Shead v. State, s. 05-85-00595

• Decision Date: 06 May 1986
• Docket Number: Nos. 05-85-00595,s. 05-85-00595
• Citation: 711 S.W.2d 345
• Parties: James Blaine SHEAD, Appellant, v. The STATE of Texas, Appellee. to 05-85-00598-CR.
• Court: Texas Court of Appeals

Page 345

711 S.W.2d 345

James Blaine SHEAD, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-85-00595 to 05-85-00598-CR.

Court of Appeals of Texas Dallas.

May 6, 1986.

Rehearing Denied June 4, 1986.

Melvyn Carson Bruder, Dallas, for appellant.

Donald G. Davis, Asst. Dist. Atty., Dallas, for appellee.

Before AKIN, HOWELL and HOLLINGSWORTH, JJ.

AKIN, Justice.

Appellant, James Blaine Shead, was convicted of four counts of theft. In our cause no. 05-85-00597-CR, he was assessed ten years' probation plus a $2,500 fine. He was assessed three years' confinement in the Texas Department of Corrections in each of the remaining cases. In four grounds of error, appellant contends that: 1) the district clerk erred by failing to include copies of a motion to dismiss in the record; 2) he was denied effective assistance of counsel when he was required to proceed on appeal without a statement of facts; and 3) the trial court erred in proceeding to trial on quashed indictments. We agree that appellant was denied effective assistance of counsel because appellant's counsel failed to timely designate the record on appeal to include the statement of facts. Accordingly, we abate the appeals and return the cases to the trial court so that appellant may include the statement of facts in the records on appeal.

In his second and fourth grounds of error, appellant argues that he has been denied effective assistance of counsel because 1) the trial court approved the records on appeal knowing that appellant was not represented by counsel up until the time of approval and 2) we refused him the right to file the statement of facts. Appellant's trial counsel gave notice of appeal on May 29, 1985. On July 2, the trial court notified trial counsel of completion of the appellate record in each case. On July 8, counsel wrote a letter to the deputy district clerk informing the clerk that he only represented appellant at the trial level, not on appeal, but that he could not understand how the record could be complete when the statement of facts was not yet due to be filed. On July 10, the trial court sent appellant a letter stating that the court had been notified that appellant's trial counsel was no longer representing appellant and that appellant should have an attorney contact the court immediately so that the appeal could go forward. The letter pointed out that the statement of facts was due on July 29. ¹ Appellant's counsel asserts that, while he represented appellant at trial, he was not retained to represent appellant on appeal until July 29. No objections to the records were filed, and the records were approved on July 30.

Appellant first argues that trial counsel's giving notice of appeal did not obligate him to represent appellant on appeal. Appellant contends, because the trial court was aware that he was not represented by counsel, that he desired to have a statement of facts, and presumptively that no designation of materials had been filed, the trial court effectively denied him assistance of counsel on appeal. Appellant cites Conrad v. State, 537 S.W.2d 755, 757 (Tex.Crim.App.1976), in which the court held that acting as retained counsel at trial does not bind counsel to furnish a record at his own expense on appeal. In Robinson v. State, 661 S.W.2d 279, 283 (Tex.App.--Corpus Christi 1983, no pet.), however, the court held that, by giving notice of appeal at the conclusion of a trial, an attorney voluntarily becomes the attorney on appeal. See also Shead v. State, 697 S.W.2d 784, 785 n. 2 (Tex.App.--Dallas 1985, no pet.).

Appellant contends that Robinson is contrary to Conrad. We disagree. Robinson and Shead stand for the proposition that, if an attorney gives notice of appeal, the attorney becomes the attorney of record on appeal. Robinson and Shead do not require the attorney on appeal to pay for the record. We agree with Conrad in this respect. But, short of paying for the appellate record out of his own pocket, the attorney on appeal is required to do all that is necessary to insure that the appellant receives effective assistance of counsel on appeal. See Roberts v. State, 705 S.W.2d 803, 804-05 (Tex.App.--Dallas 1986, no pet.); see also Robinson, 661 S.W.2d at 283.

Appellant argues alternatively that, if we conclude that he was represented by counsel during the relevant time period, then counsel rendered ineffective assistance by failing to designate the materials for inclusion in the records on appeal within twenty days of appellant's giving notice of appeal pursuant to article 40.09, section 2 of the Texas Code of Criminal Procedure. ² Specifically, counsel did not timely designate a statement of facts, and consequently, we granted the State's motion for reconsideration of our order granting an extension of time for filing the statement of facts, set aside our prior order, and denied appellant's motion for an extension of time for filing the statement of facts. See Shead, 697 S.W.2d at 785-86. We adhere to our decision that no extension of time for filing the statement of facts may be granted unless a timely designation of the statement of facts has been made. In neither his motion to extend time for filing the statement of facts nor his response to the State's motion for reconsideration of our original order granting the extension did appellant claim that counsel was ineffective because counsel failed to timely designate the statement of facts. We agree with the contention as now raised that appellant was denied effective assistance when counsel did not timely designate the statement of facts under article 40.09, section 2.

In Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985), the Supreme Court held that there is a constitutional guarantee of effective assistance of counsel on appeal in every criminal prosecution, whether counsel is appointed or retained. See also Roberts, 705 S.W.2d at 805. In Evitts, appellate counsel filed a timely notice of appeal, record, and brief. Counsel did not, however, file a "statement of appeal" containing the names of the appellants and appellees, counsel and the trial judge, the date of judgment, the date of notice of appeal, and certain other information. This document was required to be filed by a Kentucky rule of appellate procedure. The Kentucky Court of Appeals granted the Commonwealth's motion to dismiss because the "statement of appeal" was not filed. Evitts, 105 S.Ct. at 832. The granting of a writ of habeas corpus was affirmed by the Supreme Court on the ground that the appellant had been denied effective assistance of counsel. The Court held:

In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, and the consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that--like a trial--is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant--like an unrepresented defendant at trial--is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right--like nominal representation at trial--does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better...