Ex Parte Axel

any did not introduce evidence applicant’s conviction. State will not set aside Williams, alleged reflecting “sequence” 680. of the 703 S.W.2d at however, cause, In prior convictions. this pen case, In the State introduced two this date evidence of the the State did introduce prior packets proof two as alleged second the commission pen packets contain the convictions. These prior conviction. prior sentences from the judgments and some evi- burglary offenses constitute no introduces evidence When the State support for enhancement alle- dentiary alleged second offense the date that gations. committed, trier of fact necessary it is punishment jury, then parte Klasing, Ex To the extent jury for the trial instruct such (Tex.Cr.App.1987), S.W.2d 648 allows Stokes, supra. of limitations. statute proceed- claims to be habeas advanced evi- when the State introduces ings, it is overruled. the commission of dence of the date of for is prayed The relief denied. conviction, no alleged there is prior second jury need on the statute to instruct CLINTON, J., dissents. limitations. TEAGUE, Judge, concurring. any re- The defendant is not entitled to absolutely no need overrule There lief. (Tex.Cr. parte Klasing, Ex 738 S.W.2d 648 Therefore, I concur. does, App.1987), although perhaps a need to distin there J., CAMPBELL, joins. guish it from the facts of cause. clearly

The record of this cause reflects prior proving up felony the two alleged in the indictment

convictions that appellant enhance punishment

judge to at life im- assess

prisonment, into evi- the State introduced applicant’s “pen packets”. Con-

dence “pen packet” tained within the that relates AXEL, parte Ex Jr. Clifton alleged prior conviction is the offense, No. 69808. recounts indictment clearly shows that offense oc- Texas, Appeals Court of Criminal subsequent to the date when the curred En Banc. occurred, alleged prior first conviction Thus, namely, June under Sept. decisions, many

Court’s the evidence is

clearly to sustain the enhance- sufficient allegations.

ment Procunier,

Stokes v. 744 F.2d parte Klasing,

(5th Cir.1984), on which Ex because, relied, as the is not on opin- clearly pointed out in its

Fifth Circuit failed to introduce

ion: State “[T]he date Stokes committed the

evidence felony. produced no the State

second Since element, it this essential

evidence

impossible trier of say that a ‘rational beyond a could reasonable

fact’ have necessary

doubt facts Stokes, (484).

