Ward v. State

desig REYNOLDS, C.J., and later on 27 December Before COUN- report transcription of the court BOYD, nated the TISS and JJ. 904 of

er’s notes for inclusion the record on At the outset of the consideration appeal February appellant’s faulting on 12 moved for not filing for extension of time for the tran timely appointing appeal, it is counsel scription with the clerk of the trial court. appropriate to notice several matters. The motion was denied for want of authori us, First, appoint- in the record before ty untimely designated to include tran recorded, although of ment trial counsel scription appeal expli in the record on as the clerk’s certificate furnished with the State, cated in 670 Hernandez v. S.W.2d appeal notice of shows that counsel was pet’n). Thus, appointed. — Amarillo the information that trial Hernandez, pointed we out that Article ap- appointed counsel was not counsel on 40.09, supra, requires appellant de peal comes from counsel’s transcription sires the inclusion of a filing record. notes in the record on Second, assuming formally counsel was not peal, designation shall be made within appeal, there is no giving after the of notice of appellant requested record that authority and documented the lack of third, pointment appeal. of counsel on And 20-day requirement. at suspend the appellant’s the trial court’s 688-89. appeal trial counsel as his counsel on was

Thereafter, attorney, represent- another any expressed finding on the made without ing that he retained as co-coun- “has been appellant’s indigency. for, only,” sel on moved and was But aside from the fact re granted, extensions of time to file appellant’s give mains that trial counsel did lant’s brief. Within the extended timely appeal. By notice of brief, granted voluntarily notice of trial counsel moved that the be abated and the attorney of record on became point which case be returned to the State, appeal, Robinson v. given could was so that he 1983, no (Tex.App. Corpus Christi - of counsel and a have effective assistance nothing in pet’n), particularly since there is de- meaningful appeal. The motion was the record to evidence nied. terminate permission court’s for counsel to Appellant’s grounds advances six brief representation. his Harrison grounds, he con By error. the first four It (Tex.Cr.App.1974). 192-93 tends his Federal and State constitutional exclusion of the logically follows that the right to effective assistance of counsel transcription from the record on timely failure to denied the trial court’s charged the trial court’s fail cannot be appeal. presenting appoint counsel on formal, appointment sooner make a ure to contention, question, but he does concedes, holdings of Hernan situation, factual in a similar cited supra, and the cases dez v. unanimously, held, recently albeit there, complete right to a he has waived his of effec- claimed denial that a defendant’s Instead; urges that since he counsel because tive assistance of represented by appointed counsel timely designate appointed too late appeal, the trial gave trial and when appeal was not tenable the record on adequate insure an having duty the time a failure to duty, further record on had the transcription for designating the limits for guidelines, even absence in the record on Gollihar inclusion Then, ap appoint As (Tex.App.1986). 701 S.W.2d 85 concludes, pellant presumed it is Gollihar, 20-day time we reiterated prop filed a appointed attorney designating the limit for the record and avoided er requirement which procedural reasonable transcription from the exclusion of the appellants, all must be adhered has the not, to let him start over. and we are with- or authority demonstrating For these to relief out to hold otherwise. burden of reasons, are grounds first four under this met that burden and he has not overruled. silent record. grounds, last two With his us, of which occurs problem before trial court

presents his contention that the if, suggested in ten, avoided can be constitution his Federal and State violated 279, State, 661 S.W.2d Robinson meaningful appeal by failing right a al to 1983, pet.) Christi (Tex.App. Corpus - dangers of self- him as to the to admonish tell the defendant trial will the court regard, In this representation on appellate re certain basic sentencing about erred in suggests that the trial court he advising the to In addition quirements. designa him to file a failing to admonish right right appeal and of his record, principle said to be a tion of the indigent, trial the holding in the Her recognized conflict with least, should, very tell com supra. Without a nandez v. must defendant when we, course, are plete trial included in and when material to be be filed gave whether the trial court uninformed designated. must be appellate record explanation any or made the admonishment Appeals, by of Criminal Perhaps the Court State, supra, at suggested in Robinson statute, rule, will Legislature, or Nevertheless, 283, appellant. it suffices require of that infor day some state, as we did in Gollihar assurance, can, tell reasonable, mation. Then we mandatory pro supra, that the designating incomplete record is requirements for cedural a defendant deny appellant mistake, do not no relief. which there is appeal; right to a record on constitutional merely

