Vicknair v. State, No. 01-85-00050-CR
| Court | Court of Appeals of Texas |
| Writing for the Court | Before EVANS; LEVY |
| Citation | 702 S.W.2d 304 |
| Parties | James Wallace VICKNAIR, Jr., Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Docket Number | No. 01-85-00050-CR |
| Decision Date | 31 December 1985 |
Page 304
v.
The STATE of Texas, Appellee.
Houston (1st Dist.).
Page 305
Don Ervin, Houston, for appellant.
John B. Holmes, Jr., Harris Co. Dist. Atty., Dinah Bailey, Harvey Hudson, Harris Co. Asst. Dist. Attys., Houston, for appellee.
Before EVANS, C.J., and COHEN and LEVY, JJ.
LEVY, Justice.
On October 24, 1984, appellant was charged by indictment with the offense of possession of marihuana, enhanced by a prior felony conviction for burglary. On January 11, 1985, the trial court heard and denied appellant's motion to suppress evidence. Pursuant to a plea bargain agreement, appellant later that day pled guilty to possession of marihuana and "true" to the enhancement allegation. The pleas were entered with the stipulation that appellant would be permitted to appeal the court's ruling on his motion to suppress evidence. The court sentenced appellant to six years confinement.
On January 14, 1985, appellant gave written notice of appeal. Counsel for appellant alleges that at such time, he verbally requested the court reporter to transcribe the notes from the hearing on the motion to suppress evidence. No written designation of matter to be included in the record on appeal was filed. On March 18, 1985, the district clerk notified appellant that the time for filing the statement of facts had expired. On March 27, 1985, appellant filed an objection to the record because it did not contain a transcript of the hearing on the motion to suppress evidence. On April 15, 1985, the trial court held a hearing on the objection and determined that appellant was not entitled to a transcription of the hearing because he had failed to comply with Tex.Code Crim.P.Ann. art. 40.09(2) and (5) (Vernon Supp.1985), which mandate the appellate procedure for obtaining portions of a record to be used on appeal. It is from this order that appellant now appeals.
Appellant presents four grounds of error in which he contends that the trial court erred in denying his request for a transcription of the hearing on his motion to suppress evidence. We will discuss only the fourth ground as it is determinative of this appeal. In it, appellant asserts that he has been denied effective assistance of counsel due to his attorney's failure to properly and timely perfect the record on appeal pursuant to article 40.09. We agree.
The federal constitution does not require the individual States to grant appeals as of right to criminal defendants who seek to review alleged trial court errors. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). However, if a State has created appellate machinery, then the procedures employed in adjudicating appeals must satisfy the guarantees of the Due Process and Equal Protection Clauses of the federal constitution. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). The United States Supreme Court has recently determined that the Due Process Clause of the Fourteenth Amendment extends such protection to a criminal defendant seeking an appeal, guaranteeing that he shall have effective assistance of counsel on his first appeal of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Evitts provides:
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In bringing an appeal as of right from his conviction, a criminal defendant is attemptting to demonstrate that the conviction, and the consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a...
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Ward v. State, 325-86
...of Appellate Procedure 1.090. 8 See also, Shead v. State, 711 S.W.2d 345 (Tex.App.--Dallas 1986, disc. rev. ref'd); Vicknair v. State, 702 S.W.2d 304 (Tex.App.--Houston [1st Dist.] 1985, no pet.); Robinson v. State, 661 S.W.2d 279 (Tex.App.--Corpus Christi 1983, no 1 The statements found in......
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Gomez v. State, 13-88-433-CR
...to file a statement of facts had rendered any review of the appeal a "meaningless ritual." Ward, 740 S.W.2d at 800. In Vicknair v. State, 702 S.W.2d 304, 307 (Tex.App.--Houston [1st Dist.] 1985, pet. ref'd), the Court granted an out-of-time appeal because counsel failed to designate a state......
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Young v. State, 01–09–00790–CR.
...Young cannot establish his trial counsel's deficient performance or any prejudice therefrom. See Thompson, 9 S.W.3d at 813;McQueen, 702 S.W.2d at 304. We overrule Young's first issue.II. Cruel and unusual punishment In his second issue, Young argues that his 15–year sentence for the first-d......
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Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 70000
...an out of time appeal and that he is entitled to "one appeal as of right," particularly Evitts v. Lucey, supra; Vicknair v. State, 702 S.W.2d 304 (Tex.App.--Houston [1st] 1985), no PDR; Black v. State, 677 S.W.2d 150, at 154 (Tex.App.--Houston [1st] 1984) (effect of granting habeas relief b......
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Ward v. State, 325-86
...of Appellate Procedure 1.090. 8 See also, Shead v. State, 711 S.W.2d 345 (Tex.App.--Dallas 1986, disc. rev. ref'd); Vicknair v. State, 702 S.W.2d 304 (Tex.App.--Houston [1st Dist.] 1985, no pet.); Robinson v. State, 661 S.W.2d 279 (Tex.App.--Corpus Christi 1983, no 1 The statements found in......
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Gomez v. State, 13-88-433-CR
...to file a statement of facts had rendered any review of the appeal a "meaningless ritual." Ward, 740 S.W.2d at 800. In Vicknair v. State, 702 S.W.2d 304, 307 (Tex.App.--Houston [1st Dist.] 1985, pet. ref'd), the Court granted an out-of-time appeal because counsel failed to designate a state......
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Young v. State, 01–09–00790–CR.
...Young cannot establish his trial counsel's deficient performance or any prejudice therefrom. See Thompson, 9 S.W.3d at 813;McQueen, 702 S.W.2d at 304. We overrule Young's first issue.II. Cruel and unusual punishment In his second issue, Young argues that his 15–year sentence for the first-d......
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Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 70000
...an out of time appeal and that he is entitled to "one appeal as of right," particularly Evitts v. Lucey, supra; Vicknair v. State, 702 S.W.2d 304 (Tex.App.--Houston [1st] 1985), no PDR; Black v. State, 677 S.W.2d 150, at 154 (Tex.App.--Houston [1st] 1984) (effect of granting habeas relief b......