life sentence.” Axel, Jr., pro

Clifton se. Holmes, Jr., Atty., John B. Dist. Calvin Williams, A. Hartmann and Deborah S. Houston, Attys., Asst. Dist. Robert Hut- tash, Austin, Atty., State’s the State. telling have been tantamount the Court OPINION asking appeal;” we were ... CLINTON, Judge. having explained corpus post This a conviction habeas costly so of an and that was 11.07, ceeding pursuant Article Y.A.C. sup- financially able to “was not C.P., seeking relief in cause number port appeal,” he did not of Har- the 174th District Court Judicial 1 since “I May on appeal after County. ris appeal;” was “no intended to there never Essentially applicant that he contends to file motion to because need a withdraw case;” right appeal applicant, from a in deprived of his still had concluded confinement, attempts con- says of conviction in that his retained he made appeal appeal his but “received failed to tact counsel about reply.”1 present file and to the trial court a no represen- from further motion to withdraw convicting court found judge The the cause applicant. tation of We ordered deprived right his applicant was not of in order to determine where filed and set tell him appeal in “counsel did not he counseling a defendant lies the burden negative his But that appeal would case.” Rejecting appellate rights. the no- on finding does not serve “to correct the ambi- judge tion it is on the of a trial representation often guity of which all too concluding responsibilities that such State, conviction,” Ward v. 740 follows a he is unless and until upon rest counsel 794, (Tex.Cr.App.1987). 797 S.W.2d at withdraw, grant will granted leave to we ambiguity representation While such relief. by may be created “the conscious indif lawyer’s “A time and advice are his stock ibid, particular party,” ap ference in trade.” That classic axiom attributed to pellate acquainted with the courts well guidance provides Lincoln in our Abraham very point in the resultant confusion at the recurring presented resolving problem certainty impera by applicant State, See, v. Shead e.g., 711 S.W.2d tive. 1986) 345, (Tex.App. no at 18, The facts are that on or about March - Dallas State, PDR, v. and Robinson S.W.2d 1980, ag- jury guilty after a found him 1983) 279, (Tex.App. Corpus at 283 Christi robbery judge - gravated and the trial as- right meaningful appeal PDR. The to a no punishment at sessed confinement to be lost inertia within is too valuable thirty-five years, applicant, by now term system. justice criminal alleges, made known to his retained counsel that he desired to problem proposed in to the A solution repre- requested counsel responsibili to continue to is “to quarters some him; applicant judge asserts that sent to advise the defend ty on the trial he in- judge proper asked time of his at ant represented be re whether he rights, tended to take said would; however, Teag- appointed counsel. tained or court counsel testified that State, v. J., in Ward ue, did not the best of recollection” he “[t]o 803,2 Coun agreement in with Justice open in court would state v. tiss, Ward concurring in S.W. "that would applicant on 8, 1987, 3, 1986, previously ordered or reply the affidavit September with answer and to of 1. In its it; precept requested judge produce application why the State he did show directing order; convicting to order counsel "to file an court trial a sec- to serve that an officer responding allegations 20, January ... to the affidavit dated order ond show cause of counsel contained 23, ineffective assistance the Finally, January appear precept, to application." such an entered 28, open January court. counsel testified 22, 1986, September clerk imme- order diately followed mailed to counsel. Then throughout by supplied emphasis is All by applicant an October 28 motion seriatim: otherwise indi- unless of this writer judgment" against "for default cated. 3; denied November a December the court appear January order show cause (Tex.App. 1986), 2d at 905 adopted As substantially rule - Amarillo who in turn drew on Robinson 37(a)(2), revised former rule con- which was viz: being ditioned on unrep- a defendant’s then According resented counsel. to Notes “... The trial explain should these of Advisory following Committee Rules [appellate] rights to the defendant removing the rationale for open court and the record should so re- considerations, condition includes certain flect. counsel does not If viz: open court the time of required “The court is to advise the de- sentencing, explain should fendant of be- ... situations arise which a defend- given must days within fifteen adequately ant ... advised such sentencing. The trial court should ad- counsel of Trial monish the of the importance regard may meeting the deadlines.” extending beyond as imposi- the time of Robinson, supra, at tion may of sentence. The defendant be addition, Justice Countiss would have the removed from courtroom immediate- judge right tell defendant of his to ly upon sentence and custody held in appointed counsel if and when ma- under circumstances which diffi- make it to terial be included in the record cult for to advise him.” Further, must designated. suggest- At the time of in the instant rule, ed this or by Legislature Court the by applicant had ten days after it statute, “require giving the of that infor- pronounced in which to or file notice that, concluded, mation.” With “Then appeal. 44.08(c).4 article Former From can, assurance, we tell a defendant appears the record before us it that after mistake, incomplete record is his applicant arrest was confined without Ward, from which there no relief.” is bail; but custody upon that he remained in S.W.2d, at 905.3 being guilty hamper did not in explaining to “the proposed derived, The solution is thus appeal,” during period 32(a)(2). trial coun- part, least from Fed.R.Cr.Pro. discussions, sel and had J., State, Teague, albeit in Ward v. briefly, taking appeal. about an Thus here, pertinent at 803. As first and third considerations for Federal vides: 32(a)(2) Rule are not relevant here. “(2) Right Appeal. Notification to imposing After attorney-client sentence a case which The relationship contin- gone plea Ward v. guilty, has to trial a of not ued. on at 796-797. the court having shall advise defendant of informed right costly defendant’s and the an is and he could not finan- right one, person cially of a is pay certainly regard- unable to apply rep- cost of an ed did leave to not extend to appeal in pauperis_ resenting applicant appellate purposes. forma If the de- requests, fendant so the clerk judge of the Yet he did not inform the trial or So, prepare court and file shall forthwith a seek leave to de- withdraw. some gree behalf of the defend- reason for second Federal 32(a)(2) may ant.” work be at here. acted; has, V.A.C.C.P., 26.04(a), Legislature by This Court has Article as amended Acts 979, 2, towit: Leg., 70th § Ch. Vernon’s Texas attorney appointed Session "An under this subsec- Law Service 6674. tion shall defendant until rules, 4. Under our new dismissed, thirty within charges acquit- are defendant is ted, may exhausted, days imposed appeals attorney after sentence or the are replaced trial or relieved file a motion for new must file a written his duties other counsel.” such advice but also Nevertheless, authori- the best source of that the Federal it, duty responsibili- opted transfer a as an ties it is to a trial his client over ty gains of an full that his client under- end Court sufficient reason for this standing considerations in de- of relevant requirement by rule of dictate the same pursue termining decision, Legislature especially giving no- procedural requisites for well as only recently provided otherwise. See like. tice of Ward impose than a state note ante. Rather supra, at 797. counterpart, be on our concentration should Representation trial counsel does restating role criminal defense of a terminate at end of trial—if that means lawyer kind in this of situation. final jury has returned its verdict when a obligations laid in ABA Precise out punishment. sentencing proceeding The Relating to the Administration Standards part requiring assist is a critical (“Standards”), Defense of Justice similarly there ance from Function, After Part VIII. Conviction. give notice of after the determination to sentencing, lawyer explains After appeal. Informing of his a defendant “meaning consequences” of part parcel of also further “his Standards, advising along lines of the expresses professional opinion as to He ante, in order make decision grounds for “meritorious Surely a take whether to appeal,” probable results of an as well as precluded giving kind ad is from “advantages disadvantages.” and “The its vice, attorney who better than an who and appeal must be the decision whether qualified assay and tried case is defendant’s_” the lawyer The “should take probabilities of error? advise his client of steps protect necessary whatever are Ward, supra, We the answer in indicated right the 8.2 defendant’s § question and answered that and the Court Standards, Appeal, at 135.5 State, Dyches more in v. 382 S.W.2d 928 Appeals, In Criminal Part II. Transition (Tex.Cr.App.1964),viz: Court, Appellate 2.1 Trial Court to are in accord with the view ... “We Appeal, Notice of written: counsel, having participated in that trial (b) impos- appropriate for courts It itself, qualified prose- is best trial ing sentence contested cases as- not, appeal cute an and should without advising sume burden of defend- cause, good permitted to withdraw review, ant he has ap- from the case before the record on specified it must be exercised within a peal perfected, if then.” has been time, promptly and should con- regard.” sult counsel in that Id., 929; State, 422 accord: Steward v. (Tex.Cr.App. S.W.2d Standards, at 435. 1968). Certainly, recognize, all for we performing duties in the Counsel unknowing to learn of his stage post at the trial trial court appellate rights someone must advise including a proceedings, motion conviction persuaded them. But we are have for to notice of We new any question about “in order to eliminate amiable fiction that found it is received such advice counsel volun- giving notice of trial equipped ... trial is best counsel, tarily emphasiz- J., becomes Teague, that advice[.]” ing “appointed trial remains State, Indeed, v. at 802-803. Ward pur- all defendant’s trial counsel we convinced that policy," agreement” provided: wisdom of this Formerly, Appeal, as to “the 8.3 § Counsel provision “con- in 5-5.2 that counsel favor of a "Trial counsel... should conduct the ... proceedings." throughout trial court defend- tinue unless new counsel is substituted Edition) (Second Supple- 1 1986 Vol. appropriate language or court." That Standards ant 4.108, ment 5.53. deleted because ‘considerable dis- later counsel, poses expressly permitted until he is and thus “volunteer” to be- withdraw, appointment even was for come of record on “Such State, Ward v. only.” supra, at notice shall be sufficient if it shows the 798. The Court said much the same for desire of the defendant to from the Steel v. retained counsel 453 S.W. ibid; judgment appealable order,” or other (Tex.Cr.App.1970): 2d 486 44.08(a). cf. former article A no- written private engaged, signed

