Ex parte Axel

• Decision Date: 14 September 1988
• Docket Number: No. 69808,69808
• Parties: Ex parte Clifton AXEL, Jr.
• Court: Texas Court of Criminal Appeals

Page 369

757 S.W.2d 369

Ex parte Clifton AXEL, Jr.

No. 69808.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 14, 1988.

Clifton Axel, Jr., pro se.

John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann and Deborah S. Williams, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

This a post conviction habeas corpus proceeding pursuant to Article 11.07, V.A.C.C.P., seeking relief in cause number 309325 in the 174th Judicial District Court of Harris County.

Essentially applicant contends that he was deprived of his right to appeal from a judgment of conviction in that his retained attorney failed to give notice of appeal or to file and present to the trial court a motion to withdraw from further representation of applicant. We ordered the cause filed and set in order to determine where lies the burden of counseling a defendant on his appellate rights. Rejecting the notion that it is on the judge of a trial court, and concluding that such responsibilities rest upon counsel unless and until he is granted leave to withdraw, we will grant relief.

"A lawyer's time and advice are his stock in trade." That classic axiom attributed to Abraham Lincoln provides guidance in our resolving the recurring problem presented by applicant.

The facts are that on or about March 18, 1980, after a jury found him guilty of aggravated robbery and the trial judge assessed punishment at confinement for a term of thirty-five years, applicant, by now an indigent he alleges, made known to his retained counsel that he desired to appeal and requested counsel to continue to represent him; applicant asserts that the trial judge asked his attorney whether he intended to take an appeal and counsel said he would; however, counsel testified that "[t]o the best of my recollection" he did not state in open court that he would represent applicant on appeal because "that would have been tantamount to telling the Court ... that we were asking for an appeal;" having explained to applicant the process of an appeal and that it was so costly that counsel "was not financially able to support an appeal," he did not give notice of appeal after sentencing on May 1 since "I never intended to appeal;" there was "no need to file a motion to withdraw because I had concluded the case;" applicant, still in confinement, says he made attempts to contact counsel about his appeal but "received no reply." ¹

The judge of the convicting court found applicant was not deprived of his right to appeal in that "counsel did not tell him he would appeal his case." But that negative finding does not serve "to correct the ambiguity of representation which all too often follows a conviction," Ward v. State, 740 S.W.2d 794, at 797 (Tex.Cr.App.1987).

While such ambiguity of representation may not be created by "the conscious indifference of any particular party," ibid, appellate courts are well acquainted with the resultant confusion at the very point in the appellate process when certainty is imperative. See, e.g., Shead v. State, 711 S.W.2d 345, at 346 (Tex.App.--Dallas 1986) no PDR, and Robinson v. State, 661 S.W.2d 279, at 283 (Tex.App.--Corpus Christi 1983) no PDR. The right to a meaningful appeal is too valuable to be lost to inertia within the criminal justice system.

A solution to the problem proposed in some quarters is "to place the responsibility on the trial judge to advise the defendant at the proper time of his appellate rights, whether he be represented by retained or court appointed counsel. Teague, J., dissenting in Ward v. State, supra, at 803, ² in agreement with Justice Countiss, concurring in Ward v. State, 704 S.W.2d 903, at 905 (Tex.App.--Amarillo 1986), who in turn drew on Robinson v. State, supra, viz:

"... The trial judge should explain these [appellate] rights to the defendant in open court and the record should so reflect. If counsel does not give notice of appeal in open court at the time of sentencing, the trial court should explain to the defendant that notice of appeal must be given within fifteen days of sentencing. The trial court should admonish the defendant of the importance of meeting the appellate deadlines."

Robinson, supra, at 283.

In addition, Justice Countiss would have the trial judge tell defendant of his right to appointed counsel if indigent and when material to be included in the appellate record must be designated. Further, he suggested this Court by rule, or the Legislature by statute, "require the giving of that information." With that, he concluded, "Then we can, with assurance, tell a defendant that the incomplete record is his mistake, from which there is no relief." Ward, 704 S.W.2d, at 905. ³

The solution thus proposed is derived, at least in part, from Fed.R.Cr.Pro. 32(a)(2). Teague, J., dissenting in Ward v. State, supra, at 803. As pertinent here, it provides:

"(2) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal, and the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis.... If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant."

