffective assistance of counsel at trial, we look to the totality of the trial representation to determine the effectiveness of counsel, indulging a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). A claim of ineffective assistance must be firmly supported in the record, see id., and it can be extremely difficult to show that trial counsel’s performance was deficient when there is no proper evidentiary record developed at a hearing on a motion for new trial. See Johnson v. State, 176 S.W.3d 74, 79 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd); Sudds v. State, 140 S.W.3d 813, 819 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002)). This aptly demonstrates what the Texas Court of Criminal Appeals has long recognized, i.e., “[w]ithout doubt the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review.” Trevino v. State, 565 S.W.2d 938, 940 (Tex.Crim.App.1978) (quoted in Jack I, 42 S.W.3d at 292) (emphasis added). Texas courts have consistently held that “the time period for filing a motion for new trial is a critical stage of a criminal proceeding in which defendants are entitled to assistance of counsel.” Jack I, 42 S.W.3d at 292 (citations omitted). Moreover, as acknowledged by the majority, “[w]hen a defendant is deprived of effective assistance of counsel during the period for fifing a motion for new trial, the remedy is to reset the appellate time limits.” See Ward v. State, 740 S.W.2d 794, 800 (Tex.Crim.App.1987); see also Jack v. State, 64 S.W.3d 694, 697 (Tex.App.-Houston [1st Dist.] 2002, order) (Jack II). Accordingly, the Texas Court of Criminal Appeals has indicated that trial courts should appoint appellate counsel “at the same time that a defendant gives notice of appeal to ensure that a defendant’s post trial rights and options are fully protected.” Jack v. State, 149 S.W.3d 119, 122 n. 4 (Tex.Crim.App.2004) (Jack III). Under Texas Rule of Appellate Procedure 25.2(a)(2), a trial court should “enter the certification of appeal at the time of sentencing, and it is at that time, if an indigent defendant has the right to appeal and wishes to do so, the trial court will appoint counsel.” Id. (citing Tex.R.App. P. 25.2(a)(2)). However, a serious problem arises when, as here, a case “sometimes sfip[s] through the crack and, although notice of appeal was timely filed, appointment of appellate counsel was not made until long after” the date that the notice of appeal was filed. Jack III, 149 S.W.3d at 122 n. 4. In such cases, if the defendant wants to appeal his conviction on the ground that his trial counsel was ineffective, but the trial court does not appoint appellant counsel until after the deadline has past for filing a motion for new trial, the defendant will be precluded from presenting a meaningful appeal. He will not be able to present a proper evidentiary record developed at a hearing on a motion for new trial — all because of an administrative error made by the trial court. He will be caught up in a legal catch-22. It is this problem that we effectively addressed in Jack I and Jack II. Jack I & Jack II In Jack I, the defendant’s court-appointed appellate counsel filed a motion to abate the appeal and for leave to file an out-of-time motion for new trial. 42 S.W.3d at 292. She asserted that because the trial court appointed appellate counsel more than 30 days after the defendant was sentenced, the defendant was unrepresented by counsel during the 30-day period for filing a motion for new trial. Id. She also asserted that had she been timely appointed, she would have filed a motion for new trial, alleging ineffective assistance of trial counsel because trial counsel did not subpoena material witnesses. Id. Although we noted that everything in the record indicated that the defendant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial, we recognized that the Texas Court of Criminal Appeals has previously held that “[w]hen a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected.” Id. at 293 (quoting Smith v. State, 17 S.W.3d 660, 662 (Tex.Crim.App.2000)); Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App.1998) (en banc) (emphasis added). Obviously, a presumption is not truly rebuttable if one is not allowed an opportunity to rebut it. Accordingly, we held that an abatement was proper to “allow appellant the opportunity to rebut the rebutta-ble presumption” that he was effectively represented by counsel during the critical 30-day period for filing a motion for new trial. Jack I, 42 S.W.3d at 293 (citing Tex.R.App. P. 44.4, 43.6). In doing so, we expressly followed Texas Rule of Appellate Procedure 44.4, which provides: A court of appeals must not affirm or reverse a judgment or dismiss an appeal if: (1) the trial court’s erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and (2) the trial court can correct its action or failure to act. Tex.R.App. P. 44.4(a) (emphasis added). In such circumstances, we “must direct the trial court to correct the error” and “then proceed as if the erroneous action or failure to act had not occurred.” Tex.R.App. P. 44.4(b). Moreover, Texas Rule of Appellate Procedure 43.6 provides that we “may make any other appropriate order that the law and nature of the case require.” Tex.R.App. P. 43.6. We also relied on McIntire v. State, 698 S.W.2d 652, 662 (Tex.Crim.App.1985) (op. on reh’g) (abating to determine feasibility of hearing on three-year-old motion for new trial) and Crosson v. State, 36 S.W.3d 642, 294 (Tex.App.