“When counsel is no solely by tice of defendant is duty upon appoint devolves an indication that trial counsel “does not prosecutions. counsel in criminal How- pursue appeal;” wish to his client’s counsel, ever, retained even one complemented by contemporaneously past fully compensated not been ser- presented showing motion to withdraw service, compensated vices for future cause, good along the lines of DR without notice co the cannot out bow 2-110(A), Texas Code of Professional Re- court and the accused and for- ‘frustrate sponsibility, Tex.R.App.Pro. protect ever accused’s his vital immediately placed “the trial court is interests.’ Atilus v. United States (5 notice that counsel must be Cir.) 694).”6 406 F.2d pointed,” Ward at 797-798 —unless, course, defendant has retained Accordingly, we hold that at sen attorney.7 another tencing of trial court has discre tion, responsibility, but not cause, In the instant that retained inform a defendant of his to handle result counsel did intend and of other matters to the ex failing justify ant does not appropriate premises. tent deemed giving allegedly assist his client We also hold that trial re appeal. Contrary to his assertion or appointed, duty, tained has the obli evidentiary hearing, at the “that ended gation to consult with him,” counsel did need period of time with fully concerning advise client because, motion to withdraw know to file a meaning and effect of the ren ap ing applicant did indeed desire to by court, appeal dered peal, in truth he had “concluded judgment, necessity giving that of no Ward, supra, at 799: As we said in case.” appeal taking steps tice of and other case, arguable limi- present “In pursue appeal, expressing an as as well pur- for trial representation of tation professional judgment possible dispositive. Since poses is not grounds merit, and their and affirmative- pellant’s trial counsel did not delineating advantages disadvantages and withdraw, appellant’s ly he remained of appeal belongs The decision to counsel on to the client. presumptively reality in We find that practice While the former was any prac- did not receive applicant orally to give in open protecting in and of counsel tical assistance permissible was then —and now is he rights. Thus preserving mandatory Tex.R.App.Pro. under of 40(b)(1) effective assistance been denied given writing notice in be —that in of his due filed violation with the clerk of counsel on the trial court. But then, now, the Fourteenth it was not under required and is not rights un- that written of and his due course notice be made Amendment indigency, the 6. The Court issue as to further noted that in Atilus the there an Fifth 7. Should withdrawing Circuit held that require failure of retained trial counsel judge may counsel in a perfect appeal, criminal case indigency through re- "violated the re- such to serve continue quested accused, to do so granting signing ceeding, an order and withhold quirement that the accused be afforded 'effec- of business is until that bit withdraw leave to stage tive aid’ at such vital or critical done. proceedings, in of violation the accused’s consti- Steel, rights.” tutional at 487. nothing I, 10, in oped along our Bill of these lines. There is of own der Article § Rights. Douglas California, 372 U.S. v. that or the this record to show Ex (1963); L.Ed.2d 811 S.Ct. in inform the of court did not fact Coleman, (Tex.Cr. parte 455 S.W.2d appellate rights. applicant is The enti- Webb App.1970); see 533 S.W.2d raised, not tled relief the issue (Tex.Cr.App.1976), at 783 and cases created or issues the basis of court issue therein; Polk v. generally, see also cited opinion. advisory found in an unauthorized (Tex.Cr.App.1984) S.W.2d 408 Applicant aggravated was convicted of 413-414). (Concurring opinion, at 309,325-A in in cause robbery no. Therefore, appellant is entitled to an out County in of Harris 174th District Court granted. appeal, time that relief is verdict, March, jury 1980. After The 309325 in cause number years punishment at 35 im- court assessed of Harris the 174th Judicial District Court given prisonment. No notice County is remand- is vacated and final. and the conviction became court with instructions to assure ed Applicant, Texas De- now confined represented by Corrections, partment of filed the instant permit applicant give file convicting application habeas written notice after all 11.07, required by supra. Article inconsistent proceedings further will be not opinion, applicable time limits with this pro se handwritten habeas the sworn prescribed by Appellant Rules Texas application and typed “memorandum day Procedure shall be calculated from corpus”, applicant support of habeas con- is filed. alia, tends, ineffec- inter received It is ordered. so tive counsel from his assistance main thrust of this con- trial counsel. The ONION, concurring Judge, Presiding he requested tention is that part part. appeal; that his notice majority opinion by Judge Clinton notice; promised such (concur- Judge Teague 1980) (March 31, sentencing, time of ring dissenting) deal with a non-issue judge’s inquiry as answer to the trial in this cause. he would appeal, counsel told proceeding post-convic- This involves a “papers”; never prepare the corpus brought un- application tion habeas requested gave never 11.07, provisions der the Article V.A.C.C. from the case and abandoned the withdraw P. notice to the case without alia, Applicant, inter contends court; attempts to contact several of coun- was denied ineffective assistance reply “no from him.” counsel resulted in sel violation his under Sixth of his Applicant urges deprived he was and Fourteenth Amendments in that his Appli- his appeal by counsel. the actions ap- counsel did not time. he is at this cant asserts requested, peal perfect or applica- habeas response applicant’s In from the case without notice withdrew convicting filed the State tion argues him that or to the trial court. He “controverted, response that there were deprived He appeal. such him of his action ap- facts material previously unresolved allege he had no not does or claim that require further plicant’s confinement knowledge rights, his and that court.” The State investigation duly responsibility of either it was the or applicant’s court order asked that the trial both his or the trial court or responding an affidavit trial counsel file so, thereof, did that neither inform him ineffective allegations of result, ap- he, his as a forfeited and that entered The court of counsel. assistance case. is a in this peal. non-issue Such such order. devel- Further, meager not record was difficulty obtaining

