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Rogers v. State

Appellant has not sufficiently rebutted the presumption that trial counsel continued to represent him effectively. The record shows appellant was represented by counsel at all times in the litigation, and the record supports the presumption that counsel was acting effectively at all times. Houston Court of Appeals, Nos. 01-04-01252-CR & 01-04-01253-CR, 10-15-2009

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OPINION

Appellant, Ronald David Rogers, appeals a judgment that convicts him for the second-degree felony offense of aggravated assault with a deadly weapon of Tammy Goldsmith in appellate cause number 01-04-01252-CR, which is trial court cause number 39154A; and a judgment that convicts him for the second-degree felony offense of attempted aggravated sexual assault of Goldsmith in appellate cause number 01-04-01253-CR, which is trial court cause number 39155. See Tex. Penal Code Ann. § 15.01 (Vernon 2003), §§ 22.02, 22.021 (Vernon Supp. 2008). Appellant pleaded guilty to both offenses before a single jury. The jury found true a punishment enhancement paragraph and determined appellant’s punishment for aggravated assault at 60 years in prison and a $5,000 fine. The jury determined appellant’s punishment for attempted aggravated sexual assault at 15 years in prison and a $5,000 fine.

In three issues pertaining to each of the two appeals, appellant contends (1) the attempted aggravated sexual assault is barred by double jeopardy because aggravated assault with a deadly weapon is a lesser-included offense of attempted aggravated sexual assault, (2) the aggravated assault with a deadly weapon is barred by double jeopardy because it is a lesser-included offense of attempted aggravated sexual assault, and (3) appellant was deprived of counsel at a critical stage of proceedings, the 30-day window for filing a motion for new trial. We conclude aggravated assault is not a lesser-included offense of attempted aggravated sexual assault as alleged in the indictment, and that appellant was not deprived of counsel during the 30-day window for filing a motion for new trial. We, therefore, affirm.

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