-Houston [1st Dist.] 2000, order) (abating for suppression hearing, listing many similar situations for which abatement has been ordered). Accordingly, we then abated the appeal and remanded the cause to the trial court for a hearing to determine whether appellant had counsel and whether he received effective assistance of counsel during the 30-day period for filing a motion for new trial. Jack I, 42 S.W.3d at 294. Subsequently, in Jack II, we noted that the trial court’s findings upon the abatement and remand defeated the presumption that the defendant had considered and rejected filing a motion for new trial during the critical 30-day period. 64 S.W.3d at 696. We also noted that the proper remedy was to abate the appeal and remand the cause to recommence the time period for filing a new trial motion. Id. at 697. We did so, without disturbing the trial court’s judgment, and ordered that upon remand, the appellate timetables were to begin anew, starting from the date of our order. Id. We explained that if the trial court granted the new trial motion, the appellate record was to be supplemented with that order, and the defendant’s appeal would be dismissed. Id. We also explained that if the trial court overruled the new trial motion, the record would be supplemented with that order and the record of any hearing held on the motion, and the parties would be permitted to brief any issues related to the overruled motion. Id. In regard to the remand after Jack I, as noted by Justice Cohen in his concurring opinion: No judicial resources were wasted in this case. The trial judge signed his findings 38 days after our abatement order issued. The record got here three weeks later. The abatement hearing covers only six pages of testimony and lasted only minutes. The defendant answered seven questions; trial counsel answered five. The trial judge commented that this was a “simple record” to make. Id. at 698 (Cohen, J., concurring) (emphasis added). More importantly, this Court recognized and effectively and efficiently followed Rules 44.4 and 43.6 and case law to abate the case, ensuring that the defendant was able to timely and properly present his appeal to this Court. The Issue Presented In overruling Jack I, the majority asserts that appellant “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.” See Jack I, 42 S.W.3d at 294. However, appellant seeks no such relief at all. Unlike the defendant in Jack I, here, appellant did not file a motion to abate his appeal for the opportunity to rebut the “rebuttable presumption” that he had considered and rejected filing a new trial motion. Rather, appellant, in his August 25, 2005 brief, articulates his point of error as follows: A new trial should be granted because of the violation of Appellant’s right to effective assistance of counsel, when the trial court neglected to give appellant appointed counsel in order to assist the Appellant for timely filing of a motion for new trial and evidentiary hearing thereon. Although appellant cites both Jack I and Jack II under this point, the only request made by appellant of this Court is that the cause be REMANDED back to the trial court, with instructions for the trial court to allow Appellant 30 days to file a Motion for New Trial to more fully develop his claim of grounds of ineffective assistance of counsel, and to actually conduct an evidentiary hearing 75 days from the date of the filing of any motion .... See Jack II, 64 S.W.3d at 697 (emphasis added). Appellant in no way argues for an abatement under Jack I “to determine whether he received effective assistance of counsel during the period for filing a motion for new trial” as represented by the majority. In fact, appellant expressly argues that he is entitled to a remand to present his new trial motion, see Jack II, because “the instant records supply more than sufficient evidence to rebut any presumption of counsel” after sentencing. In its September 26, 2005 brief, the State argues that appellant “presents nothing for review” and, alternatively, that appellant has simply failed to rebut the rebuttable presumption. Thus, the issue of whether or not to overrule and abandon Jack I is not properly before this Court. In support of his argument that the record, as it now stands, provides enough information to rebut the rebuttable presumption that he considered a new trial motion and rejected it, appellant refers to his pro se notice of appeal, dated July 29, 2004, upon which he wrote: Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL. RESPECTFULLY SUBMITTED, JAMES BENSON, DEFENDANT, PRO SE. Rather than reading appellant’s pro se notice of appeal literally as a simple statement of fact, i.e., that he in fact did not have legal representation “SINCE SENTENCING,” the majority misconstrues the statement as “conclusory.” However, “conclusory” is defined as “[e]xpressing a factual inference without stating the underlying facts on whic