Great ensued in I “A. don’t see where any there was failure because I never told him that 1 requested Finally, ap- affidavit. going represent was appeal. peared open him on court and the assistant dis- attorney requested trict that sworn testi- “Q. you Do know whether or not he mony be taken from lieu of the understood that? sought.

affidavit earlier Applicant was not I “A. feel reasonably certain that he present, nor represented by was he coun- understood it.

sel. ^[******] rep-

Counsel testified that he had indeed “Q. Mr. Axel also you states that aggrava- resented the filed type never of a motion with the robbery you court. Would say ted case. The record also reflects: the court that you essentially case, leaving were “Q. you Would tell the Court what you going appeal? were to handle his you did after Mr. Axel was convicted of At the “A. in time that Mr. Axel aggravated robbery relation to guilty my period was found that ended appealing his case? time him. I had no need to file a “A. I did not motion to withdraw because I had con- I never intended the case. cluded explained I what the case. Clifton “Q. And Mr. Axel understood appeal was, it was a you going represent were him on costly situation and that I was not finan- appeal? cially able to I told him that. “A. “Q. Did specifically you Mr. Axel ask “Q. you Were appointed, retained or represent appeal? him on Mr. Jackson? “A. If I correctly, remember that’s (Emphasis supplied.) “A. Retained.” way about the that it went. Before the district of the convict- “Q. you And do remember whether ing court was the sworn application habeas you specifically you or him told testimony of trial counsel. represent appeal? would not him on findings, judge, was the Oh, yes, I explain did to him “A. appli- counsel did not tell would, I represent him on represent cant that would peal “applicant and that not de- was “Q. you Did ever state to court in prived It to an represent open you court that Mr. would to this relief be recommended Court that appeal? Axel on The record denied.1 was forwarded “A. To the I best of recollection Court. had, did not because feel if I that would again It is observed that at no time telling been