they only on his condition BOYD, Justice, dissenting. transcrip filing simple designation revoking appeal from an order This is an gave after he tion within 20 Joseph Appellant Kenneth probation. appeal. Consequently, last two previ- Ward, plea guilty, had upon his grounds of error are overruled. punish- ously convicted of theft. His been judgment is affirmed. of 180 at confinement ment was assessed County jail and a fine of days in the Hale COUNTISS,J., concurs. re- $300, probation was probated. This BOYD, J., dissents. 4, 1984, giving rise to voked on October COUNTISS,Justice, concurring. grounds, In his first four join opinion I in the of Chief Justice timely appoint that the failure to asserts correctly ap it Reynolds because I think right to ef- appeal violated his Appeals precedents plies Court of Criminal of counsel in violation fective assistance problem area. I am we must follow in this Fourteenth Amendments the Sixth and decision, entirely with our comfortable and Article States Constitution the United however, know who is at because do not Constitu- Section 10 of the Texas State If the incomplete for this fault premise, he re- upon that tion. Based counsel, entirely on placed can be blame appeal and return this quests abate the strength is added to Jus then considerable day appel- to its status on proceeding v. Lu Boyd’s view under Evitts tice gave lant -, cey, 469 U.S. 105 S.Ct. points those sustain overriding (1985), appellant’s L.Ed.2d 821 suggested hereinafter appellant the relief counsel has to effective assistance so, I majority’s failure to do by me. To however, appellant was If, denied. I believe respectfully dissent. must of his diligent pursuit of two on either entitled to relief lant is allowed to not be rights, then he should by asking propositions. us system play games with the revoking appellant’s probation The order with the clerk of the apparently entered on October court. trial Since the time within which Although the order normally designated could record, appellant is not in this material to be included in pursu the record at the revocation by ap- 40.09, supra, ant to Article long pointed counsel. That counsel timely filed passed, and authority under of this Court’s a written notice of on October decision Hernandez v. County 1984. The Hale Clerk sent notice pet.), - Amarillo completion of the record to then, motion was denied. counsel, but no such notice was sent April moved to abate this appellant. consisting The record of a tran- and remand the cause to the trial court script and without a statement of facts was with instructions that it be “returned to the approved by judge on Octo- posture occupied at the moment notice of ber filed with this Court on appeal was filed.” This motion was also 20, November A denied. statement of facts has now been Upon receiving notice from this Court but, tendered for the reasons outlined filed, transcript that the appel had been above, has not Accordingly, been filed. counsel, 29, 1984, lant’s trial on November record is now before us without a state appointment notified this Court that his ment of facts. level,” only was “at the trial court and that recognize only that information appointed he was not on Implicitly, appointed that trial counsel was not coun- explicitly, accepted if not this Court this appeal sel on comes from that counsel’s statement of the limitation of counsel’s response filing to the notice of the and, pointment by written order dated De appellate recognize I also that 19, 1984, by per unpub cember curiam appellant requested nois record that opinion, appeal lished abated the and re appointment appeal on counsel manded the cause to the trial court for an appointment appeal indigency hearing. order, appel In that expressed finding was made without an on lant indigent, specifically was found we appellant’s indigency. (1) appellant appointed directed that: be an 19, my judgment, the December (2) attorney prosecute appeal; per curiam order of rea- this Court must appointed that counsel file his brief sonably acceptance be construed to be an thirty days within from the date of his position appointed of counsel’s that he was appointment. Ward v. No. 07-84-254-CR (Tex. purposes agree 19, only. for trial with the App.-A arillo, Dec. m mandate, majority showing absent a the con- pet.). En route to that rule, specifically trary, general appointed as a counsel noted that Tex. Code Crim. 40.09(8) (Vernon Supp.1986) indignet obligated Proc.Ann.art. for an defendant is required approval appeal notice of the of the continue to serve on and the author- attorney record to a defendant without an by proposition. ities cited them for that triggers on and that that the However, view, in the November deadline for an brief. 1984 notification counsel of the limita- tion of his and the evident order, response to this De Court’s on Court, agreement to that limitation this 20, 1984, judge appointed cember represent exception general an rule. to that appellant’s represent appel trial counsel to agree I cannot that the failure of the trial Later, provision by the lant. was made appointing appellate in counsel court with- appointed attorney counsel for the now finding any expressed out on handling days of this Within seven indigency is material in this Since 27, 1984, appointment, on December appellant represented by appointed designated counsel trial, showing absent a to the reporter’s for inclusion in the obligation appoint its to coun- the court of facts, include a statement of did Perez, 283, 284 parte sel. Ex 479 S.W.2d any right object to to the deprived him of (Tex.Crim.App.1972). in the of facts absence of such a statement a dead- For us to hold that critical indigent appellant It is axiomatic that an line, i.e., designation of the time for the assistance of is entitled to effective of facts An inclusion of a statement appointed counsel on a first 738, 741-42, passed prior to the California, v. 87 had ders 386 U.S. (1967); to effective- 1396, 1398-99, would be 493 18 L.Ed.2d S.Ct. right deny appellant’s constitutional California, 372 U.S. ly