As adopted in 1966, the rule substantially revised former rule 37(a)(2), which was conditioned on a defendant's being then unrepresented by counsel. According to Notes of Advisory Committee on Rules following Rule 32, the rationale for removing that condition includes certain considerations, viz:

"The court is required to advise the defendant of his right to appeal ... because situations arise in which a defendant ... is not adequately advised by such counsel of his right to appeal. Trial counsel may not regard his responsibility as extending beyond the time of imposition of sentence. The defendant may be removed from the courtroom immediately upon sentence and held in custody under circumstances which make it difficult for counsel to advise him."

At the time of sentencing in the instant cause applicant had ten days after it was pronounced in which to give or file notice of appeal. Former article 44.08(c). ⁴ From the record before us it appears that after his arrest applicant was confined without bail; but that he remained in custody upon being found guilty did not hamper counsel in explaining to applicant "the process of appeal," and during this period trial counsel and applicant had discussions, albeit briefly, about taking an appeal. Thus the first and third considerations for Federal Rule 32(a)(2) are not relevant here.

The attorney-client relationship continued. Ward v. State, supra, at 796-797. However, having informed applicant that an appeal is costly and he could not financially support one, counsel certainly regarded his responsibility did not extend to representing applicant for appellate purposes. Yet he did not inform the trial judge or seek leave to withdraw. So, to some degree the second reason for Federal Rule 32(a)(2) may be at work here.

Nevertheless, that the Federal authorities opted to transfer a duty or responsibility of an attorney to his client over to a trial judge is not sufficient reason for this Court to dictate the same requirement by rule of decision, especially when the Legislature has only recently provided otherwise. See note 3, ante. Rather than impose a state counterpart, our concentration should be on restating the role of a criminal defense lawyer in this kind of situation.

Precise obligations are laid out in ABA Standards Relating to the Administration of Justice ("Standards"), The Defense Function, Part VIII. After Conviction. After sentencing, the lawyer explains to defendant "meaning and consequences" of the judgment and "his right to appeal." He expresses his professional opinion as to "meritorious grounds for appeal and as to probable results of an appeal," as well as its "advantages and disadvantages." "The decision whether to appeal must be the defendant's...." The lawyer "should take whatever steps are necessary to protect the defendant's right of appeal." § 8.2 Appeal, Standards, at 135. ⁵

In Criminal Appeals, Part II. Transition from Trial Court to Appellate Court, 2.1 The Notice of Appeal, is written:

(b) It is appropriate for courts imposing sentence in contested cases to assume the burden of advising the defendant that he has the right of review, that it must be exercised within a specified time, and that he should promptly consult counsel in that regard."

Standards, at 435.

Certainly, as we all recognize, for an unknowing defendant to learn of his appellate rights someone must advise him of them. But we are not persuaded that "in order to eliminate any question about whether the defendant received such advice ... the trial judge is best equipped to give that advice[.]" Teague, J., dissenting in Ward v. State, supra, at 802-803. Indeed, we are convinced that trial counsel is not only the best source of such advice but also that it is his duty as an attorney to give it, to the end that his client gains a full understanding of relevant considerations in determining whether to pursue an appeal, as well as procedural requisites for giving notice of appeal and the like. Ward v. State, supra, at 797.

Representation by trial counsel does not terminate at end of trial--if that means when a jury has returned its final verdict on punishment. The sentencing proceeding is a critical part of trial, requiring assistance from trial counsel, and similarly thereafter the determination to give notice of appeal. Informing a defendant of his right to appeal is part and parcel of also further advising him along lines of the Standards, ante, at 373, in order to make a decision whether to take an appeal. Surely a judge is precluded from giving that kind of advice, and who better than an...