have tantamount alleged he was claimed that court that would the court to address deprived of his lacked because he asking the fact that we were for an appel- knowledge procedures late and that no one informed “Q. testimony your you rights. So it is He does not of his assert constitutional, you never told Mr. Axel statu- would had a him on around inform tory but then turned or other to admonish and right appeal anything procedural and failed to do for him? him of his of and fied, Washington, another was a Mrs. 1. The court further found "did con- that that counsel day attempt to court bring promised and the on the of trial to come tact to court various show, applicant complains and the other was a "Clifton witnesses the of." In the but didn't look-alike," alleged great applicant and that a of time second of two Axel deal contentions neighborhood young spent counsel failed to in the where the contact alibi witnesses whose was lived, supposed given names and to have a vehicle addresses were him. The wit- man was that located, person supposedly were was nesses not named. testified one his was but the Counsel of witnesses was sister who testi- never found. so, steps, ing taking not and that did do nor and other duty his attorney does he claim had such steps pursue as well as allege not do so.2 he but did What does expressing professional judgment his right and of claim is knew his of grounds possible and their appeal and his retained counsel to asked merit, advantages delineating and and conviction, give appeal his such and and disadvantages of The decision not, promised that counsel to do so but did appeal belongs to the client.” and that counsel without notice withdrew gratuitous “holdings.” These There him or the trial court. nothing in this record to show that presented the matter was to this When judge and did do not what April on Court an order was entered Applicant “recommended.” not claim does to file set submission “to agrees otherwise. Even one with such th< trial make determination whether “holdings” they were not called for in the of court must admonish the defendant his Appellate judges instant case. should right appeal.” The was misled for Court seizing upon just any avoid case a ve- presented by not such issue is this cause.3 subjects or hicle write favorite what- opinion majority In issue is altered fancy. may ever tickle their I dissent to again “to determine where lies the burden doing the action of the Court in so and his counseling a defendant on advisory rendering opinion. rights.” applicant agree that is enti- Since these issues were not raised relief he does tled on the issue raise. applicant no developed evidence was he Applicant claims that he told counsel The “file same. and submit” order was agrees wanted to Counsel improvidently entered and the dis- judicial plays discipline plicant Applicant alleges a lack of to write did.

and decide a non-issue from an promised undevel- but did oped regardless of record how dear to the not, in fact withdrew from the case may judges. heart the non-issue be to some permission without notice to Counsel, retained for the court. who was majority opinion states: applicant he he stated that told holdWe “... not him on would

Judge of the has trial court discretion understood; he did responsibility, to in- because he did not form a defendant of his intend to the case. Counsel did and of other matters case a motion to withdraw from the file appropriate premis- extent deemed he felt that he had concluded es. apparently case accordance counsel, “We also hold that trial re- contract, agreement or as retained appointed, duty, tained or obli- applicant. The trial court was with the gation responsibility to consult with of the situation. Whether made fully concerning aware to advise client indigent with- applicant was that time meaning and effect of the ren- by this clearly reflected appeal out funds dered necessity giv- record.4 judgment, from that indigent applicant,” whatever explained presumptively

2. Counsel testified "the mean, given appeal” applicant. supposed term Judge Teague opinion refers in his record. Teague’s Judge The State’s brief referred to in indigent “applicant, he was sen- who was was filed after the order was en- application Nowhere in habeas tenced. ..." changing the issue raised in this cause. tered allege time at the was does sen- time he was and at the conviction repre- undisputed It is "... his "memorandum" he states tenced. majori- sented at trial retained counsel. The pay the Hon. not afford the defendant could ty reciting at the time of the facts states that any longer was because he Thomas Jackson applicant “by the 1980 conviction was now an (sic) Dept. costody Sheriffs Harris alleges" indigent to “this now he and later refers 378 evidence, undisputed From indigent we know sel on amounts to applicant (Citations