Douglas v. 357- It 814, 816-17, counsel on the assistance of 9 L.Ed.2d 811 83 S.Ct. holding apparent ignore the Guillory v. (1963); would also 557 S.W.2d in a situation Simmons in that upon the Court (Tex.Crim.App.1977). 121 this, court has some obli- as the trial duty has a such timely request, the trial court of facts was gation to see that a statement indigent appellant an such an furnish this be done in the record and that v. Illi included adequate Griffin time commencement of the nois, 585, 590, prior to the 100 351 U.S. 76 S.Ct. 40.09, supra. supra set out in Article Guillory v. (1956); limits L.Ed. 891 facts, the a at 120. Without statement States Supreme of the United The any trial this Court to review ability of U.S. -, 105 S.Ct. Lucey, 469 Evitts in assertedly might occurred which error (1985), a explicating in L.Ed.2d 821 83 severely restricted. See Hale is right to effective criminal’s constitutional (Tex.Crim.App.1974). 509 S.W.2d recently appeal, assistance of stated: State, Simmons In right bringing an as of In held (Tex.Crim.App.1974), the Court is conviction, a criminal defendant, repre- who was where a that con- that the attempting to demonstrate had but at trial retained counsel loss drastic viction, consequent and the known had made prosecute To liberty, is unlawful. duty indigent, a that she was trial court an face appellant must criminal appeal, a hold a upon the trial court devolved trial—a that —like adversary proceeding Signif- question. hearing to determine that governed sure, intricate rules that to a To respondent be did have nominal lay-person hopelessly would be forbid- representation brought ap- when he this ding. An unrepresented appellant peal. representation —like But nominal on an unrepresented defendant at trial—is as of nominal —like protect unable to the vital interests at sentation at trial —does not suffice to stake. render proceedings constitutionally at -, S.Ct. at L.Ed.2d at adequate; party whose counsel is un- my 830. In view and for the above rea provide representation able effective sons, record shows did position in no better than one who has no not receive his constitutional counsel at all. assistance peri of counsel at a critical time at -, Lucey, supra Evitts v. 105 S.Ct. at od in his 836, 83 L.Ed.2d at 830. position i.e., If majority, did have counsel at all mind, similarity To between the times, correct, relevant it does not facts in this case and those before the change my conclusion. This record would Evitts, In as in Evitts Court is obvious. clearly show assistance of case, was entitled to an this the defendant pur- counsel was ineffective within the appeals court of as a matter of to a holding view of in Lucey, Evitts v. case, Evitts, right. this the de case, Lucey In that was convicted deprived of an effective re fendant was drug offense. A appeal by view of his his counsel’s failure filed, peal and an brief and procedural nonjurisdictional to follow a However, record were also filed. Ken- Evitts, tucky appellate procedure required that failure was to file a also rule. case, of an instrument denominated as a appeal,” “statement appeal,” “statement of which contain designate the inclusion of a failure was to parties, attorneys, the names of required statement of facts within judge, judgment, dates of the finding in Supreme Court’s period. purpose etc. The of this “state- deprived Lucey Evitts that appeal” ment of was to aid the effective assistance processing court in as the situation, mind, very similar in this noted, Supreme compliance Court with the holding. like requires to make a Ac us requirement jur- for the statement was not cord: Vicknair v. 702 S.W.2d 304 isdictional. 1985). I [1st Dist.] — Houston Because of the failure to furnish the must also note that Hernandez v. statement, Lucey’s appeal was dismissed upon supra, majority which the relies to Kentucky Appeals Court of and that support permit its refusal to of a disposition by the Kentucky was affirmed statement of facts was decided before we Supreme Court. The United States Su teaching had the benefit of the of Evitts v. preme that the failure of Lu- Court held Lucey, supra, petition and that no for dis cey’s attorney applica with the cretionary review of that case was filed timely file the ble rules and “statement of Appeals. with the of Criminal Court appeal” deprived Lucey of his to have conviction reviewed summary, whether or not deprive the result of which was to during requisite peri- process right to Lucey of his due effective appellant, od for of the on assistance of an Evitts shows, negli- insofar as this record without at -, Lucey, supra 105 S.Ct. at 836- part, gence deprived on his of a com- 37, L.Ed.2d at En route to that 830-31. and, hence, plete record on decision, following sig made the the Court constitutionally mandated to the ef- immediately following nificant comment fective assistance of counsel portion opinion quoted of its above. It Therefore, I would abate this and say: went on to the trial court remand cause to