that counsel here knew that ineffective assistance. omit- gave wanted to but he no notice of ted.) (My emphasis.) This is true applicant, for the nor indicated to re- whether the defendant’s the trial court of desires in this (Citations omitted.) appointed. tained or regard, request permission nor did he (462). the court to from the case. withdraw He Thus, given express wording of the simply applicant abandoned at a critical holding holding, appears me stage proceedings. This he cannot defendants, just indigent is limited appointed do he be retained as that the retained must have been counsel. See Steel v. 453 S.W.2d aware that the defendant was fact indi- (Tex.Cr.App.1970); 486 Atilus v. United gent required before he is to admonish the States, (5th Cir.1969); 406 F.2d 694 Ward appellate rights. defendant about his (Tex.Cr.App. 740 798 S.W.2d Martin, The facts that are set out in 1987). parte Raley, See also Ex 528 S.W. supra, reflect that retained trial counsel Hill, (Tex.Cr.App.1975); 2d parte Ex length discussed at with the defendant an (Tex.Cr.App.1975). S.W.2d appeal, strongly urged that no but Applicant is entitled to the relief he seeks he feared that if the take because —an out of time Thus concur appealed capi- for defendant his conviction reached, express my the result but alarm sentence, his life and this tal murder and manufacturing at the of issues and the lack granted him a new the State Court judicial discipline in this demonstrated might successfully thereafter able to cause. retry capital murder and the defendant might special issues jury answer TEAGUE, concurring Judge, affirmative, submitted to it in the thus dissenting. requiring judge to sentence the Texas, (5th In Martin v. 737 F.2d expressly told defendant to death. Counsel Texas, Cir.1984), also see Martin v. given these circum- the defendant (5th Cir.1982), the F.2d 423 Fifth Circuit going he stances was not Appeals, Court of in a case that involved a him on had been con- defendant from Texas who do either one. didn’t punish- capital murder whose victed of but Martin, supra, the Fifth Circuit found imprison- ment had assessed at life been to advise his that retained counsel failed death, jury ment instead because indigent he because he was then client that special one of the issues sub- answered only the services of was entitled not 37.071, pursuant Art. mitted to it V.A.C. free appointed counsel but to a C.P., following, negative, stated granted record as The Fifth Circuit well. notwithstanding that trial counsel had been relief, affirming the defendant Martin represent the defendant at grant district court’s decision the federal through apparently sentenc- his trial and him an out-of-time ing, beyond Martin, ceedings: supra, albeit The Fifth Circuit legal duty and implicitly, placed also It is now settled law [in circuit] on the trial where counsel to advise a the failure of [trial] appointed coun- was aware of his financially (sic) Jail, (attorney) able to was not County to confined that ”... and was sentenced appli- In his memorandum Department of Corrections —” in The Texas failing "to cant faults his counsel was in The docket sheet reflects that paid to handle the court he was not jail permitted. fact that to him and "no bond” was bail, (sic) going legally and was or il- his clint without a defendant held appeal.” Whether automatically it on legally, transform him handle does not actually indigent the time of conviction qualified claim of nor does a into an inability aban- counsel’s actions in custody. Applicant’s because of pay immaterial doning explained him. trial counsel testified merit, indigent, to or admonish the for and their and delineat- advise ap- his his disadvantages about ing advantages and of rights, regardless whether court pellate of appeal belongs to peal. decision to already admon- appointed trial counsel had 374.) (Page the client. appellate ished the defendant about his I con- part majority opinion To this of the rights. opin- majority because the cur. above, appears that the it Given the place duty like on ion fails and refuses to a Texas, in Martin v. holdings supra, above compelled I to am dissent.1 just indigents. are limited to us, is the record before it clear Given Judge majority opinion by This Court’s attorney, me that trial retained adopts principle in what the Fifth Clinton being by applicant sen after advised after Martin, already supra, held in Circuit has tencing although he was that able afford being requi.ed to as far as retained counsel for his he was unable to af but, goes, client admonish his now and, employ for ford the holding just expressly limiting not its implicitly, also unable to afford to albeit indigents, implicitly, expressly, not ex- for pay the record did advise pands the Fifth Circuit stated and what indigent applicant appellate the his Martin, include all de- in held rights Giv when was sentenced. fendants, regardless they facts, Fifth deci en our Circuit’s indigent. Texas, sion of Martin v. the and counsel, retained We ... hold that trial Martin, supra, applicant, in cases cited appointed, duty, obligation the and obviously indigent he was who was fully to to consult with and sentenced, because he was not admonished meaning concerning and advise his client his his trial about judgment effect of the rendered clearly rights, is to be appellate entitled judg- that his appeal by granted out-of-time this Court ment, necessity giving though pertinent took events expressing profes- even appeal, as well as his eight ago.2 possible grounds years sional as to over Onion, Judge Presiding "Opinion made to "file in his con- When the decision was curring part part," subject, and in laments cause to discuss the who and set" this Judge majority opinion by wails that the appel- about his should admonish the defendant case"; I, one, Clinton addresses "non-issues this that apparently rights, at least late Court, which, majority the years of this after almost 8 did, majority concluded that of this Court also do, Court, impossible on I find for this Court discuss the time had arrived "misled"; majority that has been this subject should admonish defend- discipline"; “displays judicial a lack of Court point rights. pause I ant about majority opinion “subject” writes on a out, is a democratic institu- this Court heart that “dear ... some tion, after this Court ordered that if at time or, way, judges", put it another subject, it set" that "filed and to discuss this case subjects or this Court writes on "favorite what- major- very simple for a been a task would have may fancy”; ever tickle their and that the ma- ity to "unfile and unset" of this Court vote opinion nothing advisory jority less than an effect, cause, order to the and enter another this I, one, opinion. Although that will confess day on the same set hand down "file and subject of who should admonish a per curiam unanimous form another does "tickle fan- about an out-of- granting defendant in nevertheless, importance cy", given the it chosen to appeal”, it didn’t and hasn't time sufficiently subject, fact record is that. vote to do subject, especially perfected to