preparation inclusion of statement of HERNANDEZ, Appellant, Steve Esteban supplemental facts to be shown in a prescribed to this Court as to be forwarded Texas, Appellee. STATE 40.09(8), supra. Article would then periods allow and the State No. 10-85-143-CR. which to file briefs

time within set out Texas, Appeals of Court 40.09(9) (10),supra. Article Waco. Parenthetically, I note 23, 1986. Jan. is not relief which would without prior precedent Texas even Evitts Perez, parte

Lucey, In Ex (Tex.Crim.App.1972), found that an

Court not furnished a statement facts on his counsel determined “because an end when mo-

their duties came to new

tion for trial was overruled and notice appeal given.” then The Court held had been denied the effective

Perez assist- Therefore,

ance of counsel. say,

went on to Perez was entitled to an However, since

out-of-time it was possible to obtain statement of

facts, the case remanded for retrial.

Id. at 285. corpus

I realize Perez a habeas However, precedent

proceeding. to me the defendant, by This

is clear. similar chain circumstances, deprived had been

effective assistance of counsel. The mat- and, by allowing the

ter is now before us facts,

filing of a statement of we can now proper legal

ensure a review and effective Otherwise, under the

assistance cases,

precedent of Perez and like as well pro- Lucey, supra, another

as Evitts

ceeding, run serious risk of the sought being granted with all the

relief expense to delay and all con-

consequent statement facts

cerned. Perez, at As in a later available.

is now might not be avail- information

time that necessity

able, result which would retrial, possible; otherwise one was

for a charges might result.

a dismissal majority’s failure to

To the respectful- I must requisite,

relief believe

ly dissent. notes contrary, presumed appel- it must be that February appeal on purposes for the for an extension of time lant was moved on to the Simmons Court went icantly, Bush peal. Furthermore, say: (Tex.Crim.App.1977). language of our mandate to the view of the the defendant court finds that If the trial and that court’s the court should take indigent, is mandate, necessary inference that appellant provide proper steps to as to the trial court was satisfied transcription of the free indigency. agree Neither can I that Proceedings omitted.) lant’s (Citations notes. fact that the record does not show in the trial court may then be had 4-0.09, requested appointment appellant with Article Vernon’s accordance materiality in any added.) has this ease. Ann.C.C.P. (Emphasis Where, here, appellant an case, In this such trial, by court-appointed counsel until De- held and counsel presumption desire there is a after remand cember Foley indigent. as an appellant if an is with- Court. (Tex.Crim.App.1974). is himself out an is, course, strength- presumption That completion entitled to notice of by the fact that notice of ened 40.09(7), It is un- record. Article Therefore, the fact actually given. given notice was never disputed such may be silent as to the record when, at a time under this requested scenario, attorney. The he was without if he failed to immaterial because even only de- that notice not failure to receive request, this would not relieve make such a the record appellant of notice that prived

Case Details

Case Name: Ward v. State

Court Name: Court of Appeals of Texas

Date Published: Jan 22, 1986

Citation: 704 S.W.2d 903

Docket Number: 07-84-0254-CR

Court Abbreviation: Tex. App.