discuss the majority opinion disagreement My with given the fact of the number of out-of-time by Judge holds; what he states Clinton is not with granting appeals this Court has been go far simply times, does totally wholly disagree with recent particular, criticisms, enough opinion; he does Presiding Judge Onion’s not- all of puts trial put withstanding agree implicit the same I do that, a defend- September to admonish suggestion did as it between cases, 31, 1988, rights. August least ant about "whipped and "sent Court could have out” today procedure pause out our per curiam form down” another "unanimous opinion" de- place after a governs take what must granting out-of-time the defendant an can, Federal Rules appears Criminal Procedure. It to me that this Court Harris, Walters v. should Also opportunity, compare at the first enact and see and Appellate (4th Cir.1972), Rules 460 denied, Procedure F.2d 988 in the cert. 1129, 947, 409 U.S. 93 S.Ct. 35 L.Ed.2d 262 adopts today the rule that it applica- that is (1973). appointed ble either to court or retained trial counsel. A like rule can and should be My quarrel majority opinion with the in the Rules placed enacted and also holding with its that “at Appellate Procedure that would be discretion, appli- of trial court has but judge judges responsibility, jurisdiction not a cable to trial who have duty or to inform “jail over felonies and misdemeanor house” defendant of his and of compare 32(a)(2), offenses. See appellate other matters extent guilty punished, attorney, provided fendant is found iu order retained trial that the attor perfect an is far different from the ney engage deprive or deceit to did not fraud guilty, time when was found assessed defendant of his until went to punishment, eight years and sentenced over get ap federal court he did not an It ago. majority opinion, Under the when is trial pears that it was the Fifth Circuit’s decision of supposed to admonish the defendant States, (5th Atilus v. United 406 F.2d 694 Ci appellate rights? sentencing? about his Before 69) for the rule stat was the foundation r.19 sentencing? After If a motion or amended mo- Texas, supra, firmly ed above in Martin v. Hied, judge tion for new trial is overrules the motion for new trial? after the trial requirement retained trial laid down the must abmonish Notwithstanding majority the fact that Thus, rights. about his this Court’s opinion expressly require does not that the trial they believe that members deceive themselves judge implicated process, given in the today’s sort of land mark deci decision is some express holding just fact that its indigent is not limited Furthermore, sion in this area of the law. I defendants, I find that it does take one carefully believe that if one will take the time to giant step for all defendants. State, (Tex.Cr.App. read Ward 740 S.W.2d 794 v. major majority opin- One fault I find that the 1987), upon majority opinion so which the page appears ion that on 374 it relies, heavily as I have that Ward is he will find that, impression the counsel, when it comes to retained clearly factually point not on with the facts always this has been one of this Court’s However, this cause. Given what this Court stated and Supreme rules. until the Court held State, (Tex.Cr. Sullivan, 335, Cuyler held in Pannell v. S.W.2d v. 446 U.S. 100 S.Ct. 1708, (1980), App.1984), Disciplinary Rules of 64 L.Ed.2d 333 that this State’s that there was no appointed Responsibility distinction between court and re- the Code of Professional are not counsel, counsel, being State, tained as far as effective laws of this and thus unenforceable in long this Court had held that "In those cases Court, this I am unable to understand how the appoints where the court selects and ney the attor- rely heavily upon majority opinion can so some accused, represents who this Court re- thing recommended the American Bar Asso carefully competency attorney. views does, ciation, carefully if one reads the attorney, Where the accused selects his own V.A.C.C.P., 26.04(a), upon provision of Art. searching. Rodriguez such review is not so State, v. relies, majority opinion which the also believe Tex.Cr.App., 170 Tex.Cr.R. easily that he will see as have that that statute State, S.W.2d 61.” Cleaver 498 S.W.2d does not cover the factual situation at Bar. If (Tex.Cr.App.1973). And this rule was car- carefully read one will also take the time to appeals. ried over to this Court did State, (Tex.Cr.App. Dyches v. 382 S.W.2d 928 rule, apparently adopted have the from what the 1964), State, and Steward v. 422 S.W.2d 733 decisions, Fifth Circuit had stated and held in its majority (Tex.Cr.App.1968), upon which the indigent, that when the defendant was even relies, easily opinion as I did that he will see counsel, though represented at trial retained factually with the those cases are not judge if he made known or indicated to the trial fact, yet I have not facts of this cause. proper indigency, at the time of his cites, any authority majority opinion conviction, desire to the trial decision, that even outside of one Fifth Circuit required to inform the defendant of his being point factually with the comes close to to a "free” record and to be above, appar cause. Given the it is facts See, represented by appointed counsel. majority opinion terribly ent to me that the example, for Simmons v. 511 S.W.2d anything lacking in authoritative (Tex.Cr.App.1974). my 311 reflects, As far as research Thus, Notwithstanding what I that it states and holds. only exception. that was the stated, just I do find that the have previously the rule that existed was giant step for all defend constitutes one represented that a defendant who was at trial expressly requiring by formally ants if he did not communicate convicted defendant about indigent, someone admonish a the trial the fact that was then rights. even when he communicated this fact to his many premises.” keep their files How appropriate who forever? deemed there, 374.) attorneys today, even after (Page I find that the to admon- appellate rights reflecting defendant about his ish a a record forever will maintain placed counsel and should be on both trial defendant about they admonished the just and not trial counsel. appellate rights? are several valid reasons There given opportunity this Court is When position. of fact to a prevent relegating an issue First, reflect or indi- this Court’s records match, swearing it should do so. majority of our felo- cate that a substantial agree majority opinion I “jail ny judges and our misdemeanor trial appointed counsel should retained or court admonishing judges already de- house” are admonish his client about sentencing appel- their fendants at about rights. rights. Hon. S. late Even Deborm majority respectfully I dissent to the Williams, Attorney District the Assistant legal also opinion’s failure to County represents the Great Harris who judge.3 on the trial cause, agrees of Texas in this State judges requiring all such trial to admonish Thus, I concur and dissent. their all defendants about unduly add to would not present they perform. must their tasks

Second, this Court’s reflect or records go,

indicate that court clerks come and usually sheets remain forever.

docket there, however, many attorneys

How same, sign majority opinion opinion, and attach thereto a certifi- states and 3. Given what holds, stating copy I that will believe wise that a of same has cate of service attorney, employment defendant, trial whose contract of deliver- on the hand been served upon sentencing, punish- terminates or when ing copy on that of same to the defendant a assessed, ment is and he does not intend following appears "Axer ad- date. It remain on ceedings, case after that should be sufficient: monishment prepare preprinted will fill-in- TO WHOM IT MAY CONCERN: I, case, the blanks motion to withdraw from the undersigned, have this date admonished granting permission an attached order him with to withdraw from the case at that defendant that I do not intend and advised the time, present any appeal of his case. I him on filling same to the trial after and advised the defend- have also admonished blanks, judge sign order and have the trial meaning of the and effect ant of the granting permission him to withdraw. Of court, trial and his course, rendered present the defendant should be necessity judgment, the appeal from that presents his counsel trial motion to withdraw judge. filing timely with the As to what counsel should do if the written notice court, permit judge steps refuses to him to withdraw he must clerk of the trial case, from the copy other than perfect any appeal. I have take in order I, provision in Article § of that possi- as to and advised him also admonished Constitution, proscribes of the Federal grounds appeal and their merit. ble "impairs passing any States from law that advantages and further delineated have disadvantages contracts”, being principled obligation of so admon- After go jail contempt enough am defendant, advising ishing I asked say unable to at this time. If the trial him, just what I had told if he understood withdraw, grants retained counsel’s motion to affirmative, orally replied in the both order, signs the I believe that wise retained affirmative. of the head in the and with a nod prepared also be at that time to file counsel will appeared During all of this time the preprinted clerk of the court a fill-in- with the mentally competent. fully to me to be form, in, type with the blanks filled the blanks assuming day of on this the — of the above I did all so, stating already that he has done _, A.D., 19- therein that he has "Axelized” the defendant rights, by stating he has about his Attorney Lawat of the sub- admonished the defendant about all ject matter contained on 374

Case Details

Case Name: Ex Parte Axel

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 14, 1988

Citation: 757 S.W.2d 369

Docket Number: 69808

Court Abbreviation: Tex